Dietz v Hy-Tec Industries [2023] NSWPIC 370
[2023] NSWPIC 370
•25 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Dietz v Hy-Tec Industries [2023] NSWPIC 370 [2023] NSWPIC 370 |
| APPLICANT: | Mark Dietz |
| RESPONDENT: | Hy-Tec Industries |
| Member: | Karen Garner |
| DATE OF DECISION: | 25 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted injury to applicant’s right shoulder; whether requested right C6/C7 perineural cortisone injection is reasonably necessary to address the applicant’s injury; Held – the requested right C6/C7 perineural cortisone injection is reasonably necessary to address the applicant’s accepted right shoulder injury; respondent to pay the costs of and incidental to the requested right C6/C7 perineural cortisone injection pursuant to section 60. |
| determinations made: | The Commission determines: 1. The requested right C6/C7 perineural cortisone injection, which was requested by Dr Balsam Darwish on or about 30 August 2022, is reasonably necessary as a result of the accepted right shoulder injury on 31 January 2020. The Commission orders: 1. The respondent to pay the costs of and incidental to the requested right C6/C7 perineural cortisone injection in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Mark Dietz (the applicant) was employed by Hy-Tec Industries (the respondent) as a truck driver.
On 31 January 2020, the applicant injured his right shoulder in the course of his employment.
On 22 February 2020, that applicant made a claim for workers compensation in relation to the injury.[1]
[1] AALD by insurer dated 29.05.23; attached Reply page 6 (Worker’s Injury Claim Form) and see Reply page 10 (Employer Injury Claim Form).
By notice dated 13 February 2023, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer disputed liability for right C6/C7 perineural cortisone injection requested by Dr Balsam Darwish on 30 August 2022 (the requested right C6/C7 injection) on the ground that it disputed that the treatment was reasonably necessary as a result of an injury as required by s 60 of the Workers Compensation Act 1987 (the 1987 Act). The notice stated that the insurer accepted injury to the applicant’s right shoulder.
The applicant requested a review of that decision.
By notice dated 4 April 2023, issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision dated 13 February 2023.
On 1 May 2023, the applicant commenced proceedings in the Personal Injury Commission (Commission) by way of an Application to Resolve a Dispute (ARD).
On the 29 May 2023, the insurer responded by lodging an Application to Admit Late Documents (AALD), which attached a Reply to ARD.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At a conciliation/arbitration hearing, conducted by MS Teams on 27 June 2023, Mr Ty Hickey, counsel, appeared on behalf of the applicant, instructed by Mr Gabriel of Turner Freeman Lawyers, with the applicant in attendance. Mr Dewashish Adhikary, counsel, appeared on behalf of the respondent, instructed by Mr McCourt of Hicksons Lawyers, with Ms Dojcinovska in attendance on behalf of the insurer, Allianz.
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.
ISSUES FOR DETERMINATION
The insurer accepted injury to the applicant’s right shoulder on 31 January 2020.
The parties agree that the following issue remain in dispute:
(a) whether right C6/C7 perineural cortisone injection requested by Dr Balsam Darwish is reasonably necessary as a result of an injury, pursuant to s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) AALD by insurer, which attached a Reply to ARD
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant
The applicant gave evidence by way of a statement dated 27 April 2023.
The applicant stated that he was employed by Hy-Tec Industries (the respondent) as a truck driver.
The applicant stated that on 31 January 2020, he injured his right shoulder in the course of his employment when he slipped whilst trying to climb out from under a truck. The applicant stated that, as he slipped, his shoulder pulled because he was holding onto the truck with his right hand.
The applicant stated that MRI scans later confirmed that he has severe osteoarthritis in his shoulder and an articular subscapularis tear. On 12 August 2020, the applicant underwent a total shoulder replacement surgery, performed by Dr Mark Haber. However, the applicant’s pain did not subside.
The applicant stated that he was absent from work from the date of his shoulder replacement surgery to 10 November 2020 and he then returned to work on the basis of “light duties”. The applicant stated that, from around May 2021 until 1 July 2021, his duties included driving a front end loader, which caused pain and swelling of his right knee and also aggravated his shoulder injury.
The applicant stated that on 19 August 2021, he underwent ultrasound and CT scans to his right shoulder which showed a thickened subscapularis and supraspinatus.
The applicant stated that on 17 September 2021, he underwent an MRI scan of his right knee which showed severe medial compartment osteoarthritis. Also, on 6 October 2021, an X-ray of his right knee showed a similar finding.
The applicant stated that on 7 October 2021, he underwent a revision of his total shoulder replacement, however since that surgery, the applicant has experienced a reduced range of motion in his right shoulder and intensified right shoulder pain. The applicant has not returned to work since that surgery.
The applicant stated that on 18 November 2022, he also underwent a total knee replacement, which was accepted as a consequential condition of his accepted right shoulder injury.
The applicant stated that in early 2023, Dr Herald advised that he may require a revision right shoulder replacement because of ongoing shoulder pain. On or about 30 August 2022, before the applicant underwent such surgery, Dr Herald referred the applicant to Dr Darwish for diagnostic right C6 and C7 perineural cortisone injections.
The applicant stated that Dr Darwish recommended and requested that the applicant underwent cortisone injections to his C6/C7 as a diagnostic measure to exclude the possibility of his neck causing his right shoulder issues, even though the applicant has never experienced issues with his neck.
The applicant stated that as a consequence of his shoulder injury: he now has an overall weakness and a limited range of motion in his right shoulder; he can no longer push or pull heavy objects, and he experiences excruciating pain when he uses his shoulder. The applicant stated that he can no longer undertake many activities that he previously enjoyed.
Treating medical evidence
Dr Balsam Darwish, neurosurgeon
In a report dated 30 August 2022,[2] Dr Darwish recorded a history that the applicant had right shoulder replacement by Dr Haber in 2020 and revision one year later, however the applicant continues to complain of pain in the right shoulder and occasionally down the right arm.
Dr Darwish stated that the applicant has no sensory or motor symptoms in the upper limbs. On examination, Dr Darwish found that the applicant had weakness of shoulder abduction but otherwise the examination was unremarkable. Dr Darwish stated that MRI scan of the cervical spine showed bilateral C5/C6 foraminal stenosis with potential compression of both C6 nerve roots in the foramina and to a lesser degree bilateral C6/C7 foraminal stenosis with potential compression of both C7 nerve roots. Dr Darwish requested a diagnostic right C6 and C7 perineural cortisone injection and then to review the applicant further.[2] AALD by insurer dated 29.05.23; attached Reply page 15.
In a report dated 10 March 2023,[3] Dr Darwish stated that the applicant has no signs of radiculopathy, in particular no weakness or numbness, in the right C6 and C7 dermatomes or myotomes. Dr Darwish stated that the injection is a “diagnostic test to exclude/prove that the arm is related to nerve compression”. Dr Darwish stated that the requested right C6 and C7 perineural cortisone injections are a diagnostic test: if the applicant gets a response to the injections, that confirms that some of his right arm pain comes from compression of those two nerve roots. Dr Darwish noted that the applicant’s symptoms have not improved after shoulder replacement and revision.
[3] AALD by insurer dated 29.05.23; attached Reply page 16.
In a report dated 5 April 2023,[4] Dr Darwish set out a detailed medical history. Dr Darwish reiterated that the requested right C6 and C7 perineural cortisone injection is a diagnostic test to verify whether the applicant’s radicular arm pain is related to the right shoulder injury or to the compression of the C6 and C7 nerve roots. Dr Darwish stated that the requested right C6/C7 injection will not cure the applicant’s pain. He stated that it is diagnostic to see whether his right arm pain is due to the right shoulder pathology and surgery or due to compression of the right C6 and C7 nerve root. He stated that he believed the injection is reasonable and necessary.
[4] ARD, page 7.
Imaging
An MRI of the cervical spine taken on 11 July 2022 was reported as follows: [5]
“Comment
Multilevel uncovertebral joint arthropathy changes with the greatest level of disco-degenerative disease at C5/6.
The greatest level of bilateral neural exit foraminal narrowing is also at C5/6.
Further levels of moderate-to-severe neural exit foraminal narrowing are present at the left C3/4 level and left C6/7 level.
There is mild-to-moderate central canal narrowing at C5/6 secondary to disc osteophyte complex, which effaces anterior thecal sac and abuts the anterior aspect of the cord. No cord oedema or syrinx.”
[5] AALD by insurer dated 29.05.23; attached Reply page 25.
An X-ray of the right shoulder taken on 11 July 2022 was reported as follows: [6]
“Findings
Comparison – 13/12/2021.
Right shoulder replacement prosthesis noted.
Stable alignment relative to previous without any features of hardware-related complication. There is minor cortical irregularity at the inferior aspect of the glenoid. This is similar relative to the prior study.
The AC joint aligns normally.
...”
[6] AALD by insurer dated 29.05.23; attached Reply page 25.
Medical expenses
The applicant’s schedule of expenses contained a quote for the injection issued by Spectrum Medical Imaging on 15 March 2023 in the amount of $2,442.
Independent medical evidence
Dr Peter Bentivoglio, neurosurgeon
Dr Bentivoglio provided an independent medical opinion, qualified by the insurer.
In a report dated 31 October 2022,[7] Dr Bentivoglio diagnosed failed right shoulder surgery with persistent right shoulder pain. Dr Bentivoglio stated that the applicant also has degenerative disc disease in his cervical spine, constitutional in nature, with no evidence of a radiculopathy, even though he has multilevel foraminal stenosis. Dr Bentivoglio stated that there was no evidence of a myelopathy and he was not convinced that there was any evidence of a radiculopathy in the applicant’s upper limbs.
[7] AALD by insurer dated 29 May 2023; attached Reply page 18.
Dr Bentivoglio stated that in relation to the applicant’s cervical spine, he does not have any neck pain and he does not have any true brachialgic symptoms. The applicant did have right shoulder pain and restriction of shoulder movement but no pain radiating down below his elbow into his hand and no evidence or weakness or numbness of his hand or arm.
Dr Bentivoglio stated that the applicant did not describe any pain or neck issues at the time of his accepted shoulder injury. Dr Bentivoglio stated that undoubtedly the applicant does have pre-existing degenerative disease in his cervical spine, however that did not seem to be aggravated by the fall.Dr Bentivoglio stated that he did not believe that the pathology or the degenerative disease in the applicant’s spine with the foraminal stenosis is the cause of the current symptoms in his right shoulder. He stated that he did not believe that the C6 or C7 nerve root is implicated because they cause pain going below the elbow into the hands and numbness and weakness in the biceps and triceps area, which the applicant did not experience.
Dr Bentivoglio stated that he did not believe that reported symptoms in the applicant’s cervical spine are related to the work injury on 31 January 2020.In relation to the proposed C6 and C7 injection, Dr Bentivoglio stated that “It is reasonable to try the cortisone injection around the right C6 and C7 nerve but I do not believe that is going to significantly alter his pain situation in his right shoulder”. In relation to alternative treatments, Dr Bentivoglio recommended that the applicant should be handed back to the orthopaedic surgeons for review and referral for “appropriate treatment” of his shoulder.
In relation to the expected outcome of the proposed C6 and C7 injection, Dr Bentivoglio stated that:
“Even if he has the CT guided cortisone injection around the C6 and C7 nerve, this may give him short term benefit, it may not help him at all, but I do not believe has has a problem at the C5/6 and C6/7 level. He does certainly have degenerative disease there, but I do not believe the foraminal stenosis at the C5/6 and C6/7 level is the cause of his right shoulder issues.”
SUBMISSIONS
Counsels’ submissions were recorded.
Applicant’s submissions
In summary, on behalf of the applicant, Mr Hickey referred to various parts of the evidence. Mr Hickey submitted that the injury to the applicant’s right shoulder was accepted by the insurer. He submitted that the applicant has undergone two right shoulder surgeries however he continues to experience ongoing pain which radiates from his right shoulder. Mr Hickey referred to the evidence of the treating neurosurgeon, Dr Darwish, in relation to the requested right C6/C7 perineural cortisone injection. Mr Hickey stated that Dr Darwish confirmed that the injection is purely diagnostic and is reasonably necessary in the context of the applicant’s ongoing pain notwithstanding the previous right shoulder surgeries. Mr Hickey submitted that Dr Darwish’s evidence is persuasive and should be accepted.
Mr Hickey submitted that Dr Bentivoglio accepted that the requested right C6/C7 injection is a reasonable diagnostic tool and that the purpose was diagnostic. Mr Hickey submitted that the insurer did not seek any further opinion from Dr Bentivoglio to clarify his opinion.
Mr Hickey accepted that Dr Bentivoglio’s evidence is that the requested right C6/C7 injection would not change the applicant’s pain pattern, but submitted that is not the objective of the requested right C6/C7 injection as the purpose is purely diagnostic.Mr Hickey submitted that the applicable test for determining if medical treatment is reasonably necessary as a result of a work injury is that set out in Diab.[8]
[8] [2014] NSWWCCPD 72.
Mr Hickey submitted that, having regard to the evidence and applicable case law, the Commission should be satisfied that the requested right C6/C7 injection is reasonably necessary as a result of the accepted injury.
Respondent’s submissions
In summary, on behalf of the respondent, Mr Adhikary submitted that the applicant sustained an accepted right shoulder injury and left knee consequential condition. Mr Adhikary submitted that there is no evidence that the applicant’s cervical spine was aggravated nor that the applicant sustained injury to his cervical spine as a result of the accepted work injury. Mr Adhikary submitted that there is no evidence that the applicant had symptoms related to his cervical spine as a result of the accepted injury.
Mr Adhikary submitted that the sole purpose of the requested right C6/C7 injection is to exclude the cervical spine as an underlying causal factor of the applicant’s ongoing shoulder pain.
Mr Adhikary submitted that Dr Bentivoglio recorded a history that the applicant’s pain did not radiate below the elbow, that there is no evidence of any myelopathy nor radiculopathy in the applicant’s upper limbs and that Dr Bentivoglio’s opinion was that the C6 and C7 nerve roots were not implicated in the applicant’s ongoing shoulder pain. Mr Adhikary submitted that
Dr Bentivoglio’s statement that it was reasonable to try the cortisone injection around the right C6 and C7 nerve, needs to be considered in the context of his opinion that there is no evidence that the C6 and C7 level was implicated in the applicant’s ongoing right shoulder pain. Mr Adhikary submitted that, when Dr Bentivoglio’s report is read as a whole, it is clear that his opinion is that the requested right C6/C7 injection is not reasonably necessary as a result of the accepted right shoulder injury.Mr Adhikary submitted that, particularly having regard to the evidence of Dr Darwish, there is no evidence that the applicant experienced cervical spine symptoms, nor does the applicant have any signs of radiculopathy in the right C6 and C7 dermatomes or myotomes.
Mr Adhikary submitted that there is no evidence that the applicant sustained injury to his cervical spine nor a consequential condition to his cervical spine from the accepted injury. Further, the medical evidence demonstrates that the applicant’s right shoulder pain is not related to the C6 and C7 levels.
Mr Adhikary agreed that the applicable test for determining if medical treatment is reasonably necessary as a result of a work injury is that set out in Diab.[9]
[9] [2014] NSWWCCPD 72.
Mr Adhikary submitted that, on the balance of probability, the Commission should not be satisfied that the requested right C6/C7 injection is reasonably necessary as a result of the accepted injury.
Applicant’s submissions in reply
In reply, Mr Hickey submitted that there is no claim in respect of injury to the cervical spine and that the applicant’s claim relates only to injury to his right shoulder. Mr Hickey submitted that no findings are required to be made in relation to injury to the applicant’s cervical spine, and that the Commission would be in error if it did so.
Mr Hickey submitted that the requested right C6/C7 injection is directed towards the accepted right shoulder injury.
Mr Hickey submitted that Dr Bentivoglio’s report, obtained in 2022, stated his opinion that the requested right C6/C7 injection was “reasonable” and the insurer has not obtained any supplementary report of Dr Bentivoglio which clarifies statements made in his report.
Mr Hickey submitted that the Commission should find that the requested right C6/C7 injection is reasonably necessary as a result of the accepted injury.
CONSIDERATION
The law
Subsection 60(1) of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(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).
...”
Is the requested right C6/C7 injection “treatment” in accordance with s 60(1) of the 1987 Act?
The applicant seeks compensation for expenses of and related to the requested right C6/C7 injection in accordance with the request of Dr Darwish dated 30 August 2022.
The requested right C6/C7 injection is clearly “medical or related treatment (other than domestic assistance)” within the meaning of ss 60(1)(a) of the 1987 Act.
Is the requested right C6/C7 injection reasonably necessary?
In Diab,[10] Roche DP, referring to the decision in Rose, set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[11]
“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] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at
48A-C:‘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 tis place in the usual medical armoury of treatments for the particular condition.’”
[10] [2014] NSWWCCPD 72.
[11] [2014] NSWWCCPD 72, at [76].
Roche DP[12] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[13]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[12] [2014] NSWWCCPD 72, at [78].
[13] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[14]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably 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 is 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...”
[14] [2014] NSWWCCPD 72, at [86].
Roche DP found:[15]
[15] [2014] NSWWCCPD 72, at [88]- [89].
“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.
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.”
Appropriateness
The applicant’s credibility is not in dispute. Further, there is no dispute in relation to the history of investigations and treatment which is recorded in the treating medical evidence.
The evidence of the applicant and the treating practitioners consistently demonstrates, and I accept, that the applicant has reported significant pain, symptoms, restrictions and limitations in his right shoulder since the accepted right shoulder injury on 31 January 2020.
The evidence of the applicant and the treating practitioners also demonstrates, and I accept, that since the injury on 31 January 2020, the applicant underwent a total right shoulder replacement on 12 August 2020 and a revision of the total shoulder replacement on
7 October 2021.The applicant’s evidence is that he nevertheless continues to suffer significant ongoing pain, weakness and limited range of motion in his right shoulder. The applicant also continues to endure significant restrictions and limitations; he can no longer push or pull heavy objects; he experiences excruciating pain when he uses his shoulder, and he can no longer undertake many activities that he previously enjoyed.
The applicant’s evidence is that his treating general practitioner, Dr Herald, indicated that the applicant may require a further revision right shoulder replacement, and referred the applicant to Dr Darwish on or about 30 August 2022 for the requested right C6/C7 injection for diagnostic purposes prior to considering further right shoulder surgery.
On 30 August 2022, the applicant’s treating neurosurgeon, Dr Darwish, requested the requested right C6/C7 injection. Dr Darwish reported that the applicant’s right shoulder pain occasionally extends down his right arm. Dr Darwish’s evidence is that the requested right C6/C7 injection is reasonable and necessary for diagnostic purposes, to see whether the applicant’s right arm pain is due to the right shoulder pathology or due to compression of the right C6 and C7 nerve root. Dr Darwish’s evidence is that the requested right C6/C7 injection will not cure the applicant’s pain but is a diagnostic test for the purposes of treating the applicant’s ongoing right shoulder pain which radiates into his arm.
The evidence of the applicant and the treating specialist in relation to his ongoing pain, symptoms, limitations and restrictions are consistent and are not in dispute.
Dr Darwish acknowledged that the applicant has no signs of radiculopathy, in particular no weakness or numbness, in the right C6 and C7 dermatomes or myotomes.
Dr Darwish noted that an MRI scan (on 11 July 2022) of the applicant’s cervical spine showed bilateral C5/C6 foraminal stenosis with potential compression of both C6 nerve roots in the foramina and to a lesser degree bilateral C6/C7 foraminal stenosis with potential compression of both C7 nerve roots.
The imaging does not show any other significant abnormality that may explain the applicant’s ongoing symptoms.
On that basis, I accept that, notwithstanding the two shoulder surgeries, the applicant continues to experience significant ongoing pain in his right shoulder, which extends into his arm, and significant functional restrictions and limitations. Further, Dr Darwish recommends the requested right C6/C7 injection as a diagnostic tool for the purposes of treating the applicant’s ongoing right shoulder pain which radiates into his arm.
Availability of alternative treatment and its effectiveness
In relation to alternative treatments, Dr Bentivoglio recommended that the applicant should be handed back to the orthopaedic surgeons for review and referral for “appropriate treatment” of his shoulder. Dr Bentivoglio did not particularise any specific alternative diagnostic tool or treatment.
There is no significant evidence of any specific alternative treatment which will address the applicant’s pain, functional restrictions and limitations. The applicant has already undergone two right shoulder surgeries and imaging but continues to have significant symptoms.
It appears from the applicant’s evidence, and I accept that it logically stands to reason, that the requested right C6/C7 injection, as a diagnostic test, itself may lead to a potential alternative to further right shoulder surgery to treat the applicant’s ongoing right shoulder symptoms or alternatively may lead to the exclusion of potential treatment as a viable alternative.
Cost of the requested right C6/C7 injection
The applicant’s schedule of expenses contained a quote for the requested right C6/C7 injection issued by Spectrum Medical Imaging on 15 March 2023 in the amount of $2,442.
The parties have not raised the cost of the treatment as a significant issue.
Actual or potential effectiveness of the requested right C6/C7 injection
Dr Darwish explained, and it seems to be common ground, that the requested right C6/C7 injection is for purely diagnostic purposes and will not, of itself, be effective in treating the applicant’s ongoing symptoms in his right shoulder which occasionally radiate into his arm.
I note however, that there is some divergence of medical opinion regarding the actual or potential effectiveness of the requested right C6/C7 injection as a diagnostic tool relevant to the applicant’s right shoulder injury. I will address in detail under the next heading.
Acceptance by medical experts of the requested right C6/C7 injection
The independent medical expert qualified by the respondent, Dr Bentivoglio stated that even though the applicant has multilevel foraminal stenosis, that there was no evidence of a myelopathy and he was not convinced that there was any evidence of a radiculopathy in the applicant’s upper limbs. Dr Bentivoglio stated that the applicant did not describe any pain or neck issues at the time of his accepted shoulder injury. Dr Bentivoglio stated that the applicant does not have any neck pain and he does not have any true brachialgic symptoms. Dr Bentivoglio stated that the applicant’s pain does not radiate down below his elbow into his hand and there is no evidence or weakness or numbness of his hand or arm.
On that basis, Dr Bentivoglio did not believe that the pathology or the degenerative disease in the applicant’s spine with the foraminal stenosis is the cause of the current symptoms in the applicant’s right shoulder. Dr Bentivoglio stated that he did not believe that the C6 or C7 nerve root is implicated because they cause pain going below the elbow into the hands and numbness and weakness in the biceps and triceps area, which the applicant did not experience.
For those reasons, Dr Bentivoglio stated that he did not believe that the requested right C6/C7 injection would significantly alter the applicant’s pain situation in his right shoulder.
Mr Adhikary submitted that there is no evidence that the applicant’s cervical spine was aggravated nor that the applicant sustained injury to his cervical spine as a result of the accepted work injury. Mr Adhikary submitted that there is no evidence that the applicant had symptoms related to his cervical spine as a result of the accepted injury. With respect, I do not consider that I am required to make any findings in that regard in order to determine the issue in dispute.
Further, Mr Adhikary submitted that, particularly having regard to the evidence of Dr Darwish, there is no evidence that the applicant experienced cervical spine symptoms, nor does the applicant have any signs of radiculopathy in the right C6 and C7 dermatomes or myotomes. On that basis, Mr Adhikary submitted that there is no medical evidence that the applicant’s right shoulder pain is related to the C6 and C7 levels.
I accept that the respondent’s submissions do have some merit and there is some difficulty with the medical evidence.
However, I note that the purpose of the requested right C6/C7 injection is purely diagnostic and directed toward the applicant’s ongoing symptoms following his accepted right shoulder injury.
Considering the evidence as a whole, I do find the evidence of the applicant’s treating specialist, Dr Darwish, to be particularly compelling. He is an experienced specialist. Further, I consider that he provides a reasoned and logical explanation for the requested right C6/C7 injection having regard to the applicant’s significant history. I am of the view that it is particularly relevant that the diagnostic tool is being sought to be utilised after two unsuccessful right shoulder surgeries and prior to consideration of potential further right shoulder surgery. I consider that Dr Darwish’s reports were comprehensive and demonstrate a thorough approach to the diagnosis and potential treatment of the applicant’s accepted right shoulder injury.
Further, notwithstanding Dr Bentivoglio’s views in relation to the outcome of the requested right C6/C7 injection on the basis that he did not consider that the applicant had a problem at the C5/6 and C6/7 level which is the cause of his right shoulder issues, Dr Bentivoglio did accept that it was reasonable to try the right C6/C7 injection as a diagnostic tool for the purposes of treatment of the applicant’s right shoulder pain.
In Honarvar, Deputy President Snell accepted a recommendation for surgery in circumstances where the treating surgeon considered prospects of positive improvements with surgery to be “good” notwithstanding that the doctor could not guarantee a positive result.[16]
[16] Honarvar, at [182].
For all of the above reasons, considering the evidence as a whole in the context of the criteria referred to in Diab and Rose, I do feel a real sense of persuasion and I accept that, on the balance of probability, the requested right C6/C7 injection is reasonably necessary.
Does the need for the requested right C6/C7 injection arise as a result of a work injury?
A commonsense evaluation of the causal chain is required: Kooragang Cement Pty Ltd v Bates,[17] and Murphy v Allity Management Services Pty Ltd.[18] The applicant bears the onus of proof.[19]
[17] (1994) 10 NSWCCR 796 at [810].
[18] [2015] NSWWCCPD 49 at [57], [58].
[19] Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15, at [40] to [43].
There is no dispute that the applicant sustained injury to right shoulder on 31 January 2020 in the course of his employment. The insurer accepted liability and paid for previous surgery to the applicant’s right shoulder.
Dr Darwish made the request for the requested right C6/C7 injection as a diagnostic tool to assist in treatment of the accepted right shoulder injury.
As noted above, Dr Bentivoglio did accept that it was reasonable to try the right C6/C7 injection as a diagnostic tool for the purposes of treatment of the applicant’s right shoulder pain.
There is no evidence of any requirement or need for the requested right C6/C7 injection on any other grounds apart from as a diagnostic tool in relation to the accepted right shoulder injury.
Having regard to the evidence, I accept that the requested right C6/C7 injection is directed towards the accepted right shoulder injury.
Having regard to the evidence as a whole, I am satisfied that the requested right C6/C7 injection is reasonably necessary as a result of the accepted right shoulder injury on
31 January 2020.
SUMMARY
For all the reasons above, the following findings and orders are made:
The Commission determines:
(a)the requested right C6/C7 perineural cortisone injection, which was requested by Dr Balsam Darwish on or about 30 August 2022, is reasonably necessary as a result of the accepted right shoulder injury on 31 January 2020.
The Commission orders:
(a)the respondent to pay the costs of and incidental to the requested right C6/C7 perineural cortisone injection in accordance with s 60 of the 1987 Act.
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