Dangol v Action Workforce Act Pty Ltd
[2022] NSWPIC 591
•25 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Dangol v Action Workforce ACT Pty Ltd [2022] NSWPIC 591 |
| APPLICANT: | Sunil Dangol |
| RESPONDENT: | Action Workforce ACT Pty Ltd |
| Member: | Cameron Burge |
| DATE OF DECISION: | 25 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the cost of proposed lumbar decompression surgery; injury and causation admitted however respondent declines liability and alleges surgery not reasonably necessary; Held – the proposed surgery is reasonably necessary as a result of the accepted injury; Diab v NRMA Limited and Rose v Health Commission (NSW) applied; respondent is to pay the costs of and incidental to the proposed surgery. |
| determinations made: | 1. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent with a deemed date of injury of 29 June 2020. 2. The right L4/5 decompression surgery proposed by Dr Peter Khong is reasonably necessary as a result of the injury referred to in [1] above. 3. The respondent is to pay the costs of and incidental to the proposed surgery. |
STATEMENT OF REASONS
BACKGROUND
Sunil Dangol (the applicant) brings these proceedings pursuant to s 60(5) of the Workers’ Compensation Act 1987 (the 1987 Act) seeking payment by Action Workforce ACT Pty Ltd (the respondent) of the costs on an incidental to a proposed right sided L4/5 decompression surgery.
Liability in relation to the applicant’s injury is accepted, as is the proposition that his ongoing symptoms were caused by that injury. The respondent has denied liability for the costs of the proposed surgery, and alleges it is not reasonably necessary in accordance with s 60 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the proposed surgery is reasonably necessary.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The parties attended a hearing on 20 September 2022. 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, Mr Perry of counsel instructed by Mr Dous, solicitor appeared for the applicant. Mr Barnes of counsel instructed by Mr Russell, solicitor appeared for the respondent.
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) and attached documents, and
b. Reply and attached documents,
c. and applicant’s Application to Admit Late Documents (AALD) dated 12 September 2022.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the proposed lumbar spine surgery is reasonably necessary.
As both parties noted in their submissions, the applicant has the onus of proving the surgery proposed by Dr Khong is reasonably necessary. The test adopted in determining whether medical treatment is reasonably necessary as a result of a work injury is that set out 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 judgement 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.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted the Court of Appeal’s consideration of the meaning of the phrase “reasonably necessary” in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52 (Clampett), albeit in the context of home renovations rather than medical treatment. The Court noted that the trial judge had sought guidance from the decision in Rose. Grove J referred to the dictionary definition of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Oxford dictionary) and “that cannot be dispensed with” (Macquarie dictionary). At [23] and [24], his Honour stated:
“23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequences to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of the worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’, there is a statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit enquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of ‘necessary’.”
In Diab, Roche DP noted the effect of the decision in Clampett and commented as follows:
“85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words. Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA) (Campbell JA) agreeing in (ING Bank Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]...
86. Reasonably necessary does not mean ‘absolutely necessary’. If something is ‘necessary’ in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than necessary. Depending on the circumstances, a range of different treatments may qualify as reasonably necessary and a worker only has to establish that the treatment claimed in one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
The Deputy President went on to apply the test set out by Burke CCJ in Rose as follows:
“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, 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 different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
90. While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with highly expression ‘no reasonable prospect’ ‘should be understood, as ‘no paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
A long line of authority in the Commission since Diab has continued to apply the criteria which are set out in that decision. For the reasons which follow, I am of the view the requirement of reasonable necessity has been met in this matter, and the respondent will be ordered to pay the costs of an incidental to the proposed surgery.
As already noted, the fact of injury and ongoing symptomology in the applicant’s lumbar spine is not in issue. In his statement, the applicant said he had been referred by his general practitioner to consultant specialist Dr Damodaran, neurosurgeon and spinal surgeon. At a consultation with Dr Damodaran on 9 October 2020, the applicant was prescribed Targin, Tramadol and Gabapentin. The applicant stated he continues to rely on medication as prescribed by his treating doctors, and that Dr Damodaran recommended twice weekly physiotherapy for three to four weeks, followed by a CT-guided injection to L4/5 disc space in the event the physiotherapy was unsuccessful.
In March 2021, the applicant consulted Dr Dalton, rehabilitation specialist who recommended continued hydrotherapy and pain education to try and overcome what the applicant described as “my fear of avoidance and to encourage movement in my lower back.”
In April 2021, the applicant changed general practitioners to Dr Lim. In or about April 2021, the applicant underwent an MRI scan of the lumbar spine and was referred to Dr Khong, treating neurosurgeon for a second opinion. At the same time, the applicant was referred to a psychologist.
The applicant noted Dr Khong has recommended an L4/5 decompression, and at [21] in his statement says “I trust Dr Khong’s opinion and I see this surgery as my last option to get my life back as I can no longer tolerate the pain. All other conservative treatment has failed.”
In a report to the applicant’s former general practitioner dated 30 March 2021, Dr Damodaran noted the applicant had undergone epidural cortisone injection to the L4/5 disc space which
“gave him transient relief in symptoms for about a week. Since then, the pain has returned. Largely, he is better than before and he tells me he is at least 20% better in terms of pain reduction. He is also walking without the assistance of a walking stick. I have asked him to continue with conservative management for now. Surgery should only be considered if he fails conservative management for discogenic back pain at 12 months. I would like to see him again in 3 to 4 months.”
The applicant underwent an MRI of his lumbar spine on 22 August 2020. The relevant findings were as follows:
“At L3/4, there is mild to moderate broad-based disc bulge. Small posterior disc protrusion. Minimal indentation on the thecal sac. No foraminal stenosis seen.
At L4/5. there is mild broad-based disc bulge, small posturo-central to para-central and foraminal disc protrusion, causing mild indentation on anterior thecal sac. Mild subarticular zone narrowing. Mild facet joint hypertrophic changes. There is mild left-sided and no significant right-sided foraminal stenosis.
At L5/S1, there is no disc herniation, central canal or neural exit foraminal narrowing seen. Mild facet joint hypertrophic changes noted.”
19. The applicant underwent a further MRI to his lumbar spine on 10 May 2021. On that occasion, the relevant finding was as follows:
“At L4/5, there is a left lateral disc bulge causing moderate left foraminal stenosis without definite nerve root impingement (some perineural fat is preserved). There is mild central canal stenosis and bilateral lateral recess stenosis, worse on the left with possible impingement of the descending left L5 nerve root.”
20. It is apparent from an examination of the comparative findings between the two MRIs that the pathology in the applicant’s spine had worsened between August 2020 and May 2021, in that the L4/5 disc bulge had progressed from being mild with small disc protrusion and mild indentation to the thecal sac to the point where the bulge was described as causing moderate left foraminal stenosis.
The applicant’s Independent Medical Examiner (IME) Dr Bodel provided a report dated 24 February 2022. Dr Bodel described the August 2020 MRI as confirming a large right-sided disc prolapse at the L4/5 level and a central broad-based bulge as well. On examination, Dr Bodel found radiculopathy and was of the view the surgery recommended by Dr Khong is reasonably necessary as a result of the injury at issue.
22. Dr Bodel’s opinion, according as it does with that of Dr Khong, is in my view also broadly consistent with that of Dr Skapinker, IME for the applicant. Dr Skapinker provided a report dated 1 February 2021, in which the following opinion was set out:
“Mr Dangol sustained an injury to his lower back whilst working on 29/6/20. More specifically, he appears to have sustained an L4/5 disc injury resulting in lower back pain and leg radiculopathy. Unfortunately, he reports that there has been very little improvement of his symptoms and examination confirms a significant degree of disability. In view of the lack of improvement after seven months, I believe that surgical treatment might be a consideration. His condition might improve with time but having seen no improvement after seven months, his prognosis is guarded.”
23. Unfortunately for the applicant, Dr Skapinker’s opinion has proved prescient. The evidence discloses the applicant’s condition has worsened, consistent with the findings of the comparative MRI studies.
Dr Khong, the treating surgeon who proposes the surgery also provided a report dated 18 January 2022. He noted the applicant had a right L5 perineural injection on 31 August 2021 which resulted in a 25 to 30% reduction of pain for two to three days, however, the applicant continued to complain of persistent stabbing pains in the right lower back radiating down the anterior right thigh to the knee, together with pain in the heel when walking.
25. Dr Khong was asked to provide an opinion as to whether the surgery was reasonably necessary and replied as follows:
“Surgery is reasonably necessary. Mr Dangol complains of persistent lower back pain and right leg pain. MRI demonstrates degenerative disc disease at L4/5 with bilateral lateral recess stenosis. He had a mild response from the right L5 perineural injection.
A right L4/5 decompression is appropriate to decompress the right L5 nerve root.
The alternatives of analgesia, physiotherapy and steroid injections have been trialled and failed. The surgical alternative is a fusion at L4/5 which may better address his lower back pain, but is more invasive.”
26. The only doctor who provides an opinion the proposed surgery is not reasonably necessary is the respondent’s IME, Dr Breit, who has provided two reports dated 6 September 2021 and 19 January 2022 respectively. In his first report, Dr Breit included in his history of injury the following:
“Initially the pain was in the lower back, but after a few weeks, he was getting right leg symptoms with tingling in the anterior thigh and the lateral aspect of the heel. He has been seen by Dr Stanton, a pain clinician, he has been reviewed Dr Dalton, a rehabilitation physician in March this year and he felt that the symptoms were somatic rather than radicular, he was extremely tight and he displayed quite a lot of fear avoidance. ‘He is clearly not a surgical candidate. In terms of underlying pathology, he has a degree of congenital canal stenosis with multilevel degenerative disc disease and facet joint arthropathy and I suspect that most of his pain is coming from the right mid lumbar facet joints but pain is poorly localised although at some stage, he may be a candidate for diagnostic injections.’”
27. Dr Breit was asked what the most appropriate ongoing treatment would be and replied:
“Given what was said to be a total lack of response to any modality at this point, I doubt that any treatment is going to be of assistance, however, hydrotherapy will be the best approach but that should that be reassessed after six weeks to see if it warrants continuing and in what manner, self-directed or in classes. This will allow him to exercise gently with pressure relief on the back and the legs.”
28. In his second report dated 19 January 2022, Dr Breit formed the view there was a psychosomatic element to the applicant’s complaints. It should be noted the applicant does not deny psychological symptoms have arisen as a result of his physical injury. Indeed, he quite appropriately concedes having received treatment for that condition.
29. Dr Breit then set out the findings of the radiological examinations including lumbar spine
X-rays taken on 30 August 2021 which showed a 2 to 3mm retrolisthesis at L4 and L5, more pronounced on extension. Dr Breit also noted the lumbar MRIs from August 2020 and May 2021 and reproduced the findings of those examinations in his report.
30. When asked to provide a diagnosis, Dr Breit then stated:
“In my opinion, the primary diagnosis is one of maximisation and abnormal illness behaviour. There is evidence of lumbar spondylosis but there is no evidence of radiculopathy, only inconsistency.
Given Mr Dangol’s claims that he is now hearing voices, I would suggest that he needs to be reviewed by a psychiatrist.”
31. Dr Breit went on to provide an opinion that the proposed surgery is not reasonably necessary as he did not find any radiculopathy. He stated the applicant’s prognosis with or without surgery is extremely poor.
32. Dr Breit stated that no physical modalities are likely to provide any benefit for the applicant, noting “[t]hey have been unsuccessful to date and the findings are not consistent with organic pathology. I can only indicate that he should have a psychiatric assessment at this stage.”
33. For the respondent, Mr Barnes submitted the interplay between psychological and physical factors cloud the efficacy of the proposed surgery to the point that it is not reasonably necessary. With respect, I do not accept that submission and I do not prefer the opinion of Dr Breit.
34. There is no question the applicant suffers psychological symptoms, however, Dr Breit’s claim in his most recent report that “the findings are not consistent with organic pathology” flies in the face of his own recitation of the radiological investigations from 2020 and 2021 which reveal the presence of broad-based disc bulges and foraminal stenosis at L4/5 with potential impingement on both the L4 and L5 nerve roots together with 2 to 3mm of retrolisthesis at the L4/L5 disc spaces. These are not radiological findings which can be imitated by a worker suffering from psychosomatic symptoms. They are objective findings which are consistent with the applicant’s injury.
35. Moreover, Dr Breit’s comment that the applicant has received no benefit from any physical treatment flies in the face of the contemporaneous material in which the applicant appropriately conceded he had received a temporary 25 to 30% improvement in his level of pain upon having a perineural injection to very disc space which Dr Khong proposes to decompress.
36. It follows that there are clear findings that pathological change in the L4/5 disc space and accordingly, I reject Dr Breit’s findings.
37. In any event, it is necessary to consider the matters set out in Diab. Dealing each of these matters in turn, I find as follows.
38. The preponderance of the evidence discloses the proposed decompressive surgery is appropriate. It is less invasive than fusion surgery, and I note that each of Dr Khong, Dr Damodaran and Dr Skapinker are of the view the surgery would be appropriate following the use of conventional treatment, in the event that those conservative modalities failed.
39. The applicant has tried alternative treatment by way of physiotherapy, significant pain relief medication, hydrotherapy and a perineural injection into the relevant disc space. At best, he has received only temporary relief from them, and the nature of those treatments is such that they will not relieve the pathology in the applicant’s spine.
40. There is no suggestion on the part of the respondent that the proposed surgery is prohibitively expensive, and I note the cost is set out at approximately $11,000, not including theatre fees and the costs of hospital stay. In my view, the proposed surgery is not prohibitively expensive.
41. Dr Khong, Dr Skapinker and Dr Damodaran all indicate the surgery will potentially be effective in relieving the applicant’s symptoms. It is settled more that the treatment need not be 100% effective in order to be reasonably necessary. Dr Khong has considered alternatives such as a fusion surgery, but is undertaking a less invasive procedure which he views as being potentially effective in alleviating the applicant’s symptoms.
42. Dr Khong is a treating surgeon, as is Dr Damodaran. Absent there being some error in their reasoning or the factual basis behind their opinion, in my view, their views should be given significant weight. They are also supported by IME, Dr Bodel, who opines the treatment is reasonably necessary and is likely to provide the applicant with some effective relief.
43. On balance, all of the medical experts, both treating and medico-legal, save for Dr Breit believe this treatment is appropriate and likely to be effective. On the balance of probabilities, I find the applicant has discharged his onus of proof in establishing that the proposed L4/5 decompressive surgery is reasonably necessary.
SUMMARY
For the above reasons, the respondent will be ordered to pay the costs of and incidental to the proposed surgery and the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.
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