Chavez v Blackmores Limited
[2022] NSWPIC 283
•10 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Chavez v Blackmores Limited [2022] NSWPIC 283 |
| APPLICANT: | Meriam Chavez |
| RESPONDENT: | Blackmores Limited |
| Member: | Gaius Whiffin |
| DATE OF DECISION: | 10 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for treatment expenses (a C3/4 and C4/5 anterior cervical discectomy and fusion) pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in relation to an accepted consequential cervical spine injury as a result of accepted injuries to both shoulders; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the consequential injury to the applicant’s cervical spine, which arose as a result of the injuries to her shoulders; Rose v Health Commission (NSW); Diab v NRMA Limited; Murphy v Allity Management Services Pty Limited considered; Held– the surgery proposed for the applicant is reasonably necessary medical treatment as a result of a consequential injury to her cervical spine which arose as a result of injuries to both her shoulders; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act. |
| determinations made: | 1. 1. The surgery proposed for the applicant by Dr Nair (a C3/4 and C4/5 anterior cervical discectomy and fusion) as referred to in his 17 December 2019 report, is reasonably necessary medical treatment as a result of a consequential injury to the applicant's cervical spine, which arose as a result of injuries to both her shoulders. |
orders made: | 1. 2. The respondent is to pay for the costs of and incidental to the surgery (a C3/4 and C4/5 anterior cervical discectomy and fusion) proposed for the applicant by Dr Nair in his 17 December 2019 report, pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
1. Meriam Chavez (the applicant) is 56 years old. She was employed by Blackmores Limited (the respondent) from 2002, and she last worked for it in September 2018. She worked for it as a production operator.
2. She injured both her shoulders as a result of the general nature of her employment duties with the respondent. The respondent has accepted that these injuries arose out of or in the course of her employment pursuant to section 4 of the Workers Compensation Act 1987 (the 1987 Act), and it has also accepted that her employment was a substantial contributing factor to the injuries pursuant to section 9A of the 1987 Act.
3. In around 2015, the applicant alleges that she began to experience neck symptoms. The respondent has accepted that her neck injury arose as a result of the injuries to her shoulders and was consequential to those injuries.
4. The applicant’s current treating spinal surgeon, Dr Nair, has recommended to the applicant that she undergo surgery to treat the neck injury. On 17 December 2019, he recommended that she undergo a C3/4 and C4/5 anterior cervical discectomy and fusion. The applicant requested that the respondent approve the costs involved in this surgery.
5. The respondent issued a notice denying liability for the surgery, under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 8 January 2020. The respondent issued a further notice on 18 February 2022 following a review request made pursuant to section 287A of the 1998 Act. By that notice, it maintained its decision denying liability.
6. By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Nair in accordance with section 60 of the 1987 Act.
ISSUES FOR DETERMINATION
7. The parties agree that the following issue remains in dispute:
a. (a) whether the surgery proposed by Dr Nair is reasonably necessary medical treatment as a result of the consequential injury to the applicant’s cervical spine, which arose as a result of the injuries to her shoulders.
PROCEDURE BEFORE THE COMMISSION
a.8. 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.
b.9. A conciliation conference was held in the dispute on 23 May 2022. On that occasion, Mr Adhikary of counsel appeared for the applicant instructed by Mr Narsimullu, and Mr Hanrahan of counsel appeared for the respondent, instructed by Ms Gair. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
c.10. At the commencement of the arbitration hearing, Mr Adhikary confirmed that the applicant made no allegation that she had injured her neck within the meaning of section 4 of the 1987 Act. The applicant’s position was that she had developed a consequential condition to her neck, which resulted from the accepted injuries to her shoulders.
d.11. Also at the commencement of the arbitration hearing, Mr Hanrahan confirmed that despite what may appear from the respondent’s dispute notices, the respondent accepted that the applicant suffered from a neck injury which was consequential to or resulted from the accepted injuries to her shoulders. The respondent had also confirmed its position in this regard at the teleconference held in the dispute on 14 April 2022.
EVIDENCE
Documentary evidence
a.12. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) the ARD and attached documents;
c. (b) the respondent’s Reply (Reply) and attached documents – except for the report of Dr Machart dated 26 October 2021 (pages 42-48); and
d. (c) the applicant’s Application to Admit Late Documents (applicants AALD) lodged 18 May 2022 and attached documents.
e.13. In allowing these documents into evidence:
f. (a) I determined that the applicant’s reliance upon opinions from both Dr Dias and Dr Stening did not infringe clause 44 of the Workers Compensation Regulation 2016 (the Regulation) as Dr Dias’ report was obtained prior to the applicant requesting the respondent to approve the surgery proposed by Dr Nair – it was in effect obtained in support of a previous claim made by the applicant pursuant to section 66 of the 1987 Act. It would not be considered to be a “forensic medical report” within clause 44(4)(c) of the Regulation.
g. (b) I determined that the respondent could not rely upon the opinion of Dr Machart as it had not previously provided the report to the applicant with any of its dispute notices – reliance upon the report was therefore not possible pursuant to section 73 of the 1988 Act and clause 41 of the Regulation.
h. (c) It was noted that the respondent did not object to the applicant’s AALD being admitted.
Oral evidence
a.14. There was no oral evidence called at the arbitration hearing.
Applicant’s evidence
a.15. The applicant has provided three statements.
b.16. According to the statement signed on 17 December 2018 (page 1 of the ARD), the applicant was born in the Philippines and migrated to Australia in 1991. She commenced her employment with the respondent in 2002. She worked 38 hours per week (often with overtime) as a production operator, and was involved in repetitive and strenuous tasks such as opening boxes of tablets (called shippers), cleaning a hopper, and changing roles of paper on a labelling machine. The shippers, the hopper, and the roles of paper often weighed close to 10kg.
c.17. She began to notice pain in her right shoulder while performing her work duties, and eventually underwent surgery with Dr Sherlock on 9 April 2010.
d.18. Following the surgery, she returned to her pre-injury work duties after around 12 months. She began however to favour her left shoulder. She then injured her left shoulder on 14 March 2012 while cleaning the hopper.
e.19. She then underwent surgery with Dr Sherlock to her left shoulder on 6 July 2015. Following that surgery, she returned to her pre-injury work duties after around six months.
f.20. She first began to experience pain in her neck in around 2015. Her general practitioner (Dr Wines) arranged radiology in August 2017, and referred her to a rheumatologist (Dr Kandiah) in March 2018. She also sought treatment from Dr Assaad.
g.21. In around September 2018, her left shoulder pain had become so bad that Dr Wines placed a 3kg lifting restriction upon her. The respondent did not then have any suitable work duties available for her, and she last worked for the respondent around 1 September 2018.
h.22. She continued to have pain and of movement in her right shoulder, left shoulder, and neck. She had numbness in both hands and continued to take medication.
23. In her 15 March 2022 statement (page 6 of the ARD), the applicant advises that in the last two years, her neck pain had become worse. She had consulted a surgeon (Dr Nair) who had recommended surgery. She wished to undergo the surgery as “living with the pain for many years is now becoming too much”. She was unable to turn her head properly, and could not drive long distances. Her neck pain disturbed her sleep and interfered with her domestic activities.
j.24. In her 22 April 2022 statement (page 30 of the applicant’s AALD), the applicant advises that the respondent had paid for her treatment expenses in relation to her neck condition until 2020, after it arranged for her to be examined by Dr Keller. The applicant also advises in relation to her proposed neck surgery:
“I have decided to do this as I have tried everything else and put off surgery for a long time, I now have to do something for my pain and the surgery is my only option left”.
a.25. In discussing the medical evidence relied upon by the applicant, it is noted that most of that evidence discusses the injuries to her left and right shoulders, as well as the injury to her neck. As the current dispute concerns the respondent’s liability for the proposed neck surgery, I will largely confine my review of that evidence to opinions relevant to the neck injury.
b.26. Dr Nair’s quotation for the proposed surgery is to be found at page 79 of the ARD. The doctor provides an estimate of $26,429.68.
c.27. The doctor has also sent a report to Dr Wines dated 28 April 2022 (page 31 of the applicant’s AALD). He states that the applicant remained “troubled” and that there was “a clear nexus between the workplace injury and her cervical condition”. He goes on to state:
“We have rediscussed the nuances of surgery specifically an anterior cervical discectomy and fusion, including the operative levels, gradation of tissue resection (disc versus bone) and likelihood of posterior fusion in the cervical spine….. I have reiterated the risks including but not limited to, the risk of further spinal surgery due to failure of adjacent as well as operative levels, neurological injury including weakness of upper extremities an inability to flex elbows, painful swallow, hematoma, leakage of spinal fluid and infection.”
a.28. Dr Nair’s clinical file also appears in the ARD from page 81. I will refer to extracts from the file if specifically referred to them in submissions. However, the file reveals that the applicant first consulted with the doctor on 7 May 2019 when he reviewed radiology showing central stenosis at C3/4 and C4/5 and foraminal stenosis at C3/4 and C4/5, and then referred her for a left C3/4 transforaminal corticosteroid injection. She only had good relief from the injection for one day, but the doctor continued to attempt to manage her non—operatively with extensive physiotherapy and analgesics. He eventually ordered further radiology (which confirmed the earlier radiological findings that he had reviewed), and on 17 December 2019, he recommended surgery in the form of a C3/4 and C4/5 anterior cervical discectomy and fusion. He sought funding from the respondent to undertake this surgery on 28 April 2021.
b.29. The applicant’s solicitors arranged for her to be examined by Dr Stening and he reported back to them on 3 December 2021 (page 53 of the ARD).
c.30. The doctor takes a history of the applicant’s work duties, the development of the pain in her right shoulder and then in her left shoulder, and the operative treatment which she received to her shoulders. The history is consistent with the history found in the applicant’s statements.
d.31. On examining the applicant’s neck, the doctor found one third the normal range of movement in forward flexion and retro flexion, and one half the normal range of movement in rotation and lateral flexion. The doctor reviewed MRI and CT radiology, which revealed disc bulging at C3/4 and C4/5 with significant encroachment on the right intervertebral foramina at both levels. The doctor also reviewed reports that have been provided to him from Dr Nair, Dr Gibson, and Dr Bentivoglio.
e.32. The doctor opined:
“The injury sustained to the cervical spine, which is the only injury within my area of expertise, is an exacerbation of pre—existing degenerative change at C3/4 and C4/5, causing irritation of the left C4 nerve root”;
and:
“The nature and conditions of the employment, as prescribed to me, which involved repetitive lifting of heavy boxes, and also attending to maintenance of various machines, is consistent with activity which would exacerbate pre—existing unsuspected degenerative change in the cervical spine”.
a.33. The doctor agreed with Dr Nair’s proposed surgery as being “reasonable and necessary” as it was the most likely procedure to address the narrowing of the left–sided C3/4 intervertebral foramen. He noted that the applicant had previously undergone a long period of non-surgical management of her neck symptoms, which had failed to improve those symptoms. He opined that the proposed surgery had an 80% chance of reducing or even resolving the applicant’s left-sided C4 radiculopathy.
b.34. The applicant’s solicitors had earlier arranged for her to be examined by Dr Dias and he reported back to them on 21 June 2019 (page 33 of the ARD).
c.35. The doctor takes a history of the applicant’s work duties, the development of the pain in her right shoulder and then in her left shoulder, and the operative treatment which she received to her shoulders. The history is again consistent with the history found in the applicant’s statements as well as in Dr Stening’s report. The doctor summarises the applicant’s work duties as follows:
“Ms Chavez recalls that her job role was extremely repetitive and fast paced and would involve repetitive manual handling of items weighing up to 12 kg with her right and left hands, repetitive abduction and flexion of the right and left shoulders, prolonged standing and prolonged neck flexion.”
a.36. The doctor then records that in around 2015, the applicant began to experience pain, stiffness, and discomfort in her neck as well as radicular symptoms radiating down her left arm. She self-managed these symptoms until she sought medical treatment in August 2017. She was treated conservatively with physiotherapy, analgesia, and a cortisone injection. The injection did not have any symptomatic benefit, and her pain, stiffness, discomfort, and radicular symptoms remained. She experienced tension headaches on a daily basis. Her sleep was affected, and she was restricted in standing for more than 60 minutes, sitting down for more than 60 minutes, and driving for more than 30 minutes. She was under the care of Dr Nair.
b.37. She did not have any significant previous medical conditions or pre-existing injuries.
c.38. The doctor conducted an examination and his findings were consistent with a left C4 radiculopathy. He found tenderness to palpitation in the right and left cervical paraspinal musculature and significant muscular guarding. He also found:
“Extension of the cervical spine was limited to two thirds of the normal range by pain and discomfort. Lateral flexion of the cervical spine was limited on the left side to one half of the normal range and on the right side to three quarters of the normal range. Lateral rotation of the cervical spine was limited on the left side to two thirds of the normal range and on the right side to three quarters of the normal range.”
a.39. He diagnosed that she had:
“sustained a persistent aggravation of degenerative cervical spondylosis, with associated recurrent cervicogenic tension headaches and chronic left C4 radiculopathy, secondary to the repetitive nature and conditions of her employment, which necessitated prolonged neck flexion.”
a.40. In providing his opinion, the doctor also noted that the applicant’s employment involved repetitive lateral rotation of the neck, intermittent overhead work, repetitive forceful gripping, prolonged standing, and repetitive manual handling of items weighing up to 12kg. Her employment was the main contributing factor to her neck condition.
b.41. According to the doctor, the applicant’s prognosis for significant improvement was poor. He considered that she would be a candidate for cervical spine surgery, likely to be fusion surgery at the C3/C4 level and/or decompressive surgery at that level. He stated:
“Ms Chavez’s symptomology and related disabilities with respect to her neck and right and left shoulders is likely to persist on an indefinite basis into the foreseeable future resulting in an ongoing negative impact on her occupational and domestic functioning.”
a.42. There are three reports from Dr Kandiah in the ARD.
b.43. In a 6 March 2018 report (page 62 of the ARD), the doctor diagnoses left arm radicular pain with pain in the upper cervical spine and sensory changes at the C6 dermatomal distribution. The pain goes down her left arm to her hand, and the doctor believes that she is describing “classical inflammation and nerve root impingement with pain worse in the morning but improving as the day progresses except for when she is performing any repetitive tasks that triggers pain again”.
c.44. A sensory examination by the doctor revealed a C6 dermatomal reduction on the left, and reduced sensation diffusely in the neck on the left compared to on the right. The doctor also found nerve root impingement in the neck “which could be arising from multiple levels but particularly C3/C4 and C6/C7 levels clinically”.
d.45. The doctor reported next on 16 May 2018 (page 65 of the ARD). The doctor’s diagnosis remained the same, and he recommended physiotherapy, nerve conduction studies, and medication.
e.46. The doctor finally reported on 6 September 2018 (page 67 of the ARD). The applicant complained to him that her symptoms had not improved with physiotherapy. He believed that she had a permanent disability in her left shoulder and neck, and required that her work duties be modified. He criticised the respondent’s work practices and opined:
“As Meriam has almost worked there for 17 years, she clearly has had a cumulative problem with her neck and left shoulder over years of lifting and repetitive work”.
a.47. There is also a report from Dr Khan in the ARD (page 70), dated 24 May 2019. The report was provided to the respondent. The doctor first consulted with the applicant on 17 December 2018, and the doctor advises that she was diagnosed with an occupationally induced injury, being:
“Cervical spine left C/4 nerve root impingement with left upper limb radicular symptoms”.
a.48. The remainder of the report largely focuses upon the applicant's capacity for work. She was not fit for her pre-injury important work duties and was only fit to work three hours per day three days per week, following an appropriate vocational assessment. She was also restricted with duties involving lifting, carrying, pushing, pulling, bending, twisting, and squatting.
b.49. The physical demands of her pre-injury work carried with them the risk of aggravating the injuries that the doctor had diagnosed.
c.50. Dr Khan notes that the applicant was in the process of being reviewed by a spinal surgeon, and that cervical spine decompression surgery of the left C4 nerve root was possible.
d.51. The ARD also contains a Workers Compensation Commission Medical Assessment Certificate from Assessor Gibson dated 4 February 2020 (page 8). In previous Workers Compensation Commission proceedings between the parties, the applicant had claimed lump sum compensation in relation to the injuries to her right shoulder, left shoulder, and neck, pursuant to section 66 of the 1987 Act. The Workers Compensation Commission had referred that claim to be assessed by Assessor Gibson.
e.52. The assessor assessed the applicant as suffering 0% whole person impairment in her cervical spine as "there were no significant clinical findings, no documentable neurologic impairment and no significant loss of motion segment integrity". She also could find no radiculopathy.
f.53. The assessor refers to reviewing reports from Drs Sherlock, Dias, Assaad, Keller, and Kandiah, as well as radiological investigations. It does not appear that the assessor reviewed reports from Drs Nair and Khan. The assessor also noted that despite her findings, the applicant’s neurological findings had varied over time, Dr Dias finding radiculopathy, and Dr Kandiah also finding pathology.
g.54. The assessor took a history from the applicant that her neck pain reached 8/10 first thing in the morning, but that it was 6-7/10 during the relevant consultation. On examination of the neck, the doctor found tenderness and restrictions with rotation and lateral flexion, but no restrictions with flexion or extension, or asymmetry, muscle spasm, or guarding. The assessor noted that the applicant had visited Dr Nair “on several occasions and she said was talking about surgery to her neck”.
h.55. The ARD finally contains a number of radiological reports and a physiotherapist’s report. I will refer to these reports if I am specifically referred to them in submissions. The applicant’s AALD also contains a physiotherapist’s report (page 32) confirming that the physiotherapist treated the applicant’s neck condition between November 2015 and September 2018.
Respondent’s evidence
a.56. The respondent arranged for the applicant to be examined by Dr Keller and his report in this regard is dated 27 August 2019 (page 32 of the Reply).
b.57. Dr Keller noted that the applicant reported the onset of neck pain associated with numbness in her hands, following her left shoulder surgery and subsequent return to work. He also noted that the applicant had had two injections into her neck without lasting benefit. In relation to her current complaints, he recorded:
“Ms Chavez reports she suffers from constant cervical spine pain. This radiates down the left shoulder and arm without separate reported left shoulder pain. It is associated with daily headaches and constant pins and needles in all of the fingers on the left hand. She rates the pain at 8 out of 10 in intensity on a scale where 10 is the most severe. She reports her neck pain is aggravated when sleeping.”
a.58. On examination, the doctor observed that the applicant was able to move her neck freely and without restriction or distress. She demonstrated a full symmetrical range of motion. There was no spasm, and sensation to touch was normal.
b.59. The doctor opines that it is not clear to him that the applicant's neck symptoms (or indeed her shoulder symptoms) are directly caused by work injuries. She has age related degeneration of the cervical spine.
c.60. The doctor does not believe that she requires any further treatment for her neck symptoms, specifically ruling out her need for surgery. He disagrees with the opinions in Dr Dias’ report.
d.61. The respondent also relies upon reports from Dr Assaad, whom the applicant consulted on referral from Dr Sherlock. The reports are dated 20 October 2017 (page 29 of the Reply) and 3 November 2017 (page 31 of the Reply),
e.62. Dr Assaad noted that the applicant presented to him with left arm pain lasting a couple of years, but worsening over the previous eight to nine months. The pain radiated over her shoulder down the lateral aspect of her upper arm, through her forearm, and into all of her fingers including her thumb.
f.63. After examining the applicant, and reviewing radiology, the doctor opined:
“Although Meriam does have a minimal disc protrusion at C/4, in the first instance this does not cause any neural compression radiologically and in the second instance even if it did, it would not explain the radiation down her arm. The arm symptoms are not in a specific dermatomal distribution and, in light of the imaging and electrophysiological findings, I cannot attribute these to cervical nerve root pathology.”
a.64. The doctor referred her for a bone scan, which demonstrated some facet arthritis at the left C3/4 and right C5/6 levels, but the doctor did not believe that this was causing the radiating symptoms down her left arm. He advised the applicant that he could not offer her any treatment options, and he hoped that her symptoms would resolve over time.
a.65. The Reply also annexes:
b. (a) Various reports (pages 11-26) from Dr Sherlock covering the period between 20 September 2012 and 12 October 2017 – the 10 March 2016 report is the first mention of the applicant’s neck symptoms - in the 12 October 2017 report, he noted that the applicant “was experiencing ongoing pain at work with radiation from the top of the shoulder to her fingers.... she experiences numbness in her fingers which she thinks is related to her work with lifting and load rather than with neck range of movement or other issues”, and he referred her to Dr Assaad as he was a cervical spine specialist.
c. (b) A report from Dr Simon dated 15 September 2017 (page 27) following nerve conduction tests - peripheral nerve conduction studies were within normal limits and the neurological examination was normal but the conclusion was:
“these neurophysiological studies are not diagnostic….the prolonged left median H-reflex may suggest a proximal process involving the C6 or C7 spinal nerves however there is no radiological correlate for this….further clinical correlation is suggested”.
a. (c) Reports from Dr Herald dated 29 November 2021 (page 40) and 21 February 2022 (page 41) - the applicant continued to have neck and right shoulder pain, and the doctor had recommended right shoulder surgery – he is waiting however to see whether the proposed neck surgery is more urgent.
Applicant’s submissions
a.66. The applicant’s submissions have been recorded and I will not repeat them in detail.
b.67. The applicant first refers to her statements, especially the 15 March 2022 statement. She submits that her evidence in her statements is consistent with the evidence obtained by the various doctors who have examined her. It is submitted that I would have no difficulty accepting her evidence, and I do so. Her evidence is that her neck condition is continuing and worsening. It is severely limiting to her.
c.68. In relation to the Medical Assessment Certificate of Assessor Gibson, the applicant submits that the findings of Assessor Gibson are not binding in relation to her current dispute regarding her need for surgery. The findings are dated (over two years old), and arose following a single examination. No weight should be given to the findings.
d.69. In relation to Dr Keller’s opinion, the applicant also notes that it is dated, and submits that no weight should be given to the opinion. The doctor took a consistent history from the applicant regarding her neck symptoms and pain levels, but then gave no reasons (in the context of that history) for his opinion that she did not require any further treatment for the symptoms.
e.70. His opinion was misconceived as he was essentially investigating whether there was a history of “acute neck injuries”. The respondent has now accepted liability for a consequential injury to the applicant’s neck, and the doctor’s opinion therefore lacks relevance.
f.71. The applicant then refers to her radiological investigations, her physiotherapy treatment, as well as her treatment with Drs Kandiah and Khan. The relevant reports in this regard demonstrate her ongoing neck disabilities.
g.72. The applicant takes the Commission through Dr Nair’s reports within his clinical notes. It is submitted that the reports demonstrate that the doctor’s recommendation for the proposed C3/4 and C4/5 anterior cervical discectomy and fusion was not arrived at in a haphazard manner. There were investigations, examinations, treatment, and consideration of symptoms (the Commission is specifically referred to reports from the doctor dated 7 May 2019, 4 June 2019, 2 July 2019, 27 August 2019, and 17 December 2019 in this regard). This allowed the doctor to narrow down the level and type of surgery that the applicant required by 17 December 2019.
h.73. The reports of the doctor post that date (the Commission is specifically referred to reports dated 11 February 2020, 27 January 2021, 28 April 2021, and 28 April 2022 in this regard) continue to propose the relevant surgery in light of the applicant’s continued symptoms and the fact that alternative treatment options have been exhausted.
74. The applicant submits that when read as a whole, Dr Nair’s reports show that he has always accepted that the applicant’s neck symptoms are referrable to a work related neck injury. He has never made reference to any competing cause.
j.75. The applicant asks the Commission to accept the opinions of Drs Dias and Stening. They both take histories consistent with the applicant’s statements regarding the onset and continuation of her neck symptoms, and the treatment that she has had for the symptoms.
k.76. Dr Dias examined the applicant prior to Dr Nair formalising his recommendation as to the surgery which the applicant needed. He does however foresee that surgery, albeit only at the C3/4 level. He also advises that the applicant's neck condition was at risk of deterioration in the foreseeable future. In the applicant's submission, this deterioration has since taken place.
l.77. Dr Stening has no difficulty agreeing with the surgery proposed by Dr Nair, opining that it had approximately an 80% chance of significantly reducing, or even resolving, the applicant's left-sided radiculopathy.
m.78. The applicant then deals with the opinions of Dr Assaad. She submits that those opinions are inconsistent with the totality of the evidence before the Commission. The opinions are dated especially as when the doctor provided them, he hoped that the applicant’s symptoms would resolve. In fact however, the symptoms have continued and are still significantly disabling.
n.79. The applicant submits that when considering the totality of the evidence, the Commission would have no difficulty in concluding on the balance of probabilities that the surgery proposed by Dr Nair is reasonably necessary, and that the cause of the surgery is the consequential injury to the applicant’s neck that the respondent has accepted. The applicant submits that there is a material contribution between that accepted injury and the proposed surgery. The applicant refers to Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy).
o.80. In replying to the respondent’s submissions, the applicant specifically mentioned:
p. (a) the evidence is clear that she does not simply have neck pain, but also has stiffness and significant loss of range of movement, which interferes with her daily activities.
q. (b) Broadspectrum Australia Pty Limited v Gunaratnam [2019] NSWWCCPD 36 was authority for the proposition that treatment only needed to have the potential to be effective in order for its costs to be paid pursuant to section 60 of the 1987 Act.
r. (c) Toll Holdings Limited v Doodson [2019] NSWWCCPD 62 was authority for the proposition that it was not necessary for an applicant to establish that surgery was reasonably necessary to the exclusion of all other potential treatment in order for its costs to be paid pursuant to section 60 of the 1987 Act.
Respondent’s submissions
a.81. The respondent’s submissions have been recorded and I will not repeat them in detail.
b.82. The respondent conceded the presence of pathology in the applicant’s cervical spine but questioned whether the pathology was the reason for her neck pain. It argued that the pain was the result of her shoulder injuries, which she was still recovering from and which caused her consequential pain in her cervical spine. It asked the Commission to consider what element was the materially causative factor which has the applicant complaining of pain.
c.83. The distinction was important as it was the applicant’s complaints of pain that have led to the surgery proposal.
d.84. There needed to be a “clear pathway” between the applicant’s subjective symptoms of pain and the objective surgical procedure planned, for the respondent to be liable for the costs of that procedure.
e.85. The respondent submitted that the surgery was not the best method of dealing with the applicant’s pain. There were other resources available, and the respondent questioned how useful surgery would be compared with these other resources. There was no evidence that the applicant had engaged in pain management, and there was no evidence that she had sought a second specialist opinion regarding the reasonableness of the surgery. There was no evidence that the surgery would be the most efficient outcome for the applicant’s pain. There were significant risks with it.
f.86. The respondent however conceded that if the Commission was to accept the opinions of Dr Nair, there was little that it could say in response.
FINDINGS AND REASONS
Whether the surgery proposed by Dr Nair is reasonably necessary medical treatment as a result of the consequential injury to the applicant’s cervical spine, which arose as a result of the injuries to her shoulders
a.87. Section 60 (1) of the 1987 Act provides as follows:
“(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).”
a.88. The first question to therefore determine is whether the surgery proposed by Dr Nair is reasonably necessary treatment.
b.89. 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 2 (Rose), where his Honour said:
“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.”
a.90. In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“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.”
a.91. In relation to the cervical spine surgery proposed by Dr Nair, I accept the submission made by the applicant that the doctor arrived at that proposal after careful consideration of the extent and duration of her pain symptoms, her restriction of movement, and her other disabilities flowing from her neck injury. The doctor reviewed the applicant on at least seven occasions before finally proposing the surgery. In that time, he ordered radiology, nerve conduction studies, and a corticosteroid injection.
b.92. Dr Nair has continued to consult with the applicant since recommending the surgery, and his opinion regarding the reasonableness of the surgery has not changed.
c.93. Having now regularly consulted with the applicant for three years, I find that Dr Nair is in the best position to comment regarding the reasonableness of the surgery.
d.94. I also find Dr Nair’s opinion is supported by Dr Stening, as well as Drs Dias and Khan (both of whom reported the likelihood of the applicant requiring surgery similar to the surgery proposed by Dr Nair, some months prior to it being formally proposed by him).
e.95. It is clear from the applicant’s statements that she has undergone significant treatment for her condition since August 2017, without relief. She considers the surgery proposed by Dr Nair to be the only option left available to her for her pain. I confirm that I have accepted the applicant’s evidence (the respondent does not invite me to do otherwise), and it is my opinion that she has consistently provided reliable histories regarding the development and continuation of her neck symptoms.
f.96. In considering the matters referred to in Rose and Diab, I find:
g. (a) The surgery proposed by Dr Nair is appropriate treatment for the applicant’s neck symptoms – this is clearly the opinion of both Drs Nair and Stening, and there is no recent medical evidence to the contrary.
h. (b) There is no recent medical evidence suggesting any alternative treatment is available to the applicant – the respondent submits that the applicant should attempt pain management and should obtain a second opinion regarding the proposed operation, but has no evidence to support its submission – it is true that Dr Nair recommends that the applicant consult with a pain management specialist in his report dated 11 February 2020, but in my opinion, this comment is made solely for the purpose of providing the applicant with pain relief while she is waiting for his proposed surgery to be approved by the respondent.
i. (c) Although the cost of the surgery is significant, the cost cannot be said to be unreasonable or prohibitive having regard to the neck symptoms that the applicant has experienced since 2015 – in this regard, the respondent’s submissions did not quibble with the cost of the surgery, only the nature of the surgery.
j. (d) Although Dr Nair correctly refers to the risks of the proposed surgery in his reports, he has now for over two years recommended it as the most effective treatment for the applicant – Dr Stening also believes that the surgery has an 80% chance of assisting the applicant with her neck symptoms – I find that the surgery has the definite potential to be effective.
k. (e) As only Drs Nair and Stening have specifically opined regarding whether the surgery is reasonably necessary treatment for the applicant and there is no significant disagreement between them, I find that the proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective.
l.97. Having considered all of the medical evidence presented by both parties, I find that Dr Nair’s proposed surgery is reasonably necessary treatment for the applicant’s neck symptoms. In so doing, I give little weight to the evidence relied upon by the respondent, contained in the reports of Drs Keller and Assaad, as well as in the Medical Assessment Certificate of Assessor Gibson.
m.98. In relation to Dr Keller’s report, I accept the applicant’s submissions that it is outdated (being almost three years old) and that its opinion regarding causation of the applicant’s neck symptoms is both contrary to the vast majority of the medical evidence presented by both parties, and contrary to the subsequent acceptance by the respondent of liability for a consequential injury to the applicant’s neck arising out of the injuries to her shoulders.
n.99. I read the opinion in the report as to the applicant not requiring any further treatment for her neck symptoms in this context. I accept the applicant’s submissions that there is no reasoning behind that opinion in circumstances where the applicant complained to the doctor of a neck pain rating of 8 out of 10.
o.100. In relation to Dr Assaad’s opinion, his reports are almost five years old. His hope, as expressed in the reports, that the applicant’s symptoms would improve with time has not occurred, and he has not examined the applicant since.
p.101. In relation to the Medical Assessment Certificate of Assessor Gibson, it is relevant that the assessor took a history from the applicant generally consistent with the histories she had provided to other medical practitioners, and it is also relevant that the assessor noted that she was considering neck surgery.
q.102. Although the assessor found no significant clinical findings, she also noted that the applicant’s neurological findings had varied over time.
r.103. The assessor was not asked to provide an opinion as to the applicant’s future treatment needs. The assessor was required to concentrate on the dispute which had been referred to her in relation to the level of the applicant’s whole person impairment.
s.104. The assessor examined the applicant on one occasion, as did Dr Keller. In contrast, Dr Nair has consulted with the applicant regularly over a period exceeding three years.
t.105. It is now necessary to consider whether there is a material contribution between the accepted consequential injury to the applicant’s neck and the surgery proposed by Dr Nair.
u.106. In Murphy, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), 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 the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
a.107. I have no difficulty in concluding that there is the necessary material contribution in this regard, based upon the opinions which I have accepted from Dr Nair (see paragraph 27 above specifically) and Dr Stening (see paragraph 33 above specifically), as well as the applicant’s unchallenged evidence regarding the neck symptoms which she has experienced since 2015.
b.108. In the period since 2017, the applicant has also been treated by Drs Kandiah and Khan, and she has also attended a medico-legal appointment with Dr Dias. Although these doctors do not specifically opine regarding the material contribution of the applicant’s neck injury to her need for the particular surgery recommended by Dr Nair, what is clear from their reports is that they draw a link between the applicant’s work and her neck condition. It is also clear from their reports that they accept the history provided by the applicant as to the extent of the condition as well as the need for the applicant to be treated in relation to that condition. Indeed, Dr Khan noted that cervical spine decompression surgery of the left C4 nerve root was possible, and Dr Dias noted that the applicant’s neck disabilities were likely to persist on an indefinite basis and that she would be a candidate for cervical spine surgery, likely to be fusion surgery at the C3/C4 level and/or decompressive surgery at that level.
c.109. In contrast, the respondent does not present any specific evidence to counter the material contribution of the accepted consequential injury of the applicant’s neck to the surgery proposed by Dr Nair.
d.110. The potential link is not considered by Assessor Gibson or Dr Assaad. While Dr Keller’s report could be read as providing an opinion that there is no material contribution between any work-related condition of the applicant’s neck and her need for any medical treatment, I have already found that I can place very little weight upon the doctor’s opinions.
e.111. I reject the respondent’s submission that there is not a “clear pathway” between the applicant’s subjective symptoms of pain and the objective surgical procedure planned, for the respondent to be liable for the costs of that procedure.
f.112. The applicant complains of significantly more symptoms than just pain in her neck, and it is not solely the complaints of pain that have led to the surgery proposal. As found, prior to proposing the surgery, Dr Nair carefully considered all the applicant’s neck symptoms, as well as radiology and repeat radiology, nerve conduction studies and the lack of effectiveness of a corticosteroid injection.
g.113. The respondent has no evidence to support its submission in this regard other than potentially from Dr Keller. I have already found that I prefer the evidence of Drs Nair, Stening, Dias, Khan and Kandiah regarding the extent of the applicant’s neck condition and its relationship to her work.
h.114. Dr Stening in this regard (see paragraphs 32 and 33 above) provides the “clear pathway” between the applicant’s neck injury (which he finds to be an exacerbation of pre-existing degenerative change at C3/4 and C4/5, causing irritation of the left C4 nerve root) and the surgical procedure planned.
SUMMARY
a.115. On the balance of the medical evidence, I find that the surgery proposed for the applicant by Dr Nair (a C3/4 and C4/5 anterior cervical discectomy and fusion) as referred to in his 17 December 2019 report, is reasonably necessary medical treatment as a result of a consequential injury to the applicant's cervical spine, which arose as a result of injuries to both her shoulders.
b.116. I note that the respondent has already accepted that the injuries to both her shoulders arose out of or in the course of her employment with it pursuant to section 4 of the 1987 Act. I also note that the respondent has already accepted liability for the consequential injury to her cervical spine, which arose as a result of the injuries to her shoulders.
c.117. In those circumstances, there will be an award for the applicant pursuant to section 60 of the 1987 Act, and the respondent will be ordered to pay for the costs of and incidental to the surgery proposed by Dr Nair in his 17 December 2019 report.
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