Fernandez v The Benevolent Society

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fernandez v The Benevolent Society [2022] NSWPIC 167
APPLICANT:	Rosa Fernandez
RESPONDENT:	The Benevolent Society
MEMBER:	Brett Batchelor
DATE OF DECISION:	19 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim by appellant for the cost of two staged surgery procedure proposed by Dr Papantoniou, namely L5/S1 fusion to be performed first, and the revision L3-S1 fusion, reasonably necessary as a result of injury to the lumbar spine on 2 March 2011; the respondent denies the reasonable necessity for such surgery, claiming that in accordance with Diab v NRMA Ltd that alternative pain management treatment should be first be pursued before the extensive and expensive two surgery proposed be embarked upon, and that the applicant’s social circumstances may be a driver of the applicant’s pain, accepting however the genuineness of her complaints of pain; the respondent also submits that the treating surgeon is the only specialist advocating surgery, and that his opinion lacks objectivity because of his failure to comply with Practice Note 3 of the Personal Injury Commission, or record any other declaration of objectivity; the respondent’s Independent Medical Examiner acknowledges a minor lumbar strain only as a result of the frank incident in which the applicant was involved; long history of conservative treatment with short term limited relief from pain or symptoms; Held- finding that the surgery proposed reasonably necessary as a result of injury on 2 March 2011.
DETERMINATIONS MADE:	1. The two staged surgery procedure proposed by Dr Papantoniou, namely L5/S1 fusion to be performed first, and the revision L3-S1 fusion, is reasonably necessary as a result of injury to the lumbar spine on 2 March 2011. 2. The respondent is to pay the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Rosa Fernandez (the applicant Mrs Fernandez) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery on her lumbar spine proposed by Associate Professor Papantoniou (Dr Papantoniou) as a result of injury arising out of or in the course of her employment as a care worker by The Benevolent Society (the respondent) in January 2011. Mrs Fernandez says that she was assisting an elderly client of the respondent to get out of the shower when she injured her lower back and neck on the right side.
The applicant consulted a doctor at a medical centre and was put off work. Rather than claiming workers compensation, Mrs Fernandez used her holiday leave while off work; she then returned to work with a light duties certificate, although claims that she was allocated the same jobs as previously performed. The incident was reported to the respondent as occurring on 2 March 2011.
The applicant says that she suffered a further injury on 9 May 2012 while attending a client. She felt a “pinch” or “snap” in her right lower back and right buttock region. She was off work about three months and returned on light duties, but eventually had to cease work in January 2013 when she says that her back “froze” whilst cleaning a client’s home in the course of her work. She has not returned to work since.
Mrs Fernandez has undergone a long history of treatment of her injury. Since 2013 she has been treated by the following specialists (in chronological order):
(a)    Dr Shivalingam, neurosurgeon;
(b)    Associate Professor Aggarwal (Dr Aggarwal), neurologist, and rehabilitation/pain medicine specialist, and
(c)    Dr Papantoniou, orthopaedic and spine surgeon.
Since 2014 the applicant has been assessed by the following specialists (in chronological order):
(a)    Dr Moloney, neurosurgeon;
(b)    Associate Professor Shatwell (Dr Shatwell), orthopaedic surgeon;
(b)    Dr Mastroianni, occupational physician, and
(c)    Dr New, orthopaedic surgeon.

The applicant was first examined by Dr Shatwell on 1 August 2014[1] at the request of the respondent’s insurer, Employers Mutual NSW Limited (EML), which on 15 September 2014 issued a notice pursuant to s 74 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act) in respect of the claimed date of injury of 2 March 2011[2]. EML denied that the applicant had suffered “a recurrence” as of 15 September 2014, relying on the assessment, findings, and opinion of Dr Shatwell who expressed the opinion that
Mrs Fernandez had suffered a minor strain or sprain of her cervical and lumbar regions in the initial incident of 2 March 2011, and following a period of treatment was issued with a final WorkCover Certificate on 28 September 2011 indicating that she had been fit for her
[1] Reply p 27, noting that page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] Reply p 9.
pre-injury duties from 18 June 2011. Dr Shatwell said that the respondent’s insurer had no liability for ongoing symptoms which were due to degenerative change and not substantially caused by the work injury of 2 March 2011.
The applicant was first seen by Dr Papantoniou on 19 March 2015[3]. He administered conservative treatment, predominantly in the form of right directed L5/S1 epidural steroid injections and steroid injections into the neck, which provided temporary relief.
[3] ARD p 27.
The applicant was re-examined by Dr Shatwell on 5 November 2015, who in a report of that date[4], expressed the opinion that she had not reached maximum medical improvement.
[4] Reply p 42.
Dr Shatwell noted Mrs Fernandez had been referred to Dr Papantoniou and seen him approximately six times in the previous year, and that Dr Papantoniou apparently advised that surgical treatment for the lumbar spine may be helpful.
On 20 July 2017 the applicant was re-examined by Dr Shatwell who in a report of that date[5] stated that he did not consider that any surgery was indicated for Mrs Fernandez’s “equivocal symptoms”. He found no clear indication for nerve root compression or disc fusion in the cervical or lumbar regions, and said that there was no likelihood that surgical treatment would be of any benefit whatsoever on the basis of current presentation.
[5] Reply p 51.
On 20 April 2018 the applicant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act supported by an assessment of Dr New dated 15 December 2017, who found that Mrs Fernandez had sustained 26% whole person impairment (WPI) as a result of injury to her lumbar spine and cervical spine.
On 22 June 2018 the applicant was re-examined by Dr Shatwell for a fourth time. In a report of that date[6] the doctor said that any soft tissue injury sustained on 2 March 2011 would have settled within a matter of a few weeks or three months at most. He did not consider that there was any objective impairment of the musculoskeletal system that could be linked to the injuries described. In a supplementary report of that date Dr Shatwell said that he did not consider that Mrs Fernandez had suffered any significant permanent injuries as a result of the incidents described as occurring on 2 March 2011 and 9 May 2012. Dr Shatwell commented on the assessments of Dr New of WPI in the cervical and lumbar spine. He said that there was no injury giving rise to a permanent impairment.
[6] Reply p 59.
This claim came before the Workers Compensation Commission on 6 June 2019 which issued a Certificate of Determination – Consent Orders containing the following determination:
“1. Application to Resolve a Dispute is amended at Part 5.3 to add a claim under section 60, particulars of which are to be provided within 21 days and a Medicare Australia Notice of Charge to be provided in due course.
2.     Award for the respondent in respect of the allegation of injury on 9 May 2012.
3.     Remit the matter to the Registrar for referral to an Approved Medical Specialist (AMS) to assess the degree of permanent impairment arising from the following:
Date of Injury: 2 March 2011
Body systems: lumbar spine, cervical spine Method of assessment: whole person impairment.
4.       The documents to be referred to the AMS for consideration are to include:
a.This Consent Order;
b.The Application to Resolve a Dispute and attached documents; and
c.The Reply and attached documents.
5.       Upon issuing the Medical Assessment Certificate, the matter is to be listed for telephone conference.
6. Any outstanding claims relating to weekly compensation and/ or section 60 expenses are to be dealt with at the telephone conference, or if not resolved, a date will be fixed for arbitration to determine those issues.”
The applicant discontinued her claim for lump sum compensation on a date which is not apparent from the evidence.
In reports to the applicant’s general practitioner up until 16 May 2019, Dr Papantoniou expressed the belief that the applicant’s pain was coming from the L5/S1 disc pathology. On 14 June 2019 Dr Papantoniou said that the applicant was best treated with an L5/S1 instrumental fusion[7]. He sent her for an up-to-date MRI scan and, with the result of that investigation, on 31 July 2019 expressed the belief that a limited L5/S1 fusion would no longer be adequate or appropriate. He said that Mrs Fernandez would be best served with a two stage L3–S1 instrumental fusion. That would address all three levels of disc pathology he found in her spine and stabilise the spine[8].
[7] ARD p 55.
[8] ARD p 57.
On 10 March 2020 EML issued a s 78 notice[9] in which liability for the L5/S1 laminectomy, decompression, and fusion, originally proposed by Dr Papantoniou, was disputed.
[9] Reply p 19.
On 20 March 2020 Dr Shatwell provided a report supplementary to his previous reports[10] in which he reviewed:
(a)    MRI lumbar spine of 29 July 2019 provided by Dr Kuan of St George MRI;
(b)    approval request to EML for L5/S1 fusion, and
(c)    letters of Dr Papantoniou dated 31 July 2019, 22 October 2019 and 17 December 2019 (x2).
[10] Reply p 72.
His opinion was that:
“…there was a gross exaggeration of Ms Fernandez’ musculoskeletal complaints, with no clinical or radiological evidence of injury. There is minor, age-related change in her lumbar spine. The persistence of pain over the last 8 years is not explainable on an organic basis. The inconsistent signs demonstrated at all of the examinations I have performed lead me to believe that Ms Fernandez has non-organic symptoms which are unlikely to respond to any medical intervention.”
and that:
“It is my considered opinion that Ms Fernandez will not benefit from the proposed
procedure (fusion L3 to S1).
I do not consider that this procedure would be necessary for the injury which occurred on 2 March 2011.
The intervention proposed is unlikely to either improve her quality of life or her chances of rejoining the workforce.”
On 30 April 2020 EML issued a s 78 notice in which liability for the proposed L3–S1 fusion procedure proposed Dr Papantoniou was disputed, noting that the double negative at the foot of the second page of that notice[11] was corrected by counsel for the respondent at the commencement of his submissions.
[11] ARD p 18.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the two staged surgery procedure proposed by Dr Papantoniou, namely L5/S1 fusion to be performed first, and the revision L3-S1 fusion, reasonably necessary as a result of injury to the lumbar spine on 2 March 2011?

PROCEDURE BEFORE THE 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 conciliation/arbitration hearing on 23 February 2022 conducted via telephone conference. Ms Grotte of counsel appeared for the applicant briefed by
Mr Santone. The applicant attended on a separate line. Mr Hanrahan of counsel appeared for the respondent briefed by Mr Robinson. A representative of EML also attended. The parties did not complete their submissions on that day and a Direction for Submissions was issued, which included a direction for lodgement of the reports of Dr New referred to in [21(c)] hereunder.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attachments;
(c)    Reports of Dr New dated 22 September 2016, 14 November 2017, and 15 December 2017, lodged by the applicant as late documents pursuant to a Direction for Submissions issued at the conclusion of the arbitration hearing on 23 February 2022;
(d)    the respondent’s written submissions dated 16 March 2022, and
(e)    the applicant’s written submissions dated 31 March 2022.
The reports of Dr New, which had been previously served on EML, were tendered by the applicant in response to a submission by the respondent that a Jones v Dunkell inference should be drawn against the applicant for her failure to put such reports into evidence. The respondent did not oppose the tender, hence the direction for lodgement of the reports.

Oral Evidence

There was no application to give oral evidence or to cross-examine the applicant.

SUBMISSIONS

The oral submissions of the parties are recorded, a transcript of which can be obtained on request. The written submissions have also been considered. They will not be repeated in full. In summary, they are as follows.

Applicant

The applicant summarised the evidence referred to in her three statements in evidence, dated 30 September 2013, 11 April 2019, and 29 October 2021[12]. She emphasises the lengthy conservative treatment she has undergone at the hands of Dr Papantoniou from when he first examined her on 19 March 2015, and the extensive nature of the two stage procedure recommended by him. Mrs Fernandez says that, although the many cortisone injections Dr Papantoniou has administered provided her with temporary relief, which lasts around three or four weeks, she does not know how much longer she can have them. As she does not have any other options, she wishes to proceed with the surgery, notwithstanding the fact that it will leave her with limited movement, could result in further surgery and may not relieve her back pain.
[12] ARD pp 2, 5 and 7.
The applicant submits that, although she consented to an award in favour of the respondent in respect of the allegation of injury on 9 May 2012, that was an incident which occurred which was causally related to the original injury to her back on 2 March 2011. It was a revelation of that original injury, as happened when he back “froze” in January 2013 and she was obliged to cease work.
The applicant submits that a detailed examination of the reports of the MRI scans of her lumbar spine from the date of the first of such scans on 20 July 2013[13] reveals pathology which has been taken into account by Dr Papantoniou in his treatment of her, but the significance of which is not commented upon or overlooked by Dr Shatwell. That first MRI scan revealed more than degenerative changes, and this is apparent from the detailed report by Dr Green on the MRI scan dated 15 February 2013[14]. There is an L3/4 right foraminal/ lateral disc protrusion and annular tear, on which Dr Shatwell makes no comment. This tear is in close proximity to the other tear at the right foraminal margin at the L4/5 level causing narrowing, noted by Dr Shatwell in his initial report dated 1 August 2014[15].
[13] ARD p 83.
[14] ARD p 85.
[15] Reply p 27.
The applicant submits that Dr Shatwell does not properly analyse the MRI scans, and that his opinion expressed in his original report is that the applicant suffered a minor strain or sprain of her cervical and lumbar regions in the initial incident of 2 March 2011. This opinion is evident in his subsequent reports, and becomes entrenched to the extent that in his report dated 22 June 2018[16] he expresses the opinion that Mrs Fernandez is grossly exaggerating her musculoskeletal complaints which have no clinical or radiological evidence of injury. The applicant submits that it is apparent from the report of Dr Shatwell dated 20 March 2020[17] that he has only read the report of Dr Kuan on the MRI scan of the lumbar spine dated 29 July 2019 and not viewed the scan itself, whereas Dr Papantoniou has viewed the scan.
[16] Reply p 59.
[17] Reply p 72.
The applicant submits that Dr Papantoniou, as the treating surgeon and who has treated the applicant over a period of six years, is best placed to comment on the applicant’s condition and recommend treatment that will best serve her. In this circumstance the applicant submits that the opinion of Dr Shatwell should be rejected.
The applicant also points to the early treatment of Dr Shivalingam, neurosurgeon, and
Dr Aggarwal, pain specialist, who treated her in 2013 and who both recorded complaints of back and right-sided leg pain. In a report dated 26 February 2012[18] Dr Aggarwal found that
[18] Reply p 78.
Mrs Fernandez had symptoms of a chronic neuropathic pain syndrome due to dysfunction of her lumbar facet, ligament, joint complex, and that the mechanism of injury was consistent with her current condition. This was in spite of the doctor’s opinion that surgical intervention was not required, and at least one year after injury in 2011.
The applicant notes that Dr Moloney, who examined her on 27 June 2013[19], found that she injured her back in 2011 and 2012, and remained symptomatic.
[19] Reply p 85.
In her written submissions the applicant first addresses the notation made by the respondent that there was a further incident occurring on 9 May 2012. The applicant says that this is not an issue in dispute, and that it has never been asserted that there is an alternative cause for the need for surgery, that is, apart from the injury she suffered on 2 March 2011. The applicant submits that the s 78 notice confirmed the only issue in dispute was whether the requested surgery was as a result of the injury on 2 March 2011, a matter that was confirmed at arbitration.
The applicant notes that the respondent made no actual submission in respect of this further incident on 9 May 2012.
The applicant submits that multiple doctors, including Dr Shatwell, considered that the event of 9 May 2012 to be “a recurrence of right sided pain on 9 May 2012 when she knelt to wash a patient’s feet”[20] (emphasis in submissions). Dr Shatwell also stated that “The nature of the incident on 9 May 2012 was not particularly forceful [sic] from the history of the incident and will not cause any soft tissue disruption”[21] (emphasis in submissions). The applicant’s case is that:
(a)    the incident of 9 May 2012 did not cause injury to the lumbar spine, but was simply a manifestation of the injury that had already occurred on 2 March 2011;
(b)    the entirety of weekly and medical benefits paid in respect of the back injury by the insurer to the applicant have been made pursuant to the accepted injury sustained on 2 March 2011;
(c)    if the respondent intended to argue that the need for surgery was due to other injuries in addition to the pleaded injury, then it carries the onus to disentangle the causative effect of those injuries. The respondent has not demonstrated this, and has made no submission to this effect, and
(d)    in any event, the injury caused by the incident on 2 March 2011 does not need to be the only contributing cause. The applicant is only required to establish that the need for surgery “resulted from”, that is it was “materially contributed to” by the injury received on 2 March 2011.
[20] Reply p 28.
[21] Reply p 35.

In making the last mentioned submission the respondent relies on the principles set out at [57] and [58] in Murphy v Allity Management Services Pty Ltd[22]. The applicant also relies on what Roche DP stated in Diabv NRMA Ltd[23] at [76]-[78] that in determining whether the proposed medical treatment is reasonably necessary, the Commission needs to “exercise prudence, sound judgement and good sense” and consider whether the purpose and potential effect of the proposed surgery is to alleviate the consequences of the injury (see Rose v Health Commission of New South Wales[24]).
[22] [2015] NSWWCCPD 49.
[23] [2014] NSWWCCPD 72 (Diab).
[24] (1986) 2 NSWCCR 32 at 48A (Rose).
In her written submissions the applicant emphasises the detail of the radiological investigations, particularly the results of the MRI scans, and reviews the evidence of:
(a)    Dr Papantoniou;
(b)     Dr Mastroianni;
(c)    Dr Aggarwal;
(d)    Dr Chesterfield Evans;
(e)    Dr Shivalingam;
(f)    Dr Moloney;
(g)    Dr Shatwell, and
(h)    Dr New,
relevant parts of which will be referred to hereunder.
The applicant submits that the Commission would be satisfied on the balance of the medical evidence, that radiological investigations do show disc lesions in her lumbar spine, and that all medical practitioners other than Dr Shatwell have accepted the applicant’s symptoms and in particular, the cause of pain in her lumbar spine as identified by neurosurgeon,
Dr Moloney who recommended facet block injections, and neurologist, Dr Aggarwal on referral from Dr Shivalingam, who provided paravertebral blocks.
The applicant submits that both Dr Moloney and Dr Aggarwal were attempting to treat an injury to the lumbar spine, and the fact that an annular tear was identified is indicative of trauma to the disc.
The applicant submits that Dr Mastroianni has provided a clear opinion which is consistent with an injury to the lumbar spine. Both Dr Chesterfield Evans and Dr Papantoniou, who have treated the applicant over many years, have clarified that the lumbar spine requires surgery.
The respondent submits that although Dr Shatwell accepted that an injury was sustained to the lumbar spine, in the form of aggravation of degenerative lumbar discs on 2 March 2011, he formed the view that the aggravation resolved after three months. There is simply no evidence of any resolution. The applicant submits that Dr Shatwell has underplayed the significance of the findings of the scans and also the applicant’s reports of symptoms.

Respondent

The respondent’s opening submission focussed on a genuine concern held by it that the behaviour on the part of one of the Associate Professors could be regarded as inappropriate over servicing. The denial of the respondent is based on the perception on the part of
Dr Shatwell as to the reasonableness of the procedure and the appropriateness of the treatment judged on an objective basis.
The respondent focusses on the factors highlighted by Deputy President Roche in Diab in respect of the reasonable necessity for treatment pursuant to s 60 of the 1987 Act, namely:
(a)    the appropriateness of the surgery recommended by Dr Papantoniou, noting that the applicant pleads her injury as the aggravation, acceleration, exacerbation, or deterioration of a disease, in which case the respondent submits that the date of injury should be the last day that the applicant worked for the respondent in January 2013;
(b)    the availability of alternative treatment, and its potential effectiveness, noting that all alternatives have to be considered;
(c)    the substantial cost of the treatment recommended by Dr Papantoniou;
(d)    the actual or potential effectiveness of such treatment, and
(e)    the acceptance by medical experts of the surgical treatment as being appropriate and likely to be effective.
The respondent notes the increase in the applicant’s weight since 2015, change in medication prescribed and questions as to whether there is another diagnosis for the applicant’s condition which has not been made by “multi-disciplinary observation”.
The respondent equates the length of time over which Dr Shatwell has been seeing
Mrs Fernandez, eight years, with the period during which she has been treated by
Dr Papantoniou, seven years. The respondent notes that it unrealistic for the applicant to expect that she shall experience no pain following the surgery recommended by
Dr Papantoniou, and that the doctor offers no guarantee that such will be the case. In respect of alternative treatment, the respondent notes that while she has had physiotherapy on her neck, she has given no evidence of such treatment on her back.
The respondent notes that the applicant was referred to two different psychologists by her general practitioner, and notes the referral to Spiro Anthony. The applicant’s evidence is that she stopped seeing them because she felt that no one could help her anymore. The respondent submits that there should be a report from a psychologist in evidence containing an assessment as to whether Mrs Fernandez was a suitable candidate for surgery. This needs to be assessed by the treating surgeon. The respondent submits that the lack of evidence of the applicant’s psychological condition allows an inference to be drawn that such evidence would not assist the applicant.
The respondent noted the seriousness of the surgery proposed by Dr Papantoniou, with a metal cage being inserted into the back. The respondent submits that the applicant, by saying that no one else can help her, is generating for herself the prospect of an unfavourable outcome from the surgery. The respondent notes that the applicant has been on the waiting list in the public system for surgery since 2015.
The respondent does not cavil with the applicant’s analysis of the pathological evidence, describing it all as “mild”. The respondent does however draw attention to the report on an
[25] ARD p 96.
x-ray to the applicant’s thoracic spine on 14 March 2013[25] which, although not directly relevant to her case, notes that “muscular spam” is referred to in the report. From this the respondent submits that the applicant may be susceptible to the slightest provocation, as an explanation for the painful symptoms of which she now complains.
The respondent submits that commonsense would dictate that the applicant should be referred to a multi-disciplinary pain clinic, noting that there is no report in evidence from a pain specialist other than that from Dr Aggarwal in 2015.
The respondent submits that social circumstances may be a major driver of the applicant’s pain, noting her divorce, change of name apparently as a result thereof and her desire to fall pregnant. The respondent also submits that:
“It may now be recognised as a notorious scientific fact that pain is considered in the context of a ‘bio psycho social’ model. Of all these significant drivers it is the social factors which most perpetuate the experience of pain.”
The respondent submits that there is no material in evidence that allows an assessment to be made as to the effectiveness, or reasonable necessity, of the surgical treatment proposed by Dr Papantoniou as opposed to alternative treatment.
The respondent also draws attention to the applicant’s evidence in respect of the incident of 9 May 2012, and that she did not have to seek any other treatment after returning to work following the 2011 injury until she says that she suffered a further injury on 9 May 2012.
The respondent submits that, in accordance with what was held in Nguyen v Cosmopolitan Homes[26] there must be an “actual persuasion” that the surgery proposed by Dr Papantoniou is reasonably necessary as a result of the injury which the applicant claims in the ARD is deemed to have occurred on 2 March 2011. All the matters to which the respondent draws attention must be addressed.
[26] [2008] NSWCA 246 at [55].
In its written submissions the respondent appears to question the objectivity of
Dr Papantoniou in offering his opinion, noting that at no time has the doctor make reference to Practice Note 3 of the Commission or any other declaration of objectivity, thus avoiding any statement that an overriding duty of an expert is to assist the Commission impartially. (emphasis in submissions). Neither does Dr Papantoniou acknowledge the paramount duty that he owes to the Commission, so that it is open to the Commission to view his opinions, expectations and beliefs as a form of advocacy for a party.
The respondent notes that Dr Mastroianni, an occupational physician, offers no opinion on the question of surgery, as one might expect of this speciality.
The respondent notes that Dr New does not discuss surgery but says that the results of his examination of the applicant are extremely difficult due to the perceived pain levels being so high as to present difficulty in examination of the cervical and lumbar spine. Dr New recommends a technetium bone scan and MRI of the cervical and lumbar spine, nerve conduction studies as well as a functional and vocational assessment. The respondent submits that it is significant that the applicant has not followed these recommendations of
Dr New, but that there are seven reports concerning epidural injections applied to the lumbar spine before June 2018, which had the effect of a reduction of pain. The applicant reported to her general practitioner, Dr Chesterfield Evans that they were very effective.
The respondent notes that Dr Papantoniou request for the more extensive surgery were sought to be justified on the basis of the two injuries suffered by the applicant at work. The respondent emphasises that any reasonable necessity for surgery in this case is limited to the consequences of the accepted injury on 2 March 2011, not the subsequent injury on 9 May 2012 in respect of which there was an award made in favour of the respondent in previous proceedings. The respondent further notes that treating doctors have taken histories and referred to injuries in the plural as a basis for their opinion.
The respondent notes the opinion of Dr Peter Moloney, neurosurgeon, whose opinion was sought to assist with claims management. Dr Moloney noted a number of other medical opinions available to him at the time, including Dr Brinda Shivalingham, neurosurgeon,
Dr Aggarwal, pain specialist and Dr Potter, rheumatologist. The respondent submits that few of these doctors form part of the applicant’s case apart from Dr Aggarwal, who notes that the applicant was preoccupied with the ultimate aim of falling pregnant, and Dr Shivalingham who advised the applicant in 2013 that the overall appearance of her lumbar spine was quite satisfactory.
The respondent then makes submissions on factors for consideration in accordance with criteria of reasonableness listed at [88] by Deputy President Roche in Diab.
The respondent submits that no independent expert has provided evidence of the acceptance of the procedure recommended by Dr Papantoniou, and that other experts whose opinions have been recommended have either not been obtained, or do not support the case put forward by the applicant. Therefore, according to the respondent, a Jones v Dunkell inference should be drawn in respect of the opinions of the experts whose reports have not been placed into evidence. That is, that the opinions of those experts would not assist the applicant’s case.
In conclusion of its submissions, the respondent does not challenge the genuine experience of pain reported by the applicant, but resists the proposition that such an extensive and expensive procedure as proposed by Dr Papantoniou is likely to bring about the benefit suggested with respect to the real source of the applicant’s “pain and disability”.

Applicant in response

The applicant notes the respondent’s acceptance that she is genuinely experiencing pain, and that there is some pathology. This is at odds with the opinion of Dr Shatwell, but is however, consistent with the medical evidence on which she relies.
The applicant rejects the submission made on behalf of the respondent suggesting that the applicant ought not have confidence in her treating surgeon, and further suggesting that
Dr Papantoniou was guilty of “overservicing”. The applicant submits that this is not an appropriate submission to make without any evidence to support it. The applicant submits that it its quite inappropriate to seek to undermine the confidence a patient has in her treating practitioner. The applicant notes that the therapeutic relationship has been built over many years, and is well established. It is important that the applicant have continuing confidence in her treating specialist to achieve a positive outcome.
The applicant also does not accept the respondent’s submission that she needs a psychological assessment to establish, presumably, some emotional reason for the lumbar spine symptoms. The weight of evidence is that the applicant is genuine in her complaints of pain, and no treating practitioner has questioned her genuineness, or the cause of her pain was the physical injury she sustained.

FINDINGS AND REASONS

Section 60 of the 1987 Act

In Diab, Roche DP at [88] listed the following relevant matters, according to the criteria of reasonableness, as including but not limited to the following when considering the reasonable necessity for treatment pursuant to s 60 of the 1987 Act:
(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.
The Deputy President noted that these were not necessarily limited to the matters noted by Burke CCJ in Rose. In that case, his Honour stated:
“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.”
At [89] in Diab Deputy President Roche said:
“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.”
The respondent in this case acknowledges the ongoing genuine experience of pain suffered by the applicant, but based on the opinion of Dr Shatwell, opposes the applicant’s claim that the surgery proposed by Dr Papantoniou is reasonably necessary as a result of injury on 2 March 2011. Dr Shatwell has been consistent in his opinion since first expressed on 1 August 2014 that Mrs Fernandez suffered a minor strain of her cervical and lumbar regions in the initial incident of 2 March 2011. Dr Shatwell has assessed the applicant on four occasions since 1 August 2014, and considers that the applicant is grossly exaggerating her musculoskeletal complaints. In his report dated 22 June 2018 he cannot explain the persistence of pain over the previous eight years on an organic basis.
Dr Papantoniou has treated Mrs Fernandez (then referred to as Mrs Fils-Aime) since 19 March 2015 when he said that it appeared that she had a very irritable lower back, the cause of which was most likely L4/5 and L5/S1 discs. He arranged a CT scan and MRI scan of the lumbar spine. Thereafter he treated her with a series of L5/S1 facet joint injections and epidural steroid injections, which provided temporary relief. This treatment has continued, with injections into the back, on the evidence up until 2019. In her statement dated 11 April 2019 Mrs Fernandez notes continued cortisone injections in her neck (not relevant to the current proceedings) and back once every five weeks, recommended by Dr Papantoniou, which she finds to be extremely beneficial. However, the doctor advises that these cannot continue indefinitely.
There are a number of reports from Dr Papantoniou in evidence addressed to Dr Con Costa, Dr Chesterfield Evans who has been the applicant’s long term general practitioner, and to
[27] ARD p 61.
Dr Zeng culminating with a medico-legal report to the applicant’s solicitor dated 14 September 2020[27]. Dr Papantoniou first recommended surgery in the form of L5/S1 fusion in a report to Dr Chesterfield Evans dated 15 June 2017, when he sent Mrs Fernandez for another right directed L5/S1 epidural steroid injection. However on 31 July 2019 when writing to Dr Zeng he said that he no longer believed a limited L5/S1 fusion was appropriate, but that the applicant was best served by a two stage L3-S1 instrumented fusion. Whilst awaiting approval to this surgery, Dr Papantoniou sent Mrs Fernandez for another right directed L5/S1 epidural steroid injection.
The respondent questions the objectivity and bona fides of Dr Papantoniou in his recommendation for surgery, submitting that it is open to the Commission to view the doctor’s “...opinions, expectations and beliefs expressed as a form of advocacy for a party”. The basis of this submission is that Dr Papantoniou has not complied with Practice Note 3 of the Commission or made any other declaration of objectivity, thus avoiding any statement that an overriding duty of an expert is to assist the Commission impartially. I do not accept this submission. The absence of the reference to the Practice Note or other declarations of objectivity in the two reports to the applicant’s solicitor dated 14 September 2020 and 6 December 2021[28] is noted. However, I do not accept that this affects the weight that I should give to the opinions and recommendations of Dr Papantoniou, who has treated the applicant over a long period of time. The doctor has administered extensive conservative treatment which has been of limited and finite benefit to Mrs Fernandez; he now recommends surgery.
[28] ARD pp 61 and 64.
In his report dated 6 December 2021 Dr Papantoniou comments on the report of Dr Shatwell dated 20 July 2017. He makes the following relevant observations:
“I also note that Dr Shatwell has not taken into account that Mrs Fils-Aime had longstanding lower back pain and was acutely aware it [sic] certain movements of her lumbar spine would aggravate her pain.
It is almost universal that patients in chronic pain exhibit guarding when a formal examination is undertaken. People generally try to avoid painful stimuli, which in this case is movements of the spine beyond a narrow restricted functional range of motion.
Under investigations Dr Shatwell appears to have reviewed an MRI of her lumbar spine from 8/ 2/ 2017. I note that Dr Shatwell considers this within normal limits. The report for this MRI states L3/ 4 and L4/ 5 degenerative changes with a left sided L4/5 small focal disc prolapse, which is at odds with Dr Shatwell’s opinion.
In answers to specific questions I note that Dr Shatwell describes Ms Fils-Aime’s symptoms as equivocal.”
Dr Papantoniou then notes that he first saw the applicant on 19 March 2015 and has been seeing her for more than six and a half years. He believes Dr Shatwell’s opinion that there is no definite evidence of nerve root irritation is erroneous. The fact that the applicant has received very specific pain relief from directed epidural steroid injections multiple times and at levels that are appropriate and match the imaging, demonstrates that the nerve roots are irritated. Dr Papantoniou says that the applicant’s only real options are ongoing non-operative management or surgical intervention. Non-operative management does not provide adequate analgesia, functional capacity improvement or any lasting relief. The best that has been achieved is some temporary pain relief and short term improvement in her functional capacity. The doctor goes on to say:
“I expect that this would stabilise her spine and decrease her pain levels. It is always unrealistic to expect someone after a major spinal fusion to be completely pain free. The aim is to decrease their analgesia requirements, improve their functional capacity and where possible get them back to some form of gainful employment.”

Dr Papantoniou says that the surgery he proposes is certainly an accepted form of treatment for the pathology identified on multiple MRIs.
Dr Aggarwal, neurologist, treated the applicant in 2013 and reported thereon on 26 February and 10 April 2013[29]. He found symptoms of a chronic neuropathic pain syndrome due to dysfunction of the lumbar facet, ligament, joint complex. He did not advise surgery at that time, but recommended medications and pain management with future consideration being given to lumbar paravertebral blocks.
[29] ARD pp 73 and 75.
Dr Moloney, neurosurgeon, examined the applicant on 27 June 2013 and reported on that day[30]. He was of the opinion that the applicant injured her back at the beginning of 2011 and in May 2012. He said that the likely pain generators were the lower facets (L4/5, L5/S1) on the right side, and that when these pain generators had been treated, Mrs Fernandez could be assessed for a graded return to work.
[30] Reply p 85.
Dr Mastroianni, consultant occupational physician, examined the applicant and reported on the result of that examination on 30 July 2015[31]. He expressed the opinion that as a result of the incident in 2011 Mrs Fernandez sustained a lumbar disc lesion which progressively got worse and was further exacerbated in the incident in 2012. He assessed 13% whole person impairment as a result of injury to the lumbar spine.
[31] ARD p 68.
Dr New independently medically examined the applicant on 19 September 2019 and produced reports referred to above at [21(c)]. He noted that Mrs Fernandez continued to have debilitating neck and back pain, had lumbar spondylosis, and assessed 10% WPI as a result of injury to the lumbar spine.
In respect of the respondent’s submission that treating doctors have taken histories and referred to injuries in the plural, as the basis of their opinion, I accept that the significant injury to the applicant’s lumbar spine occurred on 2 March 2011, and that what occurred on 9 May 2012 was a manifestation of the earlier injury. The respondent has paid benefits in respect of this injury, and this finding is in accordance with the opinion of Dr Mastroianni who found that the lumbar disc lesion was sustained in 2011 and progressively got worse and was further exacerbated in the incident in 2012.
Dr Chesterfield Evans who has been the applicant’s long term general practitioner has provided an extensive report dated 5 December 2016[32] containing a diagnosis of chronic low back pain due to a disc at L5-S1, osteoarthritis of the L5-S1 facet joints bilaterally, and disc desiccation at L3-4 and L4-5 with right sacroiliac pain. He said, at that earlier stage, that surgery was required for the chronic condition from which the applicant suffered, without which her condition was likely to worsen.
[32] ARD p 77.
I do not accept the respondent’s submission that the applicant should be referred to a multi-disciplinary pain clinic before the reasonable necessity of surgery is considered or that, in accordance with the submission referred to at [49] above, social circumstances may be a major driver of the applicant’s pain. There is no evidence to support this submission.
I do not accept the respondent’s submission in [42(a)] above that the date of injury should be other than 2 March 2011. The respondent accepts that the applicant suffered an injury to her lumbar spine on 2 March 2011.
It is apparent from the applicant’s statement dated 29 October 2021 that Mrs Fernandez, with the assistance and advice of Dr Papantoniou, has given serious consideration to the surgery now proposed. At the conclusion of his report dated 6 December 2021 Dr Papantoniou gives a realistic forecast of what the applicant can expect from the surgery he proposes, saying that it is unrealistic to expect someone after a major spinal fusion to be completely pain free. Nevertheless, he believes there would be a significant benefit to the applicant to have the two stage L3-S1 instrumented fusion in terms of long term pain improvement and functional capacity improvement.
In terms of what Deputy President Roche said at [89] in Diab, referred to at [66] above, my view is that there is insufficient evidence to show that the outcome forecast by
Dr Papantoniou could be achieved by a different treatment, but at a much lower cost. The cost of the surgery will be significant, but it is unlikely that the applicant will have the prospect of a reduction in her pain level and increase in functionality without the surgery.
In terms of what his Honour Burke CCJ said in Rose, I think that the surgery is essential if the applicant is to have a chance to improve her current situation, and it should be afforded to her.

SUMMARY

The applicant has discharged the onus on her to show that the surgery proposed by
Dr Papantoniou, a two stage L3-S1 instrumented fusion, is reasonably necessary as a result of injury to the lumbar spine on 2 March 2011.
The respondent is to pay the costs of and incidental such surgery pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 167

19 April 2022