Bellamy v Watertech Resources Pty Limited
[2021] NSWPIC 429
•21 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bellamy v Watertech Resources Pty Limited [2021] NSWPIC 429 |
| APPLICANT: | Mark Anthony Bellamy |
| RESPONDENT: | Watertech Resources Pty Limited |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 21 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 expenses for lumbar fusion at the level above previous fusion surgery; Diab v NRMA Insurance Ltd considered; Held – award for the applicant. |
| DETERMINATIONS MADE: | 1. The respondent is to pay the applicant’s s 60 expenses of and incidental to the L3/4 extreme lateral interbody fusion proposed by A/Prof M Sheridan. |
STATEMENT OF REASONS
BACKGROUND
Mark Bellamy was employed by Watertech Resources Pty Limited (Watertech) when he was injured in a motor vehicle accident in the course of his employment on 22 February 2001. He suffered injuries to his neck and back.
Mr Bellamy has undergone the following operations:
13 January 2012 Cervical fusion at C5/6 7 February 2014 Cervical fusion at C6/7 May 2017 L laminectomy 26 March 2018 Lumbar fusion at L5/S1 10 May 2019 Lumbar fusion at L4/5.
On 24 June 2020, A/Prof M Sheridan, who performed the 2019 surgery, recommended that Mr Bellamy undergo a fusion at L3/4.
Watertech’s insurer declined liability for the surgery on the basis of a report from Dr F Machart who examined Mr Bellamy on 18 June 2020 and prepared a report date 26 June 2020.
At a telephone conference on 19 May 2021, Watertech’s insurer agreed that Mr Bellamy is a worker with highest needs. The question of the rate at which Mr Bellamy is entitled to receive compensation after the second entitlement period was resolved at a conciliation conference and arbitration hearing on 18 June 2021.
Also at the telephone conference on 19 May 2021, the parties agreed that a Medical Assessor should be asked to assess Mr Bellamy and provide an opinion as to the reasonable necessity of the proposed surgery as a general medical dispute. The Commission referred Mr Bellamy to Dr R Mellick, neurologist, who prepared a Medical Assessment Certificate (MAC) dated 24 August 2021. The consultation was undertaken by videoconferencing because of the COVID-19 pandemic. The Medical Assessor said that he was unable to provide an opinion without a physical examination. At a further telephone conference on 2 September 2021, the parties requested that I determine the dispute to avoid further delay. Orders were made for written submissions.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply, and
(c) MAC dated 24 August 2021.
The documents attached to the ARD show that Mr Bellamy was referred for assessment for permanent impairment of his back, among other things in 2017. Because of the recommendation for the first lumbar spine surgery, that the Approved Medical Specialist determined that the condition of his back had not reached maximum improvement.
Liability for the costs of the three previous lumbar spine surgeries was accepted by Watertech’s insurer.
On 17 June 2020, A/Prof Sheridan wrote to Mr Bellamy’s general practitioner and noted that his leg pain was increasing, with a burning sensation down his leg. He said that there was worsening inflammation at L3/4 and requested repeat imaging. The MRI scan dated 16 June 2020 showed bilateral facet joint arthropathy and ligamentum flavum hypertrophy. The neural foramina were patent and there was minor spinal cord narrowing.
The file does not disclose why Dr Machart examined Mr Bellamy on 18 June 2020 which was before the recommendation for further surgery by A/Prof Sheridan. The questions addressed to him are general and do not deal specifically with surgery, though the history notes the possibility of further surgery. He had seen part of Dr C New’s report dated 28 February 2020 in which he assessed permanent impairment.
Dr Machart said that it was difficult to envisage that there was substantial injury to Mr Bellamy’s lumbar spine in 2001 because there was no trauma on contemporaneous
x-rays and minor spondylitic changes came on over the next four years. He said that the description of the accident was consistent with a minor soft tissue injury to the cervical spine and “[m]echanism of trauma car rear-ended is unlikely to have caused serious or substantial damage to the lumbar spine.”He said that the surgery was surprising because the pathology was never very serious. He made that comment in respect of both the cervical and lumbar surgery. Dr Machart said that Mr Bellamy suffered a soft tissue whiplash injury to his cervical spine and a lesser soft tissue injury to his lumbar spine. He said that the treatment undertaken to date was not “connected to the MVA” even though Watertech’s insurer had accepted liability for surgery. He did not consider that any “further surgery will make much difference and certainly will not result in cure.” Though he said that Mr Bellamy was not fit for physically demanding work, he said that was not a result of the injury in 2001.
In his statement dated 28 August 2020, Mr Bellamy described the accident and said it was not as Dr Machart described but was a head on collision with significant force, with the front of the truck striking the driver’s side of a vehicle which pulled out from his left without warning and attempted a U-turn. The car and his truck then collided with a parked vehicle. He said that he had had neck and back pain since the accident.
On 24 June 2020 A/Prof Sheridan sent the insurer a quote for surgery being “L3-4 xlif.” He wrote to the insurer on 6 July 2020, responding to a letter dated 2 July 2020 which enclosed Dr Machart‘s report. He explained that the surgery is an extreme lateral interbody fusion and said:
“This patient's history and symptoms consistently date back to his original work injury.
He is seeing the progression of the damage extending up the spine as a result of the original injury and as an after effect of his previous surgeries on his lower back. 10% of patients who have spinal surgery develop adjoining level degeneration as a result directly of that spinal surgery and not due to an ongoing underlying degenerative process.
I do not believe there is alternatives to surgery and he has tried all reasonable alternatives over time .
I believe this surgery has a 90% chance of giving him a successful outcome particularly relieving his leg symptoms which are consistent with the nerve compression we are seeing at the L3-4.”
Watertech’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 July 2020. The notice is very short and merely quoted Dr Machart’s report.
Mr Bellamy relied on a series of reports from Dr New. In his first report dated 28 February 2020, he set out the history of the injury and treatment. He made an assessment of permanent impairment. On 19 November 2020, Dr New said that the natural history of fused segments is that there is a stress risser above the fused segment and surgery often needs to be extended. He said that the symptoms and signs exhibited by Mr Bellamy justified the L3/4 interbody fusion. The consequence of not having surgery would be debilitating back pain.
On 23 December 2020, A/Prof Sheridan wrote to Mr Bellamy’s solicitors and said that Mr Bellamy was undergoing the insertion of a spinal cord stimulator after a successful trial. He proposed to assess the timing and need for the surgery based on the success of the stimulator. He said he disagreed with Dr Machart’s opinion and confirmed that the need for surgery dates back to the injury. He said that the need for surgery was a result of the previous surgery and not due to a degenerative process.
Watertech obtained a further report from Dr Machart dated 4 March 2021 who was provided with the evidence that post-dated his report. In answering a question as to whether the proposed surgery was reasonably necessary as a result of the injury he said:
“Mr Bellamy has a fused spine at L4/5 and L3/S1. Adjacent level disease affecting the L3/4 level is a potential complication of fusion which can lead to necessity to extend the fusion. In this case the proposal at L3/4 does have validity in treating complications from fusion between L4 and S1.
I expressed my views on the relationship of the spinal operations to the MA detailed analysis of time of onset of symptoms and clinical progression. It is not clear whether Dr Sheridan had access to the same medical documents that I used in drawing connection. What is evident is that once patient is deemed to be treated by spinal fusion as a result of injury, then the outcome of the operation continues to be linked to the injury. What this means is that if the previous treatment of fusion between L4 and S1 was accepted, then the product of the complication of this operation should also be accepted, and therefore it could be argued that the operation is reasonably necessary as a result of the injury.”
Dr Machart did not agree that there were good prospects of success from the surgery.
In his MAC dated 24 August 2021, Dr Mellick obtained the history that the spinal stimulator produced no substantial benefit. Mr Bellamy complained of constant pain in his lower lumbar region and burning symptoms in the outer aspect of his left upper thigh, extending up to his groin. Dr Mellick noted that Mr Bellamy was able to walk 2 km three times a week and to ride a bicycle 20 km.
Dr Mellick said that the burning in Mr Bellamy’s upper thigh did not conform to an upper lumbar radiculopathy. He considered that it was necessary to have a detailed physical examination to correlate the findings with the radiology. He proposed a further examination.
SUBMISSIONS
As set out above, the parties requested that I determine the matter and that the examination by the Medical Assessor not proceed.
In submissions prepared for Mr Bellamy, his solicitor, Mr Groves, summarised the medical evidence and noted that the request for surgery had been denied on the basis of the report of Dr Machart who did not see that there was a substantial injury to Mr Bellamy’s lumbar spine in the motor vehicle accident. The report dated 4 March 2021 made it clear that once Dr Machart was provided with all of the documents, he concluded that if the previous surgery was accepted as resulting from the injury, then this surgery should be accepted as resulting from the injury. Mr Groves said that the s 78 notice had been issued on the basis of an incorrect inference from Dr Machart’s opinion.
Mr Groves noted that the question of whether surgery is reasonably necessary was considered in Rose v Health Commission(NSW)[1](Rose), Bartolo v Western Sydney Area Health Service[2] (Bartolo) and Diab v NRMA Insurance Limited[3] (Diab). In Diab, Roche DP said that the matters noted by Judge Burke in Rose and Bartolo were useful heads of consideration but question of reasonable necessity was not limited to those matters. Mr Groves said:
“In considering whether the L3/4 fusion proposed by A Prof Sheridan in this matter is reasonably necessary treatment, there is evidence that A Prof Sheridan has undertaken all conservative treatment and that there is no alternative but the proposed surgery to alleviate symptoms. There may be a difference of opinion between A Prof Sheridan and Dr Machart as to the outcome of the treatment, but there is no suggestion by Dr Machart that the Applicant should not have the treatment to alleviate his symptoms. Dr Machart has concerns, but no fundamental objection, to the Applicant having the proposed surgery.”
[1] [1986] NSWCC 2, [1986] 2 NSWCCR 32.
[2] [1997] NSWCC 1, [1997] 14 NSWCCR 233.
[3] [2014] NSWWCCPD 72.
Mr Groves noted that the Medical Assessor did not refer to Dr Machart’s supplementary report and that his opinion was flawed for that reason.
Mr Turner prepared submissions on behalf of Watertech. He said that Dr Machart did not recommend surgery in his first report, observing that the previous results had been disappointing and it was unlikely that further surgery would make much difference. He noted that the Medical Assessor observed that A/Prof Sheridan did not record details of a physical examination and that previous back surgery had resulted in only a transient improvement in symptoms.
Mr Turner said that the Commission cannot be satisfied that the proposed surgery is reasonably necessary as a result of the injury. Noting that Mr Bellamy bears the onus of proof, he said that there was no evidence that the surgery would not follow the same pattern of transient improvement with a return of pain. He said that A/Prof Sheridan had not provided details of the physical examination findings on which he based his recommendation.
FINDINGS AND REASONS
Section 60 of the Workers Compensation Act 1987 (the 1987 Act) requires employers to pay the cost of reasonably necessary medical treatment required as a result of an injury.
Roche DP considered the meaning of reasonably necessary in Diab:
“… ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113] (Moorebank).
Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. ...
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[4] (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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
[4] Referring to Rose v Health Commission NSW [1986] NSWCC 2; (1986) NSWCCR 32.
Watertech’s insurer has paid the costs of all of the previous surgical treatment undergone by Mr Bellamy. The basis for the denial of the request for surgery was Dr Machart’s report dated 26 June 2020, apparently obtained for other claims management purposes. The premise of Dr Machart’s report is that the injury was a rear end collision which was likely to produce only a minor soft tissue injury to the cervical spine and was unlikely to cause damage to the lumbar spine. He said that the injury was a lesser injury than a whiplash injury to Mr Bellamy’s cervical spine. He did not consider that the treatment was “connected to the MVA.” His report was prepared before A/Prof Sheridan recommended surgery but Dr Machart did not recommend further surgery because it would not result in a cure.
Dr Machart prepared a further report dated 4 March 2021 in which he accepted that the proposed surgery at L3/4 had validity in treating the complications of the fusion between L4 and S1. He said that he had queried the relationship to the injury but if the previous treatment had been accepted, it could be argued that the operation was reasonably necessary as a result of the injury.
Surprisingly, Mr Turner did not mention that report in his submissions. It is also surprising that Watertech’s insurer continued to dispute that surgery was reasonably necessary after receiving that report.
Though Dr Machart made a guarded prognosis about the success of the surgery, it does not follow that it is not reasonably necessary, as Roche DP pointed out in Diab.
A/Prof Sheridan noted that Mr Bellamy had tried all alternatives to surgery. Technically that was not correct because the spinal cord stimulator had not then been installed. The report of the Medical Assessor shows that treatment was also not successful. It can now fairly be said that all alternatives have been tried.
A/Prof Sheridan’s report is supported by Dr New’s opinion. He agrees that it can be necessary to fuse the segment above a previous fusion.
The Medical Assessor – a neurologist rather than a neurosurgeon – was unable to provide an opinion on the basis of a telehealth consultation in the absence of reports that set out examination findings. Dr Sheridan’s reports were prepared as part of a series addressed to Mr Bellamy’s general practitioner and Watertech’s insurer and those reports would not be expected to contain the results of a detailed examination. The report can be placed to one side because it is inconclusive. It does not provide the basis to conclude that the surgery is not reasonably necessary as Watertech urged.
Once Dr Machart’s second report is taken into account, there is agreement between him, A/Prof Sheridan and Dr New that the particular treatment is an appropriate treatment for a worker in Mr Bellamy’s situation who has ongoing pain – particularly leg pain – after previous fusion surgery.
The other considerations summarised in Diab also support the reasonable necessity of surgery. The cost, in the context of this claim, is not particularly relevant. Mr Bellamy has exhausted alternative treatment. A/Prof Sheridan is more optimistic that Dr Machart about the likely effectiveness of the treatment but Dr New agrees that there is an enhanced prospect of maintaining employment and that if he did not have it, Mr Bellamy would be likely to continue to have debilitating back pain.
For those reasons, the treatment proposed by A/Prof Sheridan is reasonably necessary medical treatment as a result of the injury. I order Watertech to pay Mr Bellamy’s s 60 expenses of and incidental to the L3/4 extreme lateral interbody fusion proposed by A/Prof Sheridan.
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