Azizi v Hillbus Co Pty Ltd
[2022] NSWPIC 640
•17 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Azizi v Hillbus Co Pty Ltd [2022] NSWPIC 640 |
| APPLICANT: | Obaid Azizi |
| RESPONDENT: | Hillbus Co Pty Ltd |
| Member: | Karen Garner |
| DATE OF DECISION: | 17 November 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation for medical treatment pursuant to section 60 of the Workers Compensation Act 1987; whether proposed spinal surgery was reasonably necessary as a result of a work injury; Held – the proposed surgery was reasonably necessary as a result of a work injury. |
determinations made: | 1. The proposed treatment, in particular L4/5 and L5/S1 anterior lumbar interbody fusion and L4/L5/S1 posterior lumbar fusion with two level osteotomy, is reasonably necessary as a result of injury on 16 November 2016. |
| 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
Obaid Azizi (the applicant) is a 41-year-old man who was employed by Hillbus Co Pty Ltd (the respondent) as a bus driver.
The applicant claims that he sustained injury to his cervical spine, lumbar spine, right shoulder, bilateral hips and radiculopathy into his right leg (the injury) on 16 November 2016 when a bus that he was driving in the course of his work was involved in a collision with another vehicle.
On or about 16 November 2016, the applicant notified the respondent and made a claim for compensation in respect of injury to his lumbar spine.
On 8 December 2017, Allianz (the insurer) accepted liability for a “back strain” and the applicant’s back pain.
On or about 13 January 2022, the applicant made a claim for medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of spinal fusion surgery, specifically, L4/5 and L5/S1 anterior lumbar interbody fusion and L4/L5/S1 posterior lumbar fusion with two level osteotomy (the surgery) in accordance with the request of Dr Al-Khawaja dated 13 January 2022.
By notices dated 16 February 2022 and on 29 April 2022 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer disputed liability for the surgery on the basis that it was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.
The applicant sought a review of the s 78 Notices.
By notice dated 14 July 2022 issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision.
On 23 August 2022, the applicant filed an Application to Resolve a Dispute (Application) in the Personal Injury Commission (Commission).
On 15 September 2022, the respondent filed a Reply to the Application.
PROCEDURE BEFORE THE COMMISSION
At a hearing before the Commission conducted by MS Teams on 10 November 2022, Mr Luke Morgan, counsel, appeared on behalf of the applicant, instructed by Ms Chantille Khoury of Law Partners Personal Injury Lawyers, together with the applicant. Mr Tony Baker, counsel, appeared on behalf of the respondent, instructed by Mr Jim Vrettos of Rankin Ellison Lawyers, together with Ms Danielle Moore of the insurer.
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
As noted in the direction of the Commission made on 5 October 2022, there is no dispute that the applicant suffered an injury to his lumbar spine on 16 November 2016.
At the hearing, Mr Baker conceded on behalf of the respondent that Dr Sheehy, in his final report dated 17 October 2022, conceded that there was pathology which supported some surgery in respect of the injury. Mr Baker stated that, on that basis, the issue in dispute is whether both the anterior and posterior surgery is reasonably necessary.
The parties agree that the following issue remains in dispute:
(a) whether both the proposed anterior and posterior surgery is reasonably necessary in accordance with s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) respondent’s Application to Admit Late Documents dated 18 October 2022 and attached documents (admitted into evidence by consent), and
(d) applicant’s Application to Admit Late Documents dated 21 October 2022 and attached documents (admitted into evidence by consent).
Oral evidence
No application for cross-examination was made and no oral evidence was given.
FINDINGS AND REASONS
The applicant’s evidence
The applicant gave evidence by way of a statement dated 15 July 2022.
The applicant stated that he sustained injuries to his lower back and right hip on 16 November 2016 when a bus that he was driving in the course of his work was involved in a collision.
The applicant first sought medical treatment from his general practitioner, Dr Najeeb, in respect of the injury in around June 2017 when he continued to experience ongoing pain and symptoms in his lower back and right leg.
The applicant underwent various investigations and conservative treatment including physiotherapy however he continued to experience ongoing pain and symptoms throughout 2017 and 2018.
On or about 24 May 2018, the applicant first consulted with neurosurgeon, Dr Darweesh Al Khawaja upon referral by Dr Najeeb. The applicant underwent further investigations which were reviewed by Dr Al Khawaja.
On or about 1 August 2018, the applicant had facet injections administered to his lower back under the care of Dr Al Khawaja, which provided short term relief.
The applicant continued to undergo physiotherapy as recommended by Dr Al Khawaja but continued to experience ongoing pain.
On or about 30 January 2019, the applicant had further facet injections administered to his lower back under the care of Dr Al Khawaja, which provided only partial pain relief.
The applicant then consulted with an exercise physiologist as recommended by Dr Al Khawaja.
On or about 14 March 2019, the applicant advised Dr Al Khawaja of ongoing pain and was referred to pain specialist, Dr Alister Ramachandran.
On or about 27 March 2019, the applicant first consulted with Dr Ramachandran regarding ongoing pain in his lower right back and right hip.
On 24 June 2019, the applicant underwent radiofrequency treatment to his lower back and right hip under the care of Dr Ramachandran. The applicant felt no relief of pain in his lower back.
The applicant continued to undergo physiotherapy as recommended.
On or about 17 July 2019, Dr Ramachandran recommended that the applicant consider surgery and a radiofrequency ablation procedure in respect of ongoing pain in his right hip, lower back and right leg.
The applicant continued to experience ongoing pain throughout 2019 despite ongoing physiotherapy.
On or about 6 March 2020, the applicant underwent a lower back radiofrequency ablation under the care of Dr Ramachandran which provided only minor pain relief.
On or about 21 August 2020, the applicant underwent radiofrequency treatment to his lower back under the care of Dr Al Khawaja which was not particularly successful.
The applicant continued to experience ongoing pain which necessitated him to cease working in around September 2020. The applicant underwent further investigations.
Upon referral by Dr Al Khawaja, the applicant consulted with spine surgeon Dr Hsu on 15 January 2021 and again on 14 April 2021. Dr Hsu did not recommend surgery at that time but indicated that he would continue to reassess the applicant to determine if it was a suitable option in the future.
The applicant continued to experience ongoing pain throughout mid-2021.
On or about 3 September 2021, Dr Hsu advised the applicant that non-operative treatment was unlikely to assist and that he should consider surgery, in particular a lower back decompression and fusion.
On 13 January 2022 and again on 19 May 2022, Dr Khawaja recommended surgery for the applicant’s ongoing pain and symptoms.
The applicant seeks the surgery because he continues to experience significant pain, symptoms and limitations and he has exhausted all conservative treatment options which have provided minimal relief. The applicant accepts the risks associated with the surgery.
Treating medical evidence
Dr Brian Hsu, spine surgeon
By report dated 15 January 2021, Dr Hsu noted that the applicant had significant back pain for some time, with a usual pain score of around 4/10. Dr Hsu stated that “surgical intervention is unlikely to reduce his pain score to 0 and most likely would provide him with 50 to 70% relief of pain which equates to around 2/10”. Dr Hsu stated “I do not feel that would be a significant benefit to him considering that his current pain management option is still providing him with around 30% relief of pain”. Dr Hsu encouraged the applicant to continue with pain management “and if his pain significantly increases then surgical intervention may be a good solution for him to reduce pain”.
By report dated 14 April 2021, Dr Hsu noted that the applicant’s pain continues, with pain scores mainly around 3-5/10. Dr Hsu noted that the applicant’s pain was bothering him and affecting his function. Dr Hsu noted that he had discussed surgery by anterior and posterior fusion with the applicant. Dr Hsu felt that such surgery was not advised at that time however noted that the position may change in the future depending on the applicant’s pain and limitations.
By report dated 24 June 2022, Dr Hsu noted the various consultations, investigations and history of the injury. Dr Hsu stated that the surgery, being an anterior and posterior fusion, is now necessary as the applicant has failed a course of non-operative treatment and surgical intervention. Dr Hsu stated that:
“Anterior spinal surgery provides us with greater access to the intervertebral disc and therefore higher rate of fusion. It also allows us to remove the intervertebral disc in its entirety rather than from a posterior approach where only partial disc removal ils possible.
The posterior part of the surgery allows us to instrument lumbar spine adding stability and also allows us to decompress the neural elements and the combined fusion rate of anterior and posterior fusion is much more superior to anterior or posterior stand-alone surgery.”
Dr Hsu expressly disagreed with the opinion of Dr Sheehy expressed in his report dated 26 April 2022 that there was no clinical or radiological support for the surgery.
Dr Hsu stated that the applicant’s lumbar spine injury and the need for the surgery is directly a consequence of the injury on 16 November 2016.
Dr Darweesh Al Khawaja, neurosurgeon
By report dated 25 February 2021, Dr Al Khawaja noted that the applicant was reviewed by Dr Hsu who did not recommend any surgical intervention. Dr Al Khawaja recommended that the applicant continue the pain management plan.
By report dated 13 January 2022, Dr Al Khawaja noted that the applicant was still annoyed with significant back issues and that Dr Hsu had recommended fusing the applicant’s spine at L4/L5 and L5/S1 levels. Dr Al Khawaja stated that “it is a valid option” but he “cannot guarantee it will make any difference... [as the applicant has] got inflammation of the sacroiliac joints as well which cannot be helped by this type of surgery”. Dr Al Khawaja recommended performing the surgery “through the front and the back to have a solid fusion mainly because he is young” and stated that “there is a good chance the surgery will help his back symptoms partially but I cannot guarantee it”. Dr Al Khawaja noted numerous risks of surgery including vascular injury, nerve damage, tear, injury, infection, paralysis, subsidence and anaesthetic risks and potential effects which included to the applicant’s bladder, sexual and bowel function. Dr Al Khawaja noted that the applicant accepted those risks and wished to proceed with the surgery. On that basis, Dr Al Khawaja requested approval for the surgery.
By report dated 12 July 2022, Dr Al Khawaja confirmed that the proposed treatment of L4/L5 anterior lumbar interbody fusion followed by L4/L5 and L5/S1 posterior lumbar fusion with osteotomy is reasonably necessary. Dr Al Khawaja stated that the applicant had exhausted a lengthy period of alternative treatment without success and that Dr Brian Hsu also recommended the surgery.
Dr Al Khawaja expressly disagreed with the opinion of Dr Sheehy expressed in his report dated 26 April 2022 that there was no clinical or radiological support for the surgery. Dr Al Khawaja stated that a MRI scan confirmed disc injuries at L4/L5 and L5/S1 levels which was further confirmed by a discogram which showed severe injury at L5/S1 level.
By letters dated 14 January 2022, Dr Al Khawaja requested authorisation for the surgery and provided an estimate of fees.
By report dated 21 October 2022, Dr Al Khawaja expressly disagreed with Dr Sheehy’s opinion. Dr Al Khawaja stated that the applicant has got radiological findings at L4/L5 level and an injection to L4/L5 gave him a great relief and Dr Hsu recommended surgery for L4/5 and L5/S1 levels. Dr Al Khawaja stated that L4/L5 level cannot be ignored whatsoever because this may give partial treatment to the applicant. Dr Al Khawaja recommended including L4/L5 and L5/S1 in that surgery. He stated that the discogram showed evidence at L5/S1 level which he could not ignore.
Dr Al Khawaja stated that the most reasonable option was fusing L4/L5 and L5/S1 levels from the front and the back. He recommended L4/L5 anterior lumbar interbody fusion followed by L4/L5 and L5/S1 posterior interbody fusion with osteotomy.
Hospital Discharge Summaries
Nursing Discharge Summaries of the Norwest Private Hospital and the Nepean Private Hospital record that the applicant underwent:
(a) right L4/5 facet block on 18 July 2017;
(b) right scaroilias joint injection on 1 August 2018;
(c) radiofrequency ablation of medial branch block on 31 May 2019, and
(d) right lumbar radiofrequency lesion L3-L5/S1 on 6 March 2020.
Investigations
The evidence includes reports of various radiological scans performed between June 2017 and May 2022. They included:
(a) ultrasound of right hip on 26 June 2017, which reported mild gluteal tendinopathies but no evidence of tear or trochanteric bursitis;
(b) CT lumbosacral spine on 6 July 2017, which reported a small left extraforaminal focal disc protrusion, without impinging on the exited left L4 nerve root;
(c) Lumbar spine MRI on 16 August 2017, which reported minor disc dehydration L4/5 and L5/S1, with minimal disc bulging. There was no annular tear, focal disc protrusion or mechanical neural impingement demonstrated to account for right leg symptoms and no bony or fact joint pathology was demonstrated;
(d) bone scan with SPECT/CT on 23 March 2018, which reported mild degenerative arthritis in certain joints including the S1 joint, with no evidence of active facet joint arthritis;
(e) MRI right hip on 23 March 2018, which reported bilateral loss of femoral head/neck offset with associated intraosseous ganglion formation at the femoral head/neck junction on both sides supportive of cam-type femoroacetabular impingement, mild apical blunting and fraying of the anterosuperior labrum with no evidence of undersurface labral tear or detachment and no hip effusion or synovitis and no tendon injury;
(f) MRI lumbar spine on 28 May 2018, which reported minimal facet disease at L4/5 and L5/S1 but no evidence of neural impingement;
(g) MRI right hip on 26 June 2019, which reported a small volume of subchondral cystic change at the femoral head/neck junction and a small labral tear posteroinferiorly with a small volume of adjacent ganglion formation;
(h) MRI lumbar spine on 15 October 2020, which reported interval appearance of left foraminal disc herniation with annular tearing at L4/5 level with no resultant nerve impingement or other interval change and no evidence of sacroiliitis in the sacroiliac joints;
(i) MRI lumbar spine on 28 March 2022, which reported mild disc bulges at L4/5 and L/S1 with no evidence of neural impingement,
(j) MRI right hip on 29 March 2022, which reported mild findings of femoroacetabular impingement with moderate anterosuperior femoral neck cam lesion, stable posteroinferior labral tear with small paralabral ganglion that has decreased in size and no new findings when compared with the previous MRI from 25 June 2019, and
(k) discography (fluoroscopy and CT) on 17 May 2022, which reported positive L5/S1 discography (intense and immediate reproduction of pain). It also reported negative discography L4/5 and stated “For reassurance, an increasing dose of injectate was given but there was no reproduction of pain”.
Certificates of capacity
Certificate of capacity dated 10 February 2022 and signed by Dr Chandra Najeeb certified that the applicant had low back injury on 16 November 2016 and had capacity for some type of work from 2 February 2022 to 2 May 2022 subject to restrictions.
Clinical records
The evidence includes various clinical records of the following, which noted the applicant’s various consultations, investigations, treatments and ongoing pain and symptoms:
(a) Dr Al Khawaja;
(b) Dr Hsu, and
(c) Family Medical Centre Auburn, which included notes to the effect that:
i.on 15 March 2016, the applicant had been driving buses for seven months and passed a medical assessment;
ii.on 23 April 2017, the applicant had right leg pain for two months on and off, was driving a bus and “denied of injury”;
iii.on 23 June 2017, the applicant had pain from right gluteal region to back of right leg up to the heel for 3 months with pain radiating to the lower back. The applicant’s occupational history was noted but there was no note of any specific injury;
iv.on 6 July 2017, the applicant had suffered from right leg pain for four months with “nil history of injury” and “Following that has lower back pain for 1/12. The pain in lower back is on & off... Is a bus driver”. On examination, the applicant was tender at L4/5 level with restricted movement. The applicant was referred for a CT scan;
v.on 7 July 2017, it was noted that the CT report showed disc bulges, which would mostly settle in time without any procedure although restrictions were recommended;
vi.on 11 July 2017, the applicant wished to make a workers compensation claim in relation to his back pain;
vii.on 12 July 2017, the applicant continued to experience pain and a Certificate of Capacity was issued;
viii.on 13 July 2017, the applicant continued to experience lower back pain and radiation to the right buttock and leg;
ix.on 31 July 2017, the applicant experienced right gluteal pain;
x.on 14 August 2017, the applicant had right gluteal pain on and off, and low back pain for two months with some improvement after physiotherapy;
xi.on 18 August 2017, the applicant’s low back pain and right gluteal pain was improving, the applicant’s lumbar spine was not tender but he experienced mild discomfort with movement;
xii.on 24 August 2017, the applicant experienced low back pain on an off and continuing right hip and thigh pain;
xiii.on 4 September 2017, the applicant’s back pain was improving (being a level 3/10) and his right gluteal pain was still present (being a level 4/10) however the pain fluctuated, the applicant’s lumbar spine was not tender but there was mild tenderness in the right gluteal region;
xiv.on 8 September 2017, the applicant’s night time low back pain fluctuated and at times he had had a lot of pain, and
xv.the applicant had ongoing pain on various occasions.
Email correspondence
The evidence includes various email correspondence between the insurer and Dr Al Khawaja in relation to preparation of a report.
Independent medical evidence
Dr John Sheehy, neurosurgeon
Dr Sheehy provided an independent medical opinion at the request of the insurer.
Dr Sheehy’s report dated 26 April 2022 noted his review of the applicant, imaging and consideration of the reports of Dr Hsu and Dr Al Khawaja. Dr Sheehy noted the applicant’s history of injury and stated:
“He has had extensive treatment with physiotherapy and subsequently joint ablations with some improvement. He continues on medication and on examination has no focal neurological signs and no limitation of spinal movement. His MRI scan does not reveal any nerve root compression. There is no radiological support for instrumented fusion at the L4/5 and L5/S1 level nor clinical support.
...
I have seen an MRI of the lumbar spine dated 28/3/2022 which comments on disc bulging at L4/5 without other focal abnormality but this does not cause me to alter my opinion expressed...
...
The most appropriate form of management is to continue under the care of a pain physician with continuing gentle exercises and the avoidance of bending and lifting.
...
There is insufficient clinical or radiological evidence to support fusion and it is very problematic whether such intervention would produce any improvement.
...
There is no evidence on the MRI scan of any inflammatory process affecting the sacroiliac joints. It is unlikely that they are contributing to the pain pattern.”
Dr Sheehy stated that the applicant had reached maximum medical improvement and it was unlikely that he would return to work. However, on the basis that the applicant “has no significant clinical findings or observed muscle spasm, there is no documented neurological impairment or documented alteration in structural integrity”, he assessed 0% whole person impairment.
Dr Sheehy’s report dated 17 October 2022 noted his review of radiology and reports including in relation to the discogram undertaken on 17 May 2022.
In relation to the L4/5 level, Dr Sheehy stated that the minor disc lesion at L4/5 has resorbed and there continues to be loss of signal in the L4/5 disc space itself with no nerve root compression. Dr Sheehy noted that improvements with injectional techniques were temporary and not of great significance. Dr Sheehy stated that there is no evidence that surgery at the L4/5 level is likely to be of benefit.
In relation to the L5/S1 level, Dr Sheehy stated that the applicant has a positive discogram at L5/S1 (although not beyond grade II) and there is radiological support for an injury at the L5/S1 level as being significant in the generation of the applicant’s pain. Dr Sheehy stated that there is some literature that correlates such a finding with a successful outcome following spinal fusion but not beyond level II in statistical analysis. Dr Sheehy said that there is radiological evidence to support instrumented fusion at L5/S1, which “would be best undertaken via an anterior or posterior approach as 90% of patients achieve a successful fusion with one or either of these approaches and only a small minority require a subsequent revision procedure 6 months later”.
Dr Sheehy noted that conservative management has been exhausted and the only alternative to surgical intervention would be to continue conservatively with the avoidance of bending and lifting, a gentle exercise program and analgesics under the supervision of a local medical officer.
Submissions
Applicant’s submissions
Mr Morgan’s submissions on behalf of the applicant may be summarised as follows:
(a) the insurer now accepts that there is pathology in the applicant’s lumbar spine that needs to be addressed surgically;
(b) the applicant relies on the decisions of Diab v NRMA Ltd[1] and Rose v Health Commission (NSW),[2];
(c) the applicant relies on the decision of Deputy President Snell in Honarvar v Professional Painting AU Pty Ltd[3] (Honarvar). On the basis of that decision, the fact that Dr Al Khawaja could not guarantee a successful outcome is not fatal to the applicant’s case;
(d) the applicant’s evidence is persuasive and should be preferred;
(e) it is not reasonable that the applicant would potentially be exposed twice to the risks of surgery if the respondent’s case was accepted, and
(f) on the basis of the evidence, the Commission should find that the entire of the proposed surgery is reasonably necessary as a result of the injury on 16 November 2016.
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[3] [2022] NSWPICPD 12.
Respondent’s submissions
Mr Baker’s submissions on behalf of the applicant may be summarised as follows:
(a) a careful analysis of the evidence does not support the applicant’s case;
(b) the respondent concedes that the applicant has had low back pain ongoing for some time;
(c) the decision of Honarvar can be distinguished from the present case;
(d) Dr Hsu’s opinion is unreliable because it appears from the evidence that the applicant first suggested the surgery;
(e) it is not reasonable to perform both the anterior and posterior fusion surgery at this time, because of the serious and permanent consequences of the surgery and a conservative approach of only one of those is appropriate in the circumstances, and
(f) the Commission may refer the issue to a Medical Assessor (MA) for determination pursuant to ss 60(5) of the 1987 Act and 321(1) of the 1998 Act.
Applicant’s submissions in reply
Mr Morgan’s submissions in reply on behalf of the applicant may be summarised as follows:
(a) the applicant opposes referral of the issue to a MA and seeks that the matter is determined by the Commission as presently constituted without delay;
(b) the Commission should prefer the applicant’s medical evidence because Dr Sheehy changed his original opinion and now accepts that there is pathology that needs to be surgically treated, and
(c) having regard to the evidence, the Commission should find that both the anterior and posterior surgery is reasonably necessary.
The law
Subsection 60(1) 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 spinal fusion surgery, specifically, L4/5 and L5/S1 anterior lumbar interbody fusion and L4/L5/S1 posterior lumbar fusion with two level osteotomy in accordance with the request of Dr Al-Khawaja dated 13 January 2022.
The surgery is clearly “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[4], Roche DP, referring to the decision in Rose v Health Commission (NSW),[5] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[6]
“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.’”
[4] [2014] NSWWCCPD 72.
[5] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[6] [2014] NSWWCCPD 72, at [76].
Roche DP[7] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[8]
“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.”
[7] [2014] NSWWCCPD 72, at [78].
[8] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[9]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply...”
[9] [2014] NSWWCCPD 72, at [86].
Roche DP found:[10]
[10] [2014] NSWWCCPD 72, at [88]- [89].
“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.”
Appropriateness
In relation to the appropriateness of the surgery, the evidence of the applicant and the treating practitioners demonstrates that the applicant has reported lower back pain from around mid-2017, albeit at times the pain has been intermittent and varying in degree. The applicant also reported leg and other pain and symptoms prior to and after that time.
The evidence of the applicant and the treating practitioners fairly consistently evidences that the applicant has undergone various non-operative treatments since 2017 without any significant long-term relief. This has included: a relatively lengthy period of physiotherapy between 2017 and 2019; facet injections administered to his lower back in August 2018 and January 2019; exercise physiology in 2019; radiofrequency treatment to his lower back and right hip in June 2019; a lower back radiofrequency ablation in March 2020, and a radiofrequency treatment to his lower back in August 2020.
The applicant’s evidence is that he continues to experience significant pain. The applicant seeks the surgery because he continues to experience significant pain, symptoms and limitations and he has exhausted all conservative treatment options which have provided minimal relief.
The applicant accepts the risks associated with the surgery which were identified by Dr Al Khawaja.
The respondent concedes that the applicant has had ongoing low back pain for some time.
The applicant’s back pain has been investigated by numerous radiological scans. Most recently, an MRI lumbar spine on 28 March 2022, showed mild disc bulges at L4/5 and L/S1 with no evidence of neural impingement A discography (fluoroscopy and CT) on 17 May 2022, showed positive L5/S1 discography (intense and immediate reproduction of pain) and negative L4/5 discography.
Availability of alternative treatment and its effectiveness
In relation to the availability of alternative treatment, and its potential effectiveness, Dr Al Khawaja stated that the applicant had exhausted a lengthy period of alternative treatment without success.[11] Dr Hsu noted that the applicant had failed a course of non-operative treatment and surgical intervention.[12] Neither Dr Al Khawaja nor Dr Hsu noted any future alternative treatment that would potentially be effective. Dr Sheehy stated that conservative management has been exhausted and the only alternative to surgical intervention would be to continue conservatively with the avoidance of bending and lifting, a gentle exercise program and analgesics under the supervision of a local medical officer.[13]
[11] Report of Dr Al Khawaja dated 12 July 2022, Application page 53.
[12] Report of Dr Hsu dated 24 June 2022, Application page 50.
[13] Report of Dr Sheehy dated 17 October 2022, respondent’s Application to Admit Late Documents page 1.
Cost of the treatment
In relation to the cost of the treatment, the parties have not raised the cost of the treatment as an issue.
Actual or potential effectiveness of the treatment
In relation to the actual or potential effectiveness of the treatment, Dr Al Khawaja explained that the combined anterior and posterior surgery was recommended to create a solid fusion mainly because of the applicant’s relative youth. Dr Khawaja stated that there is a good chance that the surgery would provide partial relief although he acknowledged that he could not guarantee a positive result. [14]
[14] Report of Dr Al Khawaja dated 12 July 2022, Application page 53.
Dr Hsu explained that the anterior part of the spinal surgery provides greater access to the intervertebral disc and therefore a higher rate of fusion. It allow allows removal of the intervertebral disc in its entirety. He explained that only partial removal of the intervertebral disc would be possible from a posterior approach. Dr Hsu explained that the posterior part of the surgery allows the surgeon to instrument the lumbar spine providing added stability, and also allows decompression of the neural elements. Dr Hsu stated that combined anterior and posterior fusion has a superior fusion rate to anterior or posterior stand-alone surgery.
Dr Sheehy stated that 90% of patients achieve a successful fusion with either one of an anterior or a posterior approach and only a small minority require a subsequent revision procedure 6 months later.[15]
[15] Report of Dr Sheehy dated 17 October 2022, respondent’s Application to Admit Late Documents page 1.
Acceptance by medical experts of the treatment
In relation to the acceptance by medical experts of the treatment as being appropriate and likely to be effective, in his most recent report,[16] Dr Sheehy now concedes that the applicant has pathology which supports the surgery, although he opines that only either the anterior surgery or the posterior surgery, and not both, is reasonably necessary.
[16] Report of Dr Sheehy dated 17 October 2022, respondent’s Application to Admit Late Documents page 1.
Dr Al Khawaja expressed the opinion that the surgery, being both anterior and posterior fusion, “is a valid option”[17] and “reasonably necessary”[18].
[17] Report of Dr Al Khawaja dated 13 January 2022, Application page 48.
[18] Report of Dr Al Khawaja dated 12 July 2022, Application page 53.
Dr Hsu expressed the opinion in June 2022[19] that the surgery, being both anterior and posterior fusion, is now necessary.
[19] Report of Dr Hsu dated dated 24 June 2022, Application page 50.
I do not accept the respondent’s submissions that the opinion of Dr Hsu should not be given weight because he previously expressed the opinion that the surgery was not reasonably necessary. In Dr Hsu’s previous reports, he made it clear that his opinion may change in the future depending on the outcome of other treatment options and the applicant’s future pain and limitations.
I also do not accept the respondent’s submissions that the opinion of Dr Khawaja should not be given weight because he stated that the surgery would likely only provide partial relief and that, in any event, he could not guarantee a positive result. In Honarvar, Deputy President Snell preferred and accepted such a recommendation for surgery in circumstances where the treating surgeon considered prospects of positive improvements with surgery to be “good” notwithstanding that the doctor could not guarantee a positive result.[20]
[20] Honarvar, at [182].
I do not accept the respondent’s submission that Dr Hsu’s opinion is unreliable because it appears from the evidence that the applicant, rather than Dr Hsu, first suggested the surgery. Dr Hsu has given a reasoned and logical explanation for his opinion.
In assessing the opinions of the neurosurgeons and spine surgeon, I am most persuaded by the opinions of Dr Al Khawaja and Dr Hsu. Dr Al Khawaja treated the applicant over a period of time and would have had the best opportunity to assess the applicant and his likely response to treatment. Both doctors provided a reasonable explanation of the rationale for performing both anterior and posterior surgery.
Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that it is reasonably necessary that the applicant undergo the proposed surgery, including both anterior and posterior surgery.
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[21], 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.”[22]
[21] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[22] (1994) 10 NSWCCR 796 at [810].
In Murphy v Allity Management Services Pty Ltd[23] Roche DP stated at [57] and [58]:
“… 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)”.
[23] [2015] NSWWCCPD 49 at [57].
In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.
I accept that the applicant did not report back pain until some time after the injury on 16 November 2016. Initially, the applicant denied any work injury as causative of his back pain and it was not for some time that the applicant claimed workers compensation on the basis of the injury on 16 November 2016.
However, I note that there is no evidence of any other significant causal factor.
The respondent accepted liability in respect of back strain on 8 December 2017.
Further, the medical evidence supports a conclusion that the subject injury is consistent with the injury on 16 November 2016
In his report dated 17 October 2022, Dr Sheehy accepted that there is radiological evidence to supported instrumented fusion at L5/S1.[24]
[24] Report of Dr Sheehy dated 17 October 2022, Respondent’s Application to Admit Late Documents page 1.
In his report dated 24 June 2022, Dr Hsu stated that the applicant’s lumbar spine injury and the surgery is directly a consequence of the injury on 16 November 2021.[25]
[25] Report of Dr Hsu dated dated 24 June 2022, Application page 50.
Considering the evidence as a whole, I am satisfied that the applicant’s evidence is credible and I accept his evidence. I find that the applicant sustained an injury to his spine arising out of a work injury on 16 November 2016.
Having regard to the evidence as a whole, I am satisfied that the surgery is reasonably necessary as a result of the work injury on 16 November 2016.
I note the applicant’s opposition to the respondent’s request to refer the issue to a MA for determination. In the circumstances and having regard to the objectives set out in s 3 of the 1998 Act, I do not consider that it is necessary, nor appropriate, to now refer the issue to an MA.
SUMMARY
For all the reasons above, the following findings and orders are made:
The Commission determines:
(a) the proposed treatment, in particular L4/5 and L5/S1 anterior lumbar interbody fusion and L4/L5/S1 posterior lumbar fusion with two level osteotomy, is reasonably necessary as a result of injury on 16 November 2016.
The Commission orders:
(a) the respondent to pay the costs of and incidental to the proposed treatment in accordance with s 60 of the 1987 Act.
0
4
0