Ellis v Sydney Equestrian Supplies Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ellis v Sydney Equestrian Supplies Pty Ltd [2023] NSWPIC 542
APPLICANT:	Andrew Ellis
RESPONDENT:	Sydney Equestrian Supplies Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of proposed cervical surgery opposed on grounds it is neither reasonably necessary nor does the need arise from an accepted work-related injury; Held – the applicant suffered injury to his cervical spine in the course of his employment with the respondent; the proposed cervical spine surgery is reasonably necessary as a result of the applicant’s injury; the respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his cervical spine in the course of his employment with the respondent on 21 February 2018. 2. The surgery proposed by Dr Singh is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Andrew Ellis brings proceedings seeking payment for the cost of a proposed C6/7 decompression and fusion as recommended by his treating surgeon, Dr Singh.
The applicant was employed by the respondent, Sydney Equestrian Supplies Pty Ltd as logistics manager. On 21 February 2018, the applicant was lifting a bag of stock weighing approximately 25 kg out of the boot of his car, and as he twisted while carrying the bag, experienced immediate pain and stiffness in his neck and arms.
The applicant reported the injury to the respondent and consulted his general practitioner who recommended an X-ray which revealed no break or fracture. The applicant took some time off work before returning in or about early March 2018. He states his condition deteriorated and caused increasing pain in both shoulders and arms, causing him to eventually stop work on or about 11 July 2018.
The respondent disputes liability for the proposed surgery, alleging it is neither reasonably necessary nor the need for it arose as a result of the applicant’s injury.

ISSUE FOR DETERMINATION

The parties agree that the only issue in dispute is whether the proposed surgery is reasonably necessary as a result of the applicant’s injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 10 October 2023. The applicant was represented by Mr Horan of counsel. The respondent was represented by Mr Allen Parker of counsel.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments, and
(b) Reply and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed surgery is reasonably necessary as a result of the applicant’s injury

The test of reasonable necessity in the workers’ compensation context is essentially a two-step one. Not only must the treatment itself be reasonably necessary, but the need for it must be brought about as a result of a worker’s injury.
The principles of causation and reasonable necessity are different and must be kept distinct in s 60 claims. It is frequently a separation which is lost, or the differing principles misunderstood. For example, if a worker sustained an injury as defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) which was an aggravation of arthritis in a hip joint and associated with a level of pain one week post-injury which would be an indicator for the need for hip replacement, the need for the hip replacement at that time would result from the injury. However, if the evidence established that all symptoms would resolve completely of their own accord in another week or so, the hip replacement at that one week point would not be reasonably necessary as a result of the injury.
A medical practitioner may advise a worker who has suffered an injury that they need a certain course of treatment. That practitioner may also advise that without the injury, they would have inevitably have come to the same surgery. The question which is relevant, and highlights the distinction between mere “but for” causation and “common sense causation” which is used in the workers’ compensation context is: Did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed?
In Taxis Combined Services (Vic) Pty Ltd v Schokman [2014] NSWCCPD18, the worker, who was a taxi driver, was assaulted in the course of his employment. He suffered extensive facial injuries during the assault, which eventually resulted in the loss of four teeth, requiring treatment with a four-unit fixed bridge. At the time of this treatment, it was noted the worker had pre-existing periodontitis which was unrelated to the assault. In 2012, the applicant’s bridge broke, and in examining him in relation to that issue, a further complication of periimplantitis was identified, requiring treatment. The insurer denied liability for treatment related to the periimplantitis and periodontitis, in part due to the worker’s pre-existing periodontitis, as well as his poor oral hygiene and history of smoking.
Deputy President Roche confirmed the Arbitrator’s decision finding that the treatment was reasonably necessary as a result of the injury. After referring to the trite law in ACQ v Cook that a condition may have multiple causes, the Deputy President stated on causation:
“It follows that, even if it were accepted that the periimplantitis was ‘caused’ (in the sense of being materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of common sense, the need for the proposed treatment has arisen ‘as a result of’ the injury. That is because, as Dr Roessler explained, the periimplantitis is ‘only there because [the worker] has implants’. This is not a matter of merely saying that ‘but for’ the presence of the implants, the worker would not have periimplantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants), even if other factors were also present that may have also contributed to that need”. (At [54]).
The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab v NRMA Limited [2014] NSWCCPD 72 (Diab). In that matter, the Deputy President cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 SWCCR233. Broadly, treatment will be considered reasonably necessary if the Commission finds it is preferable that the worker should have the treatment than it be forborne.
In Diab, Roche DP also noted the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment is absolutely necessary.
At [88] in Diab, the relevant matters to be taken into consideration in determining reasonable necessity include, but are not necessarily limited to, the following:
(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.
In this matter, the respondent relied on the opinion of Dr Rimmer, independent medical examiner (IME) who diagnosed the applicant’s condition as follows:
“With regards to the cervical spine, today’s examination was normal. This is in conjunction with minimal degenerative change at C6/7.”
An examination of the contemporaneous radiological investigations reveals that Dr Rimmer’s diagnosis is erroneous.
On 25 July 2018, the applicant underwent an MRI which relevantly diagnosed the following:
“At C6/7, there is a moderate sized posteriocentral to left paracentral disc protrusion noted which is causing mild to moderate flattening of the left anterior aspect of the cord with no definite signal alteration of the cord. At this level, there is no significant neural exit foraminal narrowing scene.”
The applicant also underwent a further MRI on 23 September 2019. Although the report of that investigation is not in evidence, it is referred by the applicant’s IME, A/Prof Papantoniou in his report dated 19 April 2023. In that report, A/Prof Papantoniou stated:
“Mr Ellis presented with an MRI of the cervical spine from 23/9/2019 performed at High Street Medical Imaging.
I have viewed the actual images.
This demonstrates a C6/7 posterior disc prolapse which is impinging on the dura and the cord. The disc is central and left-sided…
Given all of the above, I believe Mr Ellis’ C6/7 disc prolapse was an acute injury suffered at the time of the accident and as the primary injury suffered from that accident.”
On balance, I prefer the views of A/Prof Papantoniou to those of Dr Rimmer.
A/Prof Papantoniou’s diagnosis is broadly consistent with the radiological investigations, whereas Dr Rimmer’s plainly is not. In circumstances where medical experts are asked to address the reasonable necessity of a given treatment modality to demonstrated pathology arising from a given injury, correct identification of that pathology is plainly an important step in their opinion carrying sufficient weight to be persuasive.
However, the contest between the respective IMEs is not the full extent of the medical evidence in the matter. The respondent also relied upon the reports of former treating surgeons, Dr Eftekhar and Dr Gray. The applicant consulted each of those experts in mid to late 2018. In his report dated 19 July 2018, Dr Eftekhar confirmed the presence of disc protrusions at C6/7 with possible compression of the C7 nerve root and as such, confirmed a diagnosis broadly consistent with that of A/Prof Papantoniou. In terms of reasonable necessity of treatment, Dr Eftekhar stated:
“We have explained to [the applicant] that these symptoms are suggestive of facet joint arthropathy and that the disc bulge in the cervical region is not entirely consistent with his symptomatic distribution. It is likely that his symptoms are secondary to facet joint arthropathy which may need to be managed depending on the results of the MRI scan. We have asked Andrew to return with an MRI scan of the cervical and thoracic spine to further elucidate his symptoms and differentiate a cause.”
For his part, Dr Gray provided a report to the applicant’s general practitioner dated 23 October 2018. In reviewing the investigations, Dr Gray viewed the MRI from 25 July 2018 which he stated:
“shows a broad based C6/7 disc bulge slightly more to the left than the right. There is some mild anterior CSF effacement but no compromise to his spinal canal with adequate CSF around the spinal cord at that level. There is no significant foraminal stenosis at C6/7. The rest of his cervical spine is within normal limits for his age.”
In terms of recommendations for treatment, Dr Gray stated there was no significant compromise to the C6/7 foramen which would require surgical intervention and he would be reluctant to attribute all of the applicant’s pathological changes to his then clinical presentation, despite the applicant clearly having some inflammatory radiculopathy which involves more than one nerve root. In the circumstances, Dr Gray recommended persisting with a conservative approach.
The applicant underwent an anaesthetic injection to the C6/7 disc space. As treating surgeon, Dr Singh noted in his report to the respondent’s solicitors dated 6 May 2022:
“An injection at C6/7 reproduced his symptoms of arm pain, and he had relief of arm symptoms during the anaesthetic phase. He has had an MRI scan of the brachial plexus which reports avascular malformation in the left supraclavicular fossa. It is unlikely to be causing his symptoms of neck and periscapular pain.”
In my view, the applicant having gained some benefit to his symptomology during the anaesthetic phase of an injection to the C6/7 nerve root is suggestive of pathology at that level being causative of his neck and arm symptoms.
Whilst there is variance as to the diagnosis of the applicant’s cervical spine condition, there is no dispute between the medical experts that a cervical spine injury was suffered. Although
Dr Rimmer in my view incorrectly classifies the applicant’s neck condition as being a resolved musculoskeletal strain, he does not dispute the presence of a cervical spine injury.
Having found the applicant’s injury was in the nature of disc pathology at C6/7, the real medical contest in this matter is between Dr Singh and the applicant’s IME,
A/Prof Papantoniou on the one part and the views of Dr Eftekhar and Dr Gray on the other.
As Mr Horan noted, the fact the applicant had available to him conservative treatment options does not render the proposed surgery unnecessary. It is trite to say that in cases involving orthopaedic injury there will always be conservative treatment options available, be they pain medication, physical therapy or a combination of the two. The mere availability of those treatments is not determinative of whether a surgical option is reasonably necessary.
In my view, whilst the opinions of Drs Eftekhar and Gray are of themselves reasonable, there has now been a five year effluxion of time since their reports were written. During that period, it is apparent the applicant has had the needle to the C6/7 area which provided temporary relief (strongly suggestive of this disc space being the cause of his problems) and has also had the benefit of conservative treatment over a lengthy period of time to no avail.
On balance, I am persuaded by the views of treating surgeon Dr Singh, supported as they are by A/Professor Papantoniou. Broadly, those views are the applicant has suffered a disc bulge/prolapse at C6/7 which is the cause of his ongoing neck and upper limb symptoms. Dr Singh deals with Dr Rimmer’s diagnosis and notes:
“I disagree with the diagnosis that the patient has had musculoskeletal strain in the cervical spine and soft tissue injury to his shoulder which has resolved. His diagnosis is not the strain. His diagnosis is disc herniation at C6/7 secondary to the injury. This has not resolved because he continues to be symptomatic.”
When dealing with treatment options for the applicant’s condition, Dr Singh stated:
“Treatment options for cervical disc herniation with radicular symptoms include pain, medication, physiotherapy, pain psychology, medication, injections and surgery. In the last three years since I have seen him [noting Dr Singh has seen the applicant on eight occasions during that period], he has failed to respond to all conservative options. Surgery is, therefore, reasonably necessary. Surgery is appropriate in the setting of ongoing symptoms. The aim of surgery is to decompress the nerves and stabilise the injured motion segment. Surgery is appropriate and the accepted mode of treatment among the community of practising spine surgeons.”
I accept that view of Dr Singh, noting he has the benefit as treater of having consulted the applicant over a lengthy period of time and of seeing the benefit or otherwise to the applicant of the conservative treatment modalities which have been attempted. Additionally, I note Dr Rimmer has applied the incorrect test in relation to the proposed treatment modalities, opining that they are not “reasonable and/or necessary”. Although little turns on that distinction, it is an important one in light of Deputy President Roche’s comments in Schokman. Nevertheless, having rejected Dr Rimmer’s diagnosis of the applicant’s condition, the fact he has adopted a more stringent and incorrect test is, in the context of this matter, a moot point.

SUMMARY

On balance, I am satisfied on the balance of probabilities, having adopted a commonsense approach to the causal chain, that the applicant suffered an injury to his cervical spine in the course of his employment with the respondent on 21 February 2018, and that the proposed C6/7 anterior discectomy and fusion proposed by Dr Singh is reasonably necessary as a result of that injury.
Adopting the criteria in Diab, I find the proposed surgery to be appropriate, that the alternative conservative treatment has been ineffective, the cost of the proposed surgery is not suggested to be prohibitive, it has the potential to remediate the applicant’s symptoms at least in part if not totally, and is a procedure widely accepted by medical experts for disc prolapses/herniations with radicular symptomology.
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 542

16 October 2023