Carey v Frolad Pty Ltd ATF Tony White Albury Trust
[2025] NSWPIC 29
•30 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Carey v Frolad Pty Ltd ATF Tony White Albury Trust [2025] NSWPIC 29 |
| APPLICANT: | Daniel Carey (Schmucker) |
| RESPONDENT: | FROLAD PTY LTD ATF TONY WHITE ALBURY TRUST |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 30 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for medical expenses by way of insertion of spinal cord stimulator; injury not in issue; only question is reasonable necessity of proposed treatment; the applicant suffered an uncontested injury to his left upper extremity as a result of the nature and conditions of his employment with the respondent; following that injury he underwent a number of nerve conduction studies, physiotherapy, three rounds of nerve blocks and two rounds of nerve release surgery; the applicant seeks payment by the respondent for the costs of and incidental to a spinal cord stimulator trial and permanent insertion of a stimulator in the event the trial is successful; the respondent denies liability and asserts the proposed treatment is not reasonably necessary; Held – the applicant has the onus of proving the treatment is reasonably necessary, noting the overarching requirement that treatment will be considered reasonably necessary if the Commission finds it is preferable the worker should have the treatment than it be forborne: Bartolo v Western Sydney Area Health Service; the relevant criteria for establishing reasonable necessity are those set out in in Diab v NRMA Ltd; in this matter, there is no issue the applicant has undertaken a long and diverse course of treatment to little effect; his three treating specialists, his general practitioner and his IME A/Prof Boesel, all agree the applicant has exhausted alternative treatment options, and that the proposed treatment is reasonably necessary; the respondent’s IME is alone in stating the treatment is not reasonably necessary, and his reasoning for that opinion is contrary to the preponderance of the medical and lay evidence in the matter, accordingly it is not accepted; the proposed treatment is reasonably necessary; respondent to pay the costs of and incidental to the proposed treatment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury to his left elbow and wrist in the course of his employment with the respondent, with a deemed date of injury of 28 January 2021. 2. The proposed trial and permanent insertion of a spinal cord stimulator proposed by Dr Cheung are reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the cost of an incidental to both the trial of the spinal cord stimulator and permanent insertion thereof as claimed in the Application to Resolve a Dispute. |
STATEMENT OF REASONS
BACKGROUND
There is no issue the applicant, Daniel Carey, suffered an injury to his left upper extremity as a result of the nature and conditions of his employment with the respondent, Frolad Pty Ltd as Trustee for Tony White Albury Trust, with a deemed date of injury of 28 January 2021.
The applicant had suffered a previous injury to his right arm in September 2012 working with another employer whilst in Germany, which led to an amputation below his right elbow. He returned to Australia, and in 2016 began working with the respondent on a full-time basis as a mechanic.
The applicant has had a long and exhaustive history of treatment since the injury at issue, including two rounds of surgery, three rounds of nerve blocks and extensive physiotherapy. He now seeks payment by the respondent for the costs of an incidental to a trial then, if the trial is successful, permanent insertion of a spinal cord stimulator as recommended by his treating specialist, Dr Cheung.
The respondent denies liability for the cost of the proposed treatment and alleges it is not reasonably necessary as a result of the applicant’s injury.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the proposed spinal cord stimulator is reasonably necessary as a result of the applicant’s injury.
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.
The parties attended a hearing on 28 January 2025. Mr Mrsic of counsel instructed by Ms Sawa and Ms Monharaj appeared for the applicant. Mr Stiles of counsel instructed by Ms Lu appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attachments, and
(b) Reply and attachments.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the proposed treatment is reasonably necessary
Counsel were both in agreement as to the relevant authorities in disputes of this nature, with particular emphasis on the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). The dispute in this matter being of narrow-compass, and counsel helpfully assisting in their agreement as to the appropriate authorities, necessitates only a short summary of the relevant case law.
There is no issue the applicant bears the onus approving the medical treatment claimed is reasonably necessary. The relevant test for establishing reasonable necessity is set out in Diab, in which Deputy President Roche cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. Broadly speaking, treatment will be considered reasonably necessary if the Commission finds it is preferable the worker should have the treatment than it be forborne.
In Diab, Deputy President Roche referred to the non-exhaustive criteria set out by Burke CCJ in Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 (Rose). As Mr Mrsic noted in the current matter, the relevant considerations in Diab at [78] are:
(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) acceptance by medical experts of the treatment as being appropriate and likely to be effective.
It is common ground that for treatment to be reasonably necessary, it need not be essential or absolutely necessary. The word “reasonably” operates as a qualifier to the word “necessary” in determining whether an award should be made for the treatment.
In this matter, the respondent relied on the report of Dr Gorman, Independent Medical Examiner (IME), who was of the view the proposed spinal cord stimulator would not assist the applicant’s left upper limb pain and could cause complications in the nature of intermittent jolts of pain together with the risk of infection associated with any surgery. Dr Gorman opined the applicant did not satisfy the requirements for a diagnosis of ongoing complex regional pain syndrome in the left upper limb and noted repetitive strain injuries causing upper limb pain can be slow to recover and recalcitrant to treatment.
In relation to appropriate alternate treatments for the applicant, Dr Gorman stated the fact the applicant is working provided excellent therapy for his pain, both physically and psychologically. He recommended continuing with physiotherapy, however, within two to three months of the date of Dr Gorman’s report, the applicant should focus on a self-managed exercise programme.
Dr Gorman opined the proposed spinal cord stimulator was not medically appropriate or indicated. In so stating, Dr Gorman noted and emphasised the applicant does not have complex regional pain syndrome, but rather has nonspecific left upper limb pain initially related to repetitive use which has not been improved despite two release surgeries on the median and ulnar nerves.
There is no question the applicant does not satisfy the requirements for complex regional pain syndrome. His own treating doctors and the applicant’s IME, A/Prof Boesel, all admit as much. However, those doctors are all of the view that the proposed spinal cord stimulator would nevertheless benefit the applicant.
In his statement from [42] and following, the applicant sets out the treatment he has undertaken since the injury at issue. He stated:
“42. I went in to see my GP either on the day or a day after the incident, as I was having issues moving my wrist and experiencing pain. I was prescribed Celebrex and Panadeine Extra.
43. On 8 February 2021, I went in to see my GP again as my symptoms were persisting and the pain was getting worse. I was referred for physiotherapy and an x-ray.
44. In March 2021, I was told my diagnosis was carpal tunnel syndrome and was given a splint which I tried for around four weeks but found that it did not help.
45. Around April 2021, I was referred to orthopaedic surgeon, Dr Frawley. He did an initial nerve study and confirmed the diagnosis of carpal tunnel syndrome plus damage to the ulnar nerve.
46. In May 2021, I had injections in my left hand and elbow which did not improve my symptoms.
47. I saw Dr Frawley again and he recommended surgery, given the risks I sought a second opinion.
48. In September 2021, I had a nerve conduction study which revealed neuropathy in my left wrist and elbow.
49. In October 2021, I saw orthopaedic surgeon, Dr James Churchill, for a second opinion, who recommended a left carpal tunnel release and left ulnar nerve release procedure.
50. On 28 March 2022, I underwent the carpal tunnel release surgery.
51. In May 2022, I had the ulnar nerve decompression.
52. In October 2022, I had a further nerve study which showed slight improvement in my median nerve but none in my ulnar nerve.
53. As I continued to experience pain nine months postoperative, Dr Churchill referred me to Pain Specialists Australia for further review.
54. In January 2023, I saw pain specialist, Dr Vinay Reddy who recommended initially, psychological treatment, occupational therapy and further physiotherapy.
55. On 11 August 2023, 25 August 2023 and 13 October 2023, under the care of my pain specialist, I underwent a series of nerve block procedures. I did not find much relief with the pain after the procedures. The first nerve block procedure created temporary paralysis.
56. I was participating in physiotherapy twice a week at Northeast Life Wangaratta and taking Codeine to manage the pain.
57. In order to reduce how much I needed to travel, I switched to a physiotherapist (PhysioLife) in Beechworth.”
It is self-evident the applicant has undergone extensive alternative treatment in the nature of physiotherapy, nerve blocks, nerve conduction studies and two rounds of surgery. Despite this, he has received limited to no benefit. In relation to the proposed spinal cord stimulator, the applicant stated:
“58. Following the many procedures and treatments I have had with limited success in decreasing my pain, I came under the care of Dr Ning (Michelle) Cheung, a colleague of Dr Vinay Reddy.
59. Dr Cheung recommended I undergo a trial of bilateral cervical spinal cord stimulation (SCS) procedure.
60. Following this request, the insurer had me assessed by Dr David Gorman and subsequently declined the SCS request, based on Dr Gorman’s findings.
61. My pain specialists were in disagreement with the findings of Dr Gorman, on the basis that the condition being treated is refractory post-injury/surgery neuropathic pain where the SCS will aim to reduce the pain caused by the diagnosed condition.”
It is accepted by both parties that all of the applicant’s treating specialists recommend the surgery and agree as to the nature of the applicant’s diagnosis. To the respondent’s credit, it did not seek to take issue with either of those aspects of the case, as was appropriate given the nature of the evidence. Rather, the respondent relied on reviews of Dr Gorman to persuade the Commission that the proposed treatment was not reasonably necessary.
In addition to his treating doctors, all of whom support the proposed treatment and indeed dispute Dr Gorman’s findings, the applicant also relied on A/Prof Boesel, IME.
Treating pain specialist physician and anaesthetist, Dr Christelis confirmed the applicant’s diagnosis of refractory post-injury/surgery neuropathic pain and noted this condition was the indication for the spinal cord stimulation trial and, if successful, permanent insertion.
Dr Christelis noted the aim for refractory neuropathic pain treatment by way of spinal cord stimulator is to reduce severe pain, thereby improving function and disability as well as reducing the reliance on medication.That view was supported by Dr Cheung, who provided a request for treatment to the respondent’s insurer dated 6 November 2023. That request confirmed the diagnosis and was consistent with the views of Dr Christelis in affirming the need for a spinal cord stimulator.
In addition to the treating surgeons, A/Prof Boesel provided a report in which he set out an accurate history of injury. A/Prof Boesel confirmed the diagnosis of post-surgical refractory neuropathic pain syndrome and also stated the applicant does not satisfy the diagnostic criteria for complex regional pain syndrome.
In relation to the proposed spinal cord stimulation, A/Prof Boesel stated:
“Spinal cord stimulation is an accepted treatment for the indication of chronic neuropathic pain. This is indeed Mr Carey’s diagnosis. There is a 75% to 80% likelihood of a positive response to the therapy trial.
A positive response would encompass a 50% or greater pain reduction. I am satisfied that his pain is neuropathic based on the clinical presentation with history examination and also prior nerve conduction evidence of nerve dysfunction. I note also that when he was initially assessed by the Pain Specialists Australia team, that the PainDETECT survey, which is highly sensitive and diagnostic for neuropathic pain, showed him to be scoring 26, which is highly suggestive of a neuropathic aetiology to his pain presentation. As such, neuromodulation is an appropriate treatment and reasonable and necessary for the outcome of his workplace injury.”
Mr Mrsic noted, and I accept, that A/Prof Boesel’s use of the phrase “reasonable and necessary” in relation to the proposed treatment in fact sets a higher standard than the “reasonably necessary” test. In other words, if treatment is reasonable and necessary, it will inherently be reasonably necessary.
In relation to alternative treatment modalities, A/Prof Boesel stated:
“Mr Carey has refractory neuropathic pain. He has exhausted the treatment options, which have included medications, psychological and physical rehabilitation and nerve blocks. Neuromodulation is the remaining treatment option, which may assist him reduce his pains in a meaningful manner. I, therefore, endorse the recommended treatment options from Pain Specialists Australia.”
A/Prof Boesel, combined with Dr Christelis, Dr Cheung and also Dr Reddy in my view provide an overwhelmingly persuasive argument that the applicant should have the spinal cord stimulation rather than it be forborne.
Taking into account the non-exclusive criteria for reasonable necessity as set out in Diab and Rose, I find the treatment to be appropriate in the circumstances given the applicant’s diagnosis, which I accept is that set out by IME, A/Prof Boesel supported as he is by all of the applicant’s treating specialists.
I am comfortably satisfied on the balance of probabilities that the applicant has exhausted the alternative treatment modalities, none of which have been remotely effective for his condition.
In relation to cost, the respondent did not argue that the cost of the proposed spinal cord stimulation was prohibitive.
Although Dr Gorman stated the spinal cord stimulator was not indicated, in so finding he placed no small amount of emphasis on the fact the applicant did not display the symptoms of complex regional pain syndrome, a condition which none of his treaters have ever asserted he suffered.
Dr Gorman does not, with respect, address whether the insertion of the spinal cord stimulator is appropriate for the applicant’s neuropathic pain condition, something which all of his treating specialists and the applicant’s IME assert is the case. I do not accept Dr Gorman’s view, inconsistent as it is with the overwhelming medical evidence put forward in the case.
Additionally, the preponderance of the medical evidence in this matter supports the proposed treatment as being accepted by medical experts as appropriate and likely to be effective. Indeed, A/Prof Boesel, whose opinion is not traversed by the respondent by way of report in reply from Dr Gorman, opines there is a 75% to 80% chance the applicant will have a greater than 50% reduction in his symptoms.
In summary, I am of view the evidence in this matter is overwhelming. The proposed spinal cord stimulator is, in my view, reasonably necessary as a result of the applicant’s injury.
The respondent submitted that if the Commission was to accept the applicant’s case, then approval only for the spinal cord stimulator trial should be granted, rather than the permanent device.
With respect, I reject that submission. The applicant has claimed both the trial and the permanent insertion of the device as part of this claim, and the medical evidence overwhelmingly supports that both will be effective. However, it should be noted, if the trial is unsuccessful then it is very likely the applicant will not proceed to the permanent insertion of the device, and the respondent will not be required to pay for it in any event.
SUMMARY
For the above reasons, the Commission will make the findings and order set out on page 1 of the Certificate of Determination.
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