Alzayadi v Civil 1 Pty Ltd
[2022] NSWPIC 427
•1 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Alzayadi v Civil 1 Pty Ltd [2022] NSWPIC 427 |
| APPLICANT: | Fahd Alzayadi |
| RESPONDENT: | Civil 1 Pty Ltd |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 1 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Disputed claim for injury to cervical spine and cost of C5-7 anterior cervical decompression and fusion pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); consideration of Kooragang Cement Pty Ltd v Bates; Paric v John Holland Constructions Pty Ltd and Diab v NRMA Ltd; the applicant sustained injury to his cervical spine on 16 July 2019; and the proposed surgery is reasonably necessary medical treatment; Held — award for applicant for the cost of surgery, pursuant to section 60(5) of the 1987 Act. |
| DETERMINATIONS MADE: | The Commission determines: 1. That the respondent is to pay, pursuant to s 60(5) of the Workers Compensation Act 1987, the cost of C5-7 anterior cervical decompression and fusion. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Fahd Alzayadi (Mr Alzayadi) was employed by the respondent, Civil 1 Pty Ltd (Civil) as a demolition labourer.
Mr Alzayadi sustained an accepted injury to his left and right knees and left foot on 16 July 2019. He also claims to have sustained various other injuries, which are not the subject of these proceedings, and an injury to his cervical spine, which is the subject of this dispute.
The applicant completed a Worker’s Injury Claim Form (the claim form) on 31 July 2019. He claimed that on 16 July 2019, he was performing demolition work when he twisted his foot and fell down from stairs. He described his injuries as “fracture foot, lower back pain, neck, knee and hand”.
On 20 October 2020, the respondent’s workers compensation insurer, Insurance & Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ICare disputed liability for injury to the applicant’s cervical spine, lumbar spine, neck, fifth metatarsal fracture (which it maintained had resolved), right wrist (although it appears it accepted there had been an injury to the right wrist that had resolved) and post-traumatic stress disorder. ICare accepted liability for injury to the applicant’s left and right knees.
The applicant’s solicitors requested a review of iCare’s decision.
On 2 November 2021, iCare amended and maintained its decision. It still disputed that the applicant had sustained injury to his back and neck. It maintained that the injury to his left foot had resolved. It appears that it also maintained that the injury to his right wrist had resolved.
ICare amended the decision to rely on ss 4(b) and 9A of the Workers Compensation Act 1987 (the 1987 Act) in relation to injuries to the lumbar spine, cervical spine and right wrist. It noted that the insurer had not determined liability in relation to proposed neck surgery, so the request for treatment fell outside the scope of the review.
A further review of iCare’s decision was requested on 4 March 2022.
On 18 March 2022, iCare advised the applicant that its decision of 2 November 2021 was maintained. It advised that the proposed cervical spine surgery was outside the scope of its review, as it was a matter for his claims team to consider. The decision to dispute liability for his lumbar spine, cervical spine, right wrist and psychological injuries was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 31 March 2022. He claimed that on 16 July 2019, he was collecting asbestos material in a rubbish pile when his foot got caught in a piece of wood, causing him to trip down the steps. It claimed that he “also seeks to resolve the dispute regarding liability for injuries to the cervical spine, lumbar spine, right wrist and left foot. The insurer has accepted injury to the bilateral knees”.
The Application claimed the sum of $25,184.30 for the cost of C5-7 anterior cervical decompression and fusion.
The respondent lodged its Reply on 20 April 2022.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained an injury to his cervical spine, and
(b) the reasonable necessity of the proposed surgery.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The matter was listed for telephone conference before me on 28 April 2022. Ms Khatri appeared for the applicant and Mr Turner appeared for the respondent. The applicant and Ms Issa of EML were also present. Mr El-Khisin, interpreter in the Arabic language, also attended.
The parties were advised that the only dispute before the Commission was the proposed surgery to the applicant’s cervical spine, the determination of which necessarily entailed a determination of whether he had sustained injury to his cervical spine. No determination would be made regarding any other alleged injury.
The matter was listed for conciliation/arbitration hearing by telephone on 28 June 2022. Mr Eirth of counsel, instructed by Ms Khatri, appeared for the applicant, who was present. Mr Rickard of counsel, instructed by Mr Turner, appeared for the respondent. Ms Ola Finau of iCare attended. Ms Darouiche, interpreter in the Arabic language, also attended.
At the conclusion of the hearing, the applicant asked if I would speak to Associate Professor Hope, whom he has qualified, about the matter. After a brief adjournment, Mr Eirth confirmed that he had explained to the applicant why that was not appropriate and would not occur.
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
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments;
(b) Reply and attachments;
(c) Application to Admit Late Documents and attachments dated 20 June 2022 filed by the respondent, and
(d) Application to Admit Late Documents dated 22 June 2022 and attachments, filed by the applicant.
Oral evidence
There was no application by either party to cross-examine any witness or call oral evidence.
FINDINGS AND REASONS
Evidence of the applicant, Fahd Alzayadi
Mr Alzayadi’s first statement is dated 24 March 2022.
The applicant commenced work with Civil on about 27 February 2019, as a full-time demolition labourer. His duties included assisting with demolition. If a house had asbestos, he was required to enter it and separate asbestos affected items. He would sometimes be asked to cut metal or assist with moving items before demolition.
On 16 July 2019, the applicant went into a house to separate asbestos affected items. He was in the area that, prior to the demolition, was the kitchen. It was accessible by three to four stairs.
While the applicant was collecting the asbestos material, his left foot got caught under a piece of wood from the rubbish pile from the demolition. This caused him to trip down the steps. He fell on his knees on the first two steps. He then fell further. His neck, back and shoulder landed on a piece of wood on the ground.
The applicant recalled being in extreme pain. His ankle had swelling, and his neck, right hand, lower back, and feet were hurting. He was unable to get up for a while.
The applicant eventually got up and approached a co-worker, whose name he believed was Sachin, outside the house. Sachin assisted him to take off his shoe and put an ice pack on his foot, which had swelled up.
The applicant’s colleagues, whose names he believed were Javad and Raj, also came to look at his condition. Raj was the safety officer, but no statements were taken and no ambulance was called.
The applicant called his supervisor, Ziad, who told him to go the hospital. He told Raj he couldn’t walk, due to the injury to his left foot. Raj took him to the train station and he caught the train to Fairfield, where his general practitioner (GP) is located.
The applicant consulted Dr (Nasser) Hanna at Fairfield Chase Medical [and Dental] Centre (Fairfield Chase). He called his friend, Ahmad, to assist him, and Ahmad took him to the X-ray centre that day.
Dr Hanna referred the applicant to orthopaedic surgeon, Dr Yuk Kai Lee. He was required to wear a boot for approximately six months. After the boot was removed, he required a crutch until his surgery in August 2020.
The applicant later nominated Workers Doctors as his nominated treating doctors (NTD). They referred him to Dr Bhisham Singh, spinal surgeon, and Dr Gavin Soo, orthopaedic surgeon.
The applicant has trialled conservative treatment, including hydrotherapy, rehabilitation, physiotherapy, and pain medication, with only temporary relief. His doctors recommended injections for pain relief, but he was unable to trial them, as the insurer denied the request.
The applicant underwent surgery on both knees in August 2020, performed by Dr Soo. Following the surgery, he required two crutches. He was also consulting a psychiatrist and psychological counsellors.
Dr Singh has recommended neck surgery. The insurer has declined liability for the surgery, which the applicant was still seeking.
The applicant has listed his ongoing symptoms and disabilities. Relevantly, they include pins and needles from his neck into his hands; pain in the back of his neck; and restricted movement of, and pain when moving, his cervical spine.
Mr Alzayadi has made a second statement, dated 20 June 2022. He had reviewed his records from Fairfield Chase.
In May 2015, the applicant attended his GP regarding a cough, sore throat and back pain. He had an X-ray of his back, and his doctor explained it was normal. The pain resolved within a few days with conservative treatment. He did not recall complaining about knee pain.
The applicant did experience pain to his back, neck, right wrist, right hand, both knees and left foot on the day of the injury. However, when he reported the injury to Dr Hanna, he focused on the injury to his foot, as this was his main concern, due to the fracture. The remainder of his first statement remained accurate.
Medical evidence
Fairfield Chase Medical and Dental Centre
The applicant became a patient of Fairfield Chase in January 2013.
The records contain a Workers Compensation First Attendance Form, which is undated.
The date of injury is recorded as 16 July 2019, and the type of injury as “foot fracture – back injure [sic]”.
There is a second Workers Compensation First Attendance Form, also undated, which recorded the date of injury as 16 July 2019, and the type of injury as “left ankle fractured”.
Dr Hanna recorded on 16 July 2019 that the applicant had a “twisted” injury at work. He noted left ankle swelling, pain and tenderness on the lateral aspect, and “av#?”. An X-ray of the left foot was requested, and it was noted that the applicant had twisted his ankle and had a sore left foot.
There is what appears to be a report of the X-ray later that same day, by Dr Tian Hiong Priyamanna. It noted a non-displaced transverse fracture across the base of the fifth metatarsal. The applicant was advised to get a moon boot and see Dr Hanna tomorrow. This was a WorkCover injury. The applicant may need specialists and physio.
Dr Hanna issued the applicant with a medical certificate on 16 July 2019, certifying him as unfit for work until 23 July 2019 inclusive, due to “l foot inj at work”.
The applicant again consulted Dr Hanna on 17 July 2019, when they discussed management of his left foot fracture.
The first certificate of capacity issued by Dr Hanna is dated 17 July 2019. The date of injury was 16 July 2019. The applicant “twisted l foot at workplace”. The diagnosis was “fractured 5th mts (metatarsal) l foot”.
On 31 July 2019, the practice received correspondence from Dr Eric Lim of Workers Doctors, who advised that the applicant was attending that practice for his injuries and would continue to see Fairfield Chase for his general practice needs. Dr Lim requested the applicant’s complete records. They were sent on 5 August 2019.
On 2 September 2019, Dr Sabri Hasam recorded that the applicant had a left (fifth) metatarsal fracture six weeks ago. He needed a follow up X-ray. He was wearing a CAM boot and felt better in it.
Dr Eric Lim (Workers Doctors) – GP
Dr Lim reported, “in my capacity as the NTD” for the applicant on 31 July 2019.
The applicant had presented for initial consultation on 31 July 2019, for an injury to foot/back/knee/neck. He reported that on 16 July 2019, he suffered a neck, left foot, back and right knee injury after he twisted his left foot and fell from stairs at work.
Dr Lim opined that it would be reasonable to conclude that the mechanism of injury was the direct result of the applicant performing the tasks of a demolition worker. The history was consistent with employment being the main contributing factor to the injury.
The applicant’s symptoms were recorded as neck pain and stiffness; lower back pain and stiffness, radiating to the right hip and right leg; pins and needles in the right foot; right knee pain, clicking and locking; left foot pain and numbness; trouble sleeping; nightmares; and flashbacks.
Relevantly, Dr Lim recorded that the applicant had 70% flexion and 30% extension of his cervical spine. He diagnosed cervical spine strain (NDI (Neck Disability Index) 64%); lumbar spine radiculopathy (ODI (Oswestry Disability Index) 69%); right knee strain left foot fifth metatarsal non-deplaced [sic] transverse fracture; and acute stress disorder.
The applicant was referred for X-rays, and to a physiotherapist, psychologist, orthopaedic surgeon and spinal surgeon, as well as to an Arabic interpreter.
Dr Lim opined that the applicant’s condition had stabilised. He had been seeing Dr Lim for ongoing care. His injury related disabilities were foot/back/knee/neck.
Dr (Christopher) Gavin Soo – orthopaedic surgeon
Dr Soo reported to Dr Lim on 12 September 2019.
Dr Soo recorded a history that on 16 July 2019 the applicant tried to jump down three to four stairs to avoid some rubbish. He fell, injuring both knees, his left ankle, right wrist and right thumb. Initially, he only complained of pain in his left foot. He saw his GP that day, and
X-rays showed a fracture of his foot. He was placed in a CAM boot. The second day after the injury, he noticed pain in both knees, worse on the left.The applicant denied any previous problems or pain to his knees or left foot. He was otherwise fit and healthy.
Dr Soo reported that the applicant was wearing his CAM boot. He continued to get pain to his left foot, mainly when he walked. He wore the boot when he was outside. The pain was slowly getting better.
The applicant also complained of bilateral knee pain, on and off. He had pain anteriorly to both knees on waking, and difficulty kneeling. He had pain at night but was able to sleep. Physiotherapy helped during the treatment, but afterwards the pain returned. His knees swelled and clicked regularly.
Dr Soo’s examination was directed to the applicant’s knees and left foot. He referred to investigations of the left foot and right knee.
Dr Soo opined that the applicant had ongoing symptoms to his right and left knees and left foot. He expected the metatarsal fracture to heal over the coming weeks. The applicant should continue to wear the CAM boot while he was symptomatic. He had an acute osteochondral injury to his right knee, which Dr Soo felt could be managed non-surgically. He recommended MRI of the left knee.
Dr Soo next reported on 6 January 2020, having seen the applicant that day.
The applicant had not started any exercises to his left foot and ankle. He said he continued to get pain to his knee and foot. He walked with a crutch outside of home. He was still taking analgesia.
Dr Soo examined the applicant’s left foot. He opined that the applicant should start physiotherapy to his foot and ankle. He wanted the applicant to improve the strength of his calf and lower leg. He also sent the applicant for repeat X-ray of his foot.
On 5 May 2020, Dr Soo reported that he had conducted a telephone conference with the applicant.
The applicant continued to have pain in both knees, worse on the left. Dr Soo commented on his investigations. He had been having regular physiotherapy to both knees.
Dr Soo reported that the applicant also had pain in his left foot, right hand and wrist, which were all sites of injury following the accident. The applicant had multiple areas of pain, which he said had not improved at all. He was most concerned about his knees and lower back.
Dr Soo had a long discussion with the applicant about his knees, explaining his options. He was to send a request for surgery for both knees.
Whilst the body of the report does not refer to injury to the applicant’s neck, the heading includes, after the claim number, “Foot/Neck/Back/Knee”. This appears to have been taken from Dr Lim’s description.
On 25 May 2020, Dr Soo had a further telehealth consultation with the applicant, as the applicant wanted to discuss his injuries and management plan. He spent a long time discussing the injuries to the applicant’s knees.
The applicant continued to complain of ongoing neck and lower back pain, and Dr Soo recommended that he be reviewed by a spinal surgeon.
This report also includes the heading “Foot/Neck/Back/Knee”.
Dr Soo reviewed the applicant on 24 August 2020, after surgery to both knees. He had had a good result. Dr Soo recommended that he start physiotherapy again. This report also includes the heading “Foot/Neck/Back/Knee.”
On 12 October 2020, Dr Soo again reviewed the condition of the applicant’s knees. He reported that the applicant had been seeing a spine specialist about his lower back and right leg pain. He was waiting for an injection to his back.
The applicant was unsure if his knees were improving. Clinically, he still had significant irritability, although, based on the findings on arthroscopy, Dr Soo would have expected more… (the remainder of the report is not before me, but it includes the heading “Foot/Neck/Back/Knee.”)
Dr Ian Smith – injury management consultant
Dr Smith reported to iCare on 6 March 2020.
Dr Smith recorded a history that on 16 July 2019, the applicant fell 1.5m when he tripped down some stairs. He only initially reported an ankle injury. He initially consulted his usual GP, Dr Hanna, and first attended a “union-affiliated medical practice” on 31 July 2019. It was then reported that he had sustained injuries to the cervical spine, lower back pain radiating down the right leg, left foot pain, right knee pain, and psychological symptoms.
Mr Alzayadi had been cross-referred among the various practitioners in the practice, being managed with medication, physiotherapy, psychiatry (medication), psychological counselling and orthopaedic surgeons.
The applicant reported that when he fell, he first landed directly on his left knee and subsequently on his right, with the left being worse. Dr Smith commented that this appeared to be at odds with the right knee being imaged two months before the left.
The applicant complained of painful restriction of movement in the cervical spine. The pain was bilateral and “comes and goes”.
Dr Smith recorded that there was voluntary tensing of muscles on testing for cervical spine movement, with about half normal range of movement. Outside formal examination, the applicant clearly had a much greater range of movement.
Dr Smith found the applicant difficult to assess, as his presentation was medically inconsistent, such that any underlying disability was being masked. The examination of the lumbar spine, cervical spine and left knee demonstrated inconsistent findings.
Dr Gregor Bruce – orthopaedic surgeon
Dr Bruce was qualified by the respondent and reported to iCare first on 20 March 2020.
The applicant described having slipped at the top of a flight of six steps. He fell and twisted his left foot, suffered a direct impact onto his left knee and twisted and fell directly onto his right knee and right hand. The right side of his body took a considerable part of the impact. He was aware of soreness in his neck and back immediately after the incident.
The applicant’s most symptomatic areas were his lower back and left knee. He also complained of his right knee, left foot, neck and right hand. He described a constant pain at the back of the neck, increased when he attempted to move it. It was also affected by posture. The pain also radiated down his right upper limb in a non-dermatomal distribution.
Dr Bruce recorded pain behaviour. He opined that the symptoms of multiple pain were inconsistent with the nature of the injury. The examination findings were also inconsistent with the complaints and injury. There was a discrepancy between observed movement and tested movement, which applied to all joints.
It was not possible to assess whether the applicant’s presentation was deliberate feigning or an expression of his overall psychological disturbance. Dr Bruce opined that the latter was more likely. The applicant gave the impression of being distressed and demoralised, which had resulted in a greater degree of pain and reduced movement than would otherwise be the case.
Dr Bruce recorded no abnormal physical signs relevant to the applicant’s cervical spine. He was provided with no investigations of the cervical spine.
Dr Bruce opined that the applicant had a naturally occurring degenerative cervical spondylosis with chronic neck pain. This was not related to his fall at work. The diagnosis provided by his NTD of cervical facet opening dysfunction was “a non-specific and meaningless diagnosis and is a reflection of naturally occurring cervical spondylosis”.
Dr Bruce opined that the mechanism of injury was not consistent with degenerative changes in the applicant’s cervical and lumbar spines. The work injury had not caused the cervical pathology. It was doubtful that it even caused increased symptoms.
Dr Bruce again reported on 17 December 2021.
The report was limited to the applicant’s “bilateral knees” and I will not discuss it in detail. However, Dr Bruce noted that Dr Singh had advised the applicant to have injections into his cervical spine and had foreshadowed that he would most likely advise anterior fusion of the neck.
Dr Bruce commented that it was highly likely that any spinal surgery would have the same “dismal result” as the surgery to the applicant’s knees.
The applicant again demonstrated pain behaviour and there was discrepancy between observed movement of his knees and on formal examination.
Dr Graham George – consultant psychiatrist
Dr George was qualified by iCare and reported first on 8 April 2020.
Dr George recorded a history that the applicant fell down about six steps, landing on his left ankle, left knee and then his right knee. He also noted some initial pain behaviours, which disappeared quite quickly.
Dr George was unable to diagnose the applicant with any psychiatric disorder related to his fall on 16 July 2019. His treating psychiatrist, Dr David Kumagaya, had diagnosed post-traumatic stress disorder, with which Dr George disagreed.
Dr George again reported on 23 March 2022. He had assessed the applicant by telehealth. He referred to Dr Bruce’s report of 17 December 2021.
The applicant was largely uncooperative with the examination. He asked if Dr George was “the doctor who rejected me”. His affect was initially hostile and angry, but he settled slightly as the interview progressed. He appeared angry and projected hostility.
Dr George was again unable to make a psychiatric diagnosis in relation to the injury. He concluded that it was more likely that the applicant was feigning symptoms.
Dr Bhisham Singh– orthopaedic and spine surgeon
Dr Singh reported to Dr Sebastian Calvache-Rubio (Workers Doctors) on 23 June 2020.
Dr Singh recorded that the applicant had multiple injuries following an injury at work. He injured both knees and the lower back, and also the neck.
Dr Singh discussed the applicant’s lower back symptoms and MRI. The applicant complained of neck pain and felt suffocated when he lay flat. Dr Singh believed he would benefit from ear, nose and throat (ENT) review and examination.
Dr Singh’s treatment recommendations were otherwise directed to the applicant’s lumbar spine.
On 4 November 2020, Dr Singh reported to Dr Morgan Mo (Workers Doctors).
The applicant continued to use crutches because of leg pain. On “close questioning”, he had neck periscapular and arm pain on both sides. He periodically had symptoms into the arms.
On examination, Dr Singh found no loss of power in the applicant’s upper limbs, but dysesthesia in the left C6 and C7 distributions.
MRI of the applicant’s cervical spine revealed disc bulging at C5/6, which was deforming the spinal cord. There was disc bulging at C6/7 with foraminal stenosis. Dr Singh had recommended that the applicant consider anterior cervical decompression and fusion from C5 to C7.
Dr Singh reported that “during his initial injury”, the applicant had an injury to his knee, lower back, as well as the neck. He opined that his condition was related to his employment and the injury at work was the main contributing factor to his current condition.
On 2 February 2021, Dr Singh reported to Dr Mo that he had reviewed the applicant by telehealth.
The applicant had persistent neck symptoms and was awaiting approval for cervical spine surgery. Dr Singh noted Dr Soo’s review and opined that it was possible the applicant’s ongoing symptoms and lack of response to knee arthroscopy may be related to the cervical spine.
Dr Singh opined that the applicant had concomitant pathologies, which was pushing his pain to a level where he could not function. He would remind the insurer about approval for cervical spine surgery.
Associate Professor Nigel Hope – orthopaedic surgeon
A/Prof Hope was qualified by the applicant and reported first on 19 April 2021. He recorded a history that a fall down five stairs injured the applicant’s neck, both knees and left foot.
The applicant had taken analgesia for his neck condition and surgery was proposed.
A/Prof Hope recorded cervical pain radiating to the left upper limb, with stiffness causing moderate functional loss. MRI showed C5/6/7 disc prolapse, with left C5/6 sensory neuropathy. A/Prof Hope opined that surgery was required, and the requirement was work related.
A/Prof Hope opined that the applicant’s attitude was good and had contributed to his recovery. All pathology had an organic basis. There was no evidence of exaggeration, symptoms fabrication or functional overlay. The history, symptoms, signs and investigations were all consistent.
A/Prof Hope reported that the applicant’s prognosis was good for significant improvement after successful spinal surgery. C5/6/7 anterior cervical decompression and fusion were required. It was reasonably necessary as a result of the workplace injury. The cervical spine was previously symptom-free, and a well-described work-related event caused permanent cervical symptoms. Non-operative treatment had failed, and surgery was a reasonable option in this clinical setting.
A/Prof Hope again reported on 21 February 2022. The diagnosis of the cervical spine was C5/6/7 disc prolapse with left C5/6 sensory neuropathy.
A/Prof Hope was provided with the reports of Dr Soo dated 3 October 2019, Dr Bruce dated 20 March 2020, and Dr Singh dated 23 June 2020 and 4 November 2020.
SUBMISSIONS
The parties’ submissions have been recorded. I will therefore refer to them only briefly.
Applicant
The applicant conceded that there was initially no mention of an injury to his neck, but referred to his evidence that his main focus was on his significant foot pain. He also referred to the claim form. He had complained about his neck to Dr Lim on 31 July 2019.
The applicant submitted that Dr Soo was looking predominantly at his knee injury. However, he recorded complaints about his neck on 25 May 2020. Dr Singh recorded a neck injury and he continued to present with symptoms. He referred to the MRI of his cervical spine dated 6 October 2020.
The applicant submitted that A/Prof Hope had recorded the MRI and opined that his condition was the result of a workplace injury. He had been symptom-free before the injury. The MRI did not record anything about a degenerative condition. Surgery was required as non-operative treatment had failed.
The applicant submitted that Dr Bruce had not looked at the MRI and had not explained the fact that he had no neck symptoms before the incident but reported them after. I would therefore give no weight to his report. Both Dr Singh and A/Prof Hope had considered the MRI.
The applicant submitted that I would be satisfied on the issue of causation, referring to the decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). He wanted to have the surgery and it was reasonably necessary.
In reply to the respondent, the applicant submitted that if the details in A/Prof Hope’s report are compared to the MRI report, he has recorded the incorrect date, but that is the MRI he looked at. There is a typographical error in the report.
The applicant submitted that Dr Soo performed the knee surgery, and that was his focus. He ultimately referred to the applicant’s neck in one of his reports.
The applicant submitted that Dr Bruce could have considered the MRI, which was available, but did not, and therefore his opinion can be given little weight. A/Prof Hope has considered it, clearly reviewed it, and made a diagnosis.
The applicant submitted he had made out his case on causation, and the symptoms in his neck continued. Dr Singh’s reference to an ENT was just part of the process.
The applicant submitted that A/Prof Hope had reviewed Dr Singh’s report dated 4 November 2020, in which he referred to his review of the MRI and recorded disc bulge etc. A/Prof Hope’s report contained “just a typo”. The surgery was reasonably necessary in the circumstances.
Respondent
The respondent submitted that the only injuries reported at Fairfield Chase were to the applicant’s foot and ankle. The applicant continued to attend this practice and Workers Doctors until 17 February 2022. There is no mention of a neck injury.
The respondent submitted that, even if I accept that the applicant was most concerned with his ankle injury, if he had neck pain, he would be expected to mention it to one of the doctors he had seen.
The respondent referred to Dr Soo’s first report, which contains a detailed history of injury to a number of body parts, but no mention of the applicant’s neck. In his report dated 5 May 2020, he noted that the applicant was most concerned about his knees and lower back. There was finally a reference to neck pain and referral to a spinal surgeon in the report dated 25 May 2020.
The respondent submitted that Dr Singh initially opined the applicant would benefit from ENT review. He did not seem to relate the neck pain to any traumatic incident to the cervical spine. His examination was exclusively of the lumbar spine.
The respondent submitted that the applicant was critical of Dr Bruce having not referred to the MRI report of the cervical spine, but the report was before the MRI. Had Dr Bruce had the report, he would have seen that it confirmed underlying degenerative changes.
The respondent submitted that while Dr Singh reported that the MRI showed a disc bulge deforming the spinal cord, the MRI report referred to a soft disc protrusion. Dr Bruce came to the same conclusion, clinically, as the MRI.
The respondent referred to Dr Bruce’s report of pain behaviour and inconsistent findings. He gave the applicant the benefit of the doubt that this may be due to psychological factors. It submitted Dr Bruce gave a compelling analysis of the history of the fall, the underlying findings and the applicant’s paradoxical behaviour on examination.
A/Prof Hope took a different view, but the respondent submitted he seemed to think the MRI was dated 15 October 2019. This is not found anywhere, and it is clear there was none before 6 October 2020. A/Prof Hope was drawing a conclusion on what he thought was an MRI in October 2019 versus October 2020, which was 16 months after the incident.
The respondent submitted that A/Prof Hope twice mentioned the date of the MRI as being 15 October 2019. Its point was that he seemed to think it was taken three months, and not 16 months, after the injury.
The respondent submitted I would not be satisfied there was an injury to the applicant’s neck/cervical spine in the fall. If I am of the view that he sustained such an injury, the respondent referred me to Dr Bruce’s second report and his opinion that spinal surgery would have a “dismal result”.
The respondent submitted that surgery would not be of benefit, having regard to the poor outcome of the knee surgery. The treatment is not reasonably necessary, even if it is a product of the injury, which the respondent rejects.
SUMMARY
Injury to the cervical spine
I am satisfied that the applicant sustained injury to his cervical spine on 16 July 2019.
While Dr Hanna has not recorded a history on 16 July 2019 of injury other than to the applicant’s left foot and ankle, the applicant’s evidence is that he was in extreme pain, and his ankle was swollen. He couldn’t walk. He was focused on the injury to his foot, which was found to be fractured.
It is logical, in my view, that the initial focus of medical attention was on the acute injury to the applicant’s left foot.
It is telling that the claim form, completed and signed by the applicant just over two weeks after the injury, refers to an injury to his neck. This was well before it was suggested that he may require significant treatment for his neck.
On the same date, Dr Lim, who had become the applicant’s NTD for the work injury, recorded an injury to his neck, neck pain and stiffness.
The applicant has been a patient of Fairfield Chase since 2013. There is no record of any prior consultation with respect to injury to or symptoms in his neck. He was not a regular attendee.
Dr Soo did not initially record injury to the applicant’s neck. However, he directed his attention to the injuries to his left foot and knees. On 25 May 2020, he recorded that the applicant “continued” to complain of “ongoing” neck pain. He recommended that Mr Alzayadi be reviewed by a spinal surgeon, suggesting that this is not his field of expertise.
I do not place a great deal of relevance on Dr Singh’s initial comment that the applicant would benefit from ENT review. He obviously later came to the view that the applicant’s neck required imaging investigation and arranged for MRI.
The MRI, which is dated 6 October 2020, and in particular A/Prof Hope’s reference to MRI of a different date, was the subject of submissions by both counsel. I do not believe that a great deal of importance should be attached to this. Looking at the MRI report, the date 15 October 2020 appears at the top, and it seems that the report was faxed from Western Imaging Group on that date. This may have been what misled A/Prof Hope regarding the date of the report, although that is conjecture on my part.
A/Prof Hope did not base his diagnosis solely on the MRI report, but also on his examination of the applicant. He may or may not have believed that the MRI was taken in 2019, but by 2020 MRI clearly showed cervical disc pathology. There is no evidence of any supervening injury to the applicant’s cervical spine, and no evidence of a condition that pre-dated the injury in July 2019.
Dr Singh referred to the MRI report in his report dated 4 November 2020. He did not refer to the date of the MRI, but a reading of the report, which is addressed to Dr Mo, as is Dr Singh’s report, and the proximity of the reports, suggests he was referring to that dated 6 October 2020.
Having considered the MRI, Dr Singh concluded that the condition of the applicant’s neck was related to the injury at work, and it was the main contributing factor to his condition. He knew the MRI was taken in 2020, and not in 2019.
A/Prof Hope was provided with Dr Singh’s report, and he maintained his diagnosis. In my view, there was a “fair climate” in which for A/Prof Hope to express his opinion – Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.
Dr Bruce does not accept that the applicant has sustained injury to his cervical spine. He opined that the applicant had degenerative spondylosis with chronic neck pain. He was apparently not provided with the MRI. His first report pre-dated it, but his second did not.
Dr Bruce has not explained to my satisfaction why, if the applicant had degenerative cervical changes and chronic pain, there is no record of this pain, or of the applicant seeking treatment for his neck, before the injury, and a complaint of neck pain about two weeks after the injury.
In Kooragang, Kirby P, as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
After referring to English authorities, his Honour added at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
For the reasons above, I am satisfied that there is a causal connection between the event on 16 July 2019 and the injury to the applicant’s cervical spine. The applicant has satisfied his onus.
Reasonable necessity of medical treatment
The respondent submitted that, even if I were satisfied that the applicant had sustained injury to his neck, I would not be satisfied that the proposed surgery is reasonably necessary medical treatment.
Neither party referred me to Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), in which Deputy President Roche discussed the factors to be considered.
Roche DP said in Diab [at 86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity 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 claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP cited with approval the decision of Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2. He said:
“ [88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose…namely: (a) the appropriateness of the particular treatment; (b) the availability of alternative treatment, and its potential effectiveness; (c) the cost of the treatment; (d) the actual or potential effectiveness of the treatment, and (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. Evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon BleuCookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo [Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233] is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealthof Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.
In this matter, I have the evidence of the treating specialist, Dr Singh, supported by A/Prof Hope, that the applicant requires surgery as a result of injury to his cervical spine on 16 July 2019.
Against this, the only evidence the respondent has adduced as to the reasonable necessity of the surgery is Dr Bruce’s opinion, which is no more than a “throwaway line”, that it seems highly likely that it would have the same dismal result as the surgery to the applicant’s knees. Nonetheless, the applicant bears the onus.
As I have noted, both Dr Singh and A/Prof Hope had the benefit of the MRI report, notwithstanding the controversy about its date. Dr Singh has been treating the applicant for over two years. His opinion must be given some weight.
There is no evidence that the proposed treatment is not appropriate. Dr Bruce did not say it was not an appropriate form of treatment. He said the applicant was likely to have a poor result. A/Prof Hope agrees with Dr Singh that the surgery is “required”.
As to the availability of alternative treatments, neither Dr Singh nor A/Prof Hope has referred to them. However, the applicant has given evidence that he had hydrotherapy, rehabilitation, physiotherapy and medication. He did not have recommended injections for pain relief because the insurer denied the request.
A/Prof Hope opined that non-operative treatment had failed. In any event, as Roche DP said in Diab, 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.
The cost of the treatment is not inconsiderable, but it is major surgery, and the respondent has not raised the cost as a reason not to approve it. Dr Singh and A/Prof Hope accept that it is potentially effective, the latter opining that the applicant’s prognosis was good for significant improvement. They accept it as being appropriate and likely to be effective.
I note that several doctors have commented on the applicant’s pain behaviour and inconsistent presentation. Neither Dr Singh nor A/Prof Hope has found this to be the case, and A/Prof Hope opined to the contrary. I do not believe the possible pain behaviour or inconsistencies reported are reasons to deny the applicant the surgery. Nor does it follow that because he may have had a poor result to some surgeries, that will necessarily be the case for all surgery.
I am satisfied on the evidence that the proposed medical treatment is reasonably necessary as a result of the injury on 16 July 2019.
I determine that the applicant sustained injury to his cervical spine arising out of or in the course of his employment with the respondent on 16 July 2019.
I determine that the proposed medical treatment, that is C5-7 anterior cervical decompression and fusion, is reasonably necessary as a result of the injury on 16 July 2019.
The orders are as set out in the Certificate of Determination.
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