Chahine v The Council of the City of Sydney

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chahine v The Council of the City of Sydney [2024] NSWPIC 593
APPLICANT:	Evelin Chahine
RESPONDENT:	The Council of the City of Sydney
MEMBER:	Adam Halstead
DATE OF DECISION:	22 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses claim; applicant suffered accepted cervical spine injury and seeks an order the respondent pay costs of, and incidental to C5/6 and C6/7 anterior cervical discectomy and fusion surgery; disputed as not reasonably necessary; applicant claims lumbar spine condition as consequential to cervical spine injury; lumbar spine injured during physiology treatment for cervical spine; causal chain argued by applicant; Held – the proposed treatment for cervical spine is reasonably necessary as a result of the injury; respondent is ordered to pay the costs of, and incidental to, the recommended surgery; evidence does not reasonably establish lumbar spine condition consequential to cervical spine injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her cervical spine in the course of her employment with the respondent on 27 April 2017. 2. The surgery proposed by Dr Khong to treat the applicant’s injury is reasonably necessary. 3. The respondent is to pay the costs of and incidental to the C5/6 and C6/7 anterior cervical discectomy and fusion, as recommended by Dr Khong. 4. Award for the respondent in relation to the applicant’s claim for a consequential lumbar spine condition arising from the cervical spine injury. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Evelyn Chahine, injured her cervical spine in the course of employment with the respondent, the Council of the City of Sydney. The respondent accepts that injury to have been work-related. A related claim by the applicant for medical expenses to have surgery, a C5/6 and C6/7 anterior cervical discectomy and fusion, has been declined on the basis it is not reasonably necessary.
It is also claimed the applicant’s lumbar spine was injured on 11 July 2018 while receiving treatment for the neck injury. The applicant claims her lumbar spine condition arises consequentially from the work-related injury, which is denied by the respondent.
An Application to Resolve a Dispute (ARD) related to the claim was filed by the applicant in the Personal Injury Commission (Commission) on 17 July 2024. The ARD refers to a dispute about medical expenses for surgery to both her cervical spine and lumbar spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was before the Commission for an arbitration hearing on 20 September 2024. Ms Grotte of counsel, instructed by Mr Naddaf solicitor, appeared for the applicant. Mr Forster solicitor instructed Mr Necovski of counsel who appeared for the respondent.
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 endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. They have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The issues identified by the parties that require resolution by the Commission are whether:
(a) it is reasonably necessary for the applicant to receive cervical spine surgery as a result of her work-related injury, and
(b) any lumbar spine condition experienced by the applicant is consequential to her work-related cervical spine injury.
Although the ARD also referred to other medical expenses, including for the claimed lumbar spine condition, as being in dispute, only the issues above were pursued and addressed by the applicant at the hearing. Accordingly, the other items referred to in the ARD are taken to have been abandoned.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply with attachments from the respondent (Reply).
There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION AND REASONS

Is proposed cervical spine treatment reasonably necessary as a result of the injury?

It is undisputed the applicant suffered a work-related cervical spine injury on 27 April 2017.
The applicant relies on the opinion of her treating spinal surgeon, Dr Peter Khong, that she requires surgery to ameliorate the effect of the work-related injury on her cervical spine. She claims medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the Act) and that it is reasonably necessary to undertake that surgery, which results from her work-related injury.
A commonsense examination of the causal chain is required to determine whether the need for the claimed treatment arises as a result of the work-related injury: Kooragang Cement Pty Ltd v Bates (Kooragang).[1] However, the respondent has not disputed causation with respect to the request for cervical spine surgery, it is only whether that treatment is reasonably necessary that requires resolution in these proceedings.
[1] Kooragang Cement Pty Ltd v Bates (1994) 10 NSW CCR 796.
The relevant test to establish reasonable necessity is whether it is better for the applicant to receive the treatment than not to have it: Bartolo v Western Sydney Area Health Service.[2] The applicant is not required to prove the requested surgery is absolutely necessary, only that it be reasonably so: Diab v NRMA Limited.[3] This means the Commission must determine whether it is reasonable and preferable for the applicant to have the cervical spine surgery requested.
[2] [1997] 14 NSWCCR 233.
[3] [2014] NSWWCCPD 72.
In making that determination, relevant considerations include the suitability of the treatment, availability of alternative treatment (and the potential effectiveness of those), cost of the proposed treatment, potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.[4]
[4] Rose v Health Commission (NSW) [1986] NSWCC 2.
Although there is a lengthy documented history before the Commission related to treatment of the applicant’s cervical spine injury at various times, the relevant period in which to assess whether the requested surgery is reasonably necessary is at the time the ARD was made. The available records provide a useful reference as to what has occurred to date and highlights two key details: the applicant has received various treatments over several years and, notwithstanding that, her neck and related pain persists. It is unnecessary to further revisit the historical record and over-complicate the matter. The most recent treating specialist opinion available from Dr Khong of 24 June 2024 is that:
“… Her MRI cervical spine demonstrates severe degenerative disc disease at C5/6 and C6/7. There is increased uptake at these levels on bone scan. The imaging suggests these are the acute pain generators. Ms Chahine has failed all non-operative management and continues to complain of severe neck pain. Surgery is indicated to immobilise these painful motion segments. She will not improve without surgery.”[5]
[5] ARD pp 78-79.
The respondent qualified Dr Richard Powell, orthopaedic surgeon, to assess the applicant, including with reference to whether the requested surgery is reasonably necessary. Dr Powell has provided several reports,[6] all of which I accept as objective, independent and measured, that contain reasonable and appropriate concessions. In his most recent report, Dr Powell considered the applicant’s:
“Treatment to date has been conservative and included use of medications, activity modification and physiotherapy. She also receives mental health support. I believe the treatment received to date would be considered appropriate, reasonable and necessary.” [7]
[6] Dated 19 April 2021, 1 July 2021, 9 November 2021 and 28 May 2024.
[7] Reply p 122.
However, Dr Powell also considered that the applicant does not require “any further specific treatment for the management of any injuries sustained in the course of employment”. Although Dr Powell was of the view the surgery requested by the applicant was not required, he recognised the surgery proposed by Dr Khong as “an accepted form of treatment” and that several factors need to be taken into account when deciding when spinal fusion is being considered. Those include “the presence of progression of neurological compromise, instability as well as pain and functional profiles”.[8]
[8] Reply p 123.
After acknowledging the applicant was “experiencing significant ongoing symptoms” in relation to her cervical spine, Dr Powell was:
“…unable to demonstrate any features of neurological compromise nor do investigations specifically identify this. She has undergone extensive investigation in the past including flexion and extension views of the cervical and lumbar spine though definitive evidence of instability has not been identified though obviously in the lumbar spine she has significant degenerative pathology and a grade 1 spondylolisthesis.”[9]
[9] Reply p 123.
Dr Powell considered in conclusion that “[u]ltimately the decision on whether or not proceed with cervical … fusion is between the patient and the treating specialist.”
In response to the issues identified by Dr Powell, Dr Khong agreed that the applicant “does not have neurological deficit” or “dynamic instability in her cervical spine” but those are “not the only indication[s] for surgery”.[10] Dr Khong concluded his report by commenting that:
“It has been 7 years since [the applicant] experienced her workplace injury. She complains of severe and debilitating neck and lower back pain which affects her ability to work and all activities of daily living. She has failed all non-operative management options to date. She will not improve or regain significant function without surgery. She requires a C5/6 and C6/7 anterior cervical discectomy and fusion … to immobilise the painful motion segments in her cervical … spine.” [11]
[10] ARD p 78.
[11] ARD p 79.
I consider that Dr Khong provides adequate explanation about why the proposed treatment is reasonably necessary. All past treatment has failed, and it is apparent the applicant is unlikely to improve without the intervention. There seems to be a reasonable chance of a successful outcome from the proposed surgery, which is an accepted form of treatment for the applicant’s condition. On balance it would appear better for the applicant to have it than not.
The evidence as to cost of the surgical treatment is opaque. Although the ARD application form refers to a claim for future medical expenses of $88,547.60, that amount includes the estimated cost of treatment separate to the cervical spine surgery. There are various quotations related to the proposed surgery in the ARD but the nature of that collection of documents does not allow me to ascertain the actual total estimate with any precision. It would seem to be somewhere in the range of $20,000 to $40,000, which is not considered to be prohibitively expensive.
I consider the evidence supports a finding the proposed treatment is reasonably necessary in the circumstances. Accordingly, the respondent is liable to meet the cost of the C5/6 and C6/7 anterior cervical discectomy and fusion as recommended by Dr Khong.

Does the applicant suffer a consequential lumbar spine condition?

The applicant claims to suffer a lumbar spine condition that arose from her accepted cervical spine injury. The applicant specifically abandoned any nature and conditions type claim in relation to her lumbar spine. Although she had experienced lumbar spine pain when she was required to sit for long periods at work, presumably thereby affecting the resilience of her back, there was a specific incident on or about 11 July 2018[12] that triggered the condition.
[12] Although the applicant’s counsel referred to 18 July 2018, which appears to have been an error.
The applicant bears the onus to prove her lumbar spine condition is consequential to an accepted injury. The relevant test for causation is that found in Kooragang, which requires the Commission to apply a commonsense approach to determine causation.
It is unnecessary for an applicant to satisfy a requirement of having suffered injury for the purposes of s 4 of the Act for a consequential condition to be found: Kumar v Royal Comfort Bedding Pty Ltd[13] (Kumar). This means the applicant is not required to satisfy the definition of “injury” as set out in s 4 of the Act, only that the symptoms and restrictions in her lumbar spine have resulted from her cervical spine injury: Moon v Conmah Pty Limited[14] (Moon).
[13] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD 8.
[14] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
It is also unnecessary for specific pathology to be identified when finding a consequential condition exists,[15] however there must be an unbroken chain of causation from the accepted injury to the development of the consequential condition. The applicant is not required to prove injury to her lumbar spine in this case, only demonstrate that her lumbar spine symptoms arise from her accepted injury, that is, to the cervical spine.
[15] Kumar at [55].
According to Roche DP in Drca v KAB Seating Systems Pty Ltd[16] (Drca), for an applicant to succeed in a claim for compensation, the Commission need be satisfied that on the balance of probabilities of the facts that establish the claim. In relation to the applicant’s claim, this means she needs to establish that it was more probable than not that the lumbar spine condition resulted from the accepted cervical spine injury. I am required to have a ‘feeling of actual persuasion’ the applicant has met this onus: Nguyen v Cosmopolitan Homes.[17]
[16] Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.
[17] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The applicant seeks to establish a causal connection based upon events during an exercise physiology session when receiving treatment for her cervical spine injury on or about 11 July 2018. It is claimed she experienced immediate and severe exacerbation of her lumbar spine pain and lumbar spine injury.[18]
[18] Per the ARD application for injury description.
It is clear the applicant suffered lumbar spondylosis, or some other age-related degenerative condition affecting the vertebrae and discs of the lower back, prior to 2018.[19] She concedes to having experienced back pain while undertaking desk duties prior to 11 July 2018. The specialist medical evidence available is consistent as far as referring the applicant having an existing degenerative lumbar spine condition. It is uncontroversial that she did have such a condition, whether lumbar spondylosis, something related or similar.
[19] See for example the report of the CT scan of the lumbar spine dated 5 December 2017 at ARD p 502.
The applicant relies on a consultation note made by her general practitioner (GP), Dr George Hatoum, on 12 July 2018[20] that refers to the applicant having gone to an exercise physiology session. The session apparently occurred the preceding day, that is 11 July 2018. The note records that “a new therapist pushed her” and the applicant “woke up with extra pain”. On examination Dr Hatoum recorded “paraspinal muscle spasm” as the cause. There is no reference to which specific part of the spine was in spasm or the location of the “extra pain”.
[20] ARD p 610.
During the following consultation on 16 July 2018, Dr Hatoum noted the applicant having additional pain in the lower back, which was then the “main pain” whereas initial pain was in her shoulder and neck. It is unclear whether that “initial pain” refers to the prior consultation of 12 July 2018 or more generally. It is recorded under the “workers compensation related consult” section, so presumably it is a general reference. However, the applicant’s lower back is not mentioned in the notes of GP consultations in the months that follow. Dr Hatoum refers to “pain stable” during a consult on 5 September 2018 but without specifically referring to the nature or location of the pain.
During a GP consultation on 17 October 2018 Dr Hatoum noted an “exacerbation” reported by the applicant from “all day driving” but there is no reference to what was exacerbated. Again, the note appears under the heading of “workers compensation related consult” which suggests it may have been for the cervical spine issue, but it is unclear.
The applicant attended an independent medical examination with Dr Medhat Guirgis, consultant orthopaedic surgeon, on 28 September 2021 that had been arranged by her then solicitor. In his report of the same date, Dr Guirgis referred to an assessment of the lumbar spine as having occurred.[21] He opined the applicant’s lumbar spine condition was caused by “repetitive micro-traumatic musculo-ligamentous sprain \ strain with intervertebral disc involvement”. He considered this “triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes at the level of L4-L5”. That consultation with the applicant was closer in time to the exercise physiology session on 11 July 2018 than her statement made on 9 June 2024 that refers to the session. She did not mention the exercise physiology session incident to Dr Guirgis when he specifically examined and discussed her lumbar spine.
[21] ARD p 44.
Similarly, when the applicant consulted with Dr Powell six months earlier on 12 March 2021, she did not refer to any specific incident in relation to her lumbar spine, only that she had developed symptoms in 2018 while on light duties working for the respondent.
Although not referred to in any of his earlier reports, in the most recent available of 24 June 2024, Dr Khong refers to there being “new available evidence that indicates [the applicant] experienced a severe exacerbation of her lower back pain in the course of undertaking exercise physiology for her work related neck injury”.[22] He considered, based on that information, that the lumbar spine injury would be work related. It was further documented the applicant’s lumbar spine was the subject of degenerative spondylolisthesis, a condition also cited in his earlier reports, including that of 15 December 2023.[23] It seems the “new available evidence” is the six-year-old GP clinical note of 12 July 2018, which was neither new or previously unavailable to the applicant, however around the time of preparing his report was apparently the first occasion Dr Khong became aware of it.
[22] ARD p 77.
[23] ARD p 72.
It is only relatively recently that the exercise physiology session that occurred around 11 July 2018 has been identified by the applicant as a potential cause of her lumbar spine condition. The best evidence available at that time is the GP note of Dr Hatoum made the following day. The note does not refer to the applicant’s lumbar spine. There is the later notation on 16 July 2018 about her lumbar spine, but that does not refer to any specific incident only that the applicant had lower back pain. There is no direct connection made with the exercise physiology session a week earlier. Although the applicant’s evidence, dated 9 June 2024, purports to link the events, that statement was made six years later and, in the circumstances, cannot be accepted as conclusive as to what occurred then.
The applicant’s first statement, made on 11 August 2023, makes no reference to the exercise physiology session as being potentially causative of her lumbar spine condition. It would be expected she would have some recollection of an incident if it were of such significance as has been claimed, that is, an immediate and severe exacerbation of lower back pain that has persisted ever since. There has been no reference to that event in the various medical consultations the applicant attended subsequently. There is reference to it by Dr Khong in his 24 June 2024 report, however that was apparently in response to a written request for information rather than some instance of independent recall by the applicant during a consultation.

The issue I need to determine is whether the applicant's lumbar spine condition arises as a consequence of her cervical spine injury; specifically, the exercise physiology treatment she received that accepted condition on or about 11 July 2018. There seems little doubt that the applicant does have a lumbar spine condition, there is certainly an underlying degenerative condition. There may also be some additional affectation connected to her labour-intensive employment duties, but that is not the issue that I have considered or am required to resolve in these proceedings.
In applying the commonsense test, it is necessary for supporting evidence to be present that establishes the causal chain. Something more than a tenuous link is required, which is all that is present in the applicant’s case as pleaded and argued on the evidence. The issue I must determine is whether the applicant has a lumbar spine condition that has resulted as a consequence of her accepted cervical spine injury. On the balance of the evidence, I cannot be satisfied that it was.

SUMMARY

The applicant has established that the treatment to her cervical spine, as proposed by Dr Khong, is reasonably necessary.
The respondent is liable for the cost of that treatment and incidental expenses, namely the C5/6 and C6/7 anterior cervical discectomy and fusion.
The applicant has not established a lumbar spine condition has arisen as a consequence of her cervical spine injury. In the circumstances, there must be an award for the respondent on this aspect of the dispute.

[2024] NSWPIC 593

22 October 2024