Falentina v Assetlink Services (23) Pty Ltd
[2021] NSWPIC 162
•2 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Falentina v Assetlink Services (23) Pty Ltd [2021] NSWPIC 162 |
| APPLICANT: | Yossi Falentina |
| RESPONDENT: | Assetlink Services (23) Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 2 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Order sought by worker for the respondent to meet cost of right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction; reference to Rose v Health Commission (NSW) and Diab v NRMA Ltd; Held – surgery is reasonably necessary as a result of the worker’s injury; order made pursuant to section 60 (5) and 61 (4A) of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The arthroscopy of the right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction proposed by Dr Yong is reasonably necessary as a result of the injury sustained by the applicant on 11 April 2018. |
| ORDERS MADE: | 1. Pursuant to section 60(5) and section 61(4A) of the Workers Compensation Act 1987, the respondent is to pay for the arthroscopy of the right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction proposed by Dr Yong, and expenses reasonably incidental to that surgery. 2. The respondent is to pay for the reasonably necessary medical expenses for the treatment for the injury to the applicant’s right wrist and right thumb |
STATEMENT OF REASONS
BACKGROUND
The applicant, Yossi Falentina, sustained an injury to her right thumb and right wrist on 11 April 2018 while employed as a cleaner with the respondent, Assetlink Services (23) Pty Ltd.
The respondent has admitted the applicant sustained this injury. The applicant was paid intermittent periods of weekly payments of compensation and medical expenses until a dispute notice was issued by GIO on 7 November 2019 wherein it was disputed that the applicant had any ongoing incapacity for work as a result of that injury or the need for medical treatment for that injury.
The applicant seeks an order pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of an arthroscopy of the right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction proposed by Dr Yong.
The respondent maintains that the surgery proposed by Dr Yong is not reasonably necessary as a result of the injury sustained by the applicant on 11 April 2018.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Whether the arthroscopy of the right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction proposed by Dr Yong is reasonably necessary as a result of the injury sustained by the applicant on 11 April 2018 (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 27 May 2021. 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.
Mr Greg Young appeared for the applicant, instructed by Ms Semaan. Mr Philip Perry appeared for the respondent, instructed by Ms Whiting.
At the commencement of the hearing the applicant discontinued her claim for weekly payments of compensation and her claim for any injury or consequential condition affecting her right elbow and right shoulder.
In the course of the hearing, Mr Perry advised that the respondent did not oppose a general order for the respondent to pay for reasonably necessary medical treatment for the injury to the applicant’s right thumb and right wrist.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) A MRI scan report from Dr Chu dated 21 November 2019 and report from Dr Rimmer dated 13 May 2021, which were admitted into evidence at the hearing.
Oral Evidence
There was no application to adduce oral evidence or to cross examine the applicant.
The applicant’s evidence
The applicant has provided a statement dated 19 March 2021.
The applicant’s statement confirms that she has sought treatment from three specialists for ongoing pain in her right thumb and right wrist, being Dr Hargreaves, then Dr Dao, and lastly Dr Yong. She also states that she has undergone an extensive amount of physiotherapy, has had injections, and has been taking medication on a daily basis.
The applicant states that she wants to undergo the surgery proposed by Dr Yong to relieve her constant pain. She states that medication only provides her with short term relief. She states that she wants to recover from her injury so that she can return to work and not rely on her family to undertake domestic tasks around the home.
The medical evidence relied upon by the applicant
I was not able to locate any report or records from Dr Hargreaves in the ARD or Reply.
The applicant’s first attendance upon Dr Dao, orthopaedic surgeon, was on 19 March 2019. In a report of that same date, Dr Dao records that the applicant had swelling around the base of the thumb and marked tenderness surrounding the first CMC joint. He records that the CMC joint was unstable to varus and valgus stress tests as well as longitudinal traction, and that the compression test of the CMC joint was positive for pain.
Dr Dao writes in a further report dated 27 August 2019 that the applicant remains quite tender over the first CMC joint with a positive grind test. He writes that his preferred treatment is for a right thumb CMC arthrodesis.
The applicant states that she consulted Dr Sarah Yong for a second opinion on whether the arthrodesis would be beneficial for her. The applicant’s first attendance upon Dr Yong, orthopaedic hand surgeon, was on 12 November 2019. In a report of that same date, Dr Yong records that the applicant has tenderness at the base of the thumb and that the region of most pain is at the thumb base.
There is a second report in evidence from Dr Yong dated 12 November 2019, but that report seems to be incorrectly dated as it refers to a MRI scan taken on 21 November 2019. In that report Dr Yong states that she does not feel there is an indication for surgery at this stage and recommends hard splints and ongoing hand therapy.
In a further report dated 24 February 2020, Dr Yong records the applicant was still tender at the base of the right thumb and that the applicant would attend a New South Wales Hand Surgery Association meeting on 9 March 2020.
Dr Yong then writes in a report dated 9 March 2020 that the applicant had attended the New South Wales Hand Surgery Association meeting and that there was a recommendation to persist with hand therapy, but also for the applicant to undergo a bone/SPECT scan, and if that scan confirmed an irritable CMCJ and hand therapy had failed, then there was an argument to consider an arthroscopy of the CMCJ and reconstruction of the ligament.
A bone scan report from Dr Tow dated 6 April 2020 includes:
“There is arthropathy affecting the elbows, and to a lesser degree the wrists, right 1st to 3rd CMC joints, and left 3rd MCP joint.”
The applicant attended A/Prof Gumley, hand surgeon, at the request of her solicitors and A/Prof Gumley has provided a report dated 8 April 2020.
A/Prof Gumley states that he reviewed imaging studies, including the SPECT imaging from 6 April 2020.
A/Prof Gumley records that on examination he found the near full range of motion of the first carpometacarpal joint but on passive motion “there was notable and painful click within the joint that reproduces the pain which she is complaining.” He writes that the area of discomfort of notable clicking is consistent with injuries noted on imaging studies.
A/Prof Gumley recommends an updated high quality CT scan to evaluate the current status of the joint, and then following this evaluation an arthroscopy of the carpometacarpal joint. He writes that arthroscopic debridement of the area may be effective in improving thumb function and would confirm the need or otherwise of an arthrodesis of the joint.
Dr Yong has provided a report to the applicant’s solicitors dated 11 November 2020. She states that she saw the applicant again on 10 August 2020. Dr Yong makes reference to the report from A/Prof Gumley.
Dr Yong states that she agrees with A/Prof Gumley’s recommendation for an updated high quality CT scan and that following this the applicant is likely to require an arthroscopy of the right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction.
Dr Yong also refers to reports from Dr Rimmer, who has provided reports at the request of the respondent. She states that she does not agree with his opinion and that his report does not indicate that dynamic testing of the applicant’s thumb stability.
Dr Yong states:
“l presented Ms Falentina at the New South Wales Hand Surgery Association clinical meeting at Royal North Shore Hospital on the 9th of March 2020. She was reviewed by multiple hand therapists and hand surgeons. The general consensus was following investigation with a SPECT scan (which she did have on 6/4/20), an arthroscope of the 1st CMCJ +/- ligament reconstruction would be appropriate. On the basis of this, as well as Professor Gumley's comments on arthroscopy…I believe that the recommended treatment that I proposed is appropriate.”
Dr Yong further states:
“I indicated to Ms Falentina when I saw her on 10 Aug 2020, based on the report of the SPECT scan on 6/4/20, which indicated arthropathy affecting the wrists and right 1-3 CMCJ, and poor response to injections, that I am unable to completely predict the effectiveness of the recommended treatment, which is focused on the 1st CMCJ. However, I believe that it is likely that some resolution of her symptoms, if related to instability or impingement, may be resolved. An arthroscopy also has the advantage of direct visualisation of the affected joint, and may provide a clearer, and dynamic picture of articular damage or impingement.”
The medical evidence relied upon by the respondent
Dr Rimmer, orthopaedic surgeon, has provided reports dated 25 June 2019, 16 September 2019, 10 October 2019, and 13 May 2021, although he has only seen the applicant on the one occasion in June 2019.
In his report dated 25 June 2019, Dr Rimmer records the applicant being tender to firm palpitation over the right thenar eminence. Dr Rimmer does not provide a diagnosis in that report without the applicant undergoing further investigations.
In his report dated 16 September 2019, Dr Rimmer refers to a full body nuclear bone scan which reports: “There is no right 1st CMC joint abnormality.” This is in a report from Dr Beuzeville dated 30 August 2018. Dr Rimmer concludes that the applicant has been demonstrating abnormal illness behaviour.
In his final report dated 13 May 2021, Dr Rimmer lists the documents which he has reviewed, including the report from A/Prof Gumley, the reports from Dr Yong and the bone scan report of Dr Tow dated 6 April 2020. Dr Rimmer states that his views remain unchanged and that there is no surgical pathology present in the applicant’s right thumb and that the applicant demonstrates abnormal illness behaviour.
FINDINGS AND REASONS
Mr Young for the applicant submits that the findings and opinion as to the need for surgery provided by Dr Yong should be accepted in her role of treating specialist, especially when it is also the consensus of experts amongst her peers and supported by the opinion of A/Prof Gumley.
Mr Young submits that those opinions should be preferred over that of Dr Rimmer, who only saw the applicant on the one occasion in June 2019 and has only viewed radiology reports and not actual films, including the most recent bone scan taken in April 2020.
Mr Perry for the respondent refers to the full body nuclear bone scan report of Dr Beuzeville dated 30 August 2018 which reports there being no right first CMC joint abnormality and which forms the basis of the opinion of Dr Rimmer that the applicant has no surgical pathology in the right thumb.
Mr Perry points out that although Dr Yong agrees with A/Prof Gumley that an updated high quality CT scan to evaluate the current status of the joint should occur, this has yet to occur. He submits that the applicant is still in the process of being investigated and that the surgery proposed by Dr Yong is premature without further investigations being made.
Mr Perry submits that there should not be an order for the respondent to pay for ligament reconstruction as this is a significant procedure, there is no doctor who currently opines that there must be ligament reconstruction, and Dr Yong concedes that the surgical procedures she refers to “may need to occur in stages.”
There is consistent and compelling medical evidence which supports a finding that the applicant continues to suffer symptoms in her right thumb, especially in the first CMC joint. Dr Dao records the applicant having tenderness over the first CMC joint in March 2019 and August 2019.
Dr Yong consistently records the applicant having pain at the base of the right thumb. In her report dated 11 November 2020, Dr Yong states that the applicant was never pain free at five consultations between November 2019 and August 2020.
A/Prof Gumley records discomfort and notable clicking of the first CMC joint when he sees the applicant in April 2020.
Although there is no material from the New South Wales Hand Surgery Association meeting on 9 March 2020, the applicant presented herself to that meeting. I consider it reasonable to infer that those doctors in attendance also accepted that the applicant had ongoing symptoms in her right thumb due to their support (as reported by Dr Yong) for options for ongoing treatment.
I prefer the findings of Dr Dao, and the findings and opinion of Dr Yong and A/Prof Gumley, on the issue as to whether the applicant has ongoing symptoms in her right thumb, over the opinion of Dr Rimmer.
Firstly, Dr Rimmer has only seen the applicant on one occasion, and that was many months before the applicant commenced to attend Dr Yong and the applicant presented herself to the New South Wales Hand Surgery Association meeting on 9 March 2020. I prefer the more recent findings of Dr Yong, especially when it can be reasonably inferred that those findings are supported by her peers, and also by the findings of A/Prof Gumley.
Secondly, although it is not clear whether or not Dr Rimmer viewed imaging studies when he saw the applicant in June 2019, it is reasonable to conclude from the contents of his report dated 13 May 2021, which is a report provided without further examination of the applicant, that he has not viewed the imaging of the most recent bone scan dated 6 April 2020. That is significant, and in my view compromises Dr Rimmer’s opinion, because the imaging and report from the bone scan forms a basis for the opinions of Dr Yong and A/Prof Gumley that the applicant has ongoing pathology in the right thumb and that she requires the surgery proposed by Dr Yong.
Mr Perry points out that A/Prof Gumley does not refer to the bone scan in August 2018 which reports no abnormality in the first CMC joint. I also could not locate any reference to that scan in the reports of Dr Yong. However, it is only one scan amongst several. Dr Rimmer does not state why that bone scan should be preferred over the findings on other scans the applicant has undergone. Moreover, Dr Rimmer merely relies on what is reported by Dr Tow rather than viewing the films himself.
Thirdly, Dr Rimmer does not in his final report engage with any of the findings or opinions of Dr Yong. The applicant has had, since the one and only time she attended Dr Rimmer, several consultations with Dr Yong, proceeded along a path of treatment overseen by Dr Yong, attended a meeting of Dr Yong’s peers, and obtained a further bone scan. In my view a response from Dr Rimmer to the detailed report of Dr Yong dated 11 November 2020 requires more than merely stating that his opinion remains unchanged and that the applicant demonstrates abnormal illness behaviour.
There is also no response from Dr Rimmer to Dr Yong’s criticism that Dr Rimmer’s report does not indicate whether dynamic testing of thumb stability was undertaken.
The preponderance of medical evidence from those who have treated the applicant, supported by the opinion of A/Prof Gumley, allows me to be satisfied that the applicant has ongoing symptoms in her right thumb which require further treatment, and that finding is not defeated by the opinion provided by Dr Rimmer.
There is some ambiguity in the reports from Dr Yong regarding further treatment for the applicant. In her report dated 9 March 2020, Dr Yong writes that the recommendation from the New South Wales Hand Surgery Association meeting was to persist with hand therapy but if hand therapy had failed and a bone scan confirmed an irritable CMC joint, then there was an argument to consider an arthroscopy of the CMC joint and reconstruction of the ligament. However, in her report dated 11 November 2020, Dr Yong states that the general consensus from the meeting was that following the bone scan it was appropriate for an arthroscope of the first CMC joint and perhaps ligament reconstruction.
The applicant has also not undergone an updated high quality CT scan as recommended by A/Prof Gumley to evaluate the current status of the joint, despite Dr Yong agreeing with this recommendation.
I could not locate a separate report from Dr Yong in regard to the applicant’s consultation on 10 August 2020. There is no reference to any failure of hand therapy between March and August 2020, seemingly a precondition set by Dr Yong and by the meeting on 9 March 2020 for an arthroscopy to proceed. Dr Yong does refer in her report in November 2020 of the applicant’s poor response to injections.
However, what is apparent is that Dr Yong has come to the view by November 2020 that an arthroscopy of the right thumb carpometacarpal joint, with the option of debridement and ligament reconstruction once arthroscopic evaluation occurs, is now an appropriate course of treatment, and that this is supported by her peers, This is apparent when Dr Yong writes in her report dated 11 November 2020:
“The general consensus was following investigation with a SPECT scan (which she did have on 6/4/20), an arthroscope of the 1st CMCJ +/- ligament reconstruction would be appropriate.”
Dr Yong has certainly not rushed to her conclusion that surgery is appropriate. Her initial view after seeing the applicant in November 2019 was that there was no indication for surgery, and she recommended hand splints and ongoing hand therapy. As she continued to treat the applicant, and with the oversight of her peers, Dr Yong has come to view that it is now appropriate for the surgery she has now recommended to proceed.
I prefer and accept the opinion reached by Dr Yong, in her role as treating specialist, that the surgery she has proposed is reasonably necessary.
Furthermore, although Dr Yong agrees with A/Prof Gumley that an updated high quality CT scan may be of assistance, she does not state that this is a mandatory requirement for surgery to proceed.
Mr Perry refers to the decisions of Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) and Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), which include a consideration of the appropriateness of particular treatment and the availability of alternative treatment. I consider that Dr Yong has properly set out in her reports, especially her report dated 11 November 2020, the reasons for the proposed surgery and that alternative treatment has been exhausted.
What Burke CCJ also said in Rose, at [48A-C] is:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
In Casey v NSW Police Department (1999) 18 NSWCCR 592 (Casey), Bishop CCJ agreed with an earlier statement by Neilson CCJ in Chen v Sivieng, No. 17252/96 (unreported) that medical or related treatment is reasonably necessary “if it maintains the worker’s health or slows or prevents its deterioration.”
The applicant has been experiencing ongoing symptoms in her right thumb for over three years now. She has pursued an extensive course of conservative treatment but is now at a point where her treating specialist considers that it is likely that surgery will provide some resolution of her symptoms. Consistent with what has been said in Rose and Casey, the applicant should be given the benefit of that surgery in an effort to alleviate the consequences of her injury, and have the cost of that surgery met by the respondent.
I agree with the submission made by Mr Young that once Dr Yong proceeds with the arthroscopy, then Dr Yong should make a judgment when she views the relevant ligament as to whether a reconstruction should proceed. Dr Yong should have the flexibility to treat what is before her during surgery.
Having opined that a debridement and/or ligament reconstruction may be necessary, Dr Yong should not be constrained in performing treatment that is otherwise based on sound medical practice. Nor should the applicant have to undergo a further operation if what is reasonably necessary treatment can be provided by Dr Yong in the one surgical procedure.
There will be an order that the respondent is to pay for the arthroscopy of the right thumb carpometacarpal joint with arthroscopic debridement and ligament reconstruction proposed by Dr Yong, and expenses reasonably incidental to that surgery.
There will also be an order that the respondent is to pay for the reasonably necessary medical expenses for the treatment for the injury to the applicant’s right wrist and right thumb.
0