Broadspectrum Australia Pty Ltd v Gunaratnam
[2019] NSWWCCPD 36
•19 July 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Broadspectrum Australia Pty Ltd v Gunaratnam [2019] NSWWCCPD 36 | ||||
| APPELLANT: | Broadspectrum Australia Pty Ltd | ||||
| RESPONDENT: | Vinothavathi Gunaratnam | ||||
| INSURER: | Self-Insured | ||||
| FILE NUMBER: | A1-5395/18 | ||||
| ARBITRATOR: | Ms J Bamber | ||||
| DATE OF ARBITRATOR’S DECISION: | 31 January 2019 | ||||
| DATE OF APPEAL DECISION: | 19 July 2019 | ||||
| SUBJECT MATTER OF DECISION: | Whether proposed surgery is reasonably necessary – s 60 of the Workers Compensation Act 1987; Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32, Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed and applied; alleged error of fact; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied | ||||
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Holman Webb Lawyers | |||
| Respondent: | Turner Freeman Lawyers | ||||
| ORDERS MADE ON APPEAL: | 1. 1. The Certificate of Determination dated 31 January 2019 is confirmed. | ||||
INTRODUCTION AND BACKGROUND
1. Ms Vinothavathi Gunaratnam (the respondent) was employed by Broadspectrum Australia Pty Ltd (the appellant) as a school cleaner. On 6 February 2012, while performing those duties, she injured her back. Thereafter she worked on lighter duties. The respondent was subsequently transferred to assistant receptionist duties. On 8 August 2014, she attempted to sit on a chair which was fixed with wheels, the chair moved from under her, which caused her to fall. She struck her low back on the floor. She ceased work thereafter.
2. The appellant accepted liability for both injuries.
3. On 19 January 2018, the respondent’s treating specialist, Dr Brian Hsu, spinal surgeon, recommended the respondent undergo an L5/S1 anterior and posterior decompression and fusion. Dr Hsu provided a quote for the proposed surgery which was to be performed in two stages and totalled an estimated $31,771.20.
4. The appellant declined liability for the surgery.
5. The respondent commenced proceedings in the Commission. The matter was listed for conciliation and arbitration on 6 December 2018.
6. The Senior Arbitrator issued a Certificate of Determination (COD) on 31 January 2019, in which she found that the proposed surgery and associated incidental treatment expenses were reasonably necessary treatment as a result of the injuries sustained in her employment with the appellant.
7. The appellant appeals the decision.
ON THE PAPERS
8. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
9. I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
10. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
11. The respondent provided a statement dated 6 July 2018.
12. The respondent described that on 6 February 2012, while performing her cleaning duties with a back-pack vacuum cleaner on her back, she bent to clean the borders of one of the school rooms and suffered back pain. She lodged a workers compensation claim, which was accepted by the appellant. The respondent thereafter worked on lighter duties doing modified cleaning work and was provided with assistance to do the heavier tasks, but subsequently ceased duties for a period of approximately two months. The respondent complained of continuing back pain. The respondent was then allocated to the front desk to assist the receptionist. On 8 August 2014, while working in the office, the respondent attempted to sit on a chair which had wheels. The chair slipped away from under her, and she struck her low back on the floor. The respondent complained that this incident caused a severe aggravation of her existing pain, and she was unable to get back up again after the fall. Her daughter came and took her home. She said she has not returned to work.
13. The respondent reported that, as at the date of the statement, her treatment regime consisted of extensive conservative treatment in the way of injections and physiotherapy. She said treatment has not alleviated her pain, including significant, chronic pins and needles in her legs, causing her to limp. The respondent complained that the pain caused faecal and urinary incontinence. The respondent described her ongoing limitations arising from the back symptoms.
14. The respondent stated that any back complaints she had experienced prior to the two work injuries were asymptomatic at the time of the first injury.
15. The respondent indicated that her treating specialist, Dr Hsu, had recommended surgery. She said she wished to undergo the surgery because of the continuing symptoms, which had not been alleviated by conservative treatment.
The Parkview Medical Centre, Toongabbie
16. The respondent had attended the Parkview Medical Centre over a number of years prior to the above injuries. The notes were annexed to the Application to Resolve a Dispute (ARD) and commenced from 2004.
17. The first recorded complaint of back pain was on 8 January 2007, when the respondent attended Dr Karen Chen, general practitioner, and also complained of right shoulder pain. Physiotherapy was arranged. The respondent attended the practice again for review of her back pain on 20 January 2007. The clinical notes thereafter made no mention of back pain until 10 May 2012, when the respondent consulted Dr K Jeyachandran, general practitioner. Dr Jeyachandran recorded:
“on 6/2/12 after vacuuming she bend and removed the distal horse and stand stright [sic] then she suddenly developed lower back pain with radiation to buttock and post leg pain upto mid calf. [H]er pain is continuing now from 7 to 9/10. [T]aking Panadol & help little. Also she has had right buttock pain with radiation to post leg upto cubital fossa for one month but pain is intermittent. Also she feels off balance in both knees while walking.
p/e Since November she c/o mild lower back pain on and off panadol helps
o/e no [focal] sign in both lower legs
MRI- L5/S1 posterior paracentral disc protrusion with bilateral S1 root irritation
Reason for contact:
L5/S1 posterior paracentral disc protrusion with bilateral S”.
18. Dr Jeyachandran, recommended continuing physiotherapy, and referred the respondent to Dr Hsu for review.
19. The respondent attended the Parkview Medical Centre thereafter for regular review of her back pain, which continued to cause her discomfort and restrictions. Treatment included various medications, including Panadol, Panadeine Forte, Mobic and Endep, and physiotherapy continued. Dr Jeyachandran recorded on 5 September 2012 that the respondent declined an epidural injection and surgery. On 3 October 2012, the doctor referred the respondent for a CT guided L5/S1 epidural steroid injection. On 12 October 2012, the respondent presented to Dr Jeyachandran complaining of increased pain following the epidural, and again complained of worsening pain following the injection on 7 November 2012.
20. Dr Jeyachandran noted on 20 December 2012 that Dr Hsu had recommended surgery. Dr Jeyachandran recommended a pain management program on 15 January 2013. On 13 March 2013, the respondent commenced hydrotherapy.
21. The respondent attended Dr Jeyachandran on numerous occasions throughout 2013 and 2014. On 8 August 2014, Dr Jeyachandran recorded a history of a fall at work after missing a chair, which caused the respondent to land on her left lateral side. Increased low back pain and left leg burning was noted.
22. The respondent continued to consult Dr Jeyachandran regularly in respect of her back symptoms. The clinical notes concluded on 25 January 2018, with the last entry relating to the back symptoms made on 20 June 2017.
Dr Eric Lim
23. Dr Eric Lim, general practitioner, also treated the respondent in respect of her back injuries. Dr Lim’s clinical notes and WorkCover certificates of capacity were in evidence.
24. The clinical notes recorded that the first consultation was on 5 June 2017 and continued until 21 March 2018. Dr Lim reviewed the respondent every two weeks, and the respondent continued to complain of chronic back pain, referred to both legs with pins and needles and numbness. The WorkCover certificates of capacity issued by Dr Lim certified the respondent as having no capacity for work as a consequence of her back injuries.
25. Dr Lim provided two medical reports. In the first report dated 5 June 2017, Dr Lim recorded a consistent history of injuries, expressed his view that the respondent was suffering from chronic pain with radiculopathy, recommended pain management, but foreshadowed that the respondent may ultimately re quire surgery performed by Dr Hsu. In his second report dated 29 June 2018, directed to the respondent’s legal advisers, Dr Lim confirmed that the mechanism of injury was consistent with the duties the respondent was required to perform, confirmed the presence of chronic ongoing back symptoms with radiculopathy and that symptoms of incontinence continued. He said that the symptoms were consistent with the injuries. Dr Lim advised that the respondent was awaiting surgery, and in the meantime was being treated with Mobic, Endep and Neurontin. He noted that the respondent was compliant with her treatment management plan.
Dr Brian Hsu
26. A number of reports from Dr Hsu were in evidence.
27. In a report addressed to Dr Lim dated 21 August 2017, Dr Hsu advised that the respondent attended him for review of her longstanding ongoing back pain and was also complaining of the onset of neck pain. Dr Hsu confirmed that at the last consultation, which was in 2015, the respondent was complaining of urinary incontinence, and those symptoms had persisted. Dr Hsu recommended diagnostic injections and studies by a urologist to clarify whether the respondent was suffering from cauda equina syndrome.
28. On 11 January 2018, Dr Hsu wrote a referral to a vascular surgeon for the respondent to be assessed for the purposes of surgery, which he described as an L5/S1 anterior lumbar interbody fusion, to be followed a week later with an L5/S1 posterior decompression and fusion.
29. Dr Hsu again wrote to Dr Lim on 19 January 2018. The respondent had consulted him in order to request the suggested lumbar surgery. Dr Hsu advised Dr Lim that he had explained to the respondent that surgery for back pain does not have as high a success rate as surgery for neurological pathology, and that there was a 70–80% chance of a 50% reduction in her pain. Dr Hsu said that the respondent indicated that she would be very happy with such a result. Dr Hsu conceded that there were risks involved in fusion surgery, which he discussed with the respondent, who understood those risks.
30. Dr Hsu also provided a report directed to the respondent’s legal advisers dated 7 September 2018. In that report, Dr Hsu expressed the opinion that the surgery was necessary in order to relieve some of the respondent’s symptoms, and also to improve her overall wellbeing and pain. Dr Hsu referred to the respondent having undergone a number of non-operative treatment regimes and had consulted several specialists. Dr Hsu also referred to the respondent’s urinary symptoms, which he thought could be related to her lumbar spine pathology. Dr Hsu concluded that the respondent had exhausted all non-operative treatment options, and considered that surgery “may be considered”.
The radiological investigations
31. The respondent underwent four MRI scans arranged by various doctors and performed by different radiologists on 4 May 2012, 14 August 2014, 2 October 2015 and 13 July 2017. Those investigations respectively concluded that there was:
a. (a) a moderate sized broadbased posterior central and paracentral L5/S1 disc protrusion in contact with the bilateral S1 nerve roots but without compression. Degenerative change was present in the L5/S1 disc (4 May 2012);
b. (b) discovertebral degenerative changes at L4/5 and L5/S1 levels, a small central based disc protrusion causing mild bilateral foraminal and lateral recess narrowing, and minor bilateral facet joint arthropathy from L3/4 to L5/S1 (14 August 2014);
c. (c) a small focal posterocentral disc protrusion at the L5/S1 level with no nerve root compression and early facet joint changes at the two lower levels (2 October 2015), and
d. (d) broad based disc bulges at L3/4 to L5/S1 levels, a minor protrusion at L5/S1 level, minor perineural fat effacement at the lower three levels (most marked at L3/4 level), no neural compromise but mild facet joint hypertrophy and flaval thickening was present (13 July 2017).
Dr Graeme Mendelsohn
a.32. The respondent’s legal representatives qualified Dr Graeme Mendelsohn, general surgeon and musculoskeletal consultant, to provide a medico-legal opinion in respect of the proposed surgery. Dr Mendelsohn provided a report dated 19 March 2018.
b.33. Dr Mendelsohn took a history of the respondent having suffered an onset of back pain approximately ten years previously, which was not precipitated by any particular incident, was treated with Panadol, and resolved after a few days. The respondent advised that when she commenced working for the appellant, her back was asymptomatic. Dr Mendelsohn recorded a consistent history of both injuries. Dr Mendelsohn also noted that the respondent complained of neck pain after the second accident, and pain in both shoulders and knees, which developed after the respondent ceased work. Dr Mendelsohn took a history of the respondent’s ongoing difficulties.
c.34. Dr Mendelsohn noted that Dr Hsu had recommended surgery, liability for which was declined by the appellant. Dr Mendelsohn said that the respondent had been reluctant to undergo surgery, but because of worsening symptoms, decided to proceed with it.
d.35. Dr Mendelsohn recorded that the respondent was, at times, in constant severe pain. The respondent’s symptoms included pain, tingling and numbness in the left leg (mainly in the left thigh and calf) and also numbness in the sole of the left foot. He noted that similar (but not as severe) symptoms in the right leg had recently developed. The respondent also suffered from faecal and urinary incontinence after the second accident.
e.36. Dr Mendelsohn described the respondent’s symptoms as not improving between the first and second accident, worsening after the cortisone injection, and further worsening after the second accident.
f.37. Dr Mendelsohn reviewed the available radiological investigations. He considered that the MRI scans dated 4 May 2012 and 14 August 2012 showed similar changes at the lumbosacral level, but that the latter investigation showed a small disc bulge at L4/5 level. He was of the view that the MRI dated 13 July 2017 showed no progression of the changes reported in the earlier scans. It appears Dr Mendelsohn did not have available to him the MRI scan dated 2 October 2015.
g.38. Dr Mendelsohn performed an examination of the respondent. In respect of the lumbar spine, he observed spasm and tenderness, with lumbar movement reduced by about 50% in all directions. Straight leg raising was positive at 45 degrees in both legs, there was no leg wasting and reflexes were symmetrical. There appeared to be global hypo-aesthesia in the left leg which was not in a radicular distribution.
h.39. Dr Mendelsohn diagnosed a disc prolapse at the L5/S1 level caused by the first injury, which was further aggravated in the second injury.
40. On the basis of the lumbar symptoms failing to improve since the respondent ceased work, Dr Mendelsohn doubted that there would be any significant improvement.
j.41. Dr Mendelsohn doubted that surgery would be appropriate in the absence of radicular symptoms. He said it was possible, but not certain, that there would be some improvement in the symptoms following surgery but that the surgery would not fully alleviate the respondent’s symptoms. Dr Mendelsohn was of the view that the respondent should continue with conservative treatment, including an exercise program and hydrotherapy. He foreshadowed that the respondent would require future review by an orthopaedic surgeon or neurosurgeon, and would continue to require analgesia such as Mobic, Endep and Neurontin on a daily basis.
k.42. Dr Mendelsohn considered the views of the respondent’s various other treating surgeons (whose reports were not in evidence) about whether surgery should be performed and concluded that continuing conservative treatment, which was palliative rather than curative in nature, may be a better option than surgery. He was of the opinion that if the respondent underwent surgery, it was likely she would continue to have pain, including leg pain, but may experience some improvement, so that although he could not be certain of the result of surgery, applying the “strict criteria”, the surgery was reasonably necessary. Dr Mendelsohn considered the appropriateness, the effectiveness, the available alternatives, the cost benefit and the views generally held by the medical profession. He said that, applying those criteria, whether the surgery was “reasonably necessary” was in the circumstances of the respondent’s case, contentious, particularly because of the variance of opinion among the medical profession. Despite the contentiousness, however, he formed the opinion that on balance, the surgery was reasonably necessary.
Dr Michael Coroneos
a.43. Dr Michael Coroneos, neurosurgeon, was qualified by the appellant to provide a medico-legal opinion. He provided three reports.
b.44. The history recorded in the first report dated (27 September 2017) was consistent with the injuries alleged and the respondent’s subsequent progress. Dr Coroneos recorded that the respondent complained of transverse low back pain, left buttock, thigh and calf pain and numbness, and urinary and faecal incontinence. He noted there was no complaint of right leg symptoms.
c.45. Dr Coroneos performed a physical examination of the respondent. The only abnormality recorded was a restriction in range of active lumbar spine movement. Dr Coroneos found no evidence of objective neurological deficit and no features of a non-organic presentation.
d.46. Dr Coroneos reviewed the radiological investigations, the clinical records of a Dr Yusuf Bulbulia, general practitioner, the reports of Dr Hsu and various other specialists consulted by the respondent. Other than the report of Dr Hsu, the reports were not in evidence and therefore not before the Arbitrator, so that it is not necessary to record Dr Coroneos’ comments in relation to them.
e.47. Dr Coroneos diagnosed soft tissue lumbar strains on both dates of injury, and formed the opinion that the effects of those lumbar strains would have progressively improved and ceased over a period of two to four weeks on each occasion. He opined that there was no evidence of an aggravation of degenerative changes, or of significant neurosurgical or spinal injury.
f.48. Dr Coroneos considered that:
g. (a) neurosurgical intervention in the form of surgery was indicated;
h. (b) the effects of the two injuries had ceased;
i. (c) from a neurological perspective, he could not determine any compression on the corda equina, and
j. (d) all of the changes reported in the radiological imaging were those of lumbar spondylosis.
k.49. In his report dated 15 January 2018, Dr Coroneos was critical of Dr Hsu’s description of the proposed surgery and his quotation of the surgical costs. Dr Coroneos noted that although he was asked to provide an opinion in respect of the proposed surgery, he was not provided with all of the reports by Dr Hsu.
l.50. Dr Coroneos referred to the opinions of Dr Michael Davies, neurosurgeon and Dr Robin Rushworth, also a neurosurgeon (whose reports were not in evidence), and reported that both those specialists documented findings or opinions that indicated the respondent had a non-organic presentation. Dr Coroneos concluded that the surgery was not reasonably necessary because:
m. (a) such major surgery would be ill advised because of the respondent’s non-organic presentation;
n. (b) there was an absence of objective radiculopathy;
o. (c) all of the changes on the imaging were degenerative in nature, and
p. (d) there was no evidence of significant neurosurgical or spinal injury having occurred.
q.51. Dr Coroneos re-examined the respondent on 30 August 2018 and provided a further report dated 6 September 2018. The doctor recorded no difference from the previous examination in the respondent’s complaints of current symptoms, or clinical presentation on examination. Dr Coroneos confirmed that there was no neurological deficit and no evidence of lumbar nerve tension signs or radiculopathy.
r.52. Dr Coroneos reviewed the radiological studies, and concluded that they revealed lumbar spondylosis, desiccation, annular bulging and bilateral facet joint degeneration at L3/4, L4/5 and L5/S1 with end plate change at L5/S1.
s.53. Dr Coroneos confirmed his views expressed in his earlier report that the respondent had suffered soft tissue strains in both injuries, which would have resolved within two weeks of each event, and the effects of the injuries had ceased. He again expressed the view that the changes seen on the radiological imaging were of age related lumbar spondylosis and were constitutional, and not caused by the work incidents.
t.54. Dr Coroneos further confirmed that he did not recommend the surgery proposed by Dr Hsu for the reasons he expressed in his earlier reports.
THE ARBITRATOR’S REASONS
a.55. The Senior Arbitrator reviewed in detail the statement from the respondent, the clinical notes from the Parkview Medical Centre and Dr Lim’s practice, all of the medical reports in evidence and the radiological reports. The Senior Arbitrator summarised each party’s submissions.
b.56. The Senior Arbitrator noted that the MRI scans were all undertaken at different radiology centres and by different radiologists.
c.57. The Senior Arbitrator expressed concern in relation to Dr Coroneos’ view that the effects of the injuries had ceased within two to four weeks when the general practitioners’ notes recorded continuing complaints of back pain and spasms on examination. On the basis that the contemporaneous clinical notes contradicted that view, she found it difficult to accept that the effects of the injuries had ceased.
d.58. The Senior Arbitrator did not accept the appellant’s submission that the mechanisms of injury (particularly the first injury) were insignificant. She reasoned that the first injury triggered the symptoms, which, according to the clinical notes of the general practitioners, never abated.
e.59. The Senior Arbitrator took the view that the respondent’s credit had not been impugned, and that the respondent was diligent in returning to work after the first injury despite the continuing pain and need for medication. Further, the previous history of back pain was not particularly significant and the respondent was able to perform full duties for the appellant for several years before the first injury.
f.60. The Senior Arbitrator noted the appellant’s submission in relation to the evidence that there were non-organic factors in relation to the respondent’s leg pain, and that the respondent complained of pain in other body parts. The Senior Arbitrator further noted that the appellant submitted that Dr Hsu did not deal with the non-organic features of the respondent’s presentation, but that the appellant had conceded that Dr Hsu acknowledged that there was no evidence of radicular pain and the surgery was to address back pain, rather than radiculopathy.
g.61. The Senior Arbitrator observed that Dr Coroneos expressed the opinion that there was no requirement for surgical intervention as the respondent’s presentation on examination was not consistent with radiculopathy. The Senior Arbitrator pointed out that Dr Hsu recommended surgery to address the respondent’s back pain, and not any neurological pathology. The Senior Arbitrator said that Dr Coroneos does not really comment on whether the surgery proposed by Dr Hsu was reasonably necessary to treat the back pain, rather than neurological symptoms.
h.62. The Senior Arbitrator commented that Dr Mendelsohn found no verifiable radiculopathy, but accepted that the respondent suffered from back pain. The Senior Arbitrator expressed a preference for Dr Mendelsohn’s opinion over that of Dr Coroneos because Dr Mendelsohn’s opinion was more consistent with the clinical notes.
63. The Senior Arbitrator again expressed concern in relation to Dr Coroneos’ view that the injuries were soft tissue injuries which would have resolved within two to four weeks and considered that Dr Coroneos’ opinion was “coloured” by that view. She said that she had provided her reasons for not accepting the notion that the injuries would have recovered within that time frame.
j.64. The Senior Arbitrator concluded that for all of the above reasons, she could not place weight on the opinion of Dr Coroneos.
k.65. The Senior Arbitrator conceded that the respondent’s case was not without difficulty. She described Dr Mendelsohn’s opinion as being expressed “cautiously”. That is, that Dr Mendelsohn had doubts whether surgery would be appropriate because of the absence of verifiable radiculopathy. The Senior Arbitrator said that on the other hand, Dr Mendelsohn was of the view that there was a possibility that the surgery would relieve the pain. The Senior Arbitrator said that in some respects, Dr Mendelsohn was addressing the wrong question, that is whether the surgery would fully alleviate the pain. The Senior Arbitrator pointed out that Dr Hsu did not consider that the surgery would provide a full resolution of the symptoms, but recommended the surgery because conservative treatment had been explored, and because the surgery may offer some relief from her symptoms and improve her pain and overall well-being.
l.66. The Senior Arbitrator referred in detail to the submissions made by the respondent, which were that:
m. (a) Dr Hsu was aware that the surgery carried some risk, and he was dealing with discogenic back pain rather than neural compromise;
n. (b) Dr Hsu was aware that the surgery may not produce an ideal outcome, but that is not the legal test;
o. (c) the proper test was to determine whether, in all the circumstances, the surgery is reasonably necessary;
p. (d) Dr Hsu had been treating the respondent for many years, and was unlikely to recommend the surgery if he did not believe that it would be of some benefit to the respondent;
q. (e) in accordance with Rose v Health Commission (NSW), Dr Hsu had considered the appropriateness of the surgery, had provided other avenues of treatment, and had discussed the likely effectiveness of the surgery. The cost of the surgery was not “out of the ordinary”;
r. (f) reasonably necessary does not mean absolutely necessary and much depends on the circumstances of the case, and
s. (g) Dr Mendelsohn’s approach was one of caution, and initially Dr Mendelsohn took the wrong approach in considering whether the surgery would fully alleviate the respondent’s symptoms, but in the end formed the view that, on balance, the surgery was reasonably necessary.
t.67. The Senior Arbitrator referred to the decision in Murphy v Allity Management Services Pty Ltd as authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, for cost of the treatment to be recoverable under s 60 of the Workers Compensation Act 1987 (the 1987 Act). All that is necessary is to establish that the work injury materially contributed to the need for the treatment.
u.68. The Senior Arbitrator concluded that she was satisfied that both of the work injuries materially contributed to the need for the surgery. She reasoned that the injuries caused pain and lumbar spasm in the respondent’s lumbar spine that were consistently documented from the time of the first injury, and the respondent’s activities were adversely impacted.
69. The Senior Arbitrator said that Dr Hsu turned his mind to the matters identified in Rose, and formed the view that surgery was reasonably necessary because conservative treatment had not brought the respondent any relief from her symptoms. The Senior Arbitrator said that Dr Hsu had acknowledged the risks, but was of the view that there was a chance the surgery would improve the respondent’s symptoms. The Senior Arbitrator also noted that the respondent was aware of the risks and that the surgery would not provide a complete cure, and nonetheless wished to proceed with it in order to improve her quality of life.
w.70. The Senior Arbitrator referred to Diab v NRMA Ltd as authority to say that all surgery carries a risk, and a poor outcome does not necessarily mean that the treatment was not reasonably necessary. The Senior Arbitrator said that each case depended on its facts.
71. The Senior Arbitrator concluded that because Dr Hsu took a considered approach, had been the respondent’s treating specialist for a number of years and had benefitted from having examined her more often than the medico-legal experts, his opinion should be preferred. She said that these were additional reasons to the concerns she had already expressed as to why she preferred Dr Hsu’s opinion over that of Dr Coroneos.
y.72. Accordingly, the Senior Arbitrator made a finding that the appellant was required to pay the respondent’s claimed s 60 expenses at the appropriately gazetted rates.
z.73. The Certificate of Determination issued on 31 January 2019 records:
“The Commission determines:
a. 1. The surgery proposed by Dr Hsu, being an L5/S1 anterior interbody fusion (stage 1) and L5/S1 decompression and fusion (stage 2), together with hospital fees, anaesthetic fees and post-operative care fees, is reasonably necessary treatment as a result of injury to the applicant’s lumbar spine on 6 February 2012 and 8 August 2014 sustained in the course of her employment with the respondent.
b. 2. The respondent is to pay the costs of the abovementioned surgery and associated treatment expenses at the appropriated gazetted rates.”
GROUNDS OF APPEAL
a.74. The appellant brings a single ground of appeal, alleging in essence that the Senior Arbitrator erred in fact by determining that the surgery proposed by Dr Hsu was reasonably necessary, by finding, in the absence of sufficient evidence, that the surgery would:
b. (a) be effective;
c. (b) offer a real chance of alleviating the respondent’s symptoms, and
d. (c) potentially improve the respondent’s quality of life.
LEGISLATION
a.75. Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
…
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the Registrar for assessment by an approved medical specialist under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
SUBMISSIONS
The appellant’s submissions
a.76. The appellant refers to and quotes from the decisions of Burke CCJ in Rose and Bartolo v Western Sydney Area Health Service, and the decision of Deputy President Roche in Diab.
b.77. The appellant submits that the finding that the surgery proposed by Dr Hsu, that is an L5/S1 anterior interbody fusion (stage 1) and an L5/S1 fusion (stage 2) and ancillary costs, is reasonably necessary, was an error of fact.
c.78. The appellant says that s 60 of the 1987 Act requires a careful evaluation of whether the proposed treatment is “reasonably necessary” in the circumstances of the particular case, and while the authorities referred to above are a guide to the evaluation required, they do not provide a definitive test.
d.79. The appellant concedes that it is accepted that a guarantee of a successful outcome is not determinative of whether or not a particular treatment is considered reasonable. The appellant contends, however, that in considering whether or not treatment is reasonable, at least a reasonable prospect of improvement as an outcome should be a persuasive guide.
e.80. The appellant points out that the treatment proposed by Dr Hsu is directed at alleviating the respondent’s back pain, and not radicular pain.
f.81. The appellant says that the Senior Arbitrator correctly identified Dr Hsu’s views on the likely success of the surgery, that is that there was a 70–80% chance of a 50% reduction in back pain.
g.82. The appellant submits that Dr Mendelsohn provided “only weak support” for the proposed surgery.
h.83. The appellant contends that Dr Coroneos, who provided three reports, was of the view that surgery was not required. The appellant says that while Dr Coroneos did not specifically focus on whether the surgery was to relieve discogenic pain rather than radicular pain, this did not detract from his view as to whether the surgery should be performed at all.
84. The appellant submits that given the very limited benefit foreseen by Dr Hsu, the “only luke warm” support for the surgery given by Dr Mendelsohn, and the obvious danger of the surgery (which was to be performed in two stages), the evaluation of the evidence by the Senior Arbitrator and her finding that the surgery was reasonably necessary medical treatment was flawed and constitutes an error of fact.
j.85. The appellant seeks to have the Arbitrator’s COD revoked, and instead an award entered in its favour.
The respondent’s submissions
a.86. The respondent submits that the Senior Arbitrator did not make a factual error, as asserted by the appellant. The respondent says that the Senior Arbitrator correctly weighed the conflicting evidence, and her findings were supported by the evidence before her. The respondent contends the Senior Arbitrator did not misstate the evidence nor wrongly exclude relevant evidence or base her decision on irrelevant evidence. The respondent says that the Senior Arbitrator correctly applied the law to the facts, and her finding that the proposed surgery was reasonably necessary was open to her on the evidence before her.
b.87. The respondent identified the reasoning process adopted by the Senior Arbitrator, which was that the Senior Arbitrator:
c. (a) set out the legal test that she was required to apply as articulated in Diab and Rose;
d. (b) correctly acknowledged that the respondent was not required to establish that the surgery was reasonable and necessary, or that it was absolutely necessary;
e. (c) identified the matters to be taken into account, which included the appropriateness of the treatment, the actual or potential effectiveness of the treatment and the acceptance or otherwise by medical practitioners that the treatment was appropriate and likely to be effective;
f. (d) referred to Burke CCJ’s observations in Rose, that is, that while the effectiveness of treatment was relevant, it was not determinative, that all surgery carries a risk of less than an ideal or even a poor outcome, which does not necessarily mean that the treatment is not reasonably necessary;
g. (e) set out the evidence and the submissions of both parties;
h. (f) considered the evidence of Dr Coroneos, and concluded that it was difficult to accept that the respondent’s back injuries ceased within two to four weeks given that it was inconsistent with the continuation of the respondent’s complaints of pain in the general practitioner’s notes, which recorded back spasm on examination;
i. (g) formed the view that the respondent was a witness of credit;
j. (h) rejected the appellant’s submission that the first injury was a “minor injury” because that injury triggered the respondent’s symptoms, which never abated;
k. (i) provided further reasons for placing less weight on Dr Coroneos’ opinion – that is that:
i.(i) Dr Coroneos did not comment on whether the surgery was reasonably necessary to treat back pain, and
ii.(ii) Dr Coroneos’ view that the effects of the injuries would have resolved within two to four weeks was inconsistent with the evidence of continuing symptoms;
l. (j) acknowledged that Dr Mendelsohn expressed his view “cautiously”, but conceded that the surgery may alleviate the pain;
m. (k) considered that in some respects, Dr Mendelsohn asked himself the wrong question, that is, whether the surgery would fully alleviate the pain;
n. (l) noted that Dr Hsu had recommended the surgery despite the risks because:
i.(i) conservative treatment had failed to provide improvement;
ii.(ii) it would offer the respondent some relief of her symptoms, and
iii.(iii) it would improve her overall well-being and pain;
o. (m) observed that Dr Hsu had addressed the matters in Rose, and
p. (n) gave reasons for finding that the work injuries materially contributed to the need for surgery.
q.88. The respondent submits that the matters set out in Rose were the subject of expert opinion from Dr Hsu and Dr Mendelsohn.
r.89. The respondent contends that the Senior Arbitrator’s reasoning process demonstrates that she took into account all of the relevant evidence and weighed the evidence which led to her determination that, on balance, she was satisfied that the surgery was reasonably necessary as a result of the injuries.
s.90. The respondent submits that the finding was open to the Senior Arbitrator on the evidence.
t.91. The respondent further submits that the Senior Arbitrator’s findings of fact were based on an analysis and evaluation of all of the relevant evidence, and the rejection and the acceptance of that evidence and her conclusions were supported by her reasons.
u.92. The respondent asserts that the Senior Arbitrator applied the law to the facts and did not fall into error.
93. The respondent concludes that the appellant has not established any error of fact, or error of law or discretion, as is required by s 352(5) of the 1998 Act before the Senior Arbitrator’s decision can be disturbed.
w.94. The respondent seeks to have the Senior Arbitrator’s COD confirmed.
DISCUSSION
a.95. It is common ground between the parties that the evaluation of whether the treatment is reasonably necessary must be done in the context of each particular case as it is presented.
b.96. The appellant does not suggest that the Senior Arbitrator erred by misapplying the law or applying the wrong legal test. The challenge brought by the appellant is that the Senior Arbitrator erred by failing to accept the opinion of Dr Coroneos, and by considering that there was sufficient benefit that would flow if the surgery was performed. Such findings are findings of fact.
c.97. It is useful to review the relevant passages from both Rose and Diab.
d.98. The factors that were enunciated by Burke CCJ in Rose have been applied in a number of cases in the Commission, including Diab. In Rose, Burke CCJ made the following observations:
“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 its place in the usual medical armoury of treatments for the particular condition.”
a.99. In his discussion of the above passage, Roche DP in Diab referred to what he considered to be the “useful heads of consideration”. He said that (citations omitted):
“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 …, 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.’ 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, 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’.”
a.100. The effectiveness of the treatment is one of a number of factors that need to be considered in any determination as to the whether the treatment is reasonably necessary. It was not the only factor taken into consideration by the Senior Arbitrator and not the only argument presented by the medical evidence in support of the recommendation for surgery. The Senior Arbitrator acknowledged that there were factors that weighed against the proposed surgery, but said as follows:
“I accept [the respondent’s] counsel’s submissions regarding the application of the criteria set out in Rose. I consider that Dr Hsu has turned his mind to such matters and has found that surgery is reasonably necessary because conservative measures have not brought Mrs Gunaratnam relief. Dr Hsu does acknowledge that there are risks with the surgery and that it will not cure her pain. However, he does rate the chance of it improving her pain at 70 to 80%, albeit only to the level of a 50% improvement. Mrs Gunaratnam is aware of the risks and that the surgery will not provide a total cure but she seeks to undergo the surgery to improve her quality of life.”
a.101. The appellant asserts that there ought to be at least a reasonable prospect of a good outcome. Such an assertion is not consistent with the approach taken by Burke CCJ and Roche DP in the above cases. In a consideration of the effectiveness of the treatment, it is sufficient if the proposed treatment has the potential to be effective. As observed by the Senior Arbitrator, the treatment does not have to have the potential to totally alleviate the effects of the injury. Dr Hsu assessed the prospect of some benefit in alleviating the respondent’s symptoms would be likely to be in the order of 70–80%. Dr Hsu also factored into his opinion that all options of conservative treatment had not resulted in any improvement of the respondent’s symptoms, and that the surgery may improve her overall wellbeing.
b.102. The appellant describes the benefit assessed by Dr Hsu as “very limited”. I do not accept that a 70–80% chance in improvement of half of the respondent’s very debilitating symptoms can be so described.
c.103. Dr Mendelsohn also considered that the respondent may experience some improvement in her symptoms. Dr Mendelsohn weighed the “heads of consideration” referred to by Burke CCJ and Roche DP, which he referred to as the “strict criteria.” Applying those heads of consideration, Dr Mendelsohn formed the view that on balance, the surgery was reasonably necessary.
d.104. The Senior Arbitrator concluded that she accepted the opinion of Dr Hsu, acknowledging in her reasons that Dr Hsu had applied a considered approach, had been the respondent’s treating specialist for a number of years, had offered all available alternative treatment, and had reviewed and examined the respondent more frequently that the medico-legal experts.
e.105. It was open to the Senior Arbitrator to accept Dr Hsu’s opinion. It was also open the Senior Arbitrator to conclude that Dr Mendelsohn lent some support to the respondent’s case.
f.106. The Senior Arbitrator gave reasons as to why she placed little weight on Dr Coroneos’ opinion. She rejected the notion that the injuries were soft tissue in nature, and gave her reasons for doing so. It was plain from the uncontradicted evidence that the respondent had not recovered at all from the first injury, and the aggravation from the second injury made those continuing symptoms worse.
g.107. The Senior Arbitrator also gave reasons as to why she preferred the opinions of Dr Hsu and Dr Mendelsohn to that of Dr Coroneos. She considered that Dr Coroneos did not adequately address the reasonableness of the proposed surgery, which was to treat the back pain, rather than radiculopathy. The appellant submits that the failure of Dr Coroneos to specifically focus on that question should not detract from his overall opinion. I disagree. The question before the Senior Arbitrator was whether the proposed surgery was reasonably necessary in order to address the respondent’s back pain. In a consideration of the potential effectiveness of the treatment, the intended purpose of the treatment is a necessary element. Dr Coroneos’ failure to address that question did not assist the Senior Arbitrator.
h.108. Further, the Senior Arbitrator formed the view that because Dr Coroneos diagnosed soft tissue injuries which would have quickly resolved, that infected his consideration of whether the surgery was reasonably necessary.
109. The appellant submits that the evidence from Dr Coroneos ought to be preferred over the competing medical evidence. The appellant provides no rational basis upon which such a result could be achieved. It is a requirement of s 352(5) of the 1998 Act that in an appeal from a decision of an Arbitrator, the appellant must establish the Arbitrator committed an error of fact, law or discretion. The appellant in this case has not alleged that the Senior Arbitrator erred in law or in the exercise of her discretion, and such error is not apparent from her fact-finding process or in her conclusions and ultimate determination.
j.110. It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.
k.111. For the appellant to succeed in establishing an error of fact, it must establish that in arriving at her conclusion, the Senior Arbitrator overlooked material facts, or gave undue or too little weight to material facts in deciding the inference to be drawn, or the available inference in the opposite sense is so preponderant that the decision is wrong.
l.112. The Senior Arbitrator gave entirely logical reasons for preferring the opinions which she accepted and in reaching her conclusions. As Burke CCJ observed in Rose:
“The first step in any adjudication is to determine the principles to be applied in reaching a decision. My basic function is to state relevant principles, find the relevant facts and apply principle to the facts so found, and, in the process, hopefully, make it reasonably clear to the Court of Appeal what I have done.”
a.113. The Senior Arbitrator identified the relevant principles to be applied, conducted an evidence-based reasoning process to arrive at the relevant findings of fact, and applied the principles to the facts.
b.114. The appellant has failed to establish error on the part of the Senior Arbitrator of the kind required. There is no basis to revoke the Senior Arbitrator’s decision and the appeal fails.
DECISION
a.115. The Certificate of Determination dated 31 January 2019 is confirmed.
Elizabeth Wood
Deputy President
19 July 2019
3
0
0