Asgari v iSpark Electrical & Solar Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Asgari v iSpark Electrical & Solar Pty Ltd [2021] NSWPIC 295
APPLICANT:	Vahid Asgari
RESPONDENT:	iSpark Electrical & Solar Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	18 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for costs of future cervical fusion surgery; injury accepted; whether surgery reasonably necessary as a result of workplace injury; requirement for applicant to demonstrate causal connection on a common-sense basis; Kooragang Cement Pty Ltd v Bates followed; applicant must demonstrate the surgery is reasonably necessary as a result of the work injury; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service applied; Held- the surgery is reasonably necessary as a result of the work injury; respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his cervical spine in the course of his employment with the respondent on 19 September 2018. 2. As a result of the injury referred to in (1) above, the applicant requires cervical fusion surgery as recommended by Dr Singh, treating surgeon. 3. The surgery recommended by Dr Singh is reasonably necessary as a result of the workplace injury. 4. The respondent has to pay the cost of and incidental to the proposed cervical fusion surgery.

STATEMENT OF REASONS

BACKGROUND

On 19 September 2018, Mr Vahid Asgari (the applicant) was carrying out his duties in the course of employment with iSpark Electrical & Solar Pty Ltd (the respondent) as a solar installer when part of the roof he was working on gave way, causing him to fall through the ceiling, landing heavily and relevantly sustaining cervical spine injury.
The fact of the applicant suffering a cervical spine injury is not in issue. The applicant brings these proceedings seeking payment by the respondent for the costs of an incidental to a C5-C6 anterior cervical decompression and fusion as recommended by his treating surgeon, Dr Singh.
The respondent denies liability on the basis the proposed surgery is not reasonably necessary as a result of any workplace injury. In particular, the respondent alleges that the effects of the workplace injury on the cervical spine have passed, and the need for surgery, should there be any, does not arise as a result of that injury.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining for determination by the Commission is whether the proposed anterior cervical decompression and fusion is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 20 July 2021. 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.
At the hearing, the applicant was represented by Mr R Hanrahan of counsel, instructed by Ms S Boitano, solicitor. Mr C Tanner of counsel appeared for the respondent, instructed by Ms H Whiting, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence on:

(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no evidence called at the hearing.

FINDINGS AND REASONS

Reasonable necessity of the proposed surgery

The dispute in this matter surrounds the precise nature of the injury suffered by the applicant and whether the current pathology from which he suffers is referable to it. That in turn, will be determinative of whether the proposed surgery is reasonably necessary as a result of the workplace injury.
As such, there are issues concerning the causal connection between the workplace injury and the need for surgery, together with questions of the reasonable necessity of the actual proposed treatment.
There is no question the applicant bears the onus of proving the nature of the injury and whether his current pathology which necessitates the surgery is referable to it. When dealing with questions of causation in a workers compensation context, the Commission must apply a common-sense test after evaluating the evidence, consistent with the decision of his Honour Kirby P (as he then was) in the oft-cited passage in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
The applicant also bears the onus of proving that the medical treatment claimed is reasonably necessary. The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). In that matter, the Deputy President cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. Thus, treatment will be considered reasonably necessary if the Commission finds that it is preferable that the worker should have the treatment, then it be forborne.
There are other considerations which are also relevant to deciding whether treatment is reasonably necessary. These include, but not limited to, the appropriateness of the treatment, the availability of alternative treatment and the potential effectiveness of that alternative, the cost of the proposed treatment, the actual potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab, Roche DP also noted the word "reasonably" operates to qualify the effect of "necessary", such that the injured worker does not need to prove the treatment is absolutely necessary.
For the applicant, Mr Hanrahan noted the basis for the respondent’s declinature was set out in the dispute notice, dated 22 October 2020. That notice acknowledged the respondent had accepted liability for a laceration to the applicant's head and injury to his neck and shoulder in the fall on 19 September 2018.
The dispute notice indicated the applicant had been reviewed by Dr Singh on 10 March 2020, at which time a C5/6 CT guided foraminal injection was ordered. That injection took place on 5 May 2020, and the dispute notice indicates the injection "reportedly failed to relieve your pain." That description is only partially correct. The clinical records in fact reveal the applicant had some temporary relief as a result of the facet joint injection, a subtle but in the context of this matter an important distinction.
The respondent had the applicant examined by Dr Wallace, Independent Medical Examiner (IME), to assess whether the surgery proposed by Dr Singh is reasonably necessary. Relying upon Dr Wallace's report dated 21 September 2020, the respondent denied liability on the ground the applicant had not discharged his onus of proof that the proposed treatment is reasonably necessary as a result of the accepted injury.
In his report, Dr Wallace indicated the applicant suffered muscular ligamentous strain of the cervical spine and aggravation of pre-existing multilevel degenerative cervical spondylosis in the fall at issue. Dr Wallace's view was that any cervical spine injury which the applicant may have sustained as a result of the incident on 19 September 2018 had resolved, and as a result, his employment with the respondent was no longer a substantial contributing factor to any pain which the applicant is now experiencing, which in turn necessitates the proposed surgery.
For the applicant, Mr Hanrahan submitted Dr Wallace's opinion should not be preferred and that it stands alone among the medical evidence. He took the Commission to the Liverpool Hospital discharge summary which referred to trauma as a result of the fall. Mr Hanrahan submitted that the fact of cervical x-rays showing no obvious fracture to the neck is in no way determinative of whether the applicant suffered ongoing pathological change.
The applicant underwent an MRI scan on 26 October 2018. That scan again demonstrated no acute fracture and the presence of multilevel spondylotic changes, which at C5/6 were clearly causing moderate bilateral foraminal narrowing “with potential exiting C6 nerve root impingement. Also, potential impingement at the C6/7 and C4/5 levels.”
Mr Hanrahan noted that a further MRI undertaken on 14 December 2020, recorded the continued presence of a moderate lesion of the applicant's central cord opposite the C3/4-disc space. The report on that MRI described the lesion as remaining stable from December 2019, with no enhancement to suggest disease activity. Mr Hanrahan submitted that finding represented a continuum of pathology from the time of injury to date, which stands in contrast to Dr Wallace's view that the effects of injury had passed.
The applicant noted that on 10 March 2020, Dr Singh wrote to the applicant's general practitioner, Dr Lee, recommending a C5/6 steroid injection as a diagnostic measure in an attempt to localise the applicant's pathology. This was against a background of the applicant having ongoing symptoms and "the MRI scan of the cervical spine revealing an area of spinal cord which may represent a cord injury. At C5/6, there is foraminal stenosis on the left."
The applicant underwent that injection in May 2020, and according to Dr Singh's report dated 11 September 2020, it provided him with temporary relief. Dr Singh noted the injection was diagnostic in nature, and concluded the applicant has C5/6 pathology correlating with his symptoms.
The applicant also relied in support of his claim on the report of Dr Patrick, trauma and general surgeon dated 1 October 2019. Dr Patrick took a consistent history of injury and symptomology and proceeded to diagnose "significant cervical spinal injury with demonstrable muscle guarding in some dysmetria but not satisfying criteria for a radiculopathy arising at cervical spine on this occasion of examination." He categorised the applicant as DRE II at the cervical spine.
In a further report dated 6 April 2021, Dr Patrick noted the treatment regime of Dr Singh and was broadly supportive of the approach taken by him. At page 2 of that report, he noted Dr Singh was "not rushing into things and he recommended a trial of a C5/6 injection as a diagnostic measure." Dr Patrick was of the view that the proposed surgery was reasonably necessary, as the alternative forms of treatment had afforded the applicant no meaningful benefit. After summarising the diagnostic material and the history of injury, Dr Patrick disagreed with Dr Wallace's diagnosis that the applicant had simply suffered a muscular ligamentous strain injury. Dr Patrick also said the applicant's injury had certainly not resolved at the time of his latest report in April 2021.
The applicant also relied upon a report of Dr Teychenne, neurologist IME, dated 17 July 2019. Dr Teychenne took an exhaustive history of the mechanism of the applicant's injury and his symptoms. After setting out in detail the various radiological evidence and his findings on examination, he concluded the applicant suffered from an incomplete cervical cord lesion.
The applicant's clinical picture is somewhat complicated by suggestions that he is suffering Multiple Sclerosis (MS). That potential diagnosis was dealt with by Dr Teychenne, who could not find any clinical findings suggestive of MS. Rather, Dr Teychenne indicated the applicant's symptoms of demyelination and post-concussion syndrome explained his complaints of vertigo and headaches. Dr Teychenne was of the view that those symptoms are consistent with an incomplete cord lesion and spinal shock consistent with the mechanism of fall as described by the applicant. At the time of his report, Dr Teychenne opined that there was no specific treatment for an incomplete cord lesion and the applicant did not require surgical therapy.
In a second report dated 18 September 2019, Dr Teychenne noted the presence at C5/6 of a broad-based osteochondral bar with some extension into the foramen, resulting in a moderate degree of foraminal narrowing with potential nerve root impingement at C6 and C7. Dr Teychenne remained of the view that there was no surgery indicated.
In relation to the respondent's evidence, Mr Hanrahan did not disagree with the finding of Dr Mellick, IME for the respondent, that the applicant suffered a significant mood disorder, however, he submitted this does not rule out a finding being made of physical problems. He submitted Dr Mellick did not take into consideration the effect of the fall on the pathology at C5/6 and C6/7. Indeed, Dr Mellick conceded that he did not see any radiological investigations at the time of his examination of the applicant.
In relation to, Mr Hanrahan submitted the report of Dr Wallace was not satisfactory as it only indicated the presence of a soft tissue injury. Mr Hanrahan submitted on any reasonable reading of the evidence, it was plain that the applicant suffered more than simply a soft tissue injury, as can be noted by the presence of both cord lesions and also the canal stenosis and impingement at C5/6 and C6/7. He submitted there was no basis for saying that the condition caused by the accepted injury had passed.
Mr Hanrahan submitted the commission would find support for the treating doctor from the applicant's IME, Dr Patrick, and accept that the proposed surgery is reasonably necessary.
For the respondent, Mr Tanner noted that although there may be cord lesions at C3/4, that was not the level of the proposed fusion. Rather, he noted the MRI evidence detailed minor pathological changes following the injury at issue and submitted these were not consistent with requiring the applicant to undergo surgery. Mr Tanner noted that all of the doctors accepted the applicant was not suffering from what could be described as “classic radiculopathy” referable to the area where Dr Singh seeksto carry out the surgery.
Mr Tanner submitted Dr Mellick was perfectly placed to offer an opinion concerning the functional aspects of the applicant's complaints and submitted his views should be preferred.
Mr Tanner submitted the request by Dr Singh for surgery was not reasonably necessary. He submitted it was not clear the extent to which non-operative treatment has been conducted and how the applicant may respond to it.
The difficulty with that submission is, of course, that the applicant had undergone a cervical steroid injection which provided him with some temporary relief. The treating doctor indicated such an injection is a diagnostic tool and relief in symptoms in the affected area is suggestive of a problem at that vertebral level. Nothing in the respondent's evidence contradicts this being the case. Dr Singh's characterisation of the steroidal injection as a useful diagnostic tool is not meaningfully challenged. To that extent, I prefer the view of Dr Singh as to the seat of the applicant's pain problems, noting on a common-sense basis that an alleviation of symptoms when the C/6-disc space was treated is suggestive of that space being the seat of the applicant's problems.
In my view, the fact that Dr Teychenne and the radiological evidence demonstrates an incomplete lesion which Dr Teychenne considers is non-operable, does not detract from the presence of an injury at the C5/6 level, which Dr Singh proposes to treat with the anterior fusion.
Mr Tanner submitted it was simply unclear what the nature of the pathology implies, and how it would relate to the fall in 2018. It is noteworthy, however, that the applicant has complained of neck pain since the fall in question. His symptoms have never moderated, save for a short time after he had the cervical injection which provided temporary relief.
Mr Tanner rhetorically asked what the particular condition is which the applicant complains of which requires surgery. In my view, the answer to that question is the C5/6-disc injury, the presence of which is borne out by the effect of the diagnostic injection to that disc space. The presence of an injury to that disc space is also consistent with the findings on radiology. The findings are suggestive of the presence of underlying neck pathology, however, there is no suggestion that pathology was symptomatic before the fall in issue. The applicant is not an old man. He is 35 years of age. He was carrying out physical work without complaint of any neck pain before the workplace injury.
As has been noted, the fact of the applicant suffering a cervical spine injury is not in issue. Mr Tanner submitted there was no proper explanation which confirms the pathology which the applicant suffers has resulted from the fall. However, the respondent's own acceptance of liability for the neck injury was on the basis that it was an aggravation of underlying degenerative changes. This being the case, it follows the injury need not have caused the underlying pathology. Rather, it is sufficient for it to have caused the aggravation.
There is a long line of authority beginning with Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 636, which confirms an injury by way of aggravation takes place where the experience of the condition by the patient is increased or intensified. The question of whether a workplace injury is the main contributing factor to an aggravation requires an examination of the cause of the aggravation of the condition, not of the underlying pathology (see for example, Ariton Mitic v Rail Corporation of New South Wales (matter number 8497022013) 8 April 2014 per Arbitrator Harris) and decisions such as Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606. In the latter case, the Court of Appeal said the words "injury consisting of the aggravation...of a disease." In Section 16(1) of the Workers Compensation Act 1987 should be construed as not referring to something which is an injury independent of its aggravating effects on a previously existing disease, but has been confined to what are entirely injuries by aggravation (see Sheller JA at [616]).
In this matter, I am satisfied on the balance of probabilities that the applicant suffered an injury in the fall at work on 19 September 2018 by way of an aggravation to his cervical spine of the underlying but previously asymptomatic pathology. The lay evidence of the applicant together with the treating and IME material also supports a finding that the effects of that aggravation remain ongoing. There is no suggestion in the treating material or the lay evidence that the applicant's symptoms ceased at any time post-injury. That being so, I reject the opinion of Dr Wallace, IME for the respondent who indicated firstly the effects of the applicant's injury were merely soft tissue in nature, and also that they had resolved.
Dr Wallace's opinion is a bare ipse dixit statement. He does not provide a reason as to why the applicant's symptoms, suffered in what was clearly a serious fall at work, would simply have ceased after a given period of time. Absent such an explanation, I do not accept Dr Wallace's opinion.
I also find the applicant has satisfied the onus of proof in determining the proposed surgery is reasonably necessary as a result of his injury.
I am satisfied, given the applicant has attempted non-surgical intervention by way of steroid injection, that he has explored conservative and alternative treatments, but they have afforded him no benefit. It is not necessary for the proposed surgery to be the only reasonable treatment in order for it to be reasonably necessary.
There was no complaint made by the respondent as to the cost of the proposed surgery being prohibitive, and it is trite to say that cervical fusion is a well-known and well-regarded procedure carried out by appropriately qualified surgeons over many decades.

In finding the surgery is reasonably necessary, I have taken into account the temporary relief afforded by the steroid injection as indicative, on a common-sense basis, of problems at the C5/6 level of the applicant’s spine. That is the region where Dr Singh proposes to carry out the surgery and I find, on the balance of probabilities that the surgery affords the applicant the opportunity to alleviate his symptoms. That being so, I am of the view he should be afforded the proposed treatment rather than it be forborne.
I also note that the applicant suffered his fall in September 2018. Since that time, he has had ongoing neck-related symptoms, as I have accepted. This being so, I do not accept the respondent's submission that Dr Singh has "rushed" into the proposed surgery. It has been nearly three years, and the applicant has had no benefit from conservative treatment regimes.

SUMMARY

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

[2021] NSWPIC 295

18 August 2021