Cameron v Marco Polo Aged Care Services Limited
[2021] NSWPIC 481
•25 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Cameron v Marco Polo Aged Care Services Limited [2021] NSWPIC 481 |
| APPLICANT: | Janelle Terease Cameron |
| RESPONDENT: | Marco Polo Aged Care Services Limited |
| MEMBER: | Jane Peacock |
| DATE OF DECISION: | 25 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Lumbar spine injury; claim for further fusion surgery; no dispute about injury and prior fusion surgery was paid for by insurer; no dispute that proposed further surgery resulted from injury; dispute that surgery was reasonably necessary; Diab v NRMA applied; it is well settled that surgery does not have to guarantee success to be reasonably necessary; Held - proposed surgery held to be reasonably necessary; award for the worker. |
| DETERMINATIONS MADE: | 1. Award for the applicant under section 60 of the Workers Compensation Act1987 in respect of the surgery proposed by Professor Steele in the form of insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the Application) the applicant, Ms Janelle Cameron (Ms Cameron) seeks a determination that proposed surgical treatment in the form of insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots is reasonably necessary as a result of injury to the lumbar spine on 28 March 2017.
The respondent is Marco Polo Aged Care Services Limited (Marco Polo). The Department was insured at the relevant time by iCare Workers Insurance for the purposes of workers compensation.
Marco Polo denied liability for the claim for the proposed surgery.
ISSUES IN DISPUTE
There is no dispute that Ms Cameron suffered an injury to her spine on 28 March 2017.
There is no dispute that Ms Cameron came to surgery at the hands of Professor Steele on 3 May 2019 as a result of the work injury which was paid for by the insurer.
There is no dispute that surgery has been unsuccessful in relieving her pain and that her pain persists along with other symptoms such as urinary incontinence.
Ms Cameron now seeks to have further surgery as recommended by her treating specialist Professor Steele in the form of insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots.
There is no dispute that the proposed surgery results from the injury.
The dispute is whether the proposed surgery is reasonably necessary.
PROCEDURE BEFORE THE COMMISSION
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 filed on behalf of each party were admitted into evidence before the Commission by consent and taken into account in making this determination:
For Ms Cameron:
(a) The Application and all documents attached.
(b) The late documents filed with an Application to Admit Late Documents on 12 October 2021.
For Marco Polo:
(a) The Reply and all documents attached.
(b) The late documents filed with an Application to Admit Late Documents on 14 October 2021.
(c) The late documents filed with an Application to Admit Late Documents on 18 October 2021.
Oral evidence
Ms Cameron did not seek leave to adduce further oral evidence.
Marco Polo did not seek leave to cross-examine Ms Cameron.
FINDINGS AND REASONS
There is no dispute that Ms Cameron suffered an injury to her lumbar spine on 28 March 2017.
There is no dispute that Ms Cameron came to surgery as a result of her injury on 3 May 2019 performed by Professor Steele. This surgery was paid for by the insurer. The surgery was in the form of an anterior lumbar discectomy and fusion at L5-S1.
There is no dispute that the surgery has been unsuccessful in relieving her pain.
There is no dispute that Ms Cameron has suffered persisting pain since her surgery and other symptoms including urinary incontinence.
There is no dispute that Ms Cameron is suffering. Counsel for Marco Polo acknowledged that Ms Cameron finds herself in a situation of “chronic unremitting pain”.
Ms Cameron wants to have the further surgery proposed by Professor Steele in the form of insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots. This surgery is proposed to correct suspected micromovement of the cage previously inserted in Ms Cameron’s spine.
Marco Polo does not dispute that the proposed surgery results from the injury.
Marco Polo disputes that the proposed further surgery is reasonably necessary.
I must determine, on the balance of probabilities, whether the proposed surgery in the form of insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots as recommended by the treating surgeon Professor Steel is reasonably necessary as a result of injury on 28 March 2017. This determination must be made on the evidence and in accordance with the law.
Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“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).”
Deputy President Roche in Diab v NRMA [2014] NSWWCCPD 72 (Diab) provided a useful summary of the authorities dealing with whether medical expenses are “reasonably necessary” as a result of injury as required under section 60 and set out the approach that is to be adopted.
Deputy President Roche in Diab said as follows:
“76. The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
‘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.’
77. The Commission has applied this test in several cases (see, for example,
Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).78. In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘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.’
79. The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
80. The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81. Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82. His Honour added, at [23]–[24]:
‘23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary” there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.
24.The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of “necessary”.’
83. It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
84. In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word “necessary”’.
85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86. 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. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of 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 (see [76] above), namely:
a.the appropriateness of the particular treatment;
b.the availability of alternative treatment, and its potential effectiveness;
c.the cost of the treatment;
d.the actual or potential effectiveness of the treatment, and
e.the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
90. While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
As Deputy President Roche said in Diab each case will depend on its own facts.
As counsel for Marco Polo conceded there is no issue taken with the cost of the treatment or other alternative measures being available. The dispute lies with the appropriateness of the treatment and potential effectiveness of the treatment.
Turning then to an examination of the evidence in this case.
Ms Cameron gave evidence in a statement dated 6 August 2021. She gave evidence that she underwent the anterior lumbar discectomy and fusion at the hands of Professor Steel on 3 May 2019. She gave evidence that post surgery she “continued to experience significant pain in my low back and urinary incontinence”. There is no dispute that Ms Cameron is suffering the persisting symptoms which she described. Counsel for Marco Polo conceded, as is proper on the evidence, that Ms Cameron has been left with “chronic unremitting pain”. Ms Cameron wants to have the surgery recommended to her by Professor Steel. She gave evidence:
“Because of EML’s decision to deny the surgery recommended by Dr Steel, I continue to suffer from significant pain and symptoms. I feel that my situation continues to deteriorate, and I am hopeful that the surgery will improve my symptoms, so I really want to undergo this treatment.”
Ms Cameron went on to give evidence:
“Due to my ongoing symptoms and disabilities and having the surgery that could help me be denied by EML, I have suffered psychologically. I have required both outpatient and inpatient mental health treatment at the South Coast Private in 2019 and 2020, and I am about to undergo a further 4 week inpatient treatment in August 2021 as the recent denial by EML has caused my psychological symptoms to deteriorate.”
There is no dispute that Ms Cameron continues to suffer the symptoms that she has detailed in her statement. The dispute in this case essentially turns on the competing views of the experts whose reports are in evidence. The treating surgeon Professor Steel has recommended the surgery on the basis of his view that there is suspected micro movement of the cage previously inserted and he proposes that this be corrected by the procedure he recommended namely insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots. Dr New, an independent medical expert (IME) qualified on behalf of Ms Cameron supports further surgery being undertaken but recommends a different procedure namely an open laminectomy from L4 to S1 level with percutaneous screws and posterolateral grafting. As Dr Cassiker, the IME qualified for Marco Polo, this is a similar type surgery with a slightly different technique to that proposed by professor Steel and which the applicant seeks to have.
Dr Cassiker, neurosurgeon is the IME qualified on behalf of Marco Polo. Dr Cassiker is of the view that Ms Cameron has failed back surgery syndrome and no further surgical intervention should be undertaken.
Counsel for Marco Polo submitted that it is not clear that the cage has micromotion. Rather it was submitted Dr Steel has raised a hypothesis and “it seems the only way test is by undertaking the surgery. Counsel for Marco Polo submitted that this is not an appropriate basis for such a serious intervention to proceed given the circumstances of previously failed surgery and the risks associated with lumbar surgery. This is a question about the effectiveness of treatment. Whilst it is acknowledged that this factor is not determinative, counsel for Marco Polo submitted that in the circumstances of this case it is a “very important and serious consideration”. Counsel for Marco Polo submitted that Professor Steel is “speculating about the reason for partial failure of the previously recommended surgical procedure”. It is a “frail analysis” by Professor Steel which is “strongly rebutted” by Dr Cassiker. Counsel for Marco Polo submitted it is a serious intervention without serious prospects of relief and has the potential for a poor outcome.
I have to weigh the competing expert opinions in the balance and make a determination on the balance of probabilities whether the proposed surgery is reasonably necessary.
Professor Steel has provided a series of reports over time which are in evidence. These include his operation report of 3 May 2019 which confirms an anterior fusion was undertaken. This involved the insertion of a prothesis or cage.
Ms Cameron continued to present for reviews and persistent symptoms were consistently reported.
In a report dated 6 October 2020 Professor Steel reported back to the general practitioner that he had reviewed both the CT scan and 2020 MRI. He noted that Ms Cameron continued to report significant back pain and bilateral leg pain.
In view of the clinical presentation of Ms Cameron and his review of the radiology, Professor Steel made the following recommendations:
“
· If the cage still has micromotion, this could still be the pain generator.
· If this is the case, then a posterior supplemental percutaneous screw fixation using low profile screws would be appropriate to fully stabilise the L5-S1 segment.
· I would like her to have a technetium bone scan including SPECT-CT here at St Vincent’s clinic initially to see if there are any areas of active facet joint arthropathy at other levels.
· I will seek approval for this to occur and I will see her immediately following this.
· She had a bone scan performed at PRP on 15/11/19. This did not show any areas of activity apart from the operated l5-s1 level. An updated bone scan will give us better information about this. If this does not show any other areas of pathology, I will recommend we proceed with the posterior fusion.”
On 15 October 2020 Ms Cameron underwent the recommended bone scan.
Professor Steel reviewed the bone scan and reported back to the general practitioner on 26 October 2020 that the scan showed “low grade degenerative and reactive changes at L5-S1 but not at the other levels”. He made the following recommendations after review of this radiology as follows:
:
· It is likely that the pain is still coming from the L5-S1 segment.
· Consideration could be given to a posterior supplemental percutaneous pedicle screw fixation with low profile screws to lock down the fusion more solidly.
· I will discuss the results of the bone scan with her in the coming days and see how she wishes to proceed.”
On 18 November 2020 Professor Steel wrote again to the general practitioner after speaking with Ms Cameron. He reported as follows:
“I spoke with Janelle on 18/11/20. She continues to report mechanical back pain and bilateral leg pain, she reports pain that radiates down both legs equally into the ankles.
She continues in Lyrica 75/150 and Paelxia DSR 100/150, Despite this, she continues to report pain.
Recommendations:
·I have discussed the options with her. It is probable that the pain is arising from the posterior elements of the L5-0S1 segment. There is a 70% chance her symptoms will be improved with a posterior percutaneous pedicle screw instrumentation with decompression of the L5 and S1 nerve roots.
·I will seek approval for the surgery to occur here at ST Vincent’s Private in the New Year. I have outlined the principles of the surgery with her once again.
·I will organise her to come in for review.”
Professor Steel provided a further report dated 8 October 2021 at the request of Ms Cameron’s lawyers as follows:
“Ms Cameron underwent an anterior lumbar discectomy and fusion here on 3 May 2019. She continues to report back and bilateral leg pain. I have recommended decompression and pedicle screw instrumentation at the L5-S1 segment.
In answer to your specific questions:
1. is the surgery reasonably necessary?
Occasionally patients who have an anterior fusion will not fully heal. Occasional patients who have an anterior lumbar procedure require posterior supplemental fixation with pedicle screw instrumentation as the cage subsides into the bone. Janelle had bone that looks relatively osteogenic on the CT scan, this can cause irritation to the nerve roots causing bilateral sciatica and pain as the interbody cage sinks into the bone, which is a living tissue. Then posterior fixation stabilizes.
Bone scan performed at PRP imaging on 15 October 2020 a year after her surgery shows ongoing changes at the L5-S1 level but no pathology at any other level. As a result the surgery is reasonably necessary for the treatment of her original injury.
2. The benefit she is likely to derive is alleviation of pain, the surgery allows decompression of the L5 nerve roots in the foramen and stabilises the motion segment.”
Professor Steel addressed why he did not agree with the alternate surgery proposed by Dr New which would require intervention at L4 where there is no pathology shown radiologically.
Professor Steel addressed Dr Cassiker’s opinion that Ms Cameron had failed back surgery syndrome and nothing more surgically can or should be done. Professor Steel explained the importance of the 2020 MRI scan in the context of the Ms Cameron’s clinical presentation. I note that Dr Cassiker did not appear to have the benefit of the 2020 MRI scan as he did not refer to it despite being asked to provide supplementary reports. Professor Steel explained the MRI’s significance as follows:
“Failed Back Surgery Syndrome is a broad description to explain all patients who have ongoing pain following surgery. The term ‘Failed Back Surgery Syndrome’ started many years ago. This was prior to the MRI scan era. Prior to 2000, patients who had back pain had diagnostic limitations as there was no imaging modality that would show the internal topography of the disc. The MRI scan has changed this. This now allows for more precise diagnosis rather than simply labelling a patient as a Failed Back Surgery Syndrome. Patients who have pain in the back and legs will do so because of a structural reason. Failed Back Syndrome is not a diagnosis, it is a description. At this point she has ongoing pain in the back and both legs due to pathology at the L5-S1 segment. This will most reliably be addressed surgically.
Failed Back Surgery Syndrome does not require conservative management only. Surgical management of the spine is directed at two aspects. One is decompression of the nerves, and if patients have pain down the leg unrelieved by conservative measures, it implies there is nerve compression/irritation. Decompression is indicated. If patients have mechanical back pain due to structural pathology, this can be alleviated with fusion surgery. While she has had an anterior fusion, it appears she is now having symptoms due to the cage subsiding into the endplates. Further surgery has the potential to alleviate this.”
Counsel for Marco Polo said that Professor Steel’s was a frail analysis that was speculative and did not support a determination that the procedure was appropriate. However, when I weigh Professor Steel’s opinion in the balance with the other evidence, I take account of his findings on clinical examination and that he has applied his clinical expertise to the review of the multifaceted radiological investigations that he has requested be undertaken – CT scan (9 months post surgery), the MRI scan of 2020 and the bone scan of 2020. He is not making a recommendation for surgery absent an analysis of the radiological investigations and his clinical findings.
Dr Cassiker provided a series of reports which are in evidence dated 24 February 2021, 24 September 2021 and 18 October 2021. The latter two reports are on the papers reviews.
In his report dated 24 February 2021 Dr Cassiker reviewed Ms Cameron, conducted a physical examination and reviewed the radiology. He did not however review the 2020 MRI scan upon which Professor Steel relies. He diagnosed “failed back syndrome”. He opined that the “spinal fusion performed by Professor Steel had produced a failed back syndrome. Her symptoms are worse not better, she is on multiple medications”.
He opined that as she “has already a failed back syndrome, further spinal fusion will only result in a similar outcome.” He said she should not have had the surgery in the first place she should have persisted with conservative measures. He opined:
“I find it very difficult to support further spinal fusion considering the previous attempt has failed.”
Dr Cassiker provides two further reports. In those reports he also does not have the benefit of the MRI performed in 2020. He reiterates that Ms Cameron has failed back syndrome and nothing further can or should be done surgically.
When I weigh Professor Steel’s opinion in the balance with all of the evidence before me, I take into consideration that he has very carefully analysed the radiological investigations which he has called for after clinical review of Ms Cameron. He first called for the CT (nine months after surgery) and then the more sensitive investigation, the MRI (12 months after surgery). He identifies the findings on the MRI which represent the concern about micro movement of the cage. He calls for a bone scan. He identifies that this scan only identifies increased uptake at the injured and operated on level namely L5-S/1. This is consistent with his clinical findings.
It is well settled that surgery does not have to guarantee success to be reasonably necessary. When all of the evidence is weighed in the balance I prefer for the reasons explained throughout the opinion of Professor Steel.
Accordingly I am satisfied on the balance of probabilities that the proposed surgery is reasonably necessary as a result of the injury on 28 March 2019 and I will make the following award in Ms Cameron’s favour:
· Award for the applicant under section 60 of the 1987 Act in respect of the surgery proposed by Professor Steele in the form of insertion of a posterior percutaneous pedicle screw instrument with a decompression of the L5 and S1 nerve roots.
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