Bradley v South Newcastle Rugby League Club Ltd
[2021] NSWPIC 298
•19 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bradley v South Newcastle Rugby League Club Ltd [2021] NSWPIC 298 |
| APPLICANT: | Stewart William Bradley |
| RESPONDENT: | South Newcastle Rugby League Club Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 19 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for future surgery; injury not in issue; applicant suffers severe unrelated osteoporosis and osteopenia; whether surgery reasonably necessary or whether applicant should first undertake treatment for his osteoporosis; Held- the surgery is reasonably necessary as a result of the work injury; the treating surgeon’s views are supported by a former treating surgeon and the applicant’s IME; the treating doctor had the benefit of recent radiological studies and remained of the view the applicant’s lumbar discs could withstand the fusion surgery; respondent to pay the costs of and incidental to the proposed surgery. |
DETERMINATIONS MADE: | 1. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 10 September 2012. 2. As a result of the injury referred to paragraph 1 above, the applicant requires lumbar fusion surgery as proposed by Dr Winder. 3. The surgery proposed by Dr Winder is reasonably necessary as a result of the workplace injury. 4. The respondent is to pay the costs of and incidental to the proposed lumbar fusion surgery. |
STATEMENT OF REASONS
BACKGROUND
There is no issue that on 10 September 2012, the applicant suffered an injury to his lumbar spine in the course of his employment with the respondent. On that occasion, he was assisting the secretary manager of the respondent to move a planter box in a poker machine area. The planter box weighed between 50 to 60 kg, and in the course of lifting it the applicant immediately felt severe stabbing pain in his lower back and "felt a cracking sensation" in the upper lumbar spine region.
The applicant brings these proceedings seeking the respondent pay the costs of and incidental to an L3/4 spinal fusion followed by posterior fixation. The respondent accepts both the fact that the workplace injury and it being responsible for the need for surgery. The question for determination in this matter is whether the surgery is reasonably necessary, or whether the applicant, who suffers severe osteoporosis in his lumbar spine, should have that condition treated before surgery is contemplated.
ISSUES FOR DETERMINATION
The parties agreed that the only issue in dispute is the reasonable necessity of the proposed surgery.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 12 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, Mr N Willoughby of counsel instructed by Mr M Evers, solicitor appeared for the applicant. Mr J Beran instructed by Mr M Van Der Hout, solicitor appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents; and
(b) Reply and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Issue 1 – Reasonable and necessity of the treatment
It is trite to say the applicant bears the onus of proving the surgery proposed by his treating surgeon Dr Winder is reasonably necessary. The test adopted in determining whether medical treatment is reasonably necessary as a result of a work injury is at stated by Burke CCJ in Rose v Health Commission (NSW) [1986] 2 NSWCCR 2 (Rose), where his Honour said:
"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 judgement and good sense, that it is so. That involves the Court in deciding, on the facts as it finds then, that the particular treatment is essential to, should be afforded to, and should not be for borne 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 its place in the usual medical armoury have treatments for the particular condition."
It is settled law that the presence of a pre-existing condition such as osteoporosis does not prevent the need for treatment being "as a result of an injury" under section 60 of the Workers Compensation Act 1987 (the 1987 Act): see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18. The fact that pre-existing conditions may have been contributory factors in the need for treatment does not mean that the proposed treatment is not a result of the injury - see Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, per Roche DP.
As noted, in this matter there is no question the requirement for the proposed surgery has been brought about by the workplace injury. It is therefore necessary only to examine whether the treatment itself is reasonably necessary, rather than to delve into questions of causation.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted that the Court of Appeal considered the meaning of "reasonably necessary" in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52, albeit in the context of home renovations rather than medical treatment. The Court noted that the trial judge had sought guidance from the decision in Rose. Grove J referred to the dictionary definition of "necessary" as being "indispensable, requisite, need for, that which cannot be done without" (Oxford Dictionary) and "that cannot be dispensed with" (Macquarie Dictionary). At paragraph 23 and 24, his Honour stated:
"23 the essential issue is what effect flows from conditioning such qualities as 'reasonably'. The consequences to moderate any sense of the absolute which might otherwise be conveyed by the word 'necessary' if it stood alone. In order to contemplate such moderation it is apt to consider the surrounding circumstances, but the question to be addressed is whether modification of a workers home, having regard to the nature of the workers incapacity, is reasonably necessary. In contemplation of what might be open 'reasonably necessary' there is the statutory obligation specifically to have regard to the nature of the workers incapacity. It provides emphasis towards moderating the measure of 'necessary' in this context. 24 the statute does not inhibit enquiry as to what may be for reasonable in all, or in any particular circumstances but its terms clearly point to predominant attention being paid to the nature of the workers incapacity. In my opinion, to reject the appellant's proposal on the basis that expenditure is to be made on premises which is a weekly tenant is an elevation rather than a moderation of the meaning of 'necessary'."
In Diab, Roche DP noted the effect of the decision in Clampett and commented as follows:
"85 the approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Ltd v Commissioner of Taxation) [2013] FCAFC 68 per Gordon J (Besanko J agreeing). Thus, 'reasonably necessary' is a composite phase 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]. The Court, Bathurst CJ, Beazley and Magher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
86. Reasonably necessary does not mean 'absolutely necessary'. If something is 'necessary', in a 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 at the treatment claim 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….
87. Giles JA added at [49] in O'Shea that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, including to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under section 88K of the Conveyancing Act 1919, which provides that 'the Court may make an order imposing an easement of the land if the easement is reasonably necessary for the effective use of development of other land that will have the benefit of the easement'. However, his Honour's observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of section 60, the relevant matters, according to the criteria of reasonableness, include but are not necessarily limited to, the matters noted by Burke CCJ at point 5 in Rose, namely:
(a)The appropriateness of the particular treatment;
(b)The availability of alternative treatment, and its potential effectiveness;
(c)The cost of the treatment;
(d)The actual or potential effectiveness of the treatment, and
(e)The acceptance by medical experts of the treatment as being appropriate and why could it be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. 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.
90. 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. Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the work I 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, 'no paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content'."
The parties agreed that the genesis of the dispute in this matter arose from approximately mid 2020 when the applicant obtained updated radiological investigations into his lumbar spine condition. A report on an MRI of the lumbar spine taken on 1 September 2020 found the following:
"There is a fracture of L5 vertebral body with diffuse bone marrow oedema which is confined to the body without extension into the posterior elements. The disc is in normal shape. There is a mild degree of foraminal narrowing.
L4/5 disc has broad based bulge. There is a small annular fissure in the midline. No discrete protrusion. Canal is in normal in size. There is foraminal narrowing more marked on the right side than the left.
L3/4 disc has broad based bulge. Canal is normal in size. Left side of foreman is normal in size. There is a mild degree of foraminal narrowing on the right side. Apophyseal joint are preserved.
L2/3 disc canal and intervertebral foramina and apophyseal joints are preserved. Distal aorta is normal in calibre. Intervertebral foramina appear normal. Conus appears normal. Remaining lumbar discs appear normal."
A CT scan taken of the lumbar spine on 4 September 2020 revealed the following:
"There is a comminuted fracture of the L5 vertebral body. There is an oblique fractured line extending from the left lateral wall to a left posterior vertebral body wall. There is no involvement of the pedicles. The lamina and spinous processes is intact. This is a two column injury. The central vertebral body height loss is one third. There is no displaced bony fragment or significant central canal stenosis."
The report also noted the fracture in the L5 vertebra is potentially unstable.
As already noted, the applicant has a long history of osteoporosis. On 9 September 2020, he underwent a bone density scan which reported as follows:
"Since the last scan in 2017, there has been approximately 5% decline in bone density at the spine and nearly 11% decline of the total hip which is highly significant.
Current bone density in the spine remains moderate to severely osteoporotic and way below that expected. The left total hip is severely osteopaenic. The right total hip, right femoral neck and left femoral neck are all mildly osteoporotic and that or mildly below that expected. The forearm is severely osteoporotic.
Highly significant bone loss or generalised osteoporosis. Ensure all secondary causes of bone loss have been excluded. Restart antiresorptive treatment and repeat bone density in 12 months to see if he response."
This radiological evidence is of significance because of the nature of the proposed surgery, which involves fixing of hardware to the applicant's L5 vertebra.
For the respondent, Mr Beran contended that the elements of the test in Diab which are really in issue in this matter are those relating to the actual or potential effectiveness of the treatment and its acceptance by medical experts as being appropriate and likely to be effective.
Mr Beran noted the dispute arises because the applicant has severe osteoporosis and the question is whether, absent treatment of that condition before surgery, any fusion is likely to be successful.
The respondent's position is that on balance, the proposed surgery will not be successful because of the instability of the L5 vertebra, and accordingly cannot be said to be reasonably necessary.
Mr Beran noted the report of Dr Winder, the treating neurosurgeon and spinal surgeon dated 28 May 2020 provided an opinion which did not have the benefit of the most updated radiological investigations. The report of Dr Winder recommends approval to perform a circumferential fusion at L3 to L5 via a lateral approach and posterior fusion. Mr Beran submitted that the radiological investigations call into question that approach, through no fault of Dr Winder, because the applicant's osteoporosis had developed to such a serious extent by the time of the scans in September 2020 (four months after Dr Winder's report) that there are real questions as to whether his disc could withstand and hold the hardware used in fusion surgery.
Mr Beran submitted that the Commission would prefer the views of Dr Bentivoglio, IME for the respondent who provided a number of reports, the last being in August 2020. Dr Bentivoglio noted the applicant had not been treated with further medication for his osteoporosis since the initial review of the applicant in June 2018. Dr Bentivoglio recommended the applicant undergo a new MRI and bone density studies because "if he is significantly osteoporotic surgical treatment becomes a significant issue."
The respondent noted that the applicant underwent the investigations recommended by Dr Bentivoglio and they show the development of osteoporosis to such an extent that it renders the proposed surgery not reasonably necessary. At page 4 of his report in August 2020, Dr Bentivoglio was asked whether the applicant's request for a circumferential fusion at L3 to L5 was reasonably necessary and replied:
"I do believe he probably will need to have a fusion at L3/4 and L4/5 in the not too distant future but before he has that he needs to have a new MRI scan because his symptoms have totally changed and also to assist the osteoporosis in his lumbar spine."
On 5 November 2020, Dr Bentivoglio provided a supplementary report in which he commented on the applicant's most recent MRI and bone scans. He noted the presence of foraminal narrowing at L4/5 and L3/4. Dr Bentivoglio then said:
"What he does have however which is new, is a new fracture of the L5 vertebra which did not exist on the original MRI scan and it is obviously acute there is still oedema in the body of the L5 vertebra. This is consistent with his osteoporosis that he seems to have had a spontaneous fracture at the L5 vertebra. There is no displacement and the posterior columns are intact."
Dr Bentivoglio was then asked as to whether the proposed fusion surgery was reasonably necessary, and in light of the new scans replied:
"At this stage, I would be very wary about undertaking a fusion at the L3/4 and the L4/5 levels because of his obvious osteoporosis with the spontaneous fracture of L5. So my opinion is that he needs to be reassessed by the neurosurgeon who is planning to do this procedure and further assessment of this osteoporosis needs to be undertaken."
In conclusion, Dr Bentivoglio said the request for the fusion surgery is premature owing to the applicant's significant osteoporosis which needs to be treated and investigated before the surgery is undertaken. He recommended that the surgeon who is proposing the treatment ought to review the osteoporotic studies before undertaking further treatment by way of fusion.
The opinion of Dr Bentivoglio was relied upon by the respondent in its dispute notice. In response to that opinion, the applicant's solicitors referred Dr Bentivoglio's views together with the recent radiological studies to treating surgeon Dr Winder, who had proposed to undertake the surgery. In so doing, the applicant's solicitors were essentially complying with Dr Bentivoglio proposed course of action regarding consideration been taken of the most updated scans by the treating doctor.
The letter of instruction to Dr Winder included the dispute notice and the reports of Dr Bentivoglio dated 17 August 2020 and 5 November 2020.
Dr Winder provided a report dated 4 March 2021 in which he noted the applicant has undergone conservative treatment beyond what would be expected to result in any further improvement to his symptoms. He noted the applicant had suffered a significant deterioration and has had surgery recommended to him over time by three separate doctors. He opined that there was no role for any further conservative treatment before surgery.
Dr Winder noted his belief that surgery would provide the applicant with improvement owing to the severe degenerative change at L3/4 and L4/5. He referred to the CT and "subsequent MRI scans" which confirmed significant uptake and also noted the bone scan, suggesting that the applicant’s L4/5 disc issues would be a major cause of his ongoing problems. Dr Winder then said "as such intervention through these areas will help alleviate some of his pain."
Contrary to the respondent's submission that the treating doctor had not dealt with the suitability of an osteopaenic disc for fusion surgery, I note Dr Winder specifically took that into account when he stated:
"given his L5/S1 disc is so well preserved, I believe he is a good candidate for either procedure and in fact an anterior procedure may help provide a larger surface area to treat the osteopaenic nature of his bone, although I suspect the cortical bone formation around the epiphyseal ring will be sufficient to withstand either of the implants. It is important to understand, whereas I believe this will help to improve his pain, I do not believe it will eliminate all of his pain as he has had pain for over eight years, and as such there will be a degree of chronic pain component, which will not be resolved with surgical intervention." (emphasis added)
It follows, in my view, that Dr Winder has plainly taken into account the most recent radiological evidence in maintaining his opinion the applicant was a good candidate for the proposed surgery. Dr Winder is a treating surgeon, and as such his views should, absent some obvious flaw in his reasoning, be given significant weight.
Dr Winder noted in answer to a question from the applicant's solicitors that he has performed approximately 5000 spinal surgeries through his career, and that the proposed fusion is of a nature which is “one of the primary operations I performed and am comfortable not only with the whole approach, but also importantly discussing the expectations and likely outcomes with the procedure."
Dr Winder indicated that the proposed surgery is the only way the applicant would have improvement of his pain, though he (appropriately in my view) conceded it will not alleviate all of the applicant's pain owing to the chronic nature of his condition. Dr Winder specifically referred to having read the reports of former treating surgeon Dr Steel and respondent’s IME Dr Bentivoglio, and maintained his view that the only way to proceed with the applicant was to undertake the surgical intervention.
In my view, the submission made by Mr Willoughby that the reference to MRI evidence in
Dr Winder's most recent report must be to the September 2020 MRI and bone scans, given he is specifically referring to Dr Bentivoglio's report, which in turn references those studies, is well made. On balance, I accept the view of Dr Winder, supported as it is by an earlier surgical approach recommended by Dr Steel, over the views of Dr Bentivoglio. In my view, the evidence discloses that Dr Winder has examined the most recent radiological evidence and has maintained his opinion the applicant's discs will withstand the fusion. He does so against the background of having performed over 5000 spinal operations, and with surgery of a similar nature to that contemplated in this matter being an operation which he performs very often.
Accordingly, taking into account the matters set out in the decisions of Rose and Diab, I am satisfied on the balance of probabilities the proposed surgery is reasonably necessary. That is, having preferred the views of treating surgeon Dr Winder, which broadly accord with the earlier report of Dr Steel and also the applicant's IME Dr Bodel, it follows that I find the applicant's proposed surgery to on balance be reasonably necessary.
That is to say, the treatment is appropriate and alternative avenues have been exhausted. No criticism should be levelled at Dr Winder for an entirely reasonable opinion that whilst the surgery will alleviate a good portion of the applicant's symptoms, he will remain with residual symptoms. As clearly noted in the authorities, the fact no surgery comes with a certain outcome is not fatal to a proposed treatment being reasonably necessary. Each case must depend on its facts.
No issue is taken by the respondent with the cost of the treatment, and it is anticipated through the applicant's counsel that in the event he is successful, approval will be sought at the appropriate WorkCover mandated rates.
As noted, Dr Bentivoglio had indicated the applicant should undergo radiological investigation to determine whether the treating surgeon was still of the view that his osteopaenic disc could withstand fusion surgery. The applicant underwent those radiological studies, and his treating doctor indicated having regard to the results of them that the applicant's L5 disc could withstand a fusion surgery. That being so, and having accepted
Dr Winder's view, it follows on balance that the surgery has a potential effectiveness which would benefit the applicant. Notwithstanding Dr Bentivoglio's concern over the surgery, the balance of the medical evidence in my view supports a finding that the surgery is reasonably necessary.
For the above reasons, the Commission will therefore make orders as set out on page 1 of the Certificate for Determination.
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