Caithness v Thomas Roofing Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Caithness v Thomas Roofing Pty Ltd [2021] NSWPIC 135
APPLICANT:	John Caithness
RESPONDENT:	Thomas Roofing Pty Ltd
MEMBER:	Ms Kerry Haddock
DATE OF DECISION:	24 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for the cost of dental treatment pursuant to section 60 of the 1987 Act; claim that the loss of dentition resulted from long-term use of opioid medication for treatment of accepted injuries and surgery to lumbar spine; respondent conceded that the proposed treatment was appropriate for the applicant’s condition; Murphy v Allity Management Services Pty Ltd and Kooragang Cement Pty Ltd v Bates applied; Held- necessity for treatment resulted from accepted injuries to lumbar spine, as the injury materially contributed to the need for dental treatment, due to the applicant’s long-term use of opioid medication to alleviate the effects of the injuries to the lumbar spine.
DETERMINATIONS MADE:	The Commission determines: 1. That there is an award for the applicant pursuant to section 60 of the Workers CompensationAct 1987 in respect of the proposed dental treatment, that is, first stage implant surgery for the mandible and maxilla, carried out as a day surgical procedure under general anaesthesia; second stage implant surgery carried out under local anaesthesia in a dental office; provision of an implant retained prosthesis for both the maxilla and mandible arch; and follow up treatment. Declaration 1. Pursuant to section 162(1) of the Workers Compensation Act 1987, it is declared that the respondent, being a corporation that has ceased to exist, has entered into a contract with an insurer, QBE Workers Compensation (NSW) Ltd, the claim now being managed by AAI Limited trading as GIO.

STATEMENT OF REASONS

BACKGROUND

The applicant, John Caithness (Mr Caithness), sustained injury to his lower back in or about December 1994, while pulling on some steel guttering, which he and his colleagues were installing on a roof.
Mr Caithness again injured his lower back on or about 28 November 1995, when he bent to pick up some tools. He also claims to have sustained a disease injury, the deemed date of which is 28 November 1995.
As a result of his injuries, the applicant has undergone three surgical procedures to his lower back. He had a laminectomy in or about March 2007; a second decompression laminectomy in or about November 2007; and a L5/S1 posterior interbody fusion and fixation in or about November 2008. He also had a spinal cord stimulator installed.
The applicant claims that, as a result of medication he has taken to moderate his low back pain, he has sustained loss of dentition and insufficient provision of an effective prothesis in the mandible and maxilla, reducing the ability to chew hard foods.
On or about 10 December 2012, the applicant made a claim for the cost of dental treatment, including extraction of his remaining teeth; and provision of upper and lower complete prosthesis.
On 6 March 2013, the respondent’s workers’ compensation insurer, QBE Workers Compensation (NSW) Ltd (QBE) issued Mr Caithness with a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE disputed liability for the proposed medical treatment, on the basis that it was not reasonably necessary “relating to your workplace injury of 1995”.
On 2 April 2019, GIO, which had assumed management of the claim for injury on 28 November 1995, issued the applicant with a notice pursuant to section 78 of the 1998 Act. GIO disputed that a CT scan of his jaw and dental treatment was reasonably necessary as a result of the injury.
On 27 November 2020, having been requested to review its decision, AAI Limited trading as GIO (GIO), issued Mr Caithness with a notice pursuant to section 287A of the 1998 Act. GIO maintained its decision to dispute liability, stating that the weight of the clinical evidence suggested that the applicant’s dental decay was unrelated to the workplace injury on 28 November 1995. Liability was disputed pursuant to sections 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant filed an Application to Resolve a Dispute (the Application) on 2 February 2021. He claims, pursuant to section 60 of the 1987 Act, the sum of $24,500, being the cost of second stage implant surgery; implant retained prosthesis for both maxilla and mandible arch, including surgical fee, anaesthetic fee, hospital fees and follow up treatment.
The respondent filed its Reply on 24 February 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Whether the proposed medical treatment is reasonably necessary as a result of the injury, stated by counsel for the respondent as “causation”.

The respondent does not dispute that the proposed treatment is an appropriate form of treatment for the applicant’s condition.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 3 May 2021.
Mr Robison of counsel, instructed by Ms Ventriglia, appeared for the applicant, who was present. Mr Toohey of counsel, instructed by Ms Risti, appeared for the respondent.
Ms Sarah Behne-Smith of GIO also attended.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The Application and attached documents;
(b) Reply and attached documents;

(c) Application to Admit Late Documents dated 22 April 2021 and attached documents, filed by the applicant and admitted by consent, and

(d) Application to Admit Late Documents dated 27 April 2021 and attached documents, filed by the respondent and admitted by consent.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, John Caithness

The applicant’s statement is dated 21 January 2021. He has given evidence about the circumstances of each injury to his back, which it is unnecessary to repeat.
After the injury in November 1994 (which is pleaded as having occurred in or about December 1994), the applicant initially underwent physiotherapy, cortisone injections, and took analgesic and anti-inflammatory medication. He was referred to Dr Farey, orthopaedic surgeon, but surgery was not recommended.
The applicant had three months off work, after which his condition improved sufficiently for him to return to work. At that stage, he was taking Panadeine Forte.
The applicant then sustained further injury to his back in or about November 1995. He was again referred to Dr Farey, who recommended conservative treatment. He was taking Endone and other painkillers just to be able to go to work.
In or about February 1998, the applicant had to leave his job, as he could no longer handle the extreme pain, which was a constant in his life. He was unable to work for 12 months. During this time, he had a lot of physiotherapy and did a lot of swimming, stretching and exercise recommended by the physiotherapists.
The applicant worked as a union organiser for two years and then became a real estate agent. He was in constant pain but managed to cope, although he was unable to remain on his feet for long and needed rest periods.
In about 2006-2007, the applicant’s pain increased considerably. He was again referred to
Dr Farey and underwent x-ray and MRI scans. Surgery was recommended and he had three lumbar spine surgeries in a period of 20 months.
The applicant had a laminectomy in about March 2007. This did not help much. He then had a second decompressive laminectomy in about November 2007. In about November 2008, he underwent interbody fusion and pedicle screw fusion at L5/S1. It was of little help.
At about the end of 2008, the applicant was under the care of Professor Cousins, pain specialist. He was offered a range of palliative treatments, including a spine stimulator and Physeptone, which contains methadone hydrochloride. This belongs to a group of medicines called opioid analgesics. Mr Caithness was taking 240mg of Physeptone, along with Targin, Lyrica, Norflex and Cymbalta.
The applicant states that once he began taking Physeptone (methadone), his mouth became very dry. He had to have a bottle of water with him at all times so he could moisten his mouth. It was after he began taking Physeptone that his teeth began to break down and deteriorate badly.
In about 2013, when he had been taking Physeptone for about five years, Mr Caithness saw a dentist about the ongoing damage to his teeth and was told it’s a side effect of taking Physeptone. Within one to two years, he suffered massive degeneration of his dentition and removal of his remaining teeth and replacement with dentures or a prosthesis was required.
The applicant recalls Dr Rao discussing with him different types of implants, but he went ahead with the routine denture on three occasions. Unfortunately, they did not fit and were loose. He could not eat properly, as whatever he had to eat was soft, so the Polident seal would not break.
The applicant had recently come under the care of Dr Sameh for implant retained dentures, but the cost of the procedure is very high, and he cannot afford it.
The insurer has accepted liability for the applicant’s lower back injuries but denied liability for the proposed dental treatment on the basis it is not related to his lumbar spine injury and the use of Physeptone.
The applicant is currently taking Duloxetine; Mag-Slip; Mobic; Nexium; Perindopril Arginine; Pregabalin (APOTEX) 150mg; Pregabalin (APOTEX) 75mg; Targin 2,5mg/1.25mg CR-Tab; and Targin 5mg/2.5mg CR-Tab.
The applicant’s teeth continue to deteriorate, and he cannot eat salads and fruit. He has to overcook vegetables so his teeth won’t fall out. This is “all a result” of the 240mg of Physeptone a day he was on for years, so he could cope with the pain.

Medical evidence
Mr Brian Kearney – Psychologist

Mr Kearney reported to Dr S Faux at St Vincent’s Clinic on 27 November 2002. The applicant had been referred for assessment of his chronic pain problem.
Mr Kearney recorded a complaint of pain in the lower back, radiating to the left leg into the foot. The applicant told him the pain was constant. Mr Kearney recorded a consistent history of injuries in December 1994 and November 1995.
The applicant described having had physiotherapy; taking part in the ADAPT pain management program; rehabilitation at Mt Wilga Hospital; and a gymnasium program. He was attending the gym twice a week and went to Pilates once a week, which was the most helpful treatment.
Mr Kearney recorded that the applicant was not taking any medication for pain. This was because he had been a narcotics addict in the past and had been abstinent for five months. He was attending Narcotics Anonymous and did not want to take anything with codeine.
The applicant described his mood as “much better”. He had episodes of feeling anxious and frustrated, but overall his mood had improved over the last five months. His frustration tolerance was reduced when the pain was bad, but he denied being aggressive. He felt confident he could remain abstinent from narcotics, as he attended NA or AA a minimum of once per day and had good supports. He had been a heavy abuser of alcohol before 1992 but abstinent since then.
Mr Kearney reported that the applicant presented with chronic pain; pain coping style characterised by activity, coping and adjustment; and the major issue appeared to be vocational. Mr Caithness and his rehabilitation coordinator were working on a plan for him to retrain as a property manager.
Mr Kearney recommended continued abstinence; continued regular attendance at AA/NA meetings; continued drug and alcohol counselling; and continued working with the rehabilitation coordinator.

Professor Michael J. Cousins – Pain Management Specialist

On 12 October 2010, Prof Cousins reported to Dr Erin Noonan, the applicant’s then general practitioner, that Mr Caithness was in a very difficult predicament. To relieve his pain, he was taking 20 to 24 10mg tablets of Physeptone per day. This was a very undesirable dose level. He also required 300mg of Lyrica twice a day and 60mg of Cymbalta a day.
Prof Cousins believed the applicant was a very good candidate for spinal cord stimulation, and he was trying to move ahead with the trial. It would make it easier to determine the efficacy of the trial if the applicant’s dose of Physeptone was substantially reduced. He had therefore been prescribed Clonidine, the aim of which was to both reduce any withdrawal response and provide additional analgesia.
On 11 November 2010, Prof Cousins reported to Dr Noonan that a spinal cord stimulator had been inserted on 10 November 2010. The result was quite negative, and he did not feel there was any realistic chance of helping the applicant.
On 14 December 2010, Prof Cousins reported to Dr Noonan that he and Mr Caithness had agreed they would need to look at other treatment options. The applicant was taking Lyrica and Cymbalta at a dosage that was probably “top of the range” neuropathic regime. He was taking 19 tablets per day of Physeptone and taking Clonidine to modify the withdrawal. Prof Cousins advised him to gradually increase the dose of Clonidine. He should continue to reduce the Physeptone, and if Dr Noonan found he was having little in the way of withdrawal, she may be able to speed the program.

Prof Cousins again reported on 7 June 2011.
Prof Cousins noted that the applicant was significantly improved. He was moving quite easily, without apparent pain. He had a telemarketing job for about 20 hours per week, which had lifted his mood quite considerably.
The applicant’s medication included Lyrica, Cymbalta and 18-24 10mg tablets per day of Physeptone. Prof Cousins described this as a “concerningly high dose”. The applicant had got down to 12 tablets per day, using 200mcgs of Clonidine three times a day, which was also “an extraordinarily high dose”.

Prof Cousins noted that the applicant’s pain score was 5-6/10 and he was in no apparent distress. He suggested a deliberate program to get the applicant down to a maximum of six tablets of Physeptone per day. This would need to be done over two to three months. In order to block any withdrawal response, Prof Cousins suggested gradually building up the dose of Clonidine again. The applicant “really” needed to use some non-medication methods of pain control.

Ms Verity Stoker – Psychologist

Ms Stoker reported to Dr Plunkett on 13 February 2012.
She noted that it had become apparent that Mr Caithness had several psychosocial issues. He reported the major contributors to his condition as symptoms of depression and anxiety; chronic pain resulting from a work injury in 1995; financial difficulty; poor diet; not being able to find suitable work; poor sleep hygiene; concern with his voice changing pitch; gaining fat deposits on his body; lethargy greatly affecting his mood state; legal issues (an outstanding debt): some dysfunctional thinking patterns; and negative rumination.
Ms Stoker recorded that the applicant had been prescribed testosterone but had not been taking it for some time. She wondered if it had been contributing to his physical changes and lowered mood state. She had asked the applicant to discuss this with Dr Plunkett.
Ms Stoker was to provide the applicant with pain management techniques, coping strategies and mood management; and concentrate on his most prominent dysfunctional thoughts. She would also provide some biofeedback training in CBT, to help him learn to regulate his stress and emotions, as well as provide him with relapse prevention.
Ms Stoker again reported on 16 May 2012.
The applicant was actively involved in his therapy. He had reported some time before that his diet was deficient and at times he had to forgo food. He was too proud to admit this and had not approached organisations that would have been able to help.
Ms Stoker noted that the applicant seemed to have had a slight relapse in his mood. His physical health was impacting on him and she was still concerned about his diet and its impact on his mental health.

Dr Devendra Rao – Dentist

On 10 December 2012, Dr Rao reported to QBE that the applicant had consulted him the day before.
Dr Rao had noted the applicant’s severe dental decay. Given the high rate of decay, they had decided to go in for complete clearance and provision of upper and lower complete dentures.
Dr Rao’s plan, which he attached, included extraction of the applicant’s remaining teeth and provision of upper and lower complete prosthesis. He had included the cost of relining the dentures the applicant would need, as the alveolar ridge would change and stabilise over a few months after multiple extractions.
Dr Rao reported that the applicant had advised him he would like the option of stabilising the dentures with implants, if required in future. He did not do implants, so was not able to provide a quote for this. His colleague could make such a plan if it were required.
The estimate of costs provided by Dr Rao was $5,261.

Dr Ashish Sinha – General Practitioner

Dr Sinha’s records are in evidence. They include reports from other practitioners, to which I have referred under this heading.
Dr Steve Kelly, of Mid North Coast Local Health District Drug and Alcohol Services, wrote to Dr Sinha on 11 October 2012.
Dr Kelly had reviewed Mr Caithness, who was struggling to find a GP to replace Dr Plunkett, who had retired. The applicant had a history of injury and pain, primarily to his back, which had been treated with increasing doses of Physeptone, in addition to Lyrica and Cymbalta, over the recent four years.
Dr Kelly interviewed the applicant by teleconference, so his examination was incomplete. However, he noted that the assisting registered nurse stated there was no evidence of injecting on the applicant’s arms. There was no scarring.
Dr Kelly had ascertained that the applicant had been treated by Prof Cousins in the past. He had supported the applicant’s current dose, although he had recommended reduction. Dr Kelly had recommended the same, and Mr Caithness agreed it was a good idea.
Dr Kelly opined that the applicant appeared to be a genuine sufferer of pain, with related treatment problems, but they did not extend beyond “adaption” into “addiction”. He was polite and easy to deal with.
Dr Kelly assumed reassessment at a pain clinic would be important at some stage and made some recommendations. He arranged for Physeptone to be dispensed to the applicant.
On 8 November 2012, Dr Sinha referred the applicant to Dr Arpit Pathak, a dentist.
Dr Sinha advised Dr Pathak that Mr Caithness had poor oral health – teeth breaking into pieces. He was on a high dose of Physeptone, which Dr Sinha recorded as a possible cause of dental problems.
Dr Sinha also referred the applicant on 8 November 2012 to Dr Iain Bruce for treatment of hepatitis C. He recorded the past medical history as including IV drug use in 1975 – “used for 1 month”; hepatitis C in 2003 – “IVDU” (assumed to mean intravenous drug use); and depression in 2010. The applicant’s medications were Cymbalta, Lyrica and Testogel.
Dr Bruce reported to Dr Sinha on 27 November 2012 that the applicant’s liver biopsy showed chronic active hepatitis with moderate (3/4) inflammation, predominantly involving the portal tracks and septal fibrosis/incipient cirrhosis. It was relatively urgent to attempt to treat the hepatitis C.

Dr Jenny Jin, pain physician, reported to Dr Sinha on 26 September 2014. The applicant’s medical history was reported as including chronic back pain in 1994; hepatitis C in 2003; laminectomy; spinal fusion in 2008; and depression. The applicant was taking eight tablets of Physeptone, of 80mgs, three times a day.
Dr Shaun G Clarke, pain specialist, reported to Dr Sinha on 24 January 2017. He noted that the applicant was taking Physeptone, which he found effective for his back pain, but not his hip pain.
Dr Clarke noted nil recreational drug use, but “?IV drug use in the past”. He reported that Physeptone has serious drawbacks long term but had served the applicant reasonably well to date. Dr Clarke did not feel there was a great deal to gain by asking the applicant to attend a formal pain management program.
On 30 August 2017, Dr Sinha certified to Roads and Maritime Services that the applicant did not meet the relevant medical criteria for a driver’s licence. He was on a high dose of methadone and had recently been found unconscious “n the driving wheel besides the road” [sic], with the car’s motor running. He was unsafe to drive.
On 16 March 2018, Mr Nigel Ray, pharmacist, reviewed the applicant’s medication. It included Physeptone, Lyrica, Mobic, Nexium, Furosemide, Norflex, Panadol Osteo and Testogel.
Mr Ray reported that the applicant’s dose of 80mgs of Physeptone, three times a day, was greatly above the normal recommended range. Methadone has a long and unpredictable half-life, which increases the risk of accumulation in the body over time.
Mr Ray opined that the applicant required immediate intervention due to his taking a substantial dose of Physeptone. He had a history of intravenous drug use and cirrhosis of the liver. If his liver function was impaired or decreased by these, it could result in even higher Physeptone concentrations. His most recent test results from 2017 indicated that all levels were normal, but the applicant had not completed his most recent referral for a full blood test.
On 22 March 2018, Dr Clarke wrote to Dr Sinha, following a phone call about the applicant. He noted that when he saw Mr Caithness about a year before, he was unwilling to reduce his dosage of Physeptone, which Dr Clarke considered very high.
Dr Clarke was aware that the applicant had been found asleep at the wheel, and he suspected Physeptone was implicated. He opined that the applicant’s high dose maintenance opioid was potentially dangerous.
Dr Clarke suggested that it may be appropriate for the applicant to taper and potentially cease Physeptone (although he acknowledged that ceasing it “may be a bridge too far, but who knows”), in the Lismore inpatient program.
Dr Clarke reported on 26 March 2018 that the applicant was planning to have a total hip replacement in July 2018. His high dose opioids would make him difficult to manage during the peri-operative period. The records contain GIO’s acceptance of the costs associated with the applicant’s hip replacement.
Dr Clarke advised that the Lismore inpatient program was unwilling to take the applicant. He had been advised by Dr David Hellewell, addiction specialist, that the applicant’s Physeptone dose was too large for most opioid replacement programs. Dr Hellewell had recommended referral to a Drug and Alcohol Service at Coffs Harbour, so the applicant’s Physeptone could be replaced with methadone in a safe manner.
Dr Clarke concluded that it would be reckless for him to take on the applicant to de-escalate his opioids. He opined that opioids were not indicated for the applicant’s persistent non-cancer pain in any form. They were “really managing” his tolerance dependence and possibly even addiction, as per DSM 5.
On 7 November 2018, Dr Marc Russo, pain medicine specialist, reported to Dr Sinha. He noted that the applicant had been treated with high dose opioids of up to 240mg per day of methadone in the past but had reduced this to 10mg t.d.s. (three times daily) of Physeptone. Dr Russo recorded that the applicant was a long-term ex-smoker.
Mr Caithness scored moderate for anxiety and depression and normal for stress on psychometric testing. There was significant pain catastrophising.
Dr Russo recommended that the applicant commence taking Cymbalta and look at weaning off Lyrica. Once Cymbalta commenced, it would be appropriate to further reduce the Physeptone. The goal was for the applicant to be on the lowest possible dose that reasonably controlled his symptoms. Dr Russo suspected it would be around 10mg twice a day.
Dr Sinha reported on 3 January 2019. He noted that the applicant had been on methadone for prolonged years. It affects bones and teeth especially. The applicant had issues with his teeth and needed several dentures. Dr Sinha opined that methadone may be responsible for such complication.
On 17 January 2019, Dr Charbel Sandroussi, upper gastrointestinal, hepatobiliary and transplant surgeon, reported that the applicant had recently been found to have a tumour in his liver. He had had hepatitis C for many years and had eradication some years before. The lesion was found incidentally during investigations as part of standard surveillance.
Dr Sandroussi noted that the applicant’s general health was quite good. He was a non-smoker and non-drinker. He was functionally improving after his recent hip replacement and the back operations he had undergone in the past.
The applicant had changes consistent with cirrhosis, and the lesion, which would require surgery. Dr Sandroussi opined that he should have adequate liver reserve for the surgery.

Dr Yahia Sameh- Dental Surgeon

Dr Sameh has provided an undated report, which appears to be directed to the applicant’s solicitors.
Dr Sameh responded to a number of questions posed of him. He firstly stated that
Mr Caithness had lost all his teeth. He had also lost a lot of the jawbone as a result. This had complicated his treatment plan, in which a regular set of complete dentures is not retentive and does not stay in place. His main complaint was that eating had become a serious burden. The cause of his condition was the result of extensive loss of teeth, resulting in extensive loss of jawbone.
Dr Sameh was asked if any of the applicant’s conditions requiring treatment was caused by long term opioid use. He responded that the loss of teeth can definitely be the result of such use. Patients on methadone tend to have high caries and periodontal disease rates. Methadone and other opiates produce xerostomia, which compounds the problem of plaque retention. Methadone formulations may contain very high levels of sugar and users are known to retain the syrup in their mouth to prolong absorption time. In addition, the high acid content of methadone makes demineralisation and erosion of the teeth quite a risk.
Dr Sameh was also asked what definitive signs would indicate that opioid use, rather than other factors such as decay from neglected hygiene, diet, and age-related degenerative changes, had significantly contributed to the applicant’s dental condition.
Dr Sameh responded that he had not seen the applicant before he lost all his teeth. However, he was just 61. In addition, “to be fair”, some literature blames methadone for even the poor nutrition of opioid users, as it causes them to consume more refined sugars than the rest of the population. Depression and anxiety are also very common in opioid patients, with a lifetime rate of up to 50% having been reported in this population. This also makes the maintenance of their oral hygiene not a priority.
Dr Sameh opined that, with the applicant’s lack of teeth and supporting bone, the only way for him to retain a denture is via dental implants. Holding an upper jaw will require implant-supported bar overdenture. The bottom denture could be stabilised in place via two dental implant placement and locators.
The applicant has lodged a copy of an email from Dr Sameh’s practice manager, Ms Lisa Armstrong, to his solicitors, dated 5 March 2021.
Ms Armstrong advised that Dr Sameh had seen Mr Caithness only once, when he wanted an assessment of his dental treatment requirements for a workers’ compensation claim. Dr Sameh had no history with the applicant; no records to show any decline in his oral health; and could not comment on the main contributor to him losing all his teeth. He was unable to provide any other report.

Dr Leonie Hutchinson – Dental Surgeon

Dr Hutchinson was qualified by QBE and reported on 8 February 2013.
Dr Hutchinson recorded a consistent history of the applicant’s injuries in 1994 and November 1995, and surgery in March 2007, November 2007 and November 2008. Mr Caithness claimed his symptoms had progressively worsened since his last surgery. He had chronic lower back pain and neuropathic arthropathy in his feet.
The applicant was taking Cymbalta, Lyrica, Mobic, Physeptone, Ostelin and Testogel. He had chronic hepatitis C with fatty degeneration of the liver.
Dr Hutchinson recorded that the applicant attended Dr Roger Alison-Jones regularly from the 1990s to his retirement in 2008. He saw Dr Alison-Jones’ replacement before moving to Coffs Harbour. In November 2012, he was referred to Dr Rao.
Dr Hutchinson noted that the applicant had 17 teeth, on which there were extensive areas of dental plaque. In the maxilla, all the teeth showed extensive areas of dental caries. Several teeth consisted of only the remains of the tooth root and the others exhibited extensive dental caries. The applicant’s maxillary bone structure indicated that several teeth were extracted many years ago.
Dr Hutchinson noted that the applicant’s lower arch consisted of eight teeth, all of which exhibited varying degrees of dental caries. All of the teeth that were missing appeared to have been removed some time ago.
The applicant scored 8,236 on the dental caries’ susceptibility test, which Dr Hutchinson described as extremely high. She noted that below 1,500 is ideal, which shows that Mr Caithness is inherently susceptible to caries, due to his oral microflora.
Dr Hutchinson noted that it had been suggested by Dr Sinha that the applicant’s extensive caries were due to his pain medication impacting on his salivary flow rate. She performed a salivary flow and quality test. Resting saliva showed low hydration, high viscosity and low pH (5.8). Stimulated saliva provided less than one ml with pH of 5.8, and hence low buffering capacity. Buffering capacity is not affected by medications that affect quantity.
Dr Hutchinson referred to Dr Rao’s proposal to remove all the applicant’s teeth and construct full dentures. She opined that this treatment plan could be quite problematic. Full dentures are notoriously difficult to manage for any patient, and combined with low salivary flow, they become far more so. Mr Caithness should attempt to retain some teeth to help in the transition to dentures.
As regards liability, Dr Hutchinson conceded that Dr Sinha’s statement that dental caries are related to low salivary flow has some merit. However, dental caries is a multi-factorial disease. Salivary flow and quality impacts on levels of decay, but dental disease is predominantly a lifestyle disease. Individuals with poor quality and quantity of saliva need to modify their diet and ensure adequate oral hygiene to maintain dental health. The applicant also scored extremely high on a caries susceptibility test, indicating a high number of caries-inducing bacterial flora.
Dr Hutchinson opined that the applicant’s dental situation preceded his work-related accident, as is evidenced by his early tooth loss. She stated that recent studies have also linked chronic hepatitis C to high levels of dental caries, due to its effect on salivary function. The impact of the applicant’s medication on his salivary flow was possibly only one of numerous factors contributing to his poor dental health.
Dr Hutchinson recommended that if liability were accepted for the applicant’s current dental treatment, the insurer should be wary of ongoing care such as implants. If the applicant proved to be intolerant of dentures, the cost of implant replacement could exceed $100,000, plus ongoing maintenance.
Dr Hutchinson concluded that the applicant’s dental condition was the result of a high cariogenic diet (sugars), poor oral hygiene, inherently high caries-causing bacterial flora, poor salivary buffering capacity and low salivary flow rate. The last was possibly caused by his pain medication and hepatitis C.
Dr Hutchinson opined that the applicant’s high sugar diet and poor oral hygiene were lifestyle choices. His high caries-causing bacterial count pre-dated his accident. His hepatitis C status also made him more susceptible to caries. The radiographic evidence of early loss of molar and pre-molar teeth showed that Mr Caithness suffered severe dental caries before his work-related accident. His condition was due to the neglect of oral hygiene and preventive dental measures, combined with high sugar intake; high caries-inducing bacteria; and low salivary rate, possibly due to medications.
It was impossible to ascertain the exact condition of the applicant’s teeth before the accident without access to the records of Dr Alison-Jones, but Dr Hutchinson opined that he had a history of poor dental care, as shown by the radiographic evidence of extraction quite some time ago. His high incidence of caries-causing bacteria was pre-existing and unrelated to his medication. His hepatitis C was not work-related.
Dr Hutchinson opined that the applicant required removal of all his maxillary teeth and most of his mandibular teeth. He should attempt to retain any viable mandibular teeth if possible. The medication/treatment was not a substantial contributing factor to his current dental problems. Dental caries is a multi-factorial lifestyle disease. In the applicant’s case it had been exacerbated by the medication required due to his chronic pain and probably his hepatitis C status.
Dr Hutchinson further opined that opioid pain medication can increase the risk of dental decay by reducing the salivary flow rate, but cannot be regarded as the sole contributing factor to the applicant’s dental health problems. With adequate professional and personal dental care, it is possible for patients taking medications for chronic pain to remain free of dental caries. The applicant had not implemented these measures, “hence his current condition”. In Dr Hutchinson’s opinion, he would have eventually reached his current status regardless of his pain medication, but the medication may have accelerated his condition.
In summary, Dr Hutchinson concluded that the applicant’s dental condition was consistent with an individual who had neglected his oral health. He had a high rate of caries before the accident. He had not attempted to implement a preventive oral care program. This, combined with his poor diet, high bacterial count, hepatitis C status and reduced salivary flow due to his medications, has resulted in extensive caries, affecting most of his dentition. It is virtually impossible to determine what proportion of the applicant’s dental disease is caused by the medication-induced low salivary flow rate. However, his high caries-causing bacterial load and hepatitis C, neither of which is work-related, both dramatically increase his susceptibility. In all probability, he would eventually have developed the level of dental disease he was exhibiting. However, his pain medication may have accelerated the probability.
Finally, Dr Hutchinson opined that the insurer should be wary of accepting liability, due to the applicant’s stated aim to obtain implant-related prostheses.

Dr Mark Elvy – Phlebologist

Dr Elvy reported to Dr Sinha on 21 March 2013.
Dr Elvy recorded a history that the applicant had ceased smoking and drinking 20 years before. He had a history of depression, lower back pain in 1994, hepatitis C in 2003 (IV drug use) and cirrhosis. His medications were Physeptone, Lyrica, Cymbalta and Celebrex.
The applicant had noticed lower limb swelling, worse on the left, in April-May 2012. It had increased significantly. Over the last month he had developed bilateral lower leg ulcerations with excessive clear lymphorrhea.
Dr Elvy opined that the applicant had gross systemic fluid overload, and the most likely cause was his cirrhosis and possible portal hypertension. He sent the applicant for urgent pathology and thought he should have a CT scan of the abdomen and pelvis to exclude underlying causes and look for signs of portal hypertension. The applicant needed to commence diuretic therapy. His venous disease was relatively minor and did not require attention.

Dr Nigel Curtis – Oral & Maxillofacial Surgeon

Dr Curtis was qualified by the applicant and reported on 13 February 2020.
Dr Curtis recorded a consistent history of the applicant’s injuries in November 1994 and 1995. He noted that Mr Caithness has undergone three back operations, which do not appear to have been successful. The applicant then came under the care of Prof Cousins. He was offered palliative treatment that included a spinal stimulator and analgesics, including Physeptone, “which does appear to have caused significant dental degeneration”.
At that stage, the applicant was taking a combination of Targin, Lyrica and Norflex, as well as Cymbalta, an anti-depressant, to moderate his pain, and these drugs “would have additionally caused degeneration to his dentition”.

Dr Curtis noted that Mr Caithness had sought dental treatment, as indicated in Dr Rao’s letter dated 10 December 2012. It appears that at that point, he had suffered massive degeneration of his dentition and required removal of the remaining teeth and replacement with dentures or a prosthesis.
While the possibility of implant supported dentures was discussed, Dr Rao went ahead with routine dentures. The applicant reported that he had three lots of dentures, which did not fit and were loose. He had more recently been referred to Dr Sameh for assessment for implant retained dentures. He was wearing upper and lower complete dentures that fit poorly and understandably would make mastication difficult.
Dr Curtis reviewed the evidence of Drs Bodel, Giblin and Davies, who had assessed the applicant’s permanent impairment as a result of the injuries to his lumbar spine.
In relation to the applicant’s oral injuries, Dr Curtis noted that the applicant had been reviewed by Dr Hutchinson, who appeared to have taken “a relatively unsympathetic approach” to his condition. He was unsure how she could have assessed the applicant’s dental hygiene at this point, but he noted the applicant was not a smoker, and the relation between opiate medication and degenerating dentition is well documented in the literature. The applicant complained of an inability to chew hard foods.
Dr Curtis recorded that the applicant was taking a combination of medications (he referred here to Mobic and Nexium as well as those noted above). He had hepatitis C and had developed primary liver cancer as a consequence.
Dr Curtis opined that it appeared clear that Mr Caithness had suffered degeneration of his dentition following the back injury he suffered at work in 1994/1995; and the ongoing use of opiate medication that he has described and recorded, does reduce salivary flows and [cause] degeneration of the dentition, as indicated in the literature (Australian Dental Journal 2002; 47:(2):94-98). The loss of dentition and replacement of dentures has caused a further problem, as Mr Caithness cannot chew adequately with loose dentures. The option of a simple implant retained denture would appear a reasonable option in this case. The applicant is not a smoker, which improves the potential success of any implant retained prosthesis.
Dr Curtis was asked whether the applicant’s employment with the respondent “(or more precisely the medication he was taking to treat the injuries sustained in that employment)”, was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease. He responded that “the ongoing use of opiate medication following the back injury in 1994/1995…”; and the relation between ongoing use of opiate medication is clearly recorded in the literature [sic].

Dr Curtis opined that the applicant’s oral treatment to date appears to have been reasonable, in that a very degenerative dentition was removed by his dental practitioner when this was required. An attempt to provide complete dentures had been made, but the need for implant related dentures appeared clear. The “reasonable and common-sense solution for future treatment” involves the use of implant retained dentures in the maxillary and mandibular dental arches.
Dr Curtis estimated the total cost of the proposed treatment as approximately $24,500.

Applicant’s late documents dated 22 April 2021

The applicant’s solicitors have not indicated where the various documents begin and end, as they have referred to them by date rather than page numbers. I have therefore done the best I can to discern who has provided the documents.
There are records of the applicant’s treatment by what appears to be Mona Vale Dental –
Dr Alistair Graham (the applicant’s address is noted to be in Dee Why on these records), although there is no reference to it in the Application to Admit Late Documents. It appears that the records were sent to Dental Design Studio 32 (Dental Design) which is why the Application to Admit Late Documents refers to Dental Design and not to Mona Vale Dental.
In any event, there is a record of the applicant’s dental treatment from 25 July 2011 to 24 May 2017.
On 25 July 2011, there is a record that the applicant complained of broken teeth, upper anteriors and pain from 16 (which refers to tooth number 16). The applicant had dry mouth and suffered from depression. He had been eating lollies to alleviate dry mouth, and was advised to stop this, try to sip water, and use dry mouth spray.

The applicant had caries “++ all areas”. Some teeth were very carious and unrestorable. It was explained that they could not be saved. They would need to make “-/p” to replace missing teeth and in future the applicant would need to have “p/-”. His upper anteriors were carious and broken and would need to be restored as charted.

There is a record of the applicant being treated on 27 July 2011, 28 July 2011 and 29 August 2011.

On 14 September 2011, there is a record of the applicant being advised of the oral side effects of “ant deps” (assumed to be anti-depressants). The applicant was encouraged to have a high water intake and possible supplements were discussed.
On 28 September 2011, it was noted that the applicant was moving to Coffs Harbour. He was keen to have some teeth extracted before this, as he would not have a dentist there. Some teeth were extracted, and the applicant was advised he would need to find a dentist in Coffs Harbour to remove the sutures.

143.There is then a gap in the records until 7 February 2012, by which time the applicant’s address is recorded as being in Coffs Harbour. There is a note that the applicant was referred by Dr Mark Mowat and “EPC” froms [sic: forms] Ref Dr Noonan 20/7/11” and that the treatment records were received and saved in Documents Manager.

The records include Dr Mowat’s referral to Dental Design, dated 7 December 2012, requesting that the applicant be seen under the EPC care plan.

On 24 February 2012, it was noted that the applicant wanted to keep as many teeth as possible. He did not want dentures or even “RCTs” as that would use up a lot of the EPC.

The applicant continued to attend for treatment in February and March 2021. On 1 June 2012, it was noted that he was questioned closely about soft drinks, diet, OH (perhaps oral hygiene) and habits, “can only bring him back and try again”.

On 20 July 2021, it was noted that the applicant was out of funds with CDDS. He was to see his GP for a new referral, but his GP was away.

On 4 September 2012 there is a notation that “spoke with Medicare today, CDDS is coming to an end by end Nov, John won’t be able to use new referral, has $94.55 left in his current plan”.

On 10 December 2012, the applicant was given the options of partial dentures or complete dentures. He was aware that dentures would need relining in three to four months and the lower teeth may require stabilisation with implants. Dr Rao’s letter to QBE dated 10 December 2012 is included in the records.

There is then a record of treatment from 7 January 2013 to 4 December 2014.

The applicant returned on 22 July 2015 for relining of his upper and lower denture. He continued to attend for treatment throughout 2015 and 2016.

On 19 August 2015 it was noted that the applicant had a history of dry mouth and a significantly resorbed alveolar ridge. It was explained to him on 2 September 2015 that dry mouth could affect the retention of the denture.

On 30 September 2015, it was noted that the applicant had compete dry mouth, “thus affecting retention”.

On 4 November 2015, the applicant was advised to eat lollies or chew to activate salivation, and “frequent mouth rinsing”.

On 10 May 2016, it was noted that the applicant used lollies to help with dry mouth.

The last entry is dated 24 May 2017. The applicant informed the dentist his lower denture was hurting. The denture was adjusted. The applicant advised that it was not tender on chewing pressure or while inserting and removing dentures. No further adjustment was noted at that stage.

SUBMISSIONS

Counsels’ submissions have been recorded, and I will therefore refer to them only briefly, but I have had regard to them.

Applicant’s Submissions

The applicant relies on the evidence of Dr Curtis. As a result of at least one back injury, and more likely two injuries, he was caused to take at least five medications, of which methadone appears to be mainly relevant.

The applicant submits that it is not necessary for him to establish the elements of sections 4 and 9A of the 1987 Act, but merely that the necessity for treatment results from the injury. However, there are some causative factors that may seem to be divorced from his work but may not be. He has significant depression, which led him to neglect himself. He relies on the decision in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy). The test is whether the treatment is reasonably necessary as a result of the underlying injury.

The applicant refers to the decision of Deputy President Roche in Bielecki v Rianthelle PtyLtd t/as Belfora [2008] NSWWCCPD 53 [at 18] where he said:
“The Appellant Worker’s submissions have incorrectly assumed that Ms Bielecki must prove that her employment was a substantial contributing factor to her dental decay and treatment…That is not correct…”

The applicant submits that his employment must be a substantial contributing factor to the underlying injury, which is accepted; the necessity for treatment results from that injury, which is a much lower bar than “substantial contributing factor”; it would be surprising if the medication was not required by reason of the underlying injury; and it is conceded that the treatment is reasonably necessary from a medical perspective. That there may have been other causation will not matter, as it won’t affect the claim.

The applicant relies on his own evidence about the extent of his back injury. He had three surgeries in 20 months and needed considerable medication to cope with the pain. He submits that his mouth became very dry once he began taking Physeptone, which casts doubt on the theory that his dental decay was due to poor oral hygiene. He had a bottle of water with him at all times. Even if he was not caring for his teeth, which is not conceded, it is not an issue of contributory negligence.

The applicant submits that Dr Curtis took a detailed history of his treatment. Dr Curtis referred to the reports of Drs Rao, Bodel and Giblin. He referred to Dr Hutchinson as being relatively unsympathetic. If it is accepted that the applicant had poor oral hygiene, that does not exclude the “results from” test. He does not have to prove substantial contributing factor, but the substantial contributing factor is the medication. Dr Curtis makes the link with the medication.

The applicant submits that the cost of the treatment is not of interest, as the respondent is not resisting the claim on the basis that it is expensive and there is a cheaper option. Assuming it wishes to rely on his poor oral hygiene, this is not the test. In any event, his lack of oral hygiene is related to the methadone, which is related to the injury. He relies on KooragangCement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).

The applicant relies on the evidence of Dr Sinha that methadone affects especially bones and teeth. This is not just a generality, but a specific truth in this matter, as it has affected the applicant. He did not have a dry mouth before taking methadone. Ms Stoker confirmed that his psychological symptoms included poor diet. This suggests that sub-optimal oral hygiene itself has a nexus to the injury.

The applicant submits that Mr Kearney’s evidence records the psychological aspect, which is tied to chronic pain. There is reference to constant pain and the treatment he has undergone.

The applicant refers to the medical history recorded by Dr Hutchinson. There is no history of the need for treatment before he took methadone. He only had 17 teeth when she examined him. He refers to Dr Hutchinson’s evidence that the statement by Dr Sinha that dental caries is related to low salivary flow has some merit. He submits that is the end of the matter on a section 60 case. The respondent “tries to get out of it” on the basis that the cause is multi-factorial, but some causes have a work nexus, and if they don’t, it doesn’t matter, as section 9A does not apply.

The applicant submits that I would find on balance that his poor quality and quantity of saliva is caused by methadone. Applying the commonsense test, there is no other cause. Hepatitis C may make him more susceptible, but the respondent takes him as it finds him. Dr Hutchinson referred to “sole contributing factor”, but even the most stringent requirement in the Act does not require this. It is a more onerous test than main contributing factor or the section 11A test of wholly or predominantly.

The applicant finally submits that, in the summary of her report, Dr Hutchinson’s reference to the reduced salivary flow rate due to his medications contributing to his extensive dental caries is “enough” for him to succeed.

In reply to the respondent, the applicant submits that, whatever I make of the submissions regarding what was provided to his practitioner, he succeeds even if I adopt in toto the report of Dr Hutchinson.

Respondent’s submissions

The respondent submits that the applicant’s intravenous drug use needs to be considered. His hepatitis C is related to drug use. These are significant factors that can lead to degeneration of dentition. They occurred before the applicant took Physeptone in 2008. They were major causative factors before the methadone and maybe in tandem with it.
The respondent submits that the applicant’s teeth were in a poor state of repair in 2011, when he had been taking methadone for only three years. No one but Dr Hutchinson has addressed this. She linked it to hepatitis C in conjunction with pain medication. The injury must be a material cause of the need for the proposed treatment, even if other causes are identified. Those recommending treatment haven’t adequately addressed the other factors.
The respondent submits that the applicant’s statement is not of much assistance regarding the state of his teeth before methadone was prescribed. His statement that his teeth began to deteriorate badly after he began taking Physeptone is a problem for me, as there may have been deterioration before that. It is difficult to say, and it has not been addressed, how quickly the medication would affect the applicant’s teeth. The applicant failed to give a history of his intravenous drug use in his statement, although he was not obliged to. There is no evidence about hepatitis C or his dentition before taking methadone. He possibly had issues before that, and the respondent refers to the evidence of Dr Hutchinson regarding his tooth loss and hepatitis C.
The respondent submits that the applicant complained of broken teeth to Dr Graham on 25 July 2011. They were already in an advanced state of degeneration and we can’t be clear what caused it so early on. Only Dr Hutchinson has addressed it. Nowhere in the Application is there any expert opinion about the time over which Physeptone could have affected the applicant’s dentition, except from 2008. It is not known from Dr Rao’s report whether there were any other significant factors. Dr Sinha simply asserts that the applicant had been on methadone “for years”. This may affect his opinion.
The respondent submits that the applicant had a lengthy history of hepatitis C and decay over many years before taking methadone over five years. This was a “double whammy”. It further submits that the questions posed to Dr Sameh were unfairly skewed. He should have been asked about the effect of hepatitis C etc. He was given only half the picture. The applicant has left a lot unsaid and not commented on. Dr Sameh hadn’t seen him before he lost all his teeth. This is the problem. There is no evidence about other factors before methadone, which has undermined Dr Sameh’s opinion.
The respondent submits that Dr Curtis refers to hepatitis C and liver cancer, but “walks past it” and never mentions it again. He had Dr Hutchinson’s report but ignored her opinion regarding the significant cause of the applicant’s dentition. He didn’t speak about her report and wasn’t asked about the issues. He should have addressed what Dr Hutchinson said.
The respondent submits that there is a contemporaneous record of longer drug use by the applicant than one month in 1995. Dr Curtis did not comment on this. The respondent relies on Dr Hutchinson’s report. She performed a thorough examination. It relies on her conclusions. The applicant’s medical opinion was arrived at without proper consideration of other factors.
The respondent finally submits that I need to consider all the factors. It relies on the decision of Snell DP in Wyllie-Gray v Fitness First Australia Pty Ltd [2019] NSWWCCPD 32 (Wyllie-Gray) [at 46]. The applicant has failed to discharge his onus. He put only opioid use as the sole factor to be considered by his doctor, whereas there are other factors.

SUMMARY

Section 60 of the 1987 Act provides:

“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).
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are--
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted--the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker's employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following--
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
“appropriately qualified” for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(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 President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

The applicant seeks the cost of proposed dental treatment, the necessity for which he claims is a result of injury to his lumbar spine, in 1994 and 1995. Liability has been accepted for injury to his lumbar spine. The respondent does not dispute that the proposed treatment is an appropriate form of treatment for the applicant’s condition.
As the applicant submits, he need not establish that he sustained injury to his teeth arising out of or in the course of his employment with the respondent, in accordance with section 4 of the 1987 Act. He does not need to establish that his employment was a substantial contributing factor to any injury to his teeth, in accordance with section 9A of the 1987 Act. The respondent does not submit otherwise.
What the applicant must establish, on the balance of probabilities, is that the reasonable necessity of the treatment results from the accepted injury to his lumbar spine. Roche DP considered this issue in Murphy.
In Murphy, Roche DP said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes…The work injury does not have to be the only, or even a substantial, cause of the need for relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates) …that the treatment is reasonably necessary ‘as a result of the injury’ (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for surgery (see the discussion on the test of causation in Sutherland Shire Council v BalticaGeneral Insurance Co Ltd (1996) 12 NSWCCR 716).” [emphasis added].

In the matter of Wyllie-Gray, Snell DP referred to the decision of the High Court in Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91; 73 ALJR 1609, in which it stated:
“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other – even later – causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause”.
The arbitrator in Wyllie-Gray directed herself to the question of whether the applicant’s left hip injury materially contributed to her back condition. Neither party on appeal was critical of the reference to this test, which Snell DP described as consistent with authority, including Murphy.
The applicant relies on Kooragang, in which the Court of Appeal held that the issue of causation must be determined in each case on its own facts. What is required is a “commonsense evaluation” of the causal chain. The question to be asked is “whether the disputed incapacity or death [or in this case, the necessity for treatment] ‘resulted from’ the work injury which is impugned” (per President Kirby, as he then was, at 810).
The medical evidence is in agreement that long-term opioid use may have an adverse effect on the user’s dentition. Other potential contributing factors have been identified in the applicant’s case. They include intravenous drug use; inherent susceptibility, due to his oral microflora; high cariogenic diet (sugars); poor oral hygiene; poor salivary buffering capacity; and his hepatitis C status.
Dr Sameh explained why the use of opioids may affect dentition. He reported that methadone and other opiates produce a substance that compounds the problem of plaque retention. Methadone may also contain very high levels of sugar, which users may retain in their mouth. Its high acid content means there is a risk of demineralisation and erosion of the teeth.
Dr Sameh also noted that depression and anxiety are very common in opioid patients, which means the maintenance of their oral hygiene is not a priority. The WorkCover NSW certificates issued to the applicant include a diagnosis of depression, as do practitioners who have treated him over the years since his back injuries.
Dr Hutchinson accepted that Dr Sameh’s opinion that caries are related to low salivary flow has some merit, but added that they are a multi-factorial disease. She also accepted that in the applicant’s case it may have been exacerbated by the medication required for his chronic pain, and probably by his hepatitis C status.
In Dr Hutchinson’s opinion, Mr Caithness would have eventually reached his current status, regardless, but the medication may have accelerated his condition. She also referred to his high sugar intake, but as Dr Sameh opined, sugar may also have been contained in the methadone. In addition, there is evidence that the applicant was eating lollies to alleviate the dryness of mouth which is accepted may be associated with opiate use.
Dr Curtis noted that, in addition to Physeptone, the applicant was taking Targin, Lyrica and Norflex, as well as Cymbalta, an anti-depressant, to moderate his pain, and these drugs would also have caused degeneration of his dentition. The applicant was not a smoker (and the evidence of Dr Elvy is that he gave up smoking about 20 years before 2013), and the relationship between opiate medication and degenerating dentition is well documented in the literature.
The applicant was an intravenous drug user, and developed hepatitis C. He has not given any evidence about his intravenous drug use and the medical evidence about it is somewhat contradictory.
Mr Kearney reported in November 2002 that the applicant had not taken drugs for five months and did not want to take medication that contained codeine. He was confident he could remain abstinent from narcotics. He had heavily abused alcohol before 1992 but had abstained since then. The applicant had not at that stage undergone surgery for his back injury.

When Dr Kelly reviewed the applicant in October 2012, he recorded that the nurse who assisted in the examination stated that there was no evidence of injections on his arms and no scarring. In Dr Kelly’s opinion, the applicant genuinely suffered pain. He had treatment problems, but they did not extend from adaption to addiction.

Had Dr Kelly, who was employed by a Drug and Alcohol Service, and may therefore be expected to have some expertise in diagnosing addiction, believed the applicant was abusing drugs, I would expect him to have said so in his report. He recorded that the applicant had been taking increasing doses of Physeptone over the past four years (that is, since 2008).

When the applicant was referred to Dr Bruce for treatment of hepatitis C in November 2012, his past medical history was recorded as having included intravenous drug use for one month in 1975. That does not appear to be correct, considering the other histories. Dr Clarke recorded in January 2017 nil recreational drug use, but “?IV drug use in the past”. While
Dr Elvy recorded a history of hepatitis C in 2003, and “IV drug use”, it is not clear whether the applicant was using drugs in 2003, or whether the onset of hepatitis C in 2003 was attributed to previous drug use.
There is no evidence that the applicant was an intravenous drug user after 2002 or possibly 2003. There is nothing in Dr Sinha’s records, or the reports of doctors to him, apart from those to which I have referred, that suggests the applicant continued to inject drugs after that time.

The medical evidence confirms that the applicant’s use of Physeptone was long-term, and of high dosage. The applicant’s evidence is that he commenced taking it after the surgery, in 2008. That accords with the history taken by Dr Kelly in 2012.

Prof Cousins reported in October 2010 that the applicant was taking an undesirable dosage of Physeptone. He was also taking Lyrica and Cymbalta at “the top of the range”. By June 2011, he was taking a “concerningly high dose” of Physeptone. Dr Curtis has implicated Lyrica and Cymbalta, as well as Targin and Norflex, which the applicant was also taking, as causing degeneration of his dentition.

Dr Sinha identified the applicant’s high dosage of Physeptone as a possible cause of his dental problems when he referred Mr Caithness to Dr Pathak in November 2012.

By March 2018, Dr Clarke had been advised that the applicant’s Physeptone dose was too large for most opioid replacement programs.

The respondent submits that the applicant has not adduced expert evidence as to the period over which the use of Physeptone could have affected his dentition. However, it is clear from the medical evidence that his intake was already causing concern in 2010.

There is evidence that the applicant’s teeth were in a poor condition, at least from July 2011. However, it is also recorded at that time that he had dry mouth and had been eating lollies to alleviate this condition. In September 2011, he was advised of the oral side effects of anti-depressants, so at that early stage it was considered that his condition may have been affected by the medication he was taking for depression, which was work related.

In accordance with the decision in Murphy, applied in Wyllie-Gray, the applicant need only establish that his injury materially contributed to the need for the treatment in respect of which he claims. The evidence of Dr Sinha, Dr Sameh and Dr Curtis supports the conclusion that it did, in that he has been treated with increasingly large doses of opioids, in order to alleviate the pain of a back injury and three surgical procedures. He has also suffered depression. Dr Sameh pointed out that this may cause those who suffer from it to neglect their oral hygiene, a matter in respect of which Dr Hutchinson was critical of the applicant.

Turning to the evidence of Dr Hutchinson, even she provides some support for the conclusion that the applicant’s injury materially contributed to the need for treatment. She conceded that there was some merit to the suggestion that caries are related to low saliva flow, but that it is a multi-factorial disease, which I would accept. However, she opined that the disease had been exacerbated by the medication required to treat the applicant’s chronic pain, and probably by his hepatitis C status.
Dr Hutchinson opined that opioid pain medication cannot be regarded as the sole contributing factor to the applicant’s dental health problems. The applicant need not establish that his ingestion of medication is the sole contributing factor to the necessity for dental treatment. Dr Hutchinson went on to state that it is “possible” for patients taking such medication to remain free of caries, but the applicant did not implement measures to do so, “hence his current condition”. As Dr Curtis noted, she appears to have taken a relatively unsympathetic approach to the applicant. He clearly had regard to Dr Hutchinson’s report, contrary to the respondent’s submission.

Dr Hutchinson was of the opinion that the applicant’s high caries-causing bacterial load and hepatitis C dramatically increased his susceptibility to dental decay. However, the respondent takes the applicant as it finds him. She also came to the conclusion that the applicant would have eventually reached his current status, regardless of his medication, but it may have accelerated his condition, which provides further support for his claim.

Having considered the evidence of the applicant and the medical evidence, I am satisfied that the dental treatment sought by the applicant is reasonably necessary as a result of the accepted injury to his back in 1994 and 1995. The prolonged ingestion of a high dosage of opioid drugs, and in particular Physeptone, and anti-depressant medication, has materially contributed to the necessity for treatment.
The respondent does not dispute that the proposed treatment is appropriate for the applicant’s condition. It is therefore to pay for the proposed dental treatment, that is, first stage implant surgery for the mandible and maxilla, carried out as a day surgical procedure under general anaesthesia; second stage implant surgery carried out under local anaesthesia in a dental office; provision of an implant retained prosthesis for both the maxilla and mandible arch; and follow up treatment.
As the respondent has ceased to exist, a declaration pursuant to section 162(1) of the 1987 Act will be made.

[2021] NSWPIC 135

24 May 2021