Finlayson v Countrymade Furniture Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Finlayson v Countrymade Furniture Pty Ltd [2024] NSWPIC 242
APPLICANT:	Todd Finlayson
RESPONDENT:	Countrymade Furniture Pty Limited
MEMBER:	Diana Benk
DATE OF DECISION:	9 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed spinal implant; dispute whether the treatment is reasonably necessary as a result of the accepted injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Ltd discussed and applied; Held – the provision of the implant is reasonably necessary as a result of workplace injury.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay the applicant’s reasonably necessary medical expenses with respect to the provision of the Mainstay/ReActiv8 spinal implant and associated expenses, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Finlayson (the applicant) sustained injury to his lumbar spine in the course of his employment as a benchtop manufacturer with Countrymade Furniture Pty Ltd (the respondent). The respondent and its insurer accepted liability and have since the injury on 8 November 2018 funded various forms of conservative treatment which have to date been successful in returning the applicant to work albeit not at pre injury level with a different employer.
As a result of ongoing symptoms, the applicant requested the insurer fund a spinal implant (Mainstay/ReActiv8 spinal implant).
Following assessment, the respondent declined this treatment maintaining amongst other things that the appropriateness was not confirmed, effectiveness and the need for the device and its relationship to the injury was unclear and all alternative treatment options had not been exhausted.[1] On further internal review, the respondent maintained its decision on the basis the treatment was not supported by its independent medical expert, the actual or potential effectiveness was not evident and alternative treatment had been recommended.[2]
[1] Folio 11 Reply – s 78 notice dated 9 June 2022.
[2] Folio 15 Reply.
An application to the Personal Injury Commission (Commission) was filed. The matter underwent the usual case management pathway. Following conciliation impasse, the parties requested determination.
The applicant was represented by Mr Carney of counsel instructed by Ms Tavianatos. The respondent was represented by Mr Stockley of counsel instructed by Ms Kaur. Mr Massih was the insurer representative.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD), the Reply and the law found in the Act. No oral evidence was adduced.

ISSUES FOR DETERMINATION

The only issue for determination is whether the Mainstay/ReActiv8 spinal implant is reasonably necessary medical treatment with reference to s 60 of the Workers Compensation Act (1987) (the 1987 Act).

EVIDENCE

Applicant’s evidence

In his written statement the applicant describes past treatment including physiotherapy, cortisone injection, radio frequency ablations, exercise physiology and psychological support all with limited benefit. He describes ongoing chronic pain, aching in nature but also stabbing and pinching, radiating down the left leg, disturbed sleep, reduced tolerances with regards to walking, standing, sitting and stair negotiation, altered gait and limping, difficulties with putting on shoes and socks, sudden onset of pain on uneven ground, pain ranging from 4/10 at best and 8/10 at worst, a reliance on Codeine, Panadeine Forte, Panadol and Nurofen, anxiety and irritability.[3] He is now 34 years of age.
[3] Folios 1-3 of the ARD.

Associate Professor Boesel

Associate Professor Boesel (qualified) took a history of the injury (which is not in dispute) and summarised the conservative treatment regime which to date was recorded as having provided short term relief.
As at 18 November 2022, he reported the applicant had a “constant lower back pain up to 8/10 on the visual analogue score…symptoms flare with activity and he has become somewhat avoidant”. He recounted a general interference with activities of daily living consistent with the applicant’s statement in paragraph 8 above.
Physical examination[4] findings were reported as (unedited):
“Mr Finlayson displayed good rapport and no pain behaviour during the consultation. On spinal examination, he had a markedly positive Schober test with minimal spinal flexion evident and no extension. On return to upright posture from his spinal flexion, he was quite dyskinetic. I examined him specifically for multifidus muscle dysfunction. The prone lumbar instability test (performed as described by the literature) was somewhat equivocal as he had difficulty performing the test. He certainly had considerable pain in his lumbar spine on mechanical loading. The multifidus lift test (again is performed as described by the literature) was positive with the failure of the multifidus muscle to activate on contralateral upper limb lift”.
[4] Folio 19 of the ARD.
It was concluded the applicant suffered from “mechanical lower back pain” and he pondered whether multifidus muscle dysfunction was the primary driver of pain but refrained from definitive comment until viewing MRI scans, further reporting that if the multifidus muscle was involved that the applicant would continue to experience symptoms until it was appropriately treated.
As regards treatment (pending assessment of the MRI investigation), he reported (unedited):
“ReActiv8 neurostimulation implant functions to actively regenerate the function of the multifidus muscle in the lumbar spine. This is achieved by two 30-minute periods of stimulation daily. The implant is minimally invasive and well-tolerated and safe for patients. The construct under which this therapy is used is the observation that multifidus muscle dysfunction and deterioration is frequently causally associated with chronic mechanical lower back pain, especially in younger patients where other structural pathologies are not pronounced.
There is established scientific evidence now that the device is beneficial for three-quarters of patients. I referred to the ReActiv8 B study which was published 18 months ago. This showed data out to two years. There has been a subsequent study which followed the patient group out to three years. The essential findings are as follows:
· 75% of patients achieved a pain reduction of 70% or greater. A similar percentage achieved reduction in Oswestry Disability score of around 50% or greater.
· 60% of patients were able to taper or completely cease their opioids.
· Benefits were maintained out to two years without regression.
· There were no serious medical complications related to hardware.”
Following review of the MRI findings, in a supplementary report,[5] Associate Professor Boesel confirmed that on assessment of initial investigation dated August 2019 and the subsequent investigation in December 2020 that “there has clearly been progressive infiltration of the multifidus muscle particularly at levels L5/S1 but also at level L4/5. This sits in the accepted classification range of grade 1 (10-50% muscle infiltration), particularly in the deep laminae of the muscle)”. Associate Professor Boesel made these findings on the basis of his physical interpretation of the investigation films noting that “the radiologists have not commented on the paraspinal musculature in Mr Finlayson’s case”.
[5] Folio 22 of the ARD.
The report also relevantly states (unedited):
“The Mainstay Reactiv8 neurostimulator is licensed by the TGA for patients who have chronic non-specific low back pain with evidence either on imaging or clinical testing of multifidus muscle dysfunction.
Based on the medical imaging, I am happy to say that there is an indication to use the device. We would expect a 70% likelihood of significant improvements in disability and pain severity over 12-18 months of therapy. These would be in the vicinity of 50% reduction in Oswestry Disability Index Score and around 70% pain reduction. My own clinical experience with the therapy is completely concordant with the findings of the ReActiv8-B study. There is now data for four years from this project, which demonstrates a sustained benefit and continued gradual improvement in patient condition. Given that we are dealing with a young patient who is experiencing high levels of disability from his low back injury, who does have objective radiological evidence of this pathology, I do believe that multifidus stimulation therapy is merited in an attempt to salvage his condition. There is no other pathology evident on his scans that would explain the severity of his disability”[6]
[6] Folios 22-23 of the ARD.

Medispring Family Medical Centre

Clinical notes verify the applicants ongoing complaints of back pain and restriction in daily living despite ongoing compliance with conservative interventions mainly physiotherapy and exercise physiology. Following review by the pain specialist, the notes show the applicant was prescribed Diclofenac and Endep in addition to Panadeine Forte, Panadol Osteo and Naproxen and was referred to a pain specialist.

Dr Deshpande, pain specialist

Following initial assessment[7] the applicant was diagnosed with “persistent lumbar axial pain with moderate functional limitation and stressors which are barriers towards recovery. The pain seems to be degenerative factogenic in nature not responding to conservative treatment”.
[7] 2 April 2020 – Folios 69-70 of the ARD.
At that time, the management plan was ongoing pharmacotherapy, continued exercise physiology (noting that the applicant had already undergone weekly sessions for a period of eight months) and a pain management education program. Approval was sought for bone scan, clinical psychology, “KICKSTART Pain Education Programme” and for ongoing pain management consultations.[8]
[8] Folio 71 of the ARD.
Review two months later[9] reported “he is still debilitated with lower back pain and is struggling to manage it just with medications”. A request was made for radiofrequency ablations which were ultimately undertaken but only provided “good benefit for at least few weeks [sic]. Now he is experiencing the muscle spasms and spasmodic pain”.[10] In[11] a further report, it was recorded “lumbar axial pain continues… Naprosyn and Panadeine Forte PRN…wants to explore the Mainstay” which was reportedly to be undertaken for chronic lumbar spinal pain associated with lumbar spinal muscle wasting, under fluoroscopy and sedation, would require two nights in hospital and time away from for work a period of two weeks.[12]
[9] 22 June 2020 – Folio 72 of the ARD.
[10] Folio 73 of the ARD.
[11] Folio78 of the ARD.
[12] Folio 127 of the ARD.
In a further report to the insurer,[13] presumably in response to a questionnaire, the following was submitted: (unedited)
“The diagnosis is Lumbar Spinal pain not responding to conventional management and compromising his Physical Function and Quality of life.
1.      I am attaching a document to support the evidence for Reactivate 8 Therapy for persistent Lumbar back pain not responding to conventional Treatment and has been advised non neuro-surgical management.
2.      Mr Finlayson has sustained a lower Lumbar Injury as a result of his work duties. His Lumbar spinal pain is deteriorating and compromising his quality of life and Function.
3.      He has responded poorly to the Lumbar Radio Frequency ablation Procedure. The pain when gets chronicity can result in Multifidus Wasting which is an important muscle in the lumbar area.
4.      There is adequate body of evidence for The Reactivate 8 therapy to control the nociceptive and neuropathic pain in the lumbar region and also get the Multifidus dysfunction addressed.
5.      There is no Trial Involved in this procedure. The trial is failure to respond to medications, steroid injections, suboptimal response to Lumbar Medial Branch RFA, which forms the baseline diagnosis and pathway for the reactivate Implant.
6.      He will get benefit from the pain, function and also will be able to engage in work activities which directly translates in improvement to function.
7.      The alternative treatment has been trailed”
[13] Folio 80 of the ARD dated 14 April 2022.

Madeline Conyers, exercise physiologist.

Following a two month period of physiology, it was reported (unedited):
“Mr Todd Finlayson presented with lower back pain, degenerative disc disease in the lumbar spine and L5-S1 facet joint arthrosis. Mr Finlayson's injury occurred in November 2018 and due to his work requirements he outlines the pain in his lower back to have increased over the past year. Mr Finlayson will not be returning to work with his previous employer due the stress/physical labour requirements of the role and is looking for employment in a different industry. Mr Finlayson has been progressing well throughout our exercise program and has been compliant with the at home exercises. An increase in back pain occurs after driving for more than an hour, reporting it to be a 7-8/10. Mr Finlayson outlines he usually has 2x panadine forte each morning when he wakes up, I have been encouraging him to avoid this before coming into exercise. This past week he has reported an increase in neck pain on the left side, described as a sharp pain (4-10). I have included neck release stretches in his at home program to assist with the pain symptoms. When reassessing the floor to waist, it was again ceased due to an increase in lower back pain (6/10), increasing his previous attempt by 5kg”[14].
[14] Folio 89 of the ARD.
At the time of discharge from exercise physiology in 20 November 2020 it was reported:
“I have been seeing Mr Finlayson since June 2019. In this time, Mr Finlayson has not made any progress in terms of his pain levels”[15]
[15] Folio 95 of the ARD 16 November 2020.
Weight reduction and mobility and strengthening exercises were encouraged and reinforced with the therapist suspecting a lack of compliance due to the marked weight gain due to inactivity.

ReActiv8 Trial Data Summary

In a document produced by Mainstay Medical Limited summaries of findings following a three to give year trial period were recorded and were said to have assisted with mechanical chronic low back pain and multifidus dysfunction. Three year research results were documented along with indications and contraindications and risks identified. The document reported that clinical trials showed 80% of patients had substantial improvements in pain and function and 70% of patients reported opioid reduction. The literature purports to summarise the findings of medical studies[16] [17] and distinguishes this treatment from mainstream spinal stimulators.[18] Associate Professor Boesel reports similar statistics.
[16] Gilligan C, Volschenk W, Russo M, Green M, Gilmore C, Mehta V, et al. Long-term outcomes of restorative neurostimulation in patients with refractory chronic low back pain secondary to multifidus dysfunction: two-year results of the ReActiv8-B pivotal trial. Neuromodulation Technol Neural Interface.
[17] 2023;26:87–97. 2. Gilligan C., Volschenk W., Russo M., Green M., Gilmore C., Mehta V., Deckers K., De Smedt K., Latif U., Sayed D., Georgius P., Gentile J., Mitchell B., Langhorst M., Huygen F., Baranidharan G., Patel V., Mironer E., Ross E., Carayannopoulos A., Hayek S., Gulve A., Van Buyten J.-P., Tohmeh A., Fischgrund J., Lad S., Ahadian F., Deer T., Klemme W., Rauck R., Rathmell J., Schwab F., Maislin G., Heemels J.P., Eldabe S. 2022. Three-Year Durability of Restorative Neurostimulation Effectiveness in Patients With Chronic Low Back Pain and Multifidus Muscle Dysfunction. Neuromodulation 2022; -: 1–11
[18] Folio 124 of the ARD.

Respondent’s evidence

Dr Gronow, pain management specialist[19]

[19] Folios 2 to 8 of the Reply dated 23 May 2022.

The past medical history, history of injury, treatment to date and outcomes were, to the extent that they overlapped, entirely consistent with the above histories. He notes the request for “ReActive8 therapy involving insertion of electrodes in the lumbar paravertebral region to stimulate the multifidus muscles”.
As at the time of his assessment in May 2022, it was recorded:
“…that pain is worse in the morning but can increase at the end of the day. Extension is avoided and pain varies from 3/10 up to 5-6/10 depending on his activity, with average 4/10.
Examination findings showed restricted movement and overall the applicant was diagnosed with
“degenerative disease at the L5/S1 level with considerable restriction of movement of all his lumbar spine...with secondary poor spinal abdominal muscle control”.
As regard to the request for ReActiv8 spinal muscle stimulator, it was reported (unedited):
“The ReActivB spinal muscle stimulator is aimed to passively regenerate power in the paralumbar spinal muscles. With the build up of paravertebral muscle strength the concept is that this will then improve a patient's lumbar spine pain. The studies to date have recruited patients with an average pain score of 7/10 whereas Mr Finlayson average pain score is 4/10 and is not significantly impacting on his quality of life. Mr Finlayson main functional restriction is his loss of lumbar spine movement, and this has not been evaluated with this device. I doubt that this treatment on its own would achieve any significant gains in his range of movement. It may improve his paravertebral muscle strength. On the studies available to date it is difficult to recommend this therapy. His restriction of movement of his lumbar spine does require treatment to enable him to maintain and improve his current functional level. I would recommend a review by a manual therapy trained pain physiotherapist to institute a programme….
He would benefit from management by a pain manipulative physiotherapist to gradually mobilise his lumbar spine and introduce specific home-based exercise programme. I would estimate that this would require at least 10 sessions over 3 months and then 10 sessions over 9 months. This would improve his mobility, functional capacity and reduce this risk of further workplace injury.”

Submissions

The applicant’s submissions were:
i) injury is not in dispute. Conservative treatments have been exhausted, the proposed treatment is the last resort given the applicant’s deterioration of symptoms and quality of life, and
ii) there are two specialists who agree that the treatment is reasonably necessary. The medical literature supports the treatment modality as being appropriate and there are no other treatments that would yield assistance given the pathology.
The respondent’s submissions were:
i)     the applicant’s medical case fails to identify the extent of conservative treatment undertaken to date and what possible alternatives particularly with regards to cost effectiveness may exist;
ii)    it fails to identify whether the applicant will be able to increase his capacity (noting he has already returned to work) or what the benefits of the procedure will be;
iii)    the medical literature attached appears to be a promotional marketing pamphlet absent any true studies on efficacy of the device, and
iv)    the applicant’s qualified expert has offered an opinion which does little to assist the respondent with management as it does little to explain (in plain terms) the demonstrable changes in pathology found.
In reply the applicant submitted:
i)     the treating and qualified practitioners have identified the full extent of treatment undertaken in this young man whilst the respondent’s qualified expert has not;
ii)     the applicant technically has three medical opinions which confirm that he requires ongoing treatment to assist with his pain, lack of mobility and symptoms. The only difference in the respondent’s opinion is based on a reported pain scale that largely represents inactivity and not pain associated with everyday tasks, and
iii)    further, the respondent’s qualified expert does not totally rule out the treatment as being one that could be classified as reasonably necessary.

APPLICATION OF THE LAW, FINDINGS AND REASONS

Section 60 of the 1987 Act prescribes that if as a result of an injury, it is “reasonably necessary” that treatment be undertaken, then the employer (respondent) is liable to pay for the costs of such treatment or service.
The 1987 Act does not define “reasonably necessary” however case law repeatedly emphasises the following are relevant considerations in such assessment:
i)     “Treatment” relates to the management of the disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest, abate or retard the condition or alleviate, cure or remedy the condition;[20] (Rose)
ii)     in deciding whether treatment is reasonably necessary, a decision maker must have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, cost, potential effectiveness and acceptance of the treatment modality by the medical experts[21] (Diab);
iii)    a poor outcome from treatment does not necessarily mean that the treatment was not reasonably necessary;
iv)    each case must be determined on its own facts;
v)     the question is whether the treatment should be undertaken. If it is better that it is undertaken, then it is deemed necessary and should not be foregone. If it is determined that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary;[22] (Bartolo)
vi)    whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts of the case;[23] (Kooragang)
vii)   it is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for the treatment, that is, the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment[24] (Murphy), and
viii)     the standard is on the balance of probabilities, meaning that I must feel an actual persuasion of the matters necessary to establish the claim.[25]
[20] Rose v Health Commission (NSW) (1986) 2NSWCCR 32 (Rose).
[21] Diab v NRMA Ltd [2014] NSWWCCPD 72.
[22] Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14NSWCCR 223.
[23] Kooragang Cement Pty Ltd v Bates (1994) 35NSWLR 452: 10NSWCCR 796.
[24] Murphy v Allity Management Services Pty Ltd [2015]NSWWCCPD 49.
[25] Department of Education and Training v Ireland [2008] NSWCCPD 135; Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The outcome of this case is determined by the weight given to the various medical opinions. Overall, whilst the opinion of Dr Gronow does overall take a consistent history of injury and symptoms as at the time of his assessment, his opinion fails to consider key issues; relevantly:
(a)    the applicant’s current complaints of pain. At the time of his assessment, (almost two years ago) Dr Gronow recorded the applicant’s pain was an average of 4/10. The applicant in his statement reports that his pain can be 5-6/10 with activity. This is consistent with the applicant’s current complaints of pain in which he states that depending on activity his pain varies between 4/10 to 8/10;
(b)   Dr Gronow suggested that an alternative course of action would be a “period of pain management and exercise physiology”, but this suggestion ignores the period of supervision and exercise physiology provided by Madeline Conyers between June 2019 and November 2020 who on case closure reported “there was no change in pain levels”. The report of Dr Gronow does not refer to these treating notes in the schedule of documents that he reviewed;
(c)    Dr Gronow commented on the MRI reports but does not appear to have reviewed the films. It is to be recalled that Associate Professor Boesel declined to make a final treatment recommendation on the basis of investigation reports alone as “the radiologists have not commented on the paraspinal musculature in Mr Finlayson’s case”. It was only following a review of the physical serial films that he concluded “there has clearly been progressive infiltration of the multifidus muscle particularly at levels L5/S1 but also at Level L4/5. This sits in the accepted classification range of grade 1 (10-50% muscle infiltration), particularly in the deep laminae of the muscle)”. Dr Gronow appears not to have had the opportunity to comment on the physical films and nor does he investigate the status of the multifidus muscles between the investigations (not being able to do so as these findings were not assessed by the radiologist who focused on structural pathology);
(d)    Dr Gronow does not exclude the treatment as not being a treatment capable of offering relief but rather concluded the applicant’s reported pain levels did not justify the treatment and further possible alternatives exist that should be exhausted at first instance, and
(e)    Dr Gronow states “on the studies available to date it is difficult to recommend this therapy”, however he does not indicate which studies he is referring to, thereby rendering his assessment somewhat incomplete.
Overall, I prefer the opinions of Associate Professor Boesel and Dr Deshpande because:
(a)    both practitioners have taken an exhaustive history of conservative treatments undertaken to date and their short-lived benefit. Both have recorded the applicant’s pain levels with activity and his level of activity avoidance to mitigate pain levels;
(b)    Associate Professor Boesel in particular has carefully analysed the pain generator/pathology limiting it to the multifidus muscle particularly at levels L5/S1 but also at Level L4/5, has undertaken a review of serial investigations and recorded progressive infiltration. Whilst he has not explained this in plain English, (a justified criticism of the respondent), he does align the treatment proposed as being reasonably necessary to treat and target such pathology and appropriate given the applicant’s age, weight, symptom profile and complaints of pain, and
(c)    likewise, Dr Deshpande has recorded the extensive history of physiotherapy, exercise physiology, cortisone injections, radio frequency ablations, pain management and psychological intervention and concluded that the proposed treatment is to be undertaken to treat the muscle wasting and will likely improve pain levels, quality of life and result in an improvement in function.
The respondent was critical of the report of Associate Professor Boesel maintaining that his findings were not helpful from an expert point of view, as they do little to educate the reader on how the medical findings translate into day to day function. The respondent was also critical that the reports fail to comment on cost effectiveness and other alternatives. This would have assisted overall, but realistically medical practitioners are not required or expected to appreciate the legal tests of Rose and Diab, such burden resting with the lawyers.
As discussed above, injury is not disputed, the only issue is whether the proposed treatment is reasonably necessary. The respondent has opted to maintain the conservative and cautious approach of Dr Gronow, however for the reasons above, realistically cannot do so given that his findings are based on investigations which do not on the face of the reports address the pathology sought to be cured by the treatment and which do not accurately represent the applicant’s current symptoms or deterioration in pathology. Further, whilst alternatives were offered, it appears that Dr Gronow was not privy to the almost 18 month involvement of the exercise physiologist and the discharge report (reporting no improvement) along with the interventions by the applicant’s treating pain specialist, Dr Deshpande.
The respondent was also critical of the literature provided in that it was seen to be little more than marketing literature. First glance of the document suggests this to be so, however closer analysis reveal footnotes referring to clinical studies with outcomes largely consistent that that reported by Associated Professor Boesel.
Returning to the tests of Rose and Diab, whilst alternative treatment was advanced by Dr Gronow, it has limited evidentiary weight given it is predicated on aged investigations and an incomplete history. Further Dr Gronow does not expressly state that the proposed treatment is unreasonable but only concludes it was not reasonable given the applicant’s presentation at the time of assessment (almost two years ago). Associate Professor Boesel and Dr Deshpande have reviewed and documented the failure of conservative approaches with both specialists considering that the proposed treatment will more likely than not alleviate the consequences of the condition and chronic pain, referring to medical literature which has demonstrated case studies showing improvement in symptoms in a number of areas in the applicant’s demographic. Each reinforce that mainstream conservative modalities have been trialled with only short term benefit. No other alternatives have been offered apart from those discussed above. I also accepted the statement of the applicant as to his multiple treatments and their limited benefits.
As regards effectiveness, both Associate Professor Boesel and Dr Deshpande consider that pain will reduce whilst mobility will increase with the proposed treatment. Dr Gronow likewise does not discount the treatment expressly. There is no dispute amongst the medical opinion that the treatment is an accepted procedure to treat pathology identified. I am satisfied on the balance of probabilities that the applicant has had pain which has become chronic since his injury. This is well documented and does not appear to be disputed by the respondent.
As regards cost, these are substantial, exceeding over $30,000 for the appliance and ancillary costs. The medical literature promote and record improvements of up to 80% in regards to pain and function and a 70% change in reducing the need for opioid medication. When this one off cost is contrasted with the extensive conservative treatment program already undertaken by the applicant which has yielded short term benefits only, it is arguable that the cost is likely to reap benefits potentially decreasing the overall management costs of this condition with forecasted increased capacity, particularly given that the applicant is only 34 years of age.
Alternatives were suggested by Dr Gronow but these have largely already been exhausted. As surgery has been excluded, I cannot find, on the evidence before me, any other alternative treatment that will provide relief of symptoms which are on par with the proposed treatment.
Overall, having considered the matters raised in Rose and Diab and being satisfied on the balance of probabilities that the need for treatment arises from workplace injury (a matter already accepted by the respondent), I find that the proposed treatment is reasonably necessary treatment with reference to s 60 of the 1987 Act.

SUMMARY

For the above reasons, I make the findings and orders as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 242

9 May 2024