Bui v HyView Fabrications Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bui v HyView Fabrications Pty Ltd [2022] NSWPIC 392
APPLICANT:	Viet-Cuong Bui
RESPONDENT:	HyView Fabrications Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	19 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Section 60 of the Workers Compensation Act 1987 expenses for cervical spine surgery; reasonably necessary; Rose v Health Commission and Diab v NRMA considered; requirements of medical evidence; South Western Sydney Area Health Service v Edmonds and OneSteel Reinforcing Pty Ltd v Sutton considered; Held – award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent on the claim for s 60 expenses representing the cost of C4/5 and C5/6 anterior cervical discectomy and fusion recommended by Dr Singh.

STATEMENT OF REASONS

BACKGROUND

Viet-Cuong Bui was employed by HyView Fabrications Pty Ltd (HyView) as a forklift driver and truck driver. He suffered an injury to his neck, back and shoulders on 3 April 2019 when he fell off the tines of a forklift. There is no dispute that he suffered an injury.
The only issue for determination is whether surgery to Mr Bui’s neck proposed by Dr Singh is reasonably necessary medical treatment as a result of the injury.

PROCEDURE BEFORE THE COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 21 June 2022 when Mr Hickey of counsel appeared for Mr Bui and Mr Atkins, solicitor, appeared for HyView.
During the conciliation conference Mr Hickey discontinued the claim for weekly compensation which is made in the Application to Resolve a Dispute (ARD).
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)    ARD and attached documents;
(b)    Reply;
(c)    Mr Bui’s Application to Admit Late Documents dated 15 June 2022, and
(d)    HyView’s Application to Admit Late Documents dated 21 April 2022 but filed by consent on 21 June 2022.
Mr Bui signed a statement on 4 August 2020 in which he described the injury on 3 April 2019. He said he attempted to return to work but suffered pain in his left shoulder and neck and had a headache which prevented him from seeing properly. Mr Bui saw Dr Vo of Cabramatta who ordered some scans and referred him to a psychologist. Dr Vo certified Mr Bui fit for selected duties.
Mr Bui said HyView’s rehabilitation provider pressed Dr Vo to certify him for work for six hours a day on five days per week in for two weeks and then eight hours per day. He returned to work in June 2019. He said that Dr Vo did not wish to be involved in a workers compensation claim or to deal with the rehabilitation provider. Mr Bui said that the rehabilitation provider referred him to Dr Khan.
Mr Bui ceased work in mid-2019. He said that he felt distressed about the rehabilitation provider pressuring his doctor and “kept thinking and thinking about it”. He felt anxious and stressed when he woke up and did not go to work. He returned in the following week but was unable to work beyond the second day. He said he had seen a psychologist monthly and a psychiatrist three times.
Mr Bui saw Dr Herald, orthopaedic surgeon, and had an injection into his left shoulder. Dr Herald referred him to Dr Nair.
Mr Bui continued to consult with Dr Khan by telephone. He said the consultations after February 2020 were by telephone but even before that, she never asked him to lift anything to check his limitations. He said that he had constant pain in both shoulders and his neck, going down to the fingers of both hands. He said it was worse if he lifted or carried everything or used his arms repetitively. He avoided doing anything that required extending his arms and even dressing was painful.
Mr Bui prepared another statement dated 15 March 2022. He said he was not happy with Dr Khan’s treatment and did not feel she was looking after him. He went to Liverpool Hospital on 18 July 2020 because of unbearable pain in his shoulders and neck. He began to see Dr Lim who referred him to Dr Singh and to Dr Soo. Dr Soo recommended physiotherapy and hydrotherapy at a consultation in September 2020 and again in November 2020. Mr Bui said that physiotherapy and hydrotherapy were declined by HyView’s insurer in September 2021.
He saw Dr Singh on 1 September 2020. From a telephone consultation on 15 September 2020, Dr Singh referred Mr Bui for injections into his neck which were performed on 19 and 20 October 2020. Mr Bui said that one of the injections improved his pain for a couple of weeks until it wore off and the pain returned to the previous level. Mr Bui and Dr Singh discussed the results of the injections at a telephone consultation on 19 January 2021 and Mr Bui said that the injection on the left side did not help at all. Dr Singh recommended surgery and Mr Bui told Dr Singh that he wanted to have it. Mr Bui saw Dr Singh again in person on 19 October 2021.
Mr Bui described unbearable pain if he lifted anything with his left arm. His sleep is disturbed by pain in his neck, shoulders and arms.

Early treatment

There are no certificate or other documents from Dr Vo in the file. A direction for production was issued but no documents had been produced by the time of the arbitration hearing.
Dr Vo referred Mr Bui to Dr Hanna, a neurologist, and his report dated 29 April 2019 is the earliest report in the file. Mr Bui complained of headaches for the last two months but described the mechanism of the injury on 3 April 2019 as the cause of the onset. He denied neck stiffness. On examination, Dr Hanna said that Mr Bui had normal tone, power, coordination and that all sensory modalities were preserved. He referred Mr Bui for a brain MRI and other treatment.

Dr Khan

Dr Y Khan is an occupational physician who treated Mr Bui from mid 2019. A direction for production was issued to Dr Khan but no documents had been produced by the time of the arbitration hearing.
Dr Khan ordered an MRI scan of Mr Bui’s brain, cervical spine and left shoulder which was undertaken on 6 November 2019. Associate Professor Peduto reported on the scan and relevantly said that it showed spondylosis at C4/5 with mild to moderate disc space changes but without significant compression of neural elements. He said that the exit foramina were clear bilaterally.
There are three reports from Dr Khan to HyView’s insurer in the file. In a report dated 26 November 2019, Dr Khan relevantly said that Mr Bui had neck and shoulder pain but also that he had capacity for work.
In a report dated 13 February 2020 Dr Khan diagnosed a neck strain, among other conditions. She said that Mr Bui’s neck and shoulder strain was consistent with his history of falling 30 cm and landing on his left side. She said that his neck pain was triggered by lying down or changing postures.
Dr Khan’s certificate of capacity dated 28 April 2020 appears in the Reply. She certified Mr Bui fit for some type of work for normal hours from 28 April 2020 to 19 May 2020. The only restrictions applied were that his lifting capacity was less than 10 kg, waist to shoulder and close to his trunk. He was not fit for truck driving. The certificate contains the notes of a detailed telehealth review. Mr Bui complained of neck and shoulder pain which were significant and interrupted all daily activities. Dr Khan noted the injections and investigations recommended by Dr Herald.
Mr Bui told Dr Khan that he had neck pain triggered by lying down or changing postures. He had interrupted sleep and continued to attend hydrotherapy but this was for his left shoulder. Mr Bui complained that his left arm was becoming weaker and he reported “insects crawling over the left or deltoid down the forearm and into the ring finger”. Dr Khan noted that Mr Bui remained keen to return to work with a new employer.

Chiropractor

Mr Abi-Arrage, chiropractor, saw Mr Bui at the request of Dr Khan on 21 January 2020. He recorded a history of the injury and that Mr Bui landed on his shoulder and head. At that time, Mr Bui had a certificate of capacity which prescribed a 10kg lifting limit for suitable duties and pre-injury hours. Mr Abi-Arrage relevantly said that Mr Bui’s cervical range of motion was limited by pain in extension and bilateral rotation. He said that the symptoms were consistent with post-traumatic rotator-cuff related shoulder pain and a cervical whiplash injury. He recommended a period of manual therapy and graded, strength based rehabilitation.
On 8 April 2020 Mr Abi-Arrage said that Mr Bui noted a slight improvement in his neck and left shoulder pain and stiffness. The cervical range of motion remained limited by pain in extension and bilateral rotation. He said that Mr Bui had attended all sessions and adhered to his exercise prescription. Mr Bui was frustrated that further neck imaging had not been approved and noted that his mental health was being affected.

Dr Herald

Dr Herald saw Mr Bui on 16 March 2020 at the request of Dr Khan. He said that the MRI scan showed an acute area of spondylosis at C4/5 so that he was uncertain, in the absence of X-rays, if it was due to a fracture. He noted that there was no associated neural impingement. His assessment was that Mr Bui had suffered a whiplash injury to his cervical spine with a possible C4/5 fracture. He referred Mr Bui for a cervical spine X-ray and made recommendations about treatment for his left shoulder. He said that Mr Bui “should control his depression which may be affecting his recovery”.
There is no X-ray report in the file but Mr Bui underwent a CT scan at the request of Dr Tran of Lansvale on 10 July 2020. Dr Trieu reported that there was no evidence of a cervical spine fracture but there was reduction in disc height at C4/5 with a mild disc protrusion and moderate narrowing of the left C4/5 neural foramen for the exiting left C5 nerve root.
Dr Herald saw Mr Bui again on 3 August 2020 and prepared a report dated 19 August. He noted pathology with respect to Mr Bui’s left shoulder but said he felt that much of the pain was coming from his neck. He was concerned that Mr Bui suffered C5 nerve compression as a result of a C4/5 disc prolapse. He prescribed Endep and referred Mr Bui to a neurosurgeon. His referral begins “Dear Neurosurgeon”. Mr Bui said that the referral was to Dr Nair.

Liverpool Hospital

An Emergency Department Discharge Referral completed by Dr Nguyen summarised Mr Bui’s visit on 18 July 2020. The general practitioner nominated in the report was Dr Vo. Dr Nguyen said that Mr Bui had gone to the hospital for evaluation of bilateral shoulder pain. She obtained a history of the injury on 3 April 2019 and noted the most recent scan was a CT scan of Mr Bui’s cervical spine on 10 July 2020 which showed moderate narrowing of the left C4/5 neural foramen for the exiting C5 nerve root. Dr Nguyen noted that Mr Bui had developed an adjustment disorder and had “concussion/recurrent migraines”. She conducted an examination of Mr Bui’s shoulders. A physiotherapy consultation resulted in a recommendation that Mr Bui was unlikely to be a candidate for a sling due to chronic pain issues. Dr Nguyen prescribed Endone for a maximum of two days and “psych medications”.

Dr Lim

Soon after his consultation with Dr Herald, Mr Bui nominated Dr Lim as his treating doctor.
Dr Lim prepared a report dated 20 August 2020. He first saw Mr Bui on that day and said that he had recently gone to Liverpool Hospital Emergency Department due to shoulder pain. Dr Lim recorded that Mr Bui had hit his head and shoulders in the incident and that he suffered memory loss as well as flashbacks and nightmares. Dr Lim diagnosed cervical spine radiculopathy and C4/5 spondylosis on the basis of an MRI scan in 2019. Dr Lim referred Mr Bui to Dr Singh.
The clinical notes from Dr Lim’s practice commence on 20 August 2020. They include the notes from a psychologist and the reports of Dr Singh.
A hydrotherapy report dated 15 October 2020 by Mr Chu noted that Mr Bui complained of neck pain of 9/10 on the visual analogue scale. Treatment was recommended.
Dr Mo saw Mr Bui on 10 November 2020. Mr Bui underwent two diagnostic injections in October 2020 but there is no reference to the results in the notes.
A report from Ms Awad, physiotherapist, dated 9 February 2021 noted that Mr Bui had completed 35 sessions of physiotherapy. At an assessment on 5 February 2021 Ms Awad noted that Mr Bui had discomfort and limited range of motion in his neck. She described the treatment undertaken and said:
“Mr Bui’s pain perception, range and muscle length are fluctuating and objective measures have not been stable, due to underlying conditions such as pain, excessive stiffness, excessive guarding and compensations that the patient has adapted with activities of daily living and upper limb range in all directions. The patient is limited by excessive tightness of the shoulder capsule and surrounding musculature, neck pain and mild cord compression.”

Dr St George

Dr Lim referred Mr Bui to Dr St George, psychiatrist, who reported on 23 September 2020. Dr St George said:
“Mr Bui describes symptoms of low mood, amotivation, poor concentration, social isolation and sleep disturbance with initial, middle and terminal insomnia. He reports experiencing significant loss of his identity and self-esteem as a result of his worsening pain and functional issues. In addition to this he described anticipatory anxiety about the future, catastrophic thinking and persistent negative ruminations.”
Dr St George diagnosed adjustment disorder with mixed anxiety and depressed mood.
On 9 December 2020, Dr St George noted that Mr Bui had been experiencing “sexual effects consistent with a traumatic brain injury”. He diagnosed a traumatic brain injury with impulse control issues.
Mr Bui said in his statement that he last saw Dr St George in mid 2021 before being told that he no longer worked at the practice. Mr Bui’s statements did not set out the symptoms to which Dr St George referred in December 2020.
Dr Lim’s notes reveal that Mr Bui continued to see a psychologist at Dr Lim’s practice.

Dr Singh

Dr Singh prepared a report to Dr Lim dated 1 September 2020 and said that the consultation took place by telehealth. That is inconsistent with the contemporaneous note in Dr Lim’s file but consistent with his own clinical note in which he said that no physical examination was undertaken and he referred Mr Bui for an up to date MRI scan. I accept that the consultation was via telehealth.
The MRI scan was undertaken on 12 September 2020 and reported on by Dr Ganeshan. At C4/5 there was a right paracentral disc protrusion with mild flattening of the right hemi-cord. At C5/6 there was a posterior central annulus tear and disc bulge with mild cord flattening. Dr Ganeshan concluded that there were discovertebral changes with mild cord compression, multilevel facet joint arthropathy and no root impingement.
Dr Singh prepared a report after a telehealth consultation on 15 September 2020. He said that the MRI scan showed disc bulging at C4/5 and C5/6 which he said was likely to be responsible for the neck and shoulder pain. He recommended injections at C4/5.
Dr Singh reviewed Mr Bui in a telehealth consultation on 19 January 2021. He said that Mr Bui had a C4/5 injection on the right which improved his pain significantly. On the left, he had an injection at C3/4 which did not improve his symptoms. He said that the main pathology was right sided foraminal stenosis at C4/5 and said that “[h]e would like to consider his surgical option and this is very reasonable…I have recommended he consider anterior cervical decompression and fusion at C4/5”.
The steroid injections were a left C4 perineural injection on 19 October 2020 and a right C5 perineural injection on 20 October 2020 both undertaken by Dr Segal. Dr Segal’s reports only describe the process and not the outcome.
Mr Bui and Dr Singh had a consultation in person on 19 October 2021. Dr Singh wrote to Dr Lim and said:
“There is a history of doing heavy physical work for many years, and his activities involve repetitive work at waist high and shoulder height with bending, lifting, pushing and pulling. He then had an injury to the cervical spine when he fell off a forklift. In 2019, he was using a forklift for an aluminium frame with pieces of glass which are quite heavy, the glass apparently had not been made fast to the tines of the forklift and started to move. He fell to the ground and hit his head, left shoulder and hip. Subsequently, he had pain in the neck and left shoulder, and was unable to go to work. He was taken to Liverpool Hospital, had a scan, and since his injury he has ongoing symptoms of neck pain, neck stiffness an radiation of pain down the left arm. He was previously asymptomatic before his injury. I have noticed the nature and condition of his employment and the details of the injury sustained, which is commensurate with the pathology seen on the MRI scan.”
Dr Singh said that work was the predominant contributing factor to Mr Bui’s current condition and to the requirement for anterior cervical decompression and fusion from C4 to C6. He said:
“Previously, I have recommended a surgery from C4 to C5, but on examination today he has symptoms and signs suggestive of C6 radiculopathy in addition to C5 radicular symptoms. Examination findings include depressed reflexes to the left side, with altered sensation to the C6 distribution. As you know, he has significant disc disease at C4-5 with disc bulging and foraminal stenosis as well as at C5-6.”
On examination, Dr Singh observed:
“pain with paraesthesia in the C6 distribution, but not a great deal of motor weakness. Reflexes are depressed in the left arm. Upper motor neuron signs are negative.”
Dr Singh said that the surgery was reasonably necessary because Mr Bui had trialled conservative treatment for two years without sustained relief and an injection which had short term benefit. He said that surgery was appropriate to relieve the neurological compression to the exiting nerve roots and stabilise the motion segments causing pain and stiffness in the neck.
Dr Singh sent a report to Mr Bui’s solicitors dated 11 November 2021. He said in respect of diagnosis:
“MRI scan of the cervical spine reveals a right-sided paracentral disc protrusion at C4-5, and posterior annular tear and disc bulge at C5-6. As you know, I have previously requested surgery for C4-5, but this has not been approved. Previously, he has responded to an injection to the cervical spine during the anaesthetic phase and this is of diagnostic importance. He has trialled conservative treatment for more than 2 years, and this has not succeeded in giving him sustained relief. He has trialled injection to the cervical spine which had short-term benefit.”
When asked to explain the pathological process which requires surgery, Dr Singh said:
“The injury at the time likely disrupted the motion segment integrity of the cervical spine at C4/5, and since then there has been progression of similar motion segment integrity loss at C5/6.”
Dr Singh said:
“Treatment options for his condition are pain management, analgesics, physiotherapy, and surgery. Given the fact that he has not responded to conservative treatment, surgery is reasonably necessary.”
Dr Singh was specifically asked to consider the five factors often used when considering whether treatment was reasonably necessary and said:
“i. The appropriateness of the particular treatment.
Surgery is the appropriate method of treatment in this condition which has failed to respond to conservative treatment, and is the accepted mode of treatment among the community of spine surgeons.
ii. The availability of alternative treatment.
Further conservative treatment is unlikely to give him benefit. The nonsurgical alternative therefore is to accept permanent functional incapacity, and trial chronic pain management.
iii. The cost of the treatment.
The cost of the treatment is commensurate with the gazetted rates, but is certainly offered by the improvement of pain and function and the ability to return to the workforce.
iv. The actual or potential effectiveness of the treatment.
Surgical treatment is effective in relieving the neurological compression and stabilising the cervical spine.
v. The acceptance of the treatment by medical experts.
Surgery is the accepted mode of treatment among the practising spine surgeon community.”

Dr Singh was asked to consider Dr Stephen’s report, discussed below, and said:
“Dr Stephen has made no recommendation for treatment, because he feels that the patient has been refractory to all forms of treatment so far. In my opinion the reason for failure of conservative treatment is that he needs surgical treatment for the structural pathology in the cervical spine and not because of symptoms focusing and symptom magnification.”
And
“Dr Stephen feels that is no indication for this operation and that surgery is contraindicated. I disagree with this opinion. I have reviewed the patient clinically, and in my expert opinion this gentleman will benefit from cervical spine surgery.”

Dr Stephen

HyView’s insurer arranged for Dr Stephan to examine Mr Bui on 11 May 2021. Dr Stephen’s report is dated 25 May 2021. He set out the history obtained, noting that Mr Bui “has had much in the way of treatment” having seen his general practitioner, an exercise physiologist, a chiropractor, a psychiatrist and a psychologist. He noted that Mr Bui had consulted Dr Singh but – so far as Dr Stephen was able to ascertain – not seen him in consultation.
On examination, Dr Stephen noted that Mr Bui’s cervical posture was normal but his cervical movements were voluntarily restricted to almost zero. He saw scans including the MRI dated April 2021, showing what he considered was quite severe degenerative change at C4/5 which was longstanding but without obvious nerve root compression and with no evidence of spinal cord compression. He noted that the 2019 MRI scan showed no compromise in the exit foramina.
Dr Stephen considered that Mr Bui suffered non-specific soft tissue damage to his neck and shoulders. He considered that symptom focusing and magnification were playing a part in Mr Bui’s symptomatology and that “this has been refractory to all forms of treatment, both physical and psychiatric”. Dr Stephen said that he had no recommendations for treatment for that reason. He said that there was no indication for the surgery proposed by Dr Singh, that the surgery was contraindicated, would not improve Mr Bui and was on the basis of a teleconference.
Dr Stephen provided a supplementary report dated 12 July 2021. He said:
“When I saw Mr Bui on 11 May 2021, I made the diagnosis of non-specific soft tissue damage to the neck and left and right shoulders, more so on the left than the right. This soft tissue damage was a product of the fall of 3 April 2019, and has produced symptoms of pain in those areas.
When l examined Mr Bui there was marked voluntary restriction of movement in all areas complained of. It was clear that symptoms [sic] focusing and symptom magnification were playing a large part in Mr Bui's symptomatology and that this has been refractory to all forms of treatment, both physical and psychiatric.
I did not anticipate resolution of symptoms ever to occur because of the predominant element of symptom focusing and symptom magnification.
I had no treatment recommendations because Mr Bui has been refractory to all forms of treatment in the past, both physical and psychiatric, because of symptom focusing and symptom magnification.”
Dr Stephen prepared a further report dated 7 January 2022. He said that, for the reasons quoted above, the proposed surgery was strongly contraindicated because:
“The request for this operation is based on Mr Bui's complaints. Mr Bui's complaints are the product of the work injury, the largest component of the symptoms arising therefrom being the product of symptom-focusing and symptom magnification.
The request for anterior cervical decompression and fusion is based on Mr Bui's complaints, which do in fact stern from the injury. The request remains unreasonable and unnecessary, and the operation remains one which is strongly contraindicated.”

Decision notices

HyView’s insurer issued notices under s 78 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) on 7 July 2021 and 16 December 2021. The insurer declined the claim for a C4/5 anterior cervical discectomy and fusion on the basis of Dr Stephen’s report. It provided Dr Singh’s report dated 19 October 2021 to Dr Stephen and sought a further report.
On 5 January 2022 the insurer undertook a review based on Dr Singh’s report dated 11 November 2021 and maintained its decision. It maintained its decision in a further notice dated 11 January 2022.

SUBMISSIONS

Mr Hickey said that the details of the injury were not in contest. He took me to Mr Bui’s statements and the reports of the scans.
In respect of Mr Bui’s description of his psychological treatment, Mr Hickey noted the reports of Dr St George which he said were relevant in the context of Dr Stephen’s report. He said that Dr St George’s opinion was important because Dr Stephen said that Mr Bui was symptom focused and magnified his symptoms. Mr Hickey said that Dr St George provided the only psychiatric evidence in the file and that I should assess Dr Stephen’s report in the context of Dr St George’s diagnosis.
Mr Hickey took me to Dr Stephen’s reports and said that he was incorrect to say that Dr Singh had not examined Mr Bui. He said that Dr Herald’s referral dated 3 August 2020 was a referral to Dr Singh. Mr Hickey noted Dr Herald’s comment in his first report that depression may be affecting Mr Bui’s recovery.
Mr Hickey then took me to Dr Singh’s reports and said they should be read sequentially. He said that Dr Singh’s comment that Mr Bui’s response to an injection during the anaesthetic phase meant that it had provided relief from symptoms in the C6 distribution. In response to Dr Stephen’s report, Dr Singh said that the condition was refractory which led to the need for surgery and that the need did not arise from Mr Bui’s symptom focus.
Mr Hickey said that the applicable law was set out in Diab v NRMA Limited[1] (Diab), where Roche DP quoted from Rose v Health Commission (NSW)[2] (Rose) and Bartolo v Western Sydney Area Health Service (Bartolo)[3]. He said that Mr Bui had tried everything and the last resort was surgery which he wished to have.
[1] [2014 NSWWCCPD 72.
[2] [1986] NSWCC2; 2 NSWCCR 32.
[3] [1997] NSWCC1; 14 NSWCCR 233.
Mr Atkins said that I would not be satisfied that Mr Bui had discharged his onus. Ordinarily the Commission would be comfortably persuaded that surgery was reasonably necessary if there was a strong correlation between radiological and clinical findings. In this case, he said, Dr Stephen’s report would persuade me that there was a questionable nexus between the injury and the proposed surgery, especially considering Mr Bui’s psychological condition.
Mr Atkins said that there was no evidence as to the likely outcome of the surgery. He said it was well known in this jurisdiction that surgery may have an impact on radicular pain but not on mechanical neck pain and that in this case the clinical and radiological position was far from clear. Dr Singh’s report did not provide a basis to be satisfied that radiculopathy was present on clinical grounds.
Mr Hickey did not make submissions in reply.

FINDINGS AND REASONS

Section 60 of the Workers Compensation Act 1987 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).”
In Diab, Roche DP said that the standard test adopted in determining if medical treatment is reasonably necessary is that stated by Burke CCJ in Rose:
“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.”[4]
[4] At [76].
Roche DP noted that the Commission has generally been guided by Burke CCJ’s statement in Bartolo:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”[5]
[5] At [78].
After considering the use of “reasonably necessary” in other contexts, Roche DP said:
“‘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.”[6]
[6] At [86].
Roche DP said:
“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.”[7]
[7] At [88]-[89].
Roche DP said that those matters were useful heads for consideration but that the essential question remained whether the treatment was reasonably necessary and that it was not simply a matter of asking – as suggested in Bartolo - if the worker should have the treatment or not.
The decision as to whether treatment is reasonably necessary will largely be made on the basis of the medical evidence and it is necessary that the evidence provide a proper basis for the decision. It should be evaluated having regard to the statement by McColl JA in South Western Sydney Area Health Service v Edmonds[8]:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[8] [2007] NSWCA 16 at [130]-[132].
In OneSteel Reinforcing Pty Lt v Sutton[9] (Sutton), Allsop P said:
“... when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.
The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost. Thus, if a person has given a history to a doctor which is incorporated as an assumption for the doctor's opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor’s opinion.”
[9] [2012] NSWCA 282; 13 DDCR 351 at [3]-[4].

Discussion and findings

HyView accepts that Mr Bui suffered an injury to his cervical spine but the evidence does not disclose an agreement as to the nature of the injury. The evidence is unclear about Mr Bui’s early treatment. He was certified fit for selected duties until mid 2020. While Mr Bui complained of neck pain, his complaints to Dr Khan were mostly of shoulder pain. Even when he went to the Emergency Department of Liverpool Hospital in July 2020, he sought treatment for shoulder pain, though did mention a neck injury. That history is clear from the discharge summary and from the initial history provided to Dr Lim. The shoulder pain is primarily in his left shoulder.
Mr Bui’s statements set out his descriptions of his pain, which is the basis of his desire for surgery. In the months following the injury, Mr Bui returned to work on selected duties. The doctors who treated him before mid 2020 encouraged him to return to work. Dr Vo certified him fit for selected duties and referred him to a psychologist. Dr Khan also certified him fit for selected duties and her last certificate shows that he agreed with that course in April 2020. Though Mr Bui complained in his later statements that Dr Khan did not ask him to lift anything to test his ability, her last certificate suggests a careful consideration of his capacity. Notably, she suggested significant lifting limitations of less than 10kg and only waist to trunk and said that Mr Bui was not to drive a truck.
Mr Bui’s statements also chart the onset of his psychological condition. From mid 2020, he was certified unfit for work. His statements are general as to the treatment he underwent.
There are no notes from Dr Vo’s practice or Dr Khan’s practice. Some reports are addressed to another doctor at Lansvale, Dr Tran, from whom there are no notes. There is no reference to Dr Tran in Mr Bui’s statements.
There is no evidence of the early treatment that Mr Bui underwent. Mr Bui’s own evidence as to the treatment actually provided is scant. His statements focus on the areas where his opinion differed from those whose who were treating him or assisting his return to work. In that context, the absence of notes from Dr Vo and Dr Khan is relevant because there is no evidence about the conservative treatment he underwent. His evidence contrasts markedly with Dr Khan’s last certificate.
While there are some reports from the chiropractor, Mr Abi-Arrage in early 2020, they reveal that little improvement was achieved and the last report was prepared at the time when Mr Bui began to experience a downturn in his mental health. The only report about hydrotherapy was an initial report and the only physiotherapy report from mid 2020 notes the limitations imposed by, among other things, Mr Bui’s pain perception.
Dr Herald said that Mr Bui’s psychological condition impacted on his injury but Mr Bui only saw Dr Herald twice. Dr Herald also sought to explore the connection between Mr Bui’s neck and shoulder injuries.
When Mr Bui began to consult Dr Lim, he saw three different specialists who treated three aspects of his injury. He saw Dr Soo in respect of his left shoulder and Dr Singh in respect of his neck. The reports of those doctors deal only with the injury they were treating and there is no evidence of any attempt by any of the treating practitioners to view Mr Bui’s case holistically or to consider the implications of and relationship between a left shoulder injury treated by Dr Soo and the left sided radicular pain noted by Dr Singh.
The third specialist Mr Bui saw was Dr St George. Mr Bui stopped seeing him when Dr St George left Dr Lim’s practice. There is no evidence that he saw another psychiatrist. That is surprising when the seriousness of Dr St George’s diagnoses is taken into account.
Mr Hickey said that I would assess Dr Stephen’s opinion that Mr Bui was symptom focussed in light of Dr St George’s diagnoses. The problems with that submission are that no consideration has been given to the likely effect or efficacy of surgery from a psychiatric perspective and that Dr St George did not express that opinion. Dr St George diagnosed initially diagnosed adjustment disorder with mixed anxiety and depressed mood. In December 2020 he diagnosed a traumatic brain injury on the basis of impulse control issues, which has not been considered by any other doctor. Despite that apparently serious diagnosis, it seems clear that psychiatric treatment simply stopped when Dr St George ceased consulting from Dr Lim’s practice though Mr Bui continued to consult a psychologist.
The argument that the surgery is reasonably necessary is supported by Dr Singh’s reports. He relied on an MRI scan taken on 12 September 2020 and the results of diagnostic injections to recommend surgery. He did not say that he had considered and contrasted the previous scan. There is no consideration of Mr Bui’s other conditions resulting from the injury in his reports and it is not possible to discern that he has considered the history as a whole since Mr Bui’s injury. Dr Singh did not engage with the history of Mr Bui’s condition generally or the history of treatment of his cervical spine in such a way as to provide a proper basis for his opinion in the way described in Sutton.
Dr Singh said that Mr Bui could trial injections in his report dated 15 September 2020. He did not explain what the trial was expected to achieve and whether the treatment was intended to be curative or diagnostic. Based on the reports in the file and Dr Lim’s notes, Dr Singh did not consult Mr Bui until January 2021, three months after the injections and then only by telehealth. He said that the C4/5 injection improved his pain and that Mr Bui “would like to contemplate his surgical option”. Surgery was recommended at that time and it is unclear if it was requested by Mr Bui or discussed as one of a range of treatments by Dr Singh.

It is apparent from the evidence that Dr Singh saw Mr Bui in person only once, on 19 October 2021, well after the request for surgery was made, and examined him only on that occasion. All of the reports except that of 19 October note that the consultation was by telehealth and a careful reading of those reports and Dr Lim’s notes does not reveal that there were other reports or consultations.
Dr Stephen was correct to observe that Dr Singh had not examined Mr Bui at the time of his report in May 2021. When Dr Singh did set out the examination findings, they were brief and he said that the major complaint was pain with paraesthesia in the C6 distribution without a great deal of motor weakness. As Dr Stephen noted in his report dated 7 January 2022, the request for surgery was based on Mr Bui’s complaints rther than clinical findings.
In response to a request from Mr Bui’s solicitor, Dr Singh addressed the five criteria set out in Rose and Diab in his report dated 11 November 2021. He answered the questions asked of him in a terse way, as if ticking off items on a checklist, and without regard to the need for the Commission to engage with the evidence. His bald reference to the surgery being the accepted mode of treatment among the community of spinal surgeons reinforces that conclusion.
With respect to the appropriateness of the treatment, Dr Singh relied on the failure of Mr Bui to respond to conservative treatment but there is no reference to his understanding of the treatment Mr Bui had undergone before he began to consult him. Dr Singh did not say that he had considered Mr Bui’s psychological condition or his left shoulder condition in recommending surgery. That is important where the major complaint was referred pain with minimal motor findings.
In respect of alternative treatment, Dr Singh said that treatment options are “pain management, analgesics, physiotherapy and surgery”. He said that further conservative treatment was unlikely to provide benefit, the benefit presumably being the improved neck and arm pain and function referred to earlier. He noted the non-surgical alternative was a trial of chronic pain management, which indicates that he was aware that form of conservative treatment had not been tried.
Dr Singh’s formulaic response about to the cost of the treatment also suggests a failure to consider Mr Bui’s personal circumstances. He did not compare it to the cost and potential benefit of pain management.
His statement about the potential effectiveness of the treatment was general. He did not set out his opinion by reference to Mr Bui’s own circumstances. His reference in the report dated 11 November 2021 to the ability to return to the workforce does not appear in the report to Dr Lim dated 19 October 2021.
Dr Singh’s reason for the treatment being accepted treatment is circular. He merely referred again to the practising spine surgeon community.
Even when responding directly to Dr Stephen’s reports, Dr Singh merely repeated his statement about the failure of conservative treatment and said that the surgery was necessary in his “expert opinion”. He did not engage with Dr Stephen’s comments about voluntary restriction of movement nor with his opinion that the surgery was offered because of Mr Bui’s subjective complaints of pain. He did not engage with Dr Stephen’s reading of the radiology. He denied that the failure of conservative treatment was related to symptom focussing and magnification without saying that he had considered the psychological issues.
Dr Singh’s report is repetitive and defensive. He has not explained his opinion in detail and not provided the information required for the Commission to come to a soundly based decision. Many of his statements can be described as “bare ipse dixits”.
In coming to that conclusion, I am alert to the issues discussed by Snell DP in Honarvar v Professional Painting AU Pty Ltd[10]. Dr Singh’s report contrasts markedly with the description of the treating neurosurgeon’s report in that case who:
“dealt in clear and appropriate terms with the treatment he arranged for the appellant, before finally concluding the appropriate treatment option was lumbar surgery. The doctor also referred to his understanding of the history of alternative treatments which had been tried in the past.”[11]
[10] [2022] NSWPICPD 12.
[11] At [90].
Dr Singh’s reference to a trial of chronic pain management reveals that all conservative measures have not in fact failed. Applying the tests set out in the authorities and noting the complexity of Mr Bui’s condition, I am not satisfied that Mr Bui has discharged his onus of proving that the surgery proposed by Dr Singh is reasonably necessary medical treatment as a result of the injury.
I therefore make an award for the respondent on the claim for s 60 expenses representing the cost of C4/5 and C5/6 anterior cervical discectomy and fusion recommended by Dr Singh.

[2022] NSWPIC 392

19 July 2022