Anderson v Fulton Hogan Industries Pty Ltd
[2021] NSWPIC 130
•20 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Anderson v Fulton Hogan Industries Pty Ltd [2021] NSWPIC 130 |
| APPLICANT: | Mark Anderson |
| RESPONDENT: | Fulton Hogan Industries Pty Ltd |
| MEMBER: | Ms Karen Garner |
| DATE OF DECISION: | 20 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for compensation for medical treatment pursuant to section 60 of the 1987 Act; applicant had previous moderate to severe periodontal disease; whether dental treatment was reasonably necessary as a result of the work injury; Held– the proposed treatment was reasonably necessary as a result of the work injury. |
| DETERMINATIONS MADE: | 1. The proposed treatment, in particular Dr Stephenson’s Treatment Plan Upper 4 (Fixed implant bridge) or, in the alternative, Dr Howe’s proposed treatment plan (Fixed OIB), is reasonably necessary as a result of the injury on 26 September 2019. |
| ORDERS MADE | 1. The respondent to pay the costs of and incidental to the proposed treatment in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Mark Anderson (the applicant) is a 56-year-old man.
The applicant was employed by Fulton Hogan Industries Pty Ltd (the respondent) in the position of truck driver.
On 26 September 2019, in the course of the applicant’s employment, the applicant fell at least two and a half metres off a bridge (the accident) whereby he sustained injury to his face, arms, legs and left wrist (the injury).
The respondent accepted liability in relation to the injury.
The applicant sought payment of medical expenses of and related to dental treatment proposed by Dr Min Stephenson in his report dated 16 January 2020 or, alternatively, dental treatment proposed by Dr Andrew Howe in his report dated 5 November 2020 (proposed treatment), on the basis that it is medical treatment which is reasonably necessary as a result of the injury.
On 18 June 2020, by a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent declined liability for the proposed treatment on the basis that the proposed treatment was not reasonably necessary as a result of an injury as required by s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 10 February 2021. The applicant seeks compensation pursuant to s 60 of the 1987 Act for and related to the proposed treatment.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation/arbitration hearing on 20 April 2021. The applicant was represented by Ms Lyn Goodman, counsel, instructed by Mr James Counter of LHD Lawyers. The respondent was represented by Mr Damien Toohey, counsel, instructed by
Ms Phoebe Singer of Gair Legal.
At the hearing, counsel for the applicant applied to amend the ARD to the effect that the amount of expenses now claimed in respect of the proposed treatment is $43,000. Counsel for the respondent took no objection to such amendment to the ARD and the Commission granted leave to amend the ARD in the manner sought.
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.
ISSUES FOR DETERMINATION
The respondent accepts liability for the injury but does not accept that the applicant damaged his teeth in the accident.
The parties agree that the following issue remains in dispute:
(a) whether the proposed treatment is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The respondent filed an Application to Admit Late Documents (AALD) and attachments. After the applicant’s counsel objected to the AALD, the respondent’s counsel elected not to press the AALD. On that basis the AALD and attachments were not admitted into evidence.
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) ARD and attached documents, subject to the amendment noted above (under the heading Procedure Before the Commission), and
(b) Reply to ARD and attached documents.
Oral evidence
Neither party applied to adduce oral evidence nor cross-examine any witness.
Applicant’s evidence
Applicant
The applicant made a statement dated 31 January 2021.
The applicant is a 56-year-old man.
The applicant was employed by the respondent in the position of truck driver.
On 26 September 2019, in the course of the applicant’s employment, the applicant fell approximately three metres and landed on his right side onto a pile of rubble. He felt immediate pain in his mouth, right wrist and left leg.
As a result of the accident, the applicant suffered the following injuries:
(a) damage to his 11, 12, 13, 23, 24 and 25 teeth and mouth;
(b) right upper extremity (wrist);
(c) left upper extremity (thigh and ankle), and
(d) scrape and bruise on his chest.
Immediately after the accident, the applicant was taken to Tamworth Hospital by ambulance. During his hospital admission, he had CT scans of his neck, face, head and left wrist. The applicant complained that he was suffering from loose teeth but he was not provided with any treatment in respect of that complaint. The applicant was discharged from hospital later that same day.
On 16 October 2019, the applicant consulted with Dr Stephenson. The applicant complained about his teeth 11, 12 and 21.
Dr Stephenson referred the applicant for OPG scans of his mouth which the applicant underwent.
The applicant was significantly delayed in seeking further treatment in respect of his teeth due to him suffering a series of heart attacks in November and December 2019 which necessitated the applicant being hospitalised and undergoing treatment in that regard.
On 15 January 2020, the applicant again consulted with Dr Stephenson. The applicant complained that he was unhappy with the looseness of his teeth. Dr Stephenson proposed treatment which has been declined by the respondent.
In October 2020, the applicant’s 41st tooth fell out. Dr Stephenson performed surgery to move the applicant’s 31st tooth in his mandibular arch to address the loss of the applicant’s 41st tooth.
Immediately following the accident, the applicant was absent from work for two days and then returned to light duties for about six or eight weeks. The applicant then returned to work on his pre-injury duties. In about May 2020, the applicant ceased working with the respondent as they closed down due to bad debt. In August 2020, the applicant returned to work performing his pre-injury duties with another employer.
The respondent accepted liability in relation to the injury.
The applicant sought payment of medical expenses of and related to dental treatment proposed by Dr Min Stephenson in his report dated 16 January 2020 or, alternatively, dental treatment proposed by Dr Andrew Howe in his report dated 5 November 2020 (the proposed treatment), on the basis that it is medical treatment which is reasonably necessary as a result of the injury.
Medical and radiological reports
Dr Min Stephenson, Dentist, Marius Street Family Dental & Implant Centre
Dr Stephenson’s report dated 16 January 2020 noted as follows:
“Mark visited my surgery 11-10-2019 and visited Dr Ksyten with the following clinic notes:
‘RFA: fell over 2 wks ago and landed on face, has mad front teeth loose
OE
12, 11 grade 1 mobile
41 grade 3 mobile
endofrost 12, 11 +ve NL, 21 hypersensitive compared to 12 and 11
TTP 12, 11 slight +ve, 21 WNL
PPD generalised chronic severe periodontitis
Due to severity of periodontal condition, and complex treatment, referred to min for consultation and treatment planning’…
Medical condition:
Smoker 20 cigars per day and drinker 20 per week
Dental: moderate to sever [sic] periodontal disease
Not visit dentist on regular basis15-1-2020, he visited me to discuss long term plan with 14 M III and keen for me to extraction
Also lost 41 since then .26 nerve test +
He told me trauma has made his teeth more mobile. He is not happy with no front teeth
...
Treatment Plan
Told Mark that prognosis for all his teeth are poor in life time (means before he die, he may lose all his teeth.). [sic] With only possible maintain [sic] some of his back teeth if he looks after them such as regular dental visit and dental care and change his life style such as stop smoking etcHe told me he is keen to stop smoker and want to look after his teeth better
Upper treatment plan and cost
- Upper 1 Extraction 14 which is mobility III and annoy mark [sic] with cost $195, nothing else
- Upper 2 Extraction all his currently top teeth with immediate full denture (as permanent solution) and reline 6 month [sic] later
Total cost $195*11 extaction [sic] + upper full denture $2150 + reline $410
- Upper 3: top 2 plus add 4 implants with locator design to hold denture especially if patient can not wear upper denture.
Total cost $195*11 extaction [sic] + upper tempary [sic] denture $1500 + top casting permanent denture $2150 + 4 implants with locator $2450* 4
- Upper 4: fixed upper implant bridge (hybrid): extraction all current teeth, temp denture, : fixed upper implant bridge (hybrid). total cost
Please treat as you see fit.”
A Marius Street Family Dental & Implant Centre information brochure included the following information in relation to the treatment options referred to in the report of Dr Stephenson dated 16 January 2020. It stated:
“Replace all your teeth options for one arch information only (price is guideline only in 11-2019)
Basic knowledge:
- When you lose the teeth, the bone which support teeth will be lost as time goes by
- Everything falls with time. No matter what option you choose. Even the most expansive options, it needs maintenance and also can fail
- Implant has two types. Mine one and standard one. Mini one cheaper and less retentive. Standard one more expensive. Mini one advices [sic] to be used only lower which bone is hard to make mini one successful
- If you have periodontal disease, then your implant screw can have gum infection around screw called implantitis, which is killer [sic] for implant. However implant screw more resistant to gum disease then [sic] your teeth.
- If you smoke, which [sic] will reduce screw to grow with your bone. So you have 5-10% high failure rate than person who do not smoker [sic]. If you want to stop smoker [sic], then you need to wait 3 month [sic] to get better successful rate
The following is options
Removeable one (Traditional denture)
- Traditional denture estimated $2000: cheaper but bulky. You have to remove it. Will not hold the bone. Actually will make bone shrink more…
Removable one (Denture but with implant support)
Most recommended for lower as lower full denture is more harder [sic] to wear then upper full denture. Lower full denture does not stay. So must have implant to hold it. Otherwise as time goes by, you will have bone to do anything [sic]. Also with you getting older, more hard to wear traditional denture
Mini implant supported lower denture: with x ray $5900 + denture $2000 = 7900
…
Standard implant supported denture $5310 + denture 2000 = 7310 for lower 2 screws (fixtures) however with 4 screws total $12110
…
Standard implant supported upper full denture. recommended 4 screws. However if money issue and you want to take risk [sic]. You can discuss with me to reduce fixture number, with 4 will be like lower $12110. middle part of acylic will be removed and good for person who want removable option and gap [sic]
Removable ones – locator on fixed bar
Similar cost as hybrid fixed one . But can removal [sic] and good oral hygiene
…Fixed one – hybrid
The most cost effective is hybrid fixed replacement with 4 screws . hybrid [sic] means mix denture teeth (either acylic or composite no customer made teeth) but used in fixed option. Cost between 1900 to 25000 each arch . More fixtures (screw) will cost more . has immediately giving [sic] your temporary fixed teeth option or delay [sic]
Fixed one. Less constant care for denture visit especially compared that [sic] you have some of your natural teeth
…Fixed one (can be sections and all customer made ceramic)
32k above in total
…”
Dr Stephenson’s report dated 21 October 2020 stated:
“Upper treatment plan Summary and costs
- Upper 1 Extraction 14 which is mobility III and annoy mark [sic] with cost $195, nothing else
- Upper 2 Extraction all his currently top teeth with immediate full denture (as permanent solution) and reline 6 month later
Total cost $195*11 extraction + upper full denture $2150 + reline $410 = $4705
- Upper 3: top 2 plus add 4 implants with locator design to hold told [sic] denture especially if patent can not wear upper denture.
Total cost $195*11 extractions + upper temporary denture $1500 + top casting permanent denture $2150 + 4 implants with locator $2450*4 = $15595
- Upper 4: fixed upper implant bridge (hybrid) : extraction all current teeth, temp denture, : fixed upper implant bridge (hybrid) . Total cost $41590i”
Applicant’s other evidence
Dr Andrew Howe, Dental Surgeon – Independent medico-legal examination
Dr Howe’s report dated 5 November 2020, was prepared on the basis of an independent medico-legal examination of the applicant on 12 October 2020 and review of relevant reports and medical notes and the report of Dr Stephenson dated 16 January 2020. Dr Howe noted the applicant’s history including the accident. Dr Howe stated:
“DENTAL HISTORY
Mr Anderson had not seen a dentist for at least five years.He states that tooth 41 fell out and as he had dental crowding in the mandibular arch tooth 31 migrated to restore the space that was left following the loss of the tooth.
Mr Anderson has lost three teeth since the accident including tooth 41 which now leaves an unsightly gap.
DENTAL EXAMINATION
On examination Mr. Anderson has nineteen erupted teeth.Teeth 18, 17, 16, 15, 14, 26, 28, 38, 37, 31, 41, 47 and 48 are missing.
Tooth 27 has super- irrupted (over- irrupted) Due to the loss of tooth 37.
Mr. Anderson has one directly placed restoration in tooth 36.
All teeth with the exception of tooth 11 all teeth test positive to carbon dioxide nerve sensibility testing.
Tooth 22 is tender to pressure and exhibits class /two mobility
Tooth 11 exhibits discoloration due to internal pupal apology and exhibits class /two mobility the truth is tender to pressure and the buccal sulcus above the tooth is also tender.
Mr Anderson's teeth showed evidence of supragingival and subgingival scale. On six- point probing there were several periodontal pockets greater than 3-millimetres with significant recession throughout the dentition and less than 50% bleeding points indicating periodontitis with superimposed gingivitis or ongoing periodontal disease with an expected further tooth loss.
Mr. Anderson has an Angle class-one anterior/canine relationship with a 10% overbite and a normal overjet. There has been significant crowding in the mandibular arch previously as despite the loss of two teeth there is only one tooth space evident.
...RADIOGRAPHIC EXAMINATION
CBCT
The CBCT radiograph taken on the day of examination showed:-Tooth 11 exhibits an apical radiolucency;
-There is evidence of horizontal bone loss of 50-70% in the maxillary arch tooth 25 exhibits vertical bone loss on the mesial;
-There is evidence of horizontal bone loss of 30-50% in the mandibular arch with the exception of teeth 42 and 31 which exhibit 80% bone loss there is not vertical bone loss;
-The glenoid fossae of the temporal bone are normal, as is the condylar processes of the mandible;
-The interarticular disk space was normal;
-The maxillary sinuses are normal;
-Both sinuses are aerated, and
-No abnormalities were detected.
OPG Supplied
The OPG supplied by Dr Stephenson shows:-Teeth 14, 13, 12, 11, 21, 22, 23, 24, 25, 26 and 27 present on the maxilla
-Teeth 36, 35, 34, 33, 32, 41, 42, 43, 44, 45 and 46 present on the mandible
-There is evidence of horizontal bone loss of 50-70% in the maxillary arch tooth 14 exhibits vertical bone loss on the mesial and 80% bone loss the tooth also exhibits of 80-90%;
-There is evidence of horizontal bone loss of 30-50% in the mandibular arch with the exception of teeth 41 which exhibit 90% bone loss and there is apical bone loss suggestive of a periodontic/endodontic apical lesion;
-The glenoid fossae of the temporal bone are normal, as is the condylar processes of the mandible;
-The interarticular disk space was normal;
-The maxillary sinuses or [sic] normal;
-Both sinuses are aerated, and
-No abnormalities were detected.
…
OPINION
Mr Anderson was suffering bone loss due to chronic periodontal disease which reduced the ability of some teeth to resist the trauma inflicted in the fall.
The fall devitalised tooth 11 and it has undergone internal resorption and exhibits a periapical infection. This tooth requires removal.
Tooth 22 suffers continued mobility due to the trauma inflicted on the tooth which has reduced bone support and now probably needs removal.
Tooth 25 suffers continued mobility due to the trauma inflicted on the tooth with reduced bone support and needs removal.
Teeth 13, 12, 21, 23 and 24 have a reasonable prognosis with periodontal treatment and smoking cessation.
Tooth 41 has been lost – teeth 42 and 32 although sound at the moment they do not have good long-term prognosis and if tooth 41 is to be replaced it would be sensible to include the removal of these two teeth in the treatment plan. The remaining mandibular teeth have a fair prognosis.TREATMENT NEEDS
Dr Stephenson has proposed a treatment plan starting with the removal of Mr Anderson's existing maxillary teeth and provision of a full removable denture - I doubt that Mr Anderson will be satisfied with a full removable denture and it may be better if the remaining maxillary teeth are to be removed that they be removed and at the same time the alveolus be remodelled and an All-on 4 protocol carried out for a fixed osseo- integrated implant- supported bridge (OIB).Ideally the mandibular dentition would be best addressed with removal of teeth 42 and 32 and placement of a four- unit fixed implant- retained bridge.
ONGOING LIABILITY
I believe the insurer has an ongoing liability for the exacerbation and/or acceleration of the loss Mr Anderson's failing dentition.
…
Basically, Mr Anderson is suffering from the results of chronic periodontal disease exacerbated by trauma.
…
On 26 September 2019 Mr Anderson, whilst in the employ of Fulton Hogan, suffered trauma to his dentition.
We advise that Dr Stevenson has requested that the Respondent undergo a treatment plan dated 16 January 2020.Do you believe that the proposed surgery is reasonable and necessary? If so, please have regard to:
(a) The appropriateness of the proposed treatment;
Mr Anderson requires treatment although his tooth loss was inevitable it was exacerbated by the trauma 26 September 2019
(b) The availability of the proposed treatment;
Dr Stevenson has proposed a treatment plan as outlined above- I doubt that Mr. Anderson will be satisfied with a full removable denture and it may be better if the remaining maxillary teeth are to be removed that they be removed and at the same time the alveolus be remodelled and an All-on 4 protocol carried out for a fixed osseo-integrated implant-supported bridge (OIB)
(c) The cost of the proposed treatment;
The cost to provide an immediate OIB would be in the area of $28,000.00 for a temporary hybrid OIB with $15,000.00 for a permanent milled zirconia bridge. No treatment has been proposed for the mandibular dentition.
(d) The actual and/or potential effectiveness of the proposed treatment; and
Considering the amount of bone loss due to periodontal disease and the inevitable loss of tooth 11 due to trauma I believe this is the best solution to Mr Anderson’s failing dentition. The mandibular dentition would be best addressed with removal of teeth 42 and 32 and placement of a four-unit fixed implant-retained bridge.
(e) The acceptance of the proposed treatment by medical experts:
I believe that in the case of a failing dentition most dentist would find this the best form of treatment certainly the treatment most likely to find acceptance with the patient. Very few patients these days are accepting of a removable full denture.
Are you of the view that the need for surgery substantially arises from the work injuries on 26 September 2019:
Mr Anderson would have required the same treatment at a later date due to his lack of professional care and smoking however that date has been shortened by the trauma of 26 September 2019.
Causation
Did our client sustain a work-related injury during the course of his employment? If so, was it by way of an acceleration, exacerbation and/or aggravation of a pre-existing injury or another form of injury?Mr Anderson suffered an acceleration of his dental needs on 26 September 2019.
Which body parts have been impaired as a result of the injury, the subject of the claim?
Tooth 11 has suffered loss of the dental nerve with internal resorption and a periapical abscess. Other teeth with reduced bone support such as 41, 14, 26 have been lost and 22 has become loosened due to the trauma.
Do you consider that our client’s employment is the main substantial contributing factor to his injury? If so, what is the mechanism by which he sustained his injury?
Employment is the main contributing factor to the acceleration of the loss of teeth.
…Treatment
What treatment has our client received to date?Mr Anderson has had tooth 14 and 26 removed and tooth 41 has exfoliated since the accident. Mr Anderson has undergone examination and I suspect some level of professional tooth cleaning since the 26 September 2019.
What treatment would you say is reasonable and necessary for our client?
Mr Anderson will soon lose tooth 11 and has lost tooth 41 which he finds an embarrassment and a social stigma. I do not believe he will adjust to wearing dentures however due to his history of periodontal disease and his continued smoking he may no [sic] be a candidate for implant-retained dentistry.
If surgery is recommended, please provide comment as to the following:
1. Whether it is reasonable and necessary;
The treatment I have suggested is reasonable and necessary and has been brought forward by the trauma.
2. Costs of same, including surgeon fees, hospitalisation, anaesthetic, medication and rehabilitation;
The treatment for a maxillary OIB has been suggested above the treatment for the loss of tooth 41 would be around $18,000.00. Costs for anaesthetic would add say $2,000.00 for a specialist anaesthetist. The treatment would be performed within rooms without additional cost.”
Clinical Records
Clinical notes of Tamworth Hospital:
(a) Discharge Referral summary dated 26 September 2019 stated:
“Triage Nurse Notes: Pt BIBA from Walcha post fall of bridge approx. 1545 hrs. Fell aprox. 3m. Landed on right arm, right leg and side of face. Pt states has loose teeth in mouth...
…
Presenting Problem and Sigificant Events
54/M
Workplace accident
Fell backwards over the drop-off at a bridge
Fell 3m, landing on right lower leg first, then right forearm, left wrist, chest, face/mouth/teeth...
…
Sustained small lacerations to lips, top (middle) teeth feel lose though none broken / displaced...
The Discharge Referral summary noted that a CT scan did not indicate any fracture of the facial bones.”
(b) Ambulance Medical Record dated 26 September 2019 stated:
“...Lacerations to mouth? Loose teeth...
… Lower Lip laceration superficial; Upper Lip laceration superficial; Lower Teeth laceration superficial; Upper Teeth laceration superficial...”(c) Clincal Checklist for EDSSU Admission dated 26 September 2019 stated:
“... facial injury...”
(d) Progress/Clinical Notes dated 26 September 2019 stated:
“... Pt has abrasions to face slightly loose tooth to the front laceration to inside of mouth...”
(e) Tamworth Radiology Report dated 26 September 2019 stated:
“History:
Fall 3 metres landing on face, chest and left wrist. Loose front tooth.”
Respondent’s evidence
The respondent relied on various evidence, which included the following.
Independent medical investigation reports
Dr Robert Watson, Consultant Dental Surgeon
Dr Watson’s report dated 22 May 2020, prepared on the basis of a file review, stated:
“In response to your specific questions, I am able to provide the following comments.
1. Please confirm the current work-related diagnosis.
The Discharge Referral document from Tamworth Hospital dated 26/09/2019 in part states, in relation to Mr Anderson’s fall, that there were no nasal or facial bone fractures.
The report from Dr Allwood of Marius Street Family Dental, dated 16/01/2020, in part states Mr Anderson’s front teeth were loose.
Both these reports confirm that Mr Anderson did not sustain any significant facial or dental injuries as a result of the accident on 26/09/2019.2. Please confirm the causation of the above diagnosis.
The documentation indicates that Mr Anderson sustained a soft tissue injury to his face when he fell off a drop-off near a bridge, approximately 2.5 metres in height (in September 2019). He notes that following the fall, his two front teeth became loose and were causing him increasing levels of discomfort in the preceding months.
3. Please review Dr Stephenson’s recommended treatment plan. Please comment on:
I.The estimated cost.
In the report from Dr Stephenson, dated 15/01/2020, four comprehensive treatment plans to restore Mr Anderson’s upper arch were outlined, including the costings. The costings outlined for each of these treatment plans would seem to be fair and reasonable.
ii.Whether the treatment deemed reasonable and necessary.
The report provided by Dr Stephenson, dated 15/01/2020, includes photographs and tomography radiographs. These clearly show that Mr Anderson has generalised moderate to severe periodontal disease, including significant bone loss surrounding his remaining teeth.
The current state and extent of this type of periodontal disease would have taken many years to develop. The documentation indicates that Mr Anderson smokes at least 20 cigarettes per day. This would significantly exacerbate the periodontal disease.
Each treatment option provided by Dr Stephenson would seem to be reasonable and necessary. However, due to the extent of the current periodontal disease, the long-term lack of effective oral hygiene resulting in very poor general oral health and the fact that Mr Anderson is a heavy smoker, the medium to long-term prognosis for any treatment plan that includes implants would be guarded, at best.…
4. Is it likely that Mr Anderson would have required the requested treatment now or at some stage in his life, irrespective of the workplace incident? Please provide your clinical rationale and reasoning.
It is most likely that Mr Anderson would have required one or more of the treatment plans outlined by Dr Stephenson now or at some stage in his life, irrespective of the workplace incident.
… Mr Anderson has generalised significant periodontal disease that has taken many years to get to this stage.
Without future excellent oral hygiene and a change in lifestyle, ie. stopping smoking, it is most likely that Mr Anderson will lose all of his teeth, in the short to medium term future.
The radiographs in the documentation show that many of Mr Anderson’s remaining teeth are not able to be saved.5. Would you recommend any alternative treatment to address the work-related condition?
It is clearly apparent from the documentation that Mr Anderson has had poor oral health for many years prior to the accident. The accident did not in any way cause or exacerbate this poor oral health.
It is vaguely possible that sensitivity to teeth 11 and 21 may be as a result of the accident. It is more likely, however, that the sensitivity is as a result of the continuing periodontal disease.
Mr Anderson will need dental treatment in the future. The workplace accident is in no way related to the need for ongoing dental treatment in the future.
Beginning with Treatment Plan 1 and moving on to Treatment Plan 2, as outlined by Dr Stephenson in the documentation, would be the best option to begin to treat Mr Anderson’s dental problems.”
Respondent’s other evidence
Report of Dr Lena Forsberg dated 12 October 2019, noted the conclusion upon x-ray that no fracture was detected.
,
Injury report form of the respondent dated 27 September 2019 which noted that on 26 September 2019, the applicant fell from a height of approximately 2.5 metres and was taken to Tamworth Hospital.
A witness statement of Tim Lanyon, plant operator/ground crew dated 1 October 2019 confirmed that the applicant fell from a height when he was performing work duties on 26 September 2019.
SUBMISSIONS
Both counsel made detailed submissions which were recorded on transcript. A copy of the recording and transcript will be made available on request. I have considered the submissions in full notwithstanding that details are not specifically repeated or referred to in these reasons.
Both counsel referred the Commission to the applicant’s medical history, various medical opinions and the provisions of s 60(1) of the 1987 Act.
Counsel for the applicant:
(a) submitted that Dr Stephenson’s Treatment Plan Upper 3 and Treatment Plan Upper 4 is most appropriate in the circumstances;
(b) noted that there is no evidence that the applicant had loose teeth prior to the accident;
(c) noted that the Tamworth Hospital medical records indicate that the applicant complained about loose teeth in his mouth immediately after the accident;
(d) noted that the Tamworth Hospital medical records including the ambulance records recorded lacerations to the applicant’s face and mouth and queried loose teeth;
(e) noted that the proposed treatment relates only to treatment to the applicant’s teeth in his maxillary (upper) jaw: no treatment to teeth in the applicant’s mandibular (lower) jaw is proposed at this time;
(f) submitted that the reports of Dr Stephenson and Dr Howe are more persuasive than the report of Dr Watson;
(g) noted that Dr Stephenson proposed four alternative treatment plans in respect of the applicant’s teeth being Treatment Plan Upper 1, Treatment Plan Upper 2, Treatment Plan Upper 3 and Treatment Plan Upper 4;
(h) noted that the treatment plan proposed by Dr Howe is a further alternative treatment plan, and
(i) noted that, whilst Dr Stephenson acknowledged that the risk of failure of the proposed treatment in the applicant’s case is 5% to 10% higher than the risk of failure in respect of a patient who does not smoke, Dr Howe had no significant reservations about the likely effectiveness of the proposed treatment and, further, Dr Howe opined that Treatment Plan Upper 3 or Treatment Plan Upper 4 had the best prospect of success.
Counsel for the applicant submitted that the proposed treatment, in particular, Dr Stephenson’s Treatment Plan Upper 3 and Treatment Plan Upper 4, satisfies each element of the test prescribed by Roche DP in Diab v NRMA Ltd[1] and satisfies the test prescribed by s 60(1) of the 1987 Act.
[1] [2014] NSWWCCPD 72.
Counsel for the respondent:
(a) noted that x-rays taken immediately following the accident indicated that the applicant did not fracture any of his facial bones;
(b) noted that there is inconsistency in the evidence of injury to the applicant’s teeth, in particular, medical records indicate that the applicant landed on the right side of his face in the accident however some of the teeth that the applicant lost since the accident were on the left side of the applicant’s face;
(c) submitted that the need for the proposed treatment is due to the applicant’s severe periodontal disease rather than the accident;
(d) submitted that the proposed treatment is unlikely to be effective in any event for reasons which include the applicant’s bone loss due to chronic periodontal disease, and
(e) submitted that the report of Dr Watson is more persuasive than the reports of Dr Stephenson and Dr Howe.
Counsel for the respondent submitted that:
(a) the proposed treatment does not satisfy the test prescribed by s 60(1) of the 1987 Act and does not satisfy each element of the test prescribed by Roche DP in Diab v NRMA Ltd;[2]
(b) however, in the event that the Commission decided that dental treatment is reasonably necessary as a result of the injury, Dr Stephenson’s Treatment Plan Upper 1 or Treatment Plan Upper 2 is most appropriate in the circumstances.
FINDINGS AND REASONS
[2] [2014] NSWWCCPD 72.
The evidence
Counsel for the respondent suggests that inconsistency in the evidence raises concerns in relation to the credibility of the applicant’s evidence concerning the injury to his teeth.
I note that the clinical records indicate that the applicant sustained soft tissue injury to the right side of his face in the accident however since the accident the applicant lost teeth including on the left side of his face. This apparent inconsistency has not been specifically addressed by the medical evidence.
I note that the respondent has admitted liability in relation to certain injury arising from the accident. The evidence of the applicant in relation to the accident and the injury is largely consistent with the clinical records of Tamworth Hospital. The clinical records note that the applicant complained of loose teeth to the ambulance service and hospital clinicians upon his admission to hospital.
On balance, I accept the applicant’s evidence in relation to the accident and injury.
The reports of Dr Howe were based on an independent medico-legal examination of the applicant and consideration of relevant material. It largely confirmed the opinion of the applicant’s treating dental practitioner, Dr Stephenson.
The report of Dr Watson was based on a review of the relevant material. Dr Watson did not examine the applicant.
I accept the evidence of all treating practitioners.
Findings of fact
On the basis of the evidence, I make the following findings of fact:
(a) the applicant is a 56-year-old man;
(b) on 26 September 2019, in the course of the applicant’s employment with the respondent, the applicant fell from a height of at least 2.5 metres and sustained injury to his face, arms, legs and left wrist;
(c) immediately following the accident, the applicant was taken by ambulance to the Tamworth Hospital where his injuries were investigated. The applicant reported to the ambulance paramedics and Tamworth Hospital clinicians that he felt a loosening of his teeth as a result of facial trauma from the accident. The applicant was observed to have abrasions on his face and laceration on the inside of his mouth. No facial fracture was evident upon imaging. The applicant was discharged from hospital later the same day;
(d) on 11 October 2019, the applicant attended Dr Ksyten of the Marius Street Family Dental & Implant Centre. The applicant reported that the accident had caused his front teeth to loosen. Examination disclosed that the applicants tooth 11 and tooth 12 were both grade 1 mobile and tooth 41 was grade 3 mobile. Some of the applicant’s teeth were hypersensitive. The applicant had severe periodontal disease. Due to the complexity of the applicant’s condition and required treatment, the applicant was referred to Dr Stephenson;
(e) the applicant was delayed in seeking further treatment in respect of his teeth due to him suffering a series of heart attacks in November and December 2019 and required hospitalisation and treatment;
(f) between the accident and 15 January 2020, the applicant lost tooth 41;
(g) on 15 January 2020, the applicant attended Dr Stephenson of the Marius Street Family Dental & Implant Centre to discuss a long-term plan for his teeth. The applicant reported that the trauma of the accident had made his teeth mobile. Examination disclosed that the applicant’s tooth 14 was also grade 3 mobile and that the applicant had moderate to severe periodontal disease. It was noted that the applicant regularly smoked 20 cigarettes per day;
(h) it was Dr Stephenson’s opinion, expressed in a report dated 16 January 2020, that:
(i)because of the applicant’s severe periodontal disease, the long-term prognosis for all of the applicant’s teeth was poor and the applicant may lose all his teeth before he dies;
(ii)there were four options for treatment of the applicant’s upper teeth, being:
1.extraction of tooth 14 and nothing else (Treatment Option 1 – Extraction Only);
2.extraction of all top teeth, with immediate permanent provision of a full removeable denture and reline six months later (Treatment Option 2 – Extraction and Permanent Full Removeable Denture);
3.extraction of all top teeth, with immediate temporary provision of a full removeable denture and the subsequent installation of four implants with a locator design to hold a permanent full removeable denture (Treatment Option 3 – Extraction, Temporary Full Removeable Denture and Implants holding Permanent Full Removeable Denture), and
4.extraction of all top teeth, with immediate temporary provision of a full removeable denture and the subsequent installation of four implants which hold a permanent full fixed denture (Treatment Option 4 – Extraction, Temporary Full Removeable Denture and Implants holding Permanent Full Fixed Denture);
(i) between 16 January 2020 and 12 October 2020, the applicant also lost another two teeth in addition to tooth 41 which had been previously lost. Further, tooth 31 had migrated to restore the space left by lost tooth 41;
(j) on 12 October 2020, the applicant attended Dr Howe for an independent medico-legal examination. Dr Howe noted that the applicant’s teeth 18, 17, 16, 15, 14, 26, 28, 38, 37, 31, 41, 47 and 48 were missing. Tooth 47 had over-irrupted due to the loss of tooth 37. All teeth with the exception of tooth 11 were sensitive. Tooth 22 was tender to pressure and exhibited class two mobility. Tooth 11 was discoloured, tender to pressure and exhibited class two mobility. The applicant had severe periodontal disease. There was evidence of horizontal 50% to 70% bone loss in the maxillary arch and vertical bone loss associated with tooth 25;
(k) it was Dr Howe’s opinion, expressed in a report dated 5 November 2020, that:
(i)the applicant was suffering bone loss due to chronic periodontal disease which reduced the ability of some teeth to resist the trauma inflicted by the accident;
(ii)the accident devitalised tooth 11 which consequently underwent internal reabsorption and exhibited a periopical infection and requires removal;
(iii)tooth 22 suffers continued mobility due to trauma inflicted by the accident with reduced bone support and requires removal;
(iv)teeth 13, 12, 21, 23 and 24 have a reasonable prognosis with periodontal treatment and smoking cessation;
(v)tooth 41 was lost;
(vi)tooth 22 was loosened by trauma inflicted by the accident;
(vii)teeth 42 and 32, although sound at present, do not have good long-term prognosis and should be included in a treatment plan with tooth 41. The remaining mandibular teeth have good prognosis;
(viii)the maxillary teeth would be best addressed by removal of the applicant’s existing maxillary teeth and the alveolus be remodelled with an All-on 4 protocol carried out for a fixed osseo-integrated implant-supported bridge;
(ix)the accident accelerated and brought forward the need for dental treatment that would have been required at a later date due to the applicant’s periodontal disease and smoking, and
(x)the treatment was reasonable and necessary;
(l) on 22 May 2020, Dr Watson reviewed relevant reports and medical records and prepared an independent medico-legal report. It was Dr Watson’s opinion that:
(i)the applicant has generalised moderate to severe periodontal disease, including significant bone loss surrounding his remaining teeth;
(ii)the applicant’s smoking would significantly exacerbate the periodontal disease;
(iii)each of the treatment options identified by Dr Stephenson were “reasonable and necessary”;
(iv)however, due to the applicant’s periodontal disease, smoking and lack of oral hygiene, the medium to long-term prognosis for any treatment plan that includes implants would be guarded, at best;
(v)due to the applicant’s periodontal disease, the applicant would likely have required such treatment in any event at some stage in his life;
(vi)without future excellent oral hygiene and cessation of smoking, the applicant will likely lose all of his teeth in the short to medium term future;
(vii)it is “vaguely possible” that sensitivity to teeth 11 and 21 may be a result of the accident although it is more likely the result of the applicant’s periodontal disease;
(viii)the accident “did not in any way cause or exacerbate” the applicant’s poor oral health and his need for future dental treatment, and
(ix)treatment Option 1 followed by Treatment Option 2 would be the best option to treat the applicant’s teeth.
The law
Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Is the proposed treatment medical or related treatment?
The applicant seeks compensation for expenses of and related to dental treatment proposed by Dr Min Stephenson in his report dated 16 January 2020 or, alternatively, dental treatment proposed by Dr Andrew Howe in his report dated 5 November 2020 (proposed treatment). The applicant’s counsel submitted that the most appropriate treatment is Dr Stephenson’s Treatment Plan Upper 3 and Treatment Plan Upper 4.
Dr Stephenson’s Treatment Plan Upper 1 (Extraction of tooth 14 only) comprises:
(a) extraction of tooth 14 and nothing else.
Dr Stephenson’s Treatment Plan Upper 2 comprises (Traditional removeable denture):
(a) extraction of all of the applicant’s upper teeth;
(b) full removable traditional upper denture, and
(c) reline six months later.
Dr Stephenson’s Treatment Plan Upper 3 (Removeable denture with four implant supports) comprises:
(a) extraction of all of the applicant’s upper teeth;
(b) four implants with a locator design to hold a full removable upper denture, and
(c) full removeable upper denture with implant support to hold it in place.
Dr Stephenson’s Treatment Plan Upper 4 (Fixed implant bridge) comprises:
(a) extraction of all of the applicant’s upper teeth;
(b) temporary upper denture, and followed by a fixed upper implant bridge.
Dr Howe’s proposed treatment (Fixed OIB) comprises:
(a) extraction of all the applicant’s upper teeth;
(b) the alveolus be remodelled and an All-on 4 protocol carried out for a fixed osseo-integrated implant-supported bridge (OIB), and
(c) this included firstly a temporary hybrid OIB followed by a permanent OIB.
The respondent has not disputed that the proposed treatment is medical or related treatment (other than domestic assistance) within the meaning of s 60(1)(a) of the 1987 Act.
I am satisfied that the proposed treatment is “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.
Is the proposed treatment reasonably necessary?
In Diab v NRMA Ltd[3], Roche DP, referring to the decision in Rose v Health Commission (NSW),[4] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect 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 judgment 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 the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
[3] [2014] NSWWCCPD 72.
[4] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[5]
“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.”
[5] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I will consider each of those elements separately.
The appropriateness of the proposed treatment
Dr Kysten noted on examination on 11 October 2019 that:
(a) tooth 11 was grade 1 mobile and sensitive;
(b) tooth 12 was grade 1 mobile and sensitive;
(c) tooth 21 was sensitive;
(d) tooth 41 was grade 3 mobile, and
(e) the applicant had generalised chronic severe periodontitis.
Dr Stephenson also noted on examination on 15 January 2020 that:
(a) tooth 14 was grade 3 mobile; and
(b) the applicant had lost tooth 41.
In his file review (which included a review of relevant imaging), Dr Watson did not challenge the above findings of Dr Kysten and Dr Stephenson.
Dr Howe noted on examination on 5 November 2020 that:
(a) teeth 18, 17, 16, 14, 26, 28, 38, 37, 31, 41, 47 and 48 were missing;
(b) tooth 27 has super-irrupted (over-irrupted) due to the loss of tooth 37;
(c) all teeth with the exception of tooth 11 tested positive to carbon dioxide nerve sensibility testing;
(d) tooth 22 was tender to pressure and exhibited class 2 mobility. It had reduced bone support and probably required removal;
(e) tooth 11 exhibited discolouration due to internal pupal apology and exhibited class 2 mobility, was tender to pressure and the buccal sulcus above the tooth was also tender. Tooth 11 had undergone internal resorption and exhibited a periapical infection. The tooth required removal;
(f) tooth 25 suffered mobility with reduced bone support and required removal;
(g) the applicant had periodontitis with superimposed gingivitis or ongoing periodontal disease, and
(h) the applicant was suffering bone loss due to chronic periodontal disease.
There is considerable consistency between the various medical opinions, noting that the applicant experienced some further tooth loss since the accident and the medical opinions. For example, tooth 14 and tooth 26 were lost since Dr Stephenson’s examination on 15 January 2020.
On the basis of the evidence, I accept that the applicant’s most recent diagnosis is that set out by Dr Howe following his examination on 5 November 2020, which is summarised in the above paragraph.
Dr Stephenson opined that the applicant required dental treatment at least in the nature of extraction of tooth 14, which has since been lost in any event. Dr Stephenson opined that the preferable option was removal of all of the applicant’s upper teeth with a range of potential teeth replacement options. Dr Howe did not appear to dispute that removal of all of the applicant’s teeth was reasonable.
Dr Stephenson proposed a range of potential teeth replacement options being traditional removeable denture, removeable denture with four implant supports to hold it in place or a fixed implant bridge. Dr Stephenson considered advantages and disadvantages of each proposed tooth replacement option. Dr Stephenson noted that tooth loss results in ongoing loss over time of the supporting bone.
In relation to the treatment option being the traditional removeable denture, Dr Stephenson opined that it had to be removed, would not hold the bone and would actually make the bone shrink more. Dr Stephenson noted that the traditional removeable denture was harder to wear with age. Dr Howe doubted that the applicant would be satisfied with a traditional removeable denture.
In relation to the treatment option being a removeable denture with four implant supports, Dr Stephenson opined that it was one of the preferred treatment options. Dr Stephenson did note however that it was less easily tolerated in the upper mouth (as opposed to the lower mouth), which is the location that it would be used for the applicant. Dr Stephenson noted the potential for infection around implants as a result of periodontal disease and added complications with implants due to minimal bone growth due to smoking.
In relation to the treatment option being a fixed implant bridge, Dr Stephenson opined that it was another preferred treatment option. Dr Stephenson noted that there was less constant care required. Dr Stephenson noted the potential for infection around implants as a result of periodontal disease and added complications with implants due to minimal bone growth due to smoking.
Dr Howe opined that a further tooth replacement option would be appropriate, being a Fixed OIB. Dr Howe opined that would be the best solution to the applicant’s failing dentition considering his bone loss of periodontal disease and believed that it was the treatment most likely to be accepted by the applicant.
The cost of the treatment
At the hearing, counsel for the applicant applied to amend the ARD to the effect that the amount of expenses now claimed in respect of the proposed treatment is $43,000.
Counsel for the respondent took no objection to the amendment and the Commission granted leave to amend the ARD in the manner sought.
Dr Stephenson’s evidence in relation to estimated cost is set out above. His estimated cost for the treatment options he proposed are:
(a) traditional removeable denture: $195 per extraction (for 11 extractions), $2,150 for the upper full denture and $410 to reline, being a total of $4,705;
(b) removeable denture with four implant supports: $195 per extraction (for 11 extractions), $1,500 for a temporary denture, $2,150 for top casting permanent denture, $2,450 per implant (for 4 implants), being a total of $15,595, and
(c) fixed implant bridge: a total of $41,590.
Dr Watson opined that Dr Stephenson’s cost estimate “would seem to be fair and reasonable”.
Dr Howe’s evidence in relation to estimated cost is that the total cost for a Fixed OIB (including a temporary hybrid OIB) would be $43,000.
The actual or potential effectiveness of the treatment
Dr Stephenson noted the potential for infection around implants as a result of periodontal disease and added complications due to minimal bone growth due to smoking. Dr Stephenson noted that there was a 5% to 10% higher risk of failure of the proposed treatment in the case of a patient who had a smoking habit. Nevertheless, he considered that the treatment options being removeable denture with four implant supports or a fixed implant bridge were likely to be potentially effective to treat the applicant’s failing dentition.
Dr Watson opined that, as a result of the applicant’s poor oral health including periodontal disease and his smoking habit, “the medium to long-term prognosis for any treatment plan that includes implants would be guarded, at best”.
Dr Howe opined that a traditional removeable denture was unlikely to satisfy the applicant. Dr Howe considered that a Fixed OIB was most likely to be effective to treat the applicant’s failing dentition. Dr Howe opined that teeth 13, 12, 21, 23 and 24 had a reasonable prognosis with periodontal treatment and smoking cessation. Dr Howe did not express any significant reservations about the potential effectiveness of the proposed treatment.
The availability of alternative treatment and its potential effectiveness
Dr Stephenson proposed four potential treatments and Dr Stephenson proposed a further potential treatment. Those treatment options are all detailed above.
The acceptance by medical experts of the treatment as being appropriate and likely to be effective
The Commission notes that there is some divergence of medical opinion in relation to whether the proposed treatment is appropriate and likely to be effective.
Dr Watson opined that “[e]ach treatment option provided by Dr Stephenson would seem to be reasonable and necessary”. However, Dr Watson noted that due to the applicant’s poor oral health and the fact that he is a heavy smoker, “the medium to long-term prognosis for any treatment plan that includes implants would be guarded at best”. Dr Watson preferred that “[b]eginning with Treatment Plan 1 and moving on to Treatment Plan 2, as outlined by Dr Stephenson in the documentation, would be the best option to begin to treat Mr Anderson’s dental problems”. Dr Watson acknowledged that the applicant will need dental treatment in the future due to his likely loss of all his remaining teeth in the short to medium term future however he did not detail appropriate and likely effective treatment beyond the initial (“begin to treat”) Treatment Plan 1 and Treatment Plan 2.
On balance, I prefer the option of Dr Stephenson and Dr Howe to the opinion of Dr Watson for the following reasons:
(a) medical evidence in relation to the applicant’s current dentition were reasonably consistent. There is no dispute that the applicant requires dental treatment in the near future;
(b) Dr Watson conducted a file review and did not examine the applicant;
(c) Dr Watson based his consideration on whether the proposed treatment was “reasonable and necessary”, rather than “reasonably necessary” which is the test required to be applied by the Commission;
(d) Dr Watson nevertheless conceded that the proposed treatment was “reasonable and necessary”;
(e) although the treatments recommended by Dr Stephenson and Dr Howe were somewhat different, they were both of the nature of fixed implants, and
(f) Dr Stephenson and Dr Howe considered those treatments to be potentially effective and reasonably appropriate notwithstanding the applicant’s moderate to severe periodontal disease and his smoking habit.
Both Dr Stephenson’s Treatment Plan Upper 4 (Fixed implant bridge) and Dr Howe’s proposed treatment plan (Fixed OIB) appear to be reasonably necessary alternative treatments to treat the applicant’s condition.
Having regard to all the matters set out above, I am satisfied that the proposed treatment, in particular Dr Stephenson’s Treatment Plan Upper 4 (Fixed implant bridge) or, in the alternative, Dr Howe’s proposed treatment plan (Fixed OIB), is reasonably necessary.
Does the need for the proposed treatment arise as a result of a work injury?
A commonsense evaluation of the causal chain is required. In Kooragang Cement Pty Ltd v Bates[6], Kirby P (as His Honour then was) stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[7]
[6] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[7] (1994) 10 NSWCCR 796 at [810].
In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated:
“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716)”.
[8] [2015] NSWWCCPD 49 at [57].
The respondent submitted that the proposed treatment does not arise as a result of a work injury.
Dr Watson opined that the proposed treatment does not arise as a result of a work injury. Dr Watson noted that medical records indicated that the applicant received soft tissue injury to his face and reported loose teeth as a result of the accident but he did not sustain any facial fracture or significant facial or dental injuries. Dr Watson noted that the applicant had moderate to severe periodontal disease which he opined would have taken many years to develop. Dr Watson also noted that the applicant smoked at least 20 cigarettes per day which he opined would significantly the periodontal disease.
Dr Watson opined that due to the applicant’s advanced periodontal disease:
“Without future excellent oral hygiene and a change in lifestyle, ie. Stopping smoking, it is most likely that Mr Anderson will lose all of his teeth, in the short to medium term future.
The radiographs in the documentation show that many of Mr Anderson’s remaining teeth are not able to be saved.
…
It is clearly apparent from the documentation that Mr Anderson has had poor oral health for many years prior to the accident. The accident did not in any way cause or exacerbate this poor oral health.
It is vaguely possible that sensitivity to teeth 11 and 12 may be as a result of the accident. It is more likely, however, that the sensitivity is as a result of the continuing periodontal disease.
Mr Anderson will need dental treatment in the future. The workplace accident is in no way related to the need for ongoing dental treatment in the future.”Dr Stephenson opined that “prognosis for all his teeth are poor in life time (means before he die, he may lose all his teeth” and that it was only possible to save some back teeth if the applicant improved his oral health care and lifestyle and obtained regular dental treatment.
Dr Howe opined that the applicant “would have required the same treatment at a later date due to his lack of professional care and smoking”.
The evidence is consistent, and I accept, that the applicant had moderate to advanced periodontal disease which was aggravated by his smoking habit. As a result of those factors the applicant would likely have lost at least many of his teeth and required the proposed treatment at a future time notwithstanding the accident.
However, I note that:
(a) there is no evidence that the applicant had loose teeth prior to the accident;
(b) ambulance records immediately following the accident indicate that the applicant had lacerations to his face and mouth and queried loose teeth;
(c) hospital records indicate that the applicant had landed on “right arm, right leg and side of fact”. Further, the applicant had soft tissue injuries to his face including “small lacerations to lips” and “top (middle) teeth feel lose [sic]” although imaging did not show any significant facial or dental injuries such as fracture. There were a number of mentions of loose front tooth;
(d) Dr Stephenson noted that on 11 October 2019 the applicant had attended Dr Ksyten and reported that two weeks prior he had fallen and landed on his face which had made his front teeth loose, and
(e) Dr Howe opined that the applicant “suffered an acceleration of his dental needs on 26 September 2019”. Further, Dr Howe opined that “[e]mployment is the main contributing factor to the acceleration of the loss of teeth” and that the proposed treatment “has been brought forward by the trauma”.
The evidence is consistent that the applicant experienced trauma to his face and mouth as a result of the accident and that he immediately complained of loose upper front teeth arising from the accident. Subsequent medical reports confirmed that the some of the applicant’s upper teeth had significant mobility. On the basis of the above evidence, I am satisfied that the applicant suffered loose teeth and an acceleration of his need for dental treatment as a result of the accident.
I do not need to be satisfied that the injury was the only, or even a substantial, cause of the need for the proposed treatment.
For these reasons, I am satisfied that the accident materially contributed to the need for the proposed treatment and that the need for the proposed treatment arose as a result of a work injury.
CONCLUSION
I am satisfied, having regard to the considerations identified in Diab v NRMA Ltd[9] and Rose v Health Commission (NSW)[10] that the proposed treatment is, therefore, reasonably necessary.
[9] [2014] NSWWCCPD 72.
[10] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
For all the reasons above, I accept that the proposed treatment is reasonably necessary as a result of the injury.
SUMMARY
In summary, the following findings and orders are made:
The Commission determines:
(a)the proposed treatment, in particular Dr Stephenson’s Treatment Plan Upper 4 (Fixed implant bridge) or, in the alternative, Dr Howe’s proposed treatment plan (Fixed OIB), is reasonably necessary as a result of the injury on 26 September 2019.
The Commission orders:
(b)the respondent to pay the costs of and incidental to the proposed treatment in accordance with s 60 of the 1987 Act.
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