Ceniza v State of New South Wales (NSW Health Pathology)
[2021] NSWPIC 232
•7 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ceniza v State of New South Wales (NSW Health Pathology) [2021] NSWPIC 232 |
| APPLICANT: | Evangeline Ceniza |
| RESPONDENT: | State of New South Wales (NSW Health Pathology) |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 7 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for cervical spine surgery; injury admitted; reasonable necessity of surgery in issue; Held- The proposed surgery is reasonably necessary; Diab v NRMA Ltd and Bartolo v Western SydneyArea Health Service followed; respondent ordered to pay costs of and incidental to the proposed surgery. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to her cervical spine in the course of her employment with the respondent, with a deemed date of injury of 6 June 2019. 2. As a result of the injury referred to in (1) above, the applicant has and will continue to require ongoing medical treatment. 3. The proposed C4-C6 anterior cervical decompression and fusion proposed by Dr Hsu is reasonably necessary as a result of the applicant’s injury. 4. The respondent is to pay the costs of an incidental to the surgery proposed by Dr Hsu. |
STATEMENT OF REASONS
BACKGROUND
Evangeline Ceniza (the applicant) worked as a technical officer for NSW Health Pathology (the respondent) for approximately 15 years. Her work was described as repetitive in nature as she was a lab technician in a busy pathology department.
On 6 June 2019, she states she suffered an injury to her right shoulder and neck, when she was asked to work in a specimen area which was not normally part of her duties. Ordinarily, three to four people work in that area, however, on this particular day she was left alone for three to four hours.
The applicant alleges that the nature and conditions of her employment have given rise to cervical spine injury. Initially, the respondent denied liability on the basis that the injury sustained by the applicant was an aggravation to an underlying degenerative condition which had ceased. At the hearing, the respondent did not advance that argument.
The applicant brings these proceedings seeking payment by the respondent for a proposed cervical spine fusion at the hands of treating surgeon Dr Hsu. The respondent denies liability on the basis that the proposed surgery is not reasonably necessary.
ISSUES FOR DETERMINATION
The only issue in dispute between the parties is whether the proposed surgery is reasonably necessary.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 5 July 2021. 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.
At the hearing, the applicant was represented by Mr L Morgan of counsel instructed by
Ms H Kaur, solicitor. Mr S McMahon of counsel appeared for the respondent, instructed by Ms T Singh, solicitor.
At the outset of the hearing, Mr McMahon made an application that the matter should be referred to a Medical Assessor for the provision of a non-binding opinion as to whether the proposed surgery was reasonably necessary. After hearing submissions from both parties, I declined that application and the matter proceeded to hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application);
(b) Reply and attached documents;
(c) Applicant’s Application to Admit Late Documents (AALD) dated 28 June 2021, and
(d) Respondent’s AALD dated 30 June 2021.
Oral evidence
There was no oral evidence called of hearing
FINDINGS AND REASONS
Whether the proposed surgery is reasonably necessary
The applicant carries the onus of proving that the proposed surgery is reasonably necessary. The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). In that matter, the Deputy President cited with approval the test articulated by His Honour Judge Burke in Bartolo v Western SydneyArea Health Service [1997] 14 NSWCCR 233. Broadly, treatment will be considered reasonably necessary if the Commission finds it is preferable that the worker should have the treatment than it be forborne.
There are other considerations which are also relevant to deciding whether the treatment is reasonably necessary. These include, but are not limited to, the appropriateness of the treatment; the availability of alternative treatment and the potential effectiveness of the alternative; the cost of the proposed treatment; the actual potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab, Roche DP also noted that the word “reasonably" operates to qualify the effect of “necessary", such that the injured worker does not need to prove the treatment is absolutely necessary.
Mr McMahon submitted that the applicant's pathological change in the cervical spine was insufficient to support the reasonable necessity of the proposed surgery. He submitted that complaints of radiculopathy in her fingers were not borne out by the location and seriousness of the disc pathology.
Mr McMahon noted the opinion of Dr Hsu stands in contrast with that of Dr Lee, treating orthopaedic surgeon, who in his report dated 18 October 2019 noted there were no neurological signs down the applicant's arms and that the MRI showed a mild disc prolapse at C4/5 and C5/6. He indicated there was no sign of indentation of the spinal cord and said
“I do not believe that [the] patient will require surgical intervention to her neck. However, to manage the neck pain, I have suggested that [the] patient see a physiotherapist regularly for deep tissue massage, heat therapy, gentle range of motion exercises."
The applicant had consulted Dr Hsu in relation to discogenic low back pain in 2015. She then returned to see him concerning this injury in or about February 2020. In his report to Dr Lee dated 23 February 2020, Dr Hsu recorded a history of neck and right shoulder pain, which had become quite significant over the past six months or so and which radiated into the applicant's right hand and ulnar digits. At this time, Dr Hsu noted the applicant did not demonstrate any focal neurological deficit and arranged for her to undergo a CT scan of the cervical spine together with the nerve conduction study of the upper limbs.
The applicant then returned to Dr Hsu on 3 April 2020. At that time, she had completed her nerve conduction studies which demonstrated no significant peripheral nerve involvement, however, the bone scan demonstrated C4-5 and C5-6 “significant increased uptake suggesting significant pathology." Dr Hsu then arranged for the applicant to undergo right-sided C4/5 and C5/6 foraminal injection.
The applicant underwent foraminal injection, and in a report dated 24 April 2020 to Dr Lee, Dr Hsu noted she had some significant relief of her cervical spine symptoms.
On 12 May 2020, the applicant consulted Dr Hsu, at which time the effect of the cervical injection appears to have worn off and she was experiencing increasing pain. It was at this point that Dr Hsu indicated that because the applicant had undergone several injections in her cervical spine, there may be a need to consider surgical intervention.
On 21 May 2020, the applicant again consulted Dr Hsu who examined her and identified significant upper limb cervical radiculopathy, “considering she has had a long course of nonoperative treatment and is still experiencing significant neck and upper limb symptoms, we have decided to proceed with surgical intervention." It was at this point in time that Dr Hsu requested approval for the surgery.
In the statements, the applicant has set out her ongoing problems, the nature and extent of conservative treatment and indicated she consents to having the proposed surgery.
The respondent referred to the report of Associate Professor Menon, treating neurologist, to whom Dr Hsu referred the applicant. Associate Professor Menon provided a report dated 26 March 2020 to Dr Hsu, in which he noted the following:
"Currently, she reports significant pain in the right shoulder and neck and arm and numbness of the medial three fingers. Evangeline also reports heaviness or discomfort in the head of the occipital region only on the right side.
Clinical examination today revealed normal cranial nerve function. In the upper limbs, there was normal strength throughout. There was no myotomal pattern of muscle weakness. The reflexes were symmetrical and well elicited on both sides and there was no reflex loss in any particular nerve root distribution. There was no sensory loss in the upper limbs, and despite the complaint of paraesthesia in the medial three fingers, there was no loss of sensation in that segment. This was confirmed by nerve studies which undertook in the upper limbs which did not show peripheral nerve dysfunction of the median or the ulnar nerve on either side. There were no pyramidal or cerebellar signs either in the upper limbs. Lower limb examination was also normal as was gait examination.
I therefore think Evangeline’s management of symptoms possibly arising from radicular dysfunction can continue as organised by yourself. I have not seen the form of report of MRI spine and brain organised earlier. I think plan of management by single treating specialist would be ideal if radicular dysfunction is confirmed to be the cause of the current symptoms."
Mr McMahon submitted that Associate Professor Menon's findings concerning the absence of muscle weakness were consistent with the findings of the reports of Dr Smith, independent medical examiner (IME) for the respondent, dated 16 December 2019 and 19 August 2020. Dr Smith's view is that the applicant’s history was reasonably consistent upon examination, however, there was inconsistency in the exhibited weakness in the right upper limb, which Dr Smith described as “manufactured."
Dr Smith’s view that the applicant was manufacturing symptoms was one which he reiterated in his second report, in which he also expressed the view that the applicant's injury was an aggravation to pre-existing osteoarthritic change in her neck, which has long since resolved and left no disability. As noted, the respondent resiled from that position at the hearing, and indicated the only matter now in issue was the reasonable necessity of the treatment.
In his second report, Dr Smith said of the applicant:
“She continues to manufacture physical signs. There is no organic illness that could produce the weakness she exhibits, which includes weakness of shoulder elevation on the right side and neck rotation to the right."
I reject that view of Dr Smith for the following reasons. The applicant has exhibited signs of radiculopathy to each of the other doctors retained in these proceedings. That includes her treating surgeon, Dr Hsu, treating neurologist, Associate Professor Menon and IME Dr Bodel. Each of those doctors indicates the applicant's presentation is consistent with the nature and extent of her injury. Moreover, the applicant has been well motivated to seek treatment, having done so at her own expense at times in relation to the conservative therapies which she has undergone. She has also returned to work and there is no suggestion she is anything other than a self-motivated worker who has made an honest complaint of injury and disability after suffering her workplace issues.
The respondent noted that Dr Smith indicated the proposed surgery is at C4-5 and C5-6 and this is, in his view, the incorrect vertebra. In his second report, Dr Smith opined that if the applicant had a successful bony fusion at C5-6 and C6-7, he would expect her to be able to return to any employment without any restriction whatsoever after several months, however, the outcome of fusing C4-5 and C5-6 is unpredictable.
As noted, the difficulty with Dr Smith's view is that it is coloured by his perception both of the applicant not having an ongoing workplace injury (a position from which the respondent has now resiled) and his view that the applicant is manufacturing symptoms. For the reasons already stated, I have rejected Dr Smith's view in this regard.
Mr McMahon also noted the changing view in relation to the reasonable necessity of surgery by the applicant's IME, Dr Bodel. In his first report dated 25 February 2020, Dr Bodel noted the applicant suffered impingement in the right shoulder but no instability. He pointed out generalised wasting in the shoulder girdle on the right-hand side together with wasting and tenderness of the rotator cuff. He found the applicant exhibited non-verifiable radicular complaints in the right upper limb, but no clinical signs of radiculopathy. He did not anticipate the need for surgery in either the neck or the right shoulder at that time.
In his second report dated 25 November 2020, Dr Bodel indicated that surgery was now reasonably necessary. He explained his change of view as follows:
"At the time of my examination she was about to see Dr Brian Hsu for further investigation and treatment and I note now the report from Dr Hsu and his clinical findings and examinations.
This lady has had scans including bone scans and MRI scans and nerve conduction studies as I understand it and she has developed symptoms of radiculopathy involving the right hand and the ring and little finger in particular. At the time of my examination, clinically she did have non-verifiable radicular complaints in the right upper limb but no definite sign of radiculopathy at that time. She had recently undergone an ultrasound-guarded injection into the shoulder but had not had the block injections in the neck or arm at that time.
I note that after the investigations and some block injections at C4/5 and C5/6 on the right side of the cervical spine, that “your client indicated that 'foraminal injections gave significant relief only for a short period of time.” Dr Hsu then recommended the surgical intervention in the form of an anterior cervical decompression and fusion at C4/5 and C5/6."
Dr Bodel then indicated that in light of the findings on further radiological investigation and after trials of block injections, given the findings of radiculopathy by Dr Hsu, the proposed anterior cervical decompression and fusion is reasonably necessary.
In my view, there is nothing untoward in Dr Bodel changing his mind in light of further evidence put before him. I note Dr Bodel commented in his second report that at the time of his first examination in February 2020, “I felt that this lady was approaching the need for interventional treatment in the foreseeable future." Mr McMahon rightly points out that there is nothing in Dr Bodel’s first report which would indicate that this is the case. Nevertheless, in my view, the absence of such comment in the first report is hardly fatal to Dr Bodel’s opinion being preferred, particularly given that he alters it in light of further radiological and specialist evidence, including but not limited to the applicant having undergone additional conservative treatment without long-term benefit.
Dr Panjratan, IME, also provided a report for the respondent dated 12 February 2020, which is relied upon by the applicant and included in the Application. In that report, Dr Panjratan noted he had read Dr Smith's report and agreed the injury was one of aggravation of pre-existing degenerative changes, however, Dr Panjratan said “it is debatable whether the condition has resolved."
Although Dr Panjratan did not believe surgery was indicated, I note his opinion was formed in February 2020, before the applicant underwent a number of conservative modalities including further steroidal injection and physiotherapy.
Mr McMahon submitted that Dr Hsu has taken the “sledgehammer” approach to the applicant's treatment by recommending surgery before conservative treatments had been exhausted. I do not accept that submission, noting that Dr Hsu’s treating reports to Dr Lee and the applicant's general practitioner reveal a number of attempts at conservative treatment, which can be broadly summarised as follows:
· On 23 February 2020, Dr Hsu recommended a CT scan of the cervical spine and nerve conduction studies of the upper limbs.
· On 15 April 2020, he arranged for the applicant to undergo right side C4-5 and C5-6 foraminal injection.
· On 21 May 2020, the applicant returned to see Dr Hsu and at this time he noted the effect of the cervical injections had worn off and there may be a need to consider surgical intervention.
This is not the full extent of the applicant's conservative treatment regimen. She also underwent a long period of physiotherapy, commencing in August 2019. The applicant had many sessions of physiotherapy from that time through to 2020. On average, she was seeing her physiotherapist two to three times per week. Those entries indicate that the applicant’s problems were ongoing, and also that she was particularly self-motivated given she was using her own private health fund after the respondent ceased payment for further treatment.
The physiotherapy notes reveal the applicant was given McKenzie neck exercises, a home exercise program, stretches over a ScoliRoll and other neck exercises. It is apparent from the clinical notes that the applicant was making use of that program for many months, however, the medical evidence discloses her symptoms continued to degenerate.
In light of the approach taken by Dr Hsu concerning conservative treatment by way of referral to a neurologist and foraminal injections, I do not accept the submission that he adopted a “sledgehammer" approach to the applicant's treatment. It is apparent from the longstanding physiotherapy, facet joint injections and referral to a neurologist that Dr Hsu and the applicant have explored numerous conservative options, without success. The consistency of the applicant's complaints is also borne out by the clinical records of her general practitioner, which revealed an increase in symptoms up to and including early 2020.
I accept that Mr Morgan's submission for the applicant that the view of Dr Smith is simply a differing opinion. Dr Smith does not indicate the proposed surgery is outrageous or out of line with that given to cervical spine patients suffering from radiculopathy. Whilst Dr Smith indicates an inconsistency in the applicant's presentation, for the reasons I have already indicated, I reject his opinion in that regard given her self-motivated approach to returning to work and attending to various treatment modalities, including at her own expense.
On balance, I believe that the proposed surgery is reasonably necessary. An anterior decompression and fusion is an accepted form of treatment for cervical spine patients. Applying the appropriate factors as set out in Diab, I find the treatment is appropriate given the development by the applicant of radicular symptoms over time. Although alternative conservative treatment is available, the applicant has tried those modalities over several months and they have been ineffective. The cost of the proposed surgery is certainly not cheap; however, it is not suggested by the respondent that it is outrageous. The potential effectiveness of the treatment is well known, and although Dr Smith says it is uncertain, both Dr Bodel and the treating surgeon say that the applicant is more likely than not to benefit from it. For the reasons which I have already indicated, I reject Dr Smith's opinion, covered as it is by his perception of the applicant as someone who was fabricating symptoms in order to maximise her claim. I therefore find the preponderance of the medical evidence supports a finding that the proposed surgery is reasonably necessary.
It should be noted that while the effectiveness of treatment is relevant to whether it is reasonably necessary, that factor alone is not determinative. Evidence may show that the same outcome could be achieved by 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 the treatment is not reasonably necessary. Each case will depend on its facts.
The essential question remains whether the treatment is reasonably necessary (see Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13 at [208C]). In this matter, I am comfortably satisfied on the balanced probabilities that the medical evidence supports a finding of the proposed surgery being reasonably necessary.
SUMMARY
For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination and order that the respondent pay the costs of an incidental to the proposed surgery.
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