Dawson v Allivale Pty Ltd t/as Aussie Kids of Moree
[2021] NSWPIC 415
•18 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dawson v Allivale Pty Ltd t/as Aussie Kids of Moree [2021] NSWPIC 415 |
| APPLICANT: | Marina Jayne Dawson |
| RESPONDENT: | Allivale Pty Ltd t/as Aussie Kids of Moree |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 18 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion; Held – the proposed surgical treatment is reasonably necessary treatment for the injury the applicant sustained to her lumbar spine in the course of her employment with the respondent, with a deemed date of injury of 20 May 2009. |
| DETERMINATIONS MADE: | 1. By consent the Application to Resolve a Dispute is amended at page 8 to delete reference to a deemed date of injury of 20 May 2019 and substitute it with reference to a deemed date of injury of 20 May 2009. 2. The proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion is reasonably necessary treatment for the injury the applicant sustained to her lumbar spine in the course of her employment with the respondent, with a deemed date of injury of 20 May 2009. 3. The respondent is to pay the costs associated with the proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Marina Jayne Dawson (Ms Dawson) is employed by Allivale Pty Ltd t/as Aussie Kids of Moree (Aussie Kids). She works as a childcare worker. She is 41 years of age.
In these proceedings Ms Dawson alleges she has suffered a disease of gradual process and/or an aggravation, acceleration, exacerbation or deterioration of a disease of gradual process, in her lumbar spine and right hip as a result of the heavy nature and conditions of her employment with Aussie Kids as a child care worker from February 2007 up until 20 May 2009, including repetitive bending, squatting, lifting and carrying pre-school children.
Ms Dawson seeks an order that the spinal surgical treatment proposed by Dr Hsu in his report dated 7 November 2019[1], which is described as being a L3-S1 anterior and posterior lumbar interbody fusion, is reasonably necessary medical treatment resulting from the injury Ms Dawson sustained during the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009. However, it is noted the spinal surgical treatment proposed by Dr Hsu in his report dated 19 November is relevant to a “two staged procedure in the form of an L4-S1 Anterior Lumbar Interfusion (Stage 1) followed one week later with a L4-S1 Decompression and Fusion (Stage 2)”.
[1] Application to Resolve a Dispute (ARD) at page 89.
Ms Dawson’s claim for surgical treatment in the nature of an L4-S1 is declined with notices dated 7 November 2019[2], 6 April 2020[3] and 8 February 2021[4] in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 with the basis of the declinature being that the proposed surgical treatment was not reasonably necessary treatment for the injury Ms Dawson sustained to her lumbar spine in the course of her employment with Aussie Kids. Ms Dawson’s claim for surgical treatment in the nature of
L3-S1 is also declined with her claim for this proposed surgical treatment being canvassed in the notice dated 8 February 2021 referred.[2] ARD at page 10.
[3] ARD at page 15.
[4] ARD at page 19.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion is reasonably necessary treatment for the injury Ms Dawson sustained to her lumbar spine in the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009.
PROCEDURE BEFORE THE COMMISSION
These proceedings came before me for teleconference on 8 September 2021. Ms Branch, solicitor appeared for Ms Dawson and Mr Michael, solicitor appeared for Aussie Kids. Ms Lee from EML was present, as was Ms Dawson.
As Ms Dawson’s claim did not resolve at teleconference, it came before me for conciliation/arbitration hearing on 22 September 2021. Mr Halligan of counsel appeared for Ms Dawson instructed by Ms Turner, and Mr Stockley appeared for Aussie Kids, instructed by Mr Michael. Ms Lee from EML was present, as was Ms Dawson.
By consent the ARD was amended at page 8 to reflect the correct deemed date of injury, which is 20 May 2009.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 15 September 2021 lodged on behalf of Aussie Kids.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief summary of evidence follows.
Ms Dawson’s statements
In her initial statement dated 16 August 2019[5] Ms Dawson explained she commenced working with Aussie Kids in February 2007 and described sustaining injury on 20 May 2009 following which she was admitted to Moree Hospital “for a week’s bed rest”.
[5] ARD at page 1.
Ms Dawson was under the general medical care of Dr Gordon but also came under the specialist care of Dr Molnar, orthopaedic surgeon, and Dr Saunders, sports and exercise physician. With Ms Dawson experiencing an increased pain in her back over time she came under the care of Associate Professor Hansen (A/P Hansen), neurosurgeon, who following review of an MRI scan of her lumbar spine, referred her to Dr Volschenk for pain management. Following recommendation and trial of a spinal cord stimulator by Ms Dawson, a permanent spinal cord stimulator was inserted in early September 2017. Unfortunately, the permanent spinal cord stimulator did not provide Ms Dawson with “any significant, long term reduction” in her pain levels, and while she said A/P Hansen had led her to believe that if the spinal cord stimulator was unsuccessful he would recommend a spinal cord fusion, she said “he changed his mind and advised me that I was too young to undergo this type of surgery”.
Ms Dawson said that she was “very disappointed” with A/P Hansen’s opinion and sought a second opinion from Dr Hsu, who is an orthopaedic surgeon specialising in spine surgery. When Ms Dawson consulted with Dr Hsu on 19 June 2019, he recommended surgery given that she had exhausted all conservative treatment. Following the removal of her spinal cord stimulator on 7 August 2019, Ms Dawson underwent MRI and bone scanning, and when she consulted again with Dr Hsu on 15 August 2019 he recommended “a two stage lumbar fusion and decompression at L4/S1”. Ms Dawson confirmed that she would “very much like to have that surgery”.
In her further statement dated 13 April 2021[6] Ms Dawson confirmed that Dr Hsu’s request for approval for the costs associated with the proposed surgical treatment had been declined following assessment by Dr Hopcroft, independent medical examiner. She also confirmed that while Dr Bodel ultimately reportedly agreed that the proposed surgical treatment was “reasonably necessary”, review of the decision to decline Dr Hsu’s request for approval for the costs associated with the proposed surgical treatment was maintained. Ms Dawson confirmed that she still intended to come to spinal surgery.
Chronology
[6] ARD at page 6.
A chronology dated 10 August 2021 prepared by Stacks Law Firm[7] relevantly noted Ms Dawson sustained injury on 20 May 2009, consulted with Dr Hsu on 19 June 2019 who recommended MRI scanning “before any surgical opinion”, and was reviewed by Dr Hsu on 15 August 2019 with recommendation for surgery “in the form of an L4/S1 anterior & posterior spinal fusion”, approval for which was declined. The chronology relevantly noted that following further review, Dr Hsu recommended the proposed surgical treatment be amended to extend to L3 and sent an amended request for approval for the proposed surgical treatment “now L3/S1 anterior & posterior spinal fusion”, approval for which was also declined. The chronology also noted that following review by A/P Hansen on 2 August 2021, A/P Hansen “now recommends spinal fusion” and sought approval for the costs of same.
Treating medical evidence
[7] ARD at page 8.
Warialda Medical Centre Pty Ltd
Dr Gordon is Ms Dawson’s general practitioner practising out of Warialda Medical Centre Pty Ltd. In his short report dated 23 September 2015[8] Dr Gordon described Ms Dawson as having been medically unfit since 6 December 2010 with her condition remaining unchanged. He noted she had consulted numerous medical specialists who were of the opinion she was unfit for work.
A/P Hansen
[8] ARD at page 55.
Ms Dawson was referred for specialist review by A/P Hansen and in his initial report dated 10 September 2015[9] he noted a review of her MRI scan demonstrated no neural compression within the canal and said “as such, I don’t think there is a good neurosurgical intervention I would suggest” and referred her to Dr Volschenk for pain management. At that point in time A/P Hansen made no further arrangement for review.
[9] ARD at page 54.
In a subsequent report dated 2 August 2021[10] A/P Hansen confirmed he had reviewed Ms Dawson that day and described her as having “a significant amount of pain still”, which she had told him was worsening. He noted she had been offered a three level fusion.
[10] ARD at page 92A.
Relevant to investigations A/P Hansen said:
“Looking at her imaging she has got some disc degeneration at L4/5 and L5/S1. She certainly describes an L5/S1 distribution to her pain. There is no obvious instability in her spine. She does have extremely widened sacroiliac joints which I am unsure how much may be contributing to her pain. She probably does have some discogenic back pain from these two levels”
Relevant to treatment A/P Hansen said:
“I said that surgery for this can be problematic in that literature says there is only a 40% - 50% chance of improvement with fusion surgery. This would be taking her pain from a 10 to a 5/10. As she has now exhausted all conservative management, still has pain and is quite young I guess a surgical option in the form of a L4-S1 fusion is a consideration. As I said it does not have a high chance of success. She is quite keen though for an intervention, is at the end of her tether and if Workcover approval is given then we could proceed with this… There are not medical co-morbidities that I can tell that are likely to impact on her management”.
Hunter Pain Clinic
In his initial report dated 8 October 2015[11] Dr Volschenk recommended multi-modal and multidisciplinary management, but with continuing neuropathic back and leg pain, Ms Dawson eventually came to spinal cord stimulator implant, with problematic result.
[11] ARD at page 56.
It is evident from his most recent report before the Commission, which is dated 5 March 2019[12], that Ms Dawson remained symptomatic despite the insertion of spinal cord stimulation.
[12] ARD at page 81.
Dr Hsu
Ms Dawson was referred for review by Dr Hsu and in his initial report dated 19 June 2019[13] Dr Hsu described Ms Dawson as presenting with “significant lumbar discogenic back pain with a significant radicular component”. Dr Hsu noted Ms Dawson had undergone extensive conservative treatment, including surgeries for her adjustments to her spinal cord stimulator and said:
“I think it would be safe to say that she has now exhausted nonoperative treatment and I have recommended that she update her lumbar imaging along with an MRI scan before we proceed with surgical planning”.
[13] ARD at page 82.
In his subsequent report dated 15 August 2019[14] Dr Hsu provided certification he had recommended Ms Dawson “undergo a two staged procedure in the form of an L4-S1 Anterior Lumbar Interbody Fusion (Stage 1) followed one week later with a L4-S1 Decompression and Fusion (stage 2)”, and following review on 14 August 2019 (which included review of her repeat MRI scan which demonstrated “L4/5 disc pathology and to a lesser extent L5/S1 disc pathology as well”) he discussed Ms Dawson’s treatment options “which will be either continue with her current non operative treatment or consider surgical intervention which will be an L4/S1 anterior and posterior decompression and fusion”.
[14] ARD at page 86.
Following review on 1 November 2019, in his report dated 19 November 2019[15] Dr Hsu reported that he had a long discussion with Ms Dawson regarding “surgical levels as she has recently undergone an Independent Medical Examination”. He reported:
“Her symptoms are most certainly related to L4-5 and S1 nerve roots as she has had lower limb symptoms for quite some time. We have had a discussion regarding whether we should proceed with an L3-S1 fusion as her L3-4 intervertebral disc are also showing significant signs of change. I have arranged for the IME report to be sent to me, but I have no objections if Marina requests to proceed with an L3-S1 anterior and posterior spinal fusion as opposed to an L4-S1 anterior and posterior fusion”.
[15] ARD at page 89.
Dr Hsu confirmed he would seek approval of surgical treatment in the nature of an L3-S1 anterior and posterior spinal fusion “in anticipation of proceeding with surgery as soon as possible”. He provided an estimate of fees for the proposed surgery under cover of correspondence dated 8 January 2020[16].
Warialda Mutipurpose Service Physiotherapy Department
[16] Reply at pages 26 and 26.
In a report prepared by Ms Dawson’s physiotherapist, Suzie Bilsborough, which is dated 24 June 2020[17], Ms Bilsborough confirmed that despite assessment and management of Ms Dawson’s chronic low back pain since 11 March 2020, there had been no significant benefit to Ms Dawson from her attendance at physiotherapy.
[17] ARD at page 91.
In her subsequent report dated 18 September 2020[18] Ms Bilsborough wrote:
“Given that Marina is potentially scheduled for surgery I am further convinced that her long standing lumbar spine issues are not amenable to physiotherapy”.
Medical Assessment
[18] ARD at page 92.
Ms Dawson was assessed by Dr Oates in his capacity Approved Medical Specialist (AMS) relevant to the injury Ms Dawson sustained to her low back in the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009. Ms Dawson was assessed on 2 March 2014 and a Medical Assessment Certificate (MAC) was issued on 10 March 2014[19]. The AMS provided diagnosis in terms of a “soft tissue injury (musculoligamentous strain)” and provided assessment at 7% whole person impairment.
[19] ARD at page 193.
Independent medical evidence
Dr Hopcroft
Ms Dawson was independently assessed by Dr Hopcroft, general surgeon, on 22 October 2019 and Dr Hopcroft has provided a report 31 October 2019[20]. It is evident Dr Hopcroft has had the opportunity to previously assess Ms Dawson, but his reporting relevant to this earlier assessment is not before the Commission.
[20] Reply at page 9.
In his report dated 22 October 2019, Dr Hopcroft confirmed he had reviewed the following investigations:
(a) X ray of thoracic spine dated 16 January 2019,
(b) Isotope uptake bone scan dated 13 August 2019, and
(c) MRI scan of lumbar spine dated 13 August 2019.
Dr Hopcroft described Ms Dawson’s spinal cord stimulator as failing to give any sustained improvement to her spinal pain problem and it was ultimately removed. He noted that with “continuing significant back pain and ongoing right sided sciatica, Dr Hsu had discussed the possibility of surgical treatment with Ms Dawson, and when reviewed by Dr Hsu following review of the MRI scan referred (but not the formal report which reportedly concluded “minor degenerative changes as described above with no significant spinal canal narrowing. The exiting nerve roots are not compressed”), Dr Hsu advised Ms Dawson that “she required L4/5, L5/S1 laminectomy/discectomy surgery due to disc bulging”.
Dr Hopcroft also noted a CT scan of Ms Dawson’s lumbar spine (which he said was dated 18 September 2019 but which is dated 18 September 2018) about which he relevantly said:
“Importantly that x-ray describes Schmorl’s notes located within the superior endplates of L2 through to L4 with associated disc space narrowing, which is beyond doubt the cause of this patient’s facet joint degenerative changes throughout her lumbar spine due to the narrowing if multiple intervertebral disc spaces and the consequent prolonged increased pressures on the joints which the discs protect”.
Following clinical examination and in response to specific questioning, Dr Hopcroft is quite strident in his opinion regarding the proposed surgical treatment proposed, which at that particular point in time was the L4-S1 anterior and posterior decompression and fusion. He said:
“It is important to note from the MRI scan of her lumbar spine dated 13 August 2019 that the L5/S1 intervertebral disc space is described as being normal, and that there is no posterior disc bulge or protrusion at L1/2, L2/3, L3/4 and L4/5, and having reviewed the x-rays I agree with that report.
Therefore it can only be said that fusion of this patient’s lumbar spine from L4 to S1 will not only achieve nothing but will place such enormous forces on her remaining three lumbar intervertebral discs, to which should be included the T12/L1 disc which is already showing significant changes, that the chances of her becoming significantly less troubled by spinal pain post-successful doubt level fusion is zero”.
And later:
“I do not believe this patient is a candidate for the planned neurosurgical intervention, and even undertaken expertly and effectively, such an operation fails to address significant pathology in this patient’s more proximal lumbar levels.
In fact, I believe that the planned surgery on L4 to S1 would place increase strains on her more proximal lumbar spinal segments, aggravate the pathology there, and likely to see her significantly worse off post-surgical intervention”.
Dr Hopcroft further expressed opinion Ms Dawson had not in fact exhausted all non-operative treatment and “should be undertaking a programme of abdominal and back bracing exercises…”.
In his supplementary report dated 9 March 2020[21] relevant to a further request made by Dr Hsu regarding the proposed surgical treatment, following review of an MRI arthrogram right hip dated 29 April 2010, CT lumbar spine dated 20 October 2011 and MRI scan lumbosacral spine dated 19 November 2014, Dr Hopcroft remained strident in his opinion:
“…this patient is not a candidate for L3 to S1 anterior lumbar body fusion, an operation that could not be justified on the basis of all objective radiological studies and the patient’s history and clinical examination.
I do not believe this patient therefore has any objective orthopaedic or neurosurgical reason for the surgery offered”.
[21] Reply at page 37.
In a further supplementary report dated 9 September 2021[22] Dr Hopcroft said that following careful perusal of “the entire file” he has on Ms Dawson, which included the opinion of A/P Hansen dated 2 August 2021 (which reportedly said the proposed surgical treatment “does not have a high chance of success”) and the opinions of Dr Bodel dated 10 January 2020 and 5 January 2021 (which reportedly said Ms Dawson was “at extreme risk of significant post-operative ongoing pain even if an L4/5 L5/S1 fusion was highly successful”):
“… I can advise that I do not believe the surgery proposed by Dr Brian Hsu is reasonably necessary for the reasons given, most importantly, the lack of adequate rehabilitation exercising in this claimant and the high likelihood of ongoing and significant post-operative thoracolumbar spine pain with more rapid deterioration in the changes Ms Dawson already exhibits on her radiological studies of the more proximal intervertebral lumbar discs”.
Dr Bodel
[22] AALD at page 1.
Ms Dawson was independently assessed by Dr Bodel, orthopaedic surgeon, on 10 January 2020 and he provided a report dated the same day[23]. At the time of reporting Dr Bodel had available to him the CT scan dated 18 September 2018 and the MRI scan dated 13 August 2019. Dr Bodel provided comment that the earlier scan demonstrated some degenerative disc disease at L3-L4 and minor changes at L4-L5 and L5-S1 and the later scan demonstrated disc pathology at L3-L4, L4-L5 and L5-S1. At the time of reporting Dr Bodel also had the report of Dr Hopcroft (which I assume to be the report dated 31 October 2019) and he said that he agreed “in principle” with Dr Hopcroft’s opinion that Ms Dawson should be undertaking an exercise program to improve her core strength. Relevant to the surgical treatment proposed by Dr Hsu, Dr Bodel said:
“I note also that Dr Hsu has recommended an extensive spinal surgical process from L3 to the sacrum. That does seem rather long surgical intervention. I do note however in his written report that he in fact only says L4/5 and L5/S1 although Ms Dawson indicates to me that it is to include L3 as well. I do in principle agree with Dr Hopcroft that a limited fusion at L4/5 and L5/S1 may put an undue load on the abnormal L3/4 level but symptomatically it appears to me that L4/5 is the main symptomatic disc”.
[23] ARD at page 32.
Dr Bodel accepted the “question of surgery is a difficult issue” and said:
“The two-level fusion and possibly three-level fusion as discussed does come with some risk and I am not sure that I would be prepared to commend that at this time. I would agree that a further intense program of exercise with physiotherapy, hydrotherapy and then the exercise physiologist over a period of between four and six months would be preferable to see if that can improve function without having to proceed to surgery. If it does not, then I would be happy to recommend the two-level fusion at L4/5 and L5/S1 as that appears to be the appropriate symptomatic levels that she is experiencing”.
Although Dr Bodel confirmed the recommended surgical treatment was “an appropriate method of treatment for the management of back pain and right leg pain, he described it as:
“reasonable and necessary but only after all more conservative treatments have been exhausted and I think therefore that I agree with Dr Hopcroft that a further course of physiotherapy and exercise physiology would be appropriate to see if that can improve function without the need for the surgery”.
In his subsequent report dated 5 January 2021[24] Dr Bodel acknowledged that the further conservative treatment undertaken by Ms Dawson had resulted in “minimal improvement” and said:
“Under this circumstance, I would therefore indicate that the recommendations for further treatment including the anterior and posterior interbody fusions recommended by Dr Brian Hsu need to be reconsidered at this stage”.
[24] ARD at page 38.
Noting that he had previously provided comment that the recommended surgical treatment at L4-S1 “is also an appropriate method of treatment for management of back pain and right leg pain” he confirmed “I would therefore recommend reconsideration of that as a treatment option for her persisting back pain and sciatic pain”.
Submissions
Both counsel made oral submissions and a copy of the recording of counsels’ submissions is available to the parties. I have carefully considered counsels’ submissions and am grateful to counsel for the assistance provided to me in this matter.
Determination
Is the proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion reasonably necessary treatment for the injury Ms Dawson sustained to her lumbar spine during the course of her employment with Aussie Kids?
There is no dispute Ms Dawson sustained injury to her lumber spine with a deemed date of injury of 20 May 2009 in the course of her employment with Aussie Kids and it is evident from the documents before the Commission that Ms Dawson’s lumber spine pain remains significantly problematic. Ms Dawson has come under the care of a number of specialists, including A/P Hansen and Dr Hsu, who both accept that surgical treatment is an option for Ms Dawson in circumstances where she has exhausted conservative treatment without significant relief. Mr Stockley submitted that while Aussie Kids made no particular point about the extension of the surgical treatment proposed by Dr Hsu from L4-S1 to L3-S1, the proposed surgical treatment was a significant spinal procedure for a relatively young woman with expressed limited prospect with success.
While there can be no doubt Aussie Kids is liable for treatment that results from the injury Ms Dawson sustained to her lumber spine in the course of her employment Aussie Kids, the issue for me to determine is whether this surgical treatment proposed by Dr Hsu in the nature of L3-S1 anterior and posterior lumbar interbody fusion is reasonably necessary treatment for that injury, and the discharge of onus of proof is incumbent on Ms Dawson. Relevant to this onus, I am mindful of the following principles discussed in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[25]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact”.
[25] [2008] NSWCA 246 at [44].
Of note is that section 60 of the Workers Compensation Act 1987 provides:
“60 (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)”.
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[26]. Burke CCJ said:
[26] (1986) 2 NSWCCR 32 (Rose).
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
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.
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[27], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[27] [2014] NSWWCCPD 72 (Diab).
“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.
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”.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be established on the facts in each case as discussed in Kooragang Cement Ltd v Bates[28]. This was confirmed by the Commission in Murphy v Allity Management Services Pty Ltd[29] and in the circumstances of this particular matter Ms Dawson must establish the injury she sustained to her lumber spine with a deemed date of injury of 20 May 2009 in the course of her employment with Aussie Kids contributed to the need for the proposed surgical treatment.
[28] (1994) 35 NSWLR 453; 10 NSWCCR 796 at [463] (Kooragang).
[29] [2015] NSWWCCPD 49 (Murphy).
Perhaps not surprisingly, Mr Stockley submitted there were two limbs to Aussie Kids’ defence to Ms Dawson’s claim for the proposed surgical treatment. Mr Stockley said the first limb concerned concept as to whether the surgical treatment was “reasonably necessary” treatment for the injury Ms Dawson has sustained to her lower back and relevant to this argument Mr Stockley drew my attention in particular to the reporting of the independent medical examiners and the recent reporting of A/P Hansen. Mr Stockley said the second limb concerned concept as to whether the surgical treatment was treatment for the actual injury Ms Dawson sustained to her low back in the course of her employment with Aussie Kids and relevant to this argument Mr Stockley drew my attention in particular to the diagnosis of “soft tissue injury (musculoligamentous strain)” provided by the AMS in the MAC.
Ms Dawson has said of the proposed surgical treatment that she would “very much like to have that surgery” and although both A/P Hansen and Dr Bodel have been somewhat cautious in their endorsement of the proposed surgical treatment and Dr Hopcroft is quite strident in his opposition to it, I am mindful of Deputy President Roche’s comments in Diab that while the effectiveness of treatment is relevant to whether treatment is reasonably necessary, it is not determinative and there remains other criteria to consider.
As to the appropriateness of the proposed surgical treatment, Dr Hsu clearly believed Ms Dawson had exhausted conservative treatment and surgical treatment was now appropriate. A/P Hansen and Dr Bodel were ultimately of like mind. While Dr Hopcroft expressed the view in his recent report that there had been a lack of adequate rehabilitation exercising undertaken by Ms Dawson and she would not benefit from surgical treatment, I prefer opinion expressed by Dr Hsu, particularly so as he is Ms Dawson’s treating spinal surgeon and Ms Dawson had reportedly discussed Dr Hopcroft’s opinion with him prior to him providing opinion on 19 November 2019. Indeed it is Dr Hopcroft’s opinion which appears to have prompted Dr Hsu to extend the proposed surgical treatment to include L3.
As to the availability of alternative treatment and its potential effectiveness, neither A/P Hansen or Dr Bodel offer any alternative mode of treatment in circumstances where Ms Dawson has exhausted conservative treatment and where, as A/P Hansen pointed out, Ms Dawson was “at the end of her tether”. While Dr Hopcroft was of the view there had been a lack of adequate rehabilitation exercising undertaken by Ms Dawson, it is evident that even Ms Dawson’s treating physiotherapist was of the view that further physiotherapy treatment would not assist Ms Dawson.
As to the cost of the proposed surgical treatment, this cost cannot be considered prohibitive.
As to the acceptance by medical experts of the proposed surgical treatment being appropriate and effective, while I accept both A/P Hansen and Dr Bodel may have been somewhat cautious in their endorsement of the proposed surgical treatment and Dr Hopcroft is opposed to it, I remain mindful of the fact that Dr Hsu is Ms Dawson’s treating spinal surgeon and the proposed surgical treatment has been recommended by him following review of diagnostic imaging, discussion with Ms Dawson and also apparent consideration of Dr Hopcroft’s reported opinion.
As noted earlier, Mr Stockley said that in addition to considering whether the proposed surgical treatment is reasonably necessary treatment for the injury Ms Dawson sustained to her lumbar spine, which I have discussed above, I must also consider whether the proposed surgical treatment is treatment for the actual injury Ms Dawson sustained to her lumbar spine in the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009. While it may be true that following assessment on 2 March 2014 the AMS provided diagnosis in terms of a “soft tissue injury (musculoligamentous strain)” there is no suggestion by the independent medical examiners in these current proceedings or Ms Dawson’s treating specialists (including A/P Hansen, under whose care Ms Dawson has been since 2015) that her currently symptomatic lumbar spine condition results from anything but the injury she sustained to her lumbar spine in the course of her employment with Aussie Kids.
When considering the test stated by Deputy President Roche in Murphy, review of the evidence as a whole and careful consideration of counsels’ submissions, having particular regard to the support afforded to Ms Dawson by her treating spinal surgeon Dr Hsu, under whose care Ms Dawson remains, I am of the view the proposed surgical treatment in the nature a L3-S1 anterior and posterior lumbar interbody fusion is reasonably necessary treatment for the injury Ms Dawson sustained to her lumbar spine in the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009. In reaching my view I draw comfort too in the opinions provided by A/P Hansen and Dr Bodel, both of who ultimately accepted the proposed surgical treatment was appropriate treatment in circumstances where Ms Dawson had exhausted conservative treatment.
For reasons discussed above I accept the proposed surgical treatment in the nature of a
L3-S1 anterior and posterior lumbar interbody fusion is reasonably necessary treatment for the injury Ms Dawson sustained to lumber spine in the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009.
SUMMARY
The proposed surgical treatment in the nature of a L3-S1 anterior and posterior lumbar interbody fusion is reasonably necessary treatment for the injury Ms Dawson sustained to her lumbar spine in the course of her employment with Aussie Kids, with a deemed date of injury of 20 May 2009.
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