Ford v Narrabri Shire Council - [2022] NSWPICPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ford v Narrabri Shire Council [2022] NSWPICPD 40
APPELLANT:	Kerry Robert Ford by the NSW Trustee and Guardian as financial manager
RESPONDENT:	Narrabri Shire Council
INSURER:	GIO General Limited
FILE NUMBER:	A1-W2742/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	31 October 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 22 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – acceptance of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied – whether proposed treatment reasonably necessary – Rose v Health Commission (NSW) [1986] NSWCC 2 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
Carroll & O’Dea Solicitors
Respondent:
Mr J Beran, counsel
Hall & Wilcox
DECISION UNDER APPEAL
MEMBER:	Ms J Toohey
DATE OF Member’s DECISION:	22 March 2022

INTRODUCTION AND BACKGROUND

Mr Kerry Ford (the appellant) suffered a piercing injury to his left foot on 21 April 1998 when he stepped off a front-end loader onto a spike from a tree trunk in the course of his employment with Narrabri Shire Council (the respondent). The appellant experienced significant complications from that injury, which included recurring infections, failure of the wound to heal and the need to amputate part of the left foot. The appellant subsequently aggravated his left foot condition and experienced symptoms in his right foot. He also developed medical complications from the right foot injury, resulting in an amputation of the right leg below the knee in 2019.
The appellant underwent extensive ongoing treatment at the hands of various medical specialists. He also suffered from numerous co-morbid conditions which impaired attempts at rehabilitation.
Ultimately, the appellant was referred to Associate Professor Munjed Al Muderis, orthopaedic surgeon, who considered that a right leg socket mounted prosthesis was not suitable for the appellant, and that the appellant should undergo osseointegration surgery and targeted muscle reinnervation. In basic terms, osseointegration surgery involves a prothesis which is implanted, in this case into the appellant’s knee, using a metal rod and fixtures.
The appellant sought approval from the respondent for the payment of the cost of the proposed surgery. The respondent declined liability on the basis that the surgery was not reasonably necessary. The reasons provided for the declinature included the impact that the appellant’s co-morbidity issues (which included type 2 diabetes, cardiac issues and vascular dementia) may have on the success of the surgery and the conflict in the medical opinions as to whether the surgery was appropriate for the appellant.
Proceedings seeking a determination that the proposed surgery was reasonably necessary were commenced in the Personal Injury Commission (the Commission) on behalf of the appellant by the NSW Trustee and Guardian, who had been appointed by the NSW Civil and Administrative Tribunal to manage the appellant’s legal and financial affairs as well as to authorise medical treatment for the appellant. The matter came before a non-presidential member of the Commission, who referred the issue to an independent Medical Assessor for a non-binding opinion in relation to whether the proposed surgery was reasonably necessary. The Member then proceeded to determine the issue on the basis of the evidence before her, including the opinion of the Medical Assessor, and the written submissions of both the appellant and the respondent. The NSW Trustee and Guardian took no active role in the proceedings.
The Member issued a Certificate of Determination on 22 March 2022 in which she determined that the treatment proposed by A/Prof Al Muderis was not reasonably necessary treatment as a result of the appellant’s injury.
The appellant, by the NSW Trustee and Guardian, appeals the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicate that they are content for the appeal to be determined on the basis of the documents and their written submissions and that an oral hearing is not required.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, the parties’ submissions, and the view of both parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The Certificate of Determination was dated 22 March 2022. The Application – Appeal Against Decision of Member (appeal) was lodged on 19 April 2022 at 5.03 pm. Section 352(4)(a) of the 1998 Act requires that an appeal must be lodged within 28 days after the decision appealed against is made, so that the last day for lodging the appeal was 19 April 2022. Rule 26(1)(b) of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides that if a document lodged with the Commission by the Electronic Case Management system or by email is received after 5 pm, it is taken to be received on the next working day. By operation of that Rule, the appeal was therefore lodged out of time. In essence, had the appeal been received three minutes earlier, it would have been lodged within the time prescribed.
Rule 6 of the 2021 Rules provides that the Commission may, in appropriate cases, dispense with the requirement to comply with the 2021 Rules.
As a consequence of the very short delay in lodging the appeal, a Delegate of the President issued a Direction on 20 April 2022 in which he ordered that Rule 26 be dispensed with and advised that the appeal was taken to have been received within the timeframe on 19 April 2022.

THE EVIDENCE

The appellant’s statement evidence

The appellant’s legal representative signed a statement dated 1 July 2021 “on behalf of” the appellant.[1] The statement recorded that the appellant had been contacted by telephone by his solicitor who had read the contents of the statement to the appellant and the appellant agreed with the contents. The statement recorded that:
(a)    the appellant was admitted to Macquarie Hospital three weeks previously in order to undergo right leg osseointegration surgery recommended by A/Prof Al Muderis;
(b)    he had previously undergone a right leg amputation;
(c)    the respondent had denied liability for the cost of the proposed surgery;
(d)    the risks of the surgery and potential complications had been explained to him, and
(e)    he wished to proceed with the surgery.
[1] Application to Resolve a Dispute (ARD), p 57.
The appellant provided a signed statement dated 4 February 2022.[2] He stated that he had read a Medical Assessment Certificate issued by Dr Jonathan Negus, Medical Assessor. He agreed with the history recorded by Dr Negus that his lifestyle was very poor and that he was wheelchair bound. He stated that, without the surgery proposed by A/Prof Al Muderis, he would be unlikely to walk again.
[2] Application to Admit Late Documents (AALD) dated 4 February 2022, pp 1–3.
The appellant said that he understood the risks associated with the surgery, including post-surgery superficial wound infection. He said that he understood that he would be required to be heavily committed to the post-operative rehabilitation and compliant to all of the treatment recommendations put forward by his treating medical team, in order to ensure the best outcome from the surgery. The appellant stated that he was committed to ensuring a successful outcome and said that, as an example, he had lost almost 20 kilograms of weight in the previous two years and attended the gym at his nursing home in order to strengthen his leg.
The appellant referred to a comment made by Dr Negus that he required complete assistance with most activities. The appellant said that this was the reason why he wanted to undergo the procedure, and that he wanted to regain his independence and quality of life. He stated that otherwise, his condition could only deteriorate.
The appellant provided a list of the medications he had been prescribed. He indicated that if approval for the cost of the proposed surgery was to be given, he would consult A/Prof Al Muderis again and seek his opinion as to whether he continues to recommend the surgery. The appellant said that, if the surgery was still recommended, he would proceed with it because his “life at the moment [was] not worth living.”[3]
[3] AALD dated 4 February 2022, p 3, [5(xii)].

Tamworth Hospital Discharge Referral

A discharge referral from Tamworth Hospital was in evidence.[4] It recorded that the appellant had been admitted on 31 January 2020 for care of his chronic leg wounds and the presence of bacteraemia and that the appellant was expected to be discharged on 14 April 2020. The referral noted that the appellant had been admitted and transferred between Narrabri and Tamworth Hospitals on multiple occasions between September 2019 and January 2020. The appellant was assessed as suffering from a number of medical conditions, including type 2 diabetes, diabetic ketoacidosis, bilateral chronic foot ulcers, bacteraemia, septic arthritis, likely osteomyelitis, bilateral foot debridement, left great toe amputation, right leg amputation below the knee, failure of the wound to heal, vascular dementia, urinary incontinence, heart failure, and lower leg inflammation. The appellant was assessed as being unsafe to live alone, with lack of insight into his care needs and lack of capacity to make decisions. It was noted that the appellant was non-compliant with wound care and was a difficult patient to nurse because of his behaviour.
[4] ARD, pp 17–24.

Dr Frank Sardelic, consultant surgeon

Dr Frank Sardelic reported to the respondent’s claims officer on 6 April 2020.[5] He advised that the appellant was initially admitted to hospital in September 2019 for treatment of diabetic ketoacidosis resulting from bilateral foot infection which did not respond to initial treatment measures. He reported that, as a result of the infection, the left great toe and the right fourth and fifth toes were amputated, however, the right sided infection worsened to the point that the right leg was amputated below the knee. Dr Sardelic advised that the appellant’s wound failed to heal after the amputation and required debridement of the tissue. He added that the appellant developed behavioural problems which required prolonged admission to hospital and that the appellant was poorly compliant with self-caring. He said that the appellant also developed incontinence and showed cognitive impairment, required long term residential care and that, as a consequence, a guardian was appointed.
[5] Reply to Application to Resolve a Dispute (reply), pp 21–22.
Dr Sardelic referred to the appellant’s significant cardiac failure and chronic renal failure. He said that the appellant’s:
“capacity to be self-caring, independent and mobile has been significantly affected by his infection, the resultant surgery, his cognitive deficit and non-compliance. Rehabilitation is not an option at this stage. He has a compromised left foot with post-amputation wounds that are still healing … he is lacking insight into his situation.”[6]
[6] Reply, p 22.

Dr Germane Ong, Orthopaedic Registrar

Dr Germane Ong of the Macquarie University Limb Reconstruction Centre, reported to Dr Andrew Whittaker, general practitioner on 27 May 2021.[7] The report was said to be “on behalf of” A/Prof Al Muderis. Dr Ong reported that the appellant had consulted Dr Ong and A/Prof Al Muderis in respect of an enquiry into having an osseointegration of his left tibia performed. Dr Ong noted a significant medical history of type 2 diabetes and chronic kidney disease but said that the appellant denied any cardiac or respiratory issues. Dr Ong recorded the history and sequelae of the appellant’s injuries, which resulted in a right leg below the knee amputation and left toe amputation performed by Dr Frank Sardelic, general surgeon, at Tamworth Hospital in 2019. Dr Ong noted that the appellant had been wheelchair bound for two years. The Doctor described the multiple findings on physical examination of both legs and the left foot and recorded in radiological investigation.
[7] ARD, pp 39–40.
Dr Ong advised that they had admitted the appellant into the Macquarie University Hospital for intravenous antibiotics for treatment of left leg cellulitis and bilateral ulcers. Dr Ong further advised that they had referred the appellant to Dr Walid Mohabbat, vascular surgeon, for urgent arterial duplex surgery to treat significant stenosis in the main pelvic artery.
Dr Ong said that they intended to aim towards a right transtibial osseointegration and a left below the knee amputation with a left transtibial osseointegration, as well as a targeted muscle reinnervation, with the intention of improving the appellant’s overall quality of life and giving him the only opportunity to walk again. Dr Ong added that if the procedure was not successful, a right knee amputation and transtibial osseointegration may need to be performed, although it was not the preferred treatment option at that stage.

Dr Karan Doshi, Orthopaedic Fellow

Dr Karan Doshi wrote to the respondent’s workers compensation claims manager on 28 May 2021.[8] The letter was said to be “on behalf of” A/Prof Al Munderis. Dr Doshi advised that the appellant required urgent treatment for significant stenosis in the common iliac artery (the main pelvic artery) and also required urgent treatment for non-healing ulcers and cellulitis. He noted the appellant’s numerous co-morbidities, including heart failure, vascular dementia and bacteraemia and advised that the appellant would be treated for those conditions by a multidisciplinary team. Dr Doshi indicated that further surgeries would be dependent upon the appellant’s recovery from those conditions.
[8] ARD, p 41.

Associate Professor Munjed Al Muderis

A/Prof Al Muderis wrote to the respondent’s workers compensation claims manager on 11 June 2021,[9] providing an update on the appellant’s progress. A/Prof Al Muderis advised that the surgery performed by Dr Mohabbat had been undertaken and that the appellant had been reviewed by an infectious diseases physician in respect of cellulitis, and had undergone endocrine review by a urologist.
[9] ARD, pp 53–56.
A/Prof Al Muderis responded to a number of queries raised in respect of the appellant’s treatment. A/Prof Al Muderis noted the lengthy list of the appellant’s co-morbidities provided to him, which included type 2 diabetes, non-healing ulcers, history of past heart failure, chronic kidney disease, vascular dementia and right knee arthritis. He added that the appellant also suffered from significant obesity, advanced age, deconditioning and lack of health generally. A/Prof Al Muderis said that given those co-morbidities of obesity, vascular dementia and heart failure, a socket mounted prosthesis would be unlikely to benefit the appellant. He provided extensive other reasons as to why a socket mounted prosthesis would be an unreasonable consideration.
A/Prof Al Muderis advised that the appellant’s chance of mortality within the following year exceeded 50% if he was not quickly given the opportunity to weight bear and mobilise. He said that that opportunity could be achieved by providing osseointegration, and within several weeks the appellant would be able to participate in rehabilitation and partially weight bear with crutches or a walking frame. He said that 12 weeks after the procedure the appellant would be able to ambulate independently. A/Prof Al Muderis added that the appellant would be able to understand where his osseointegration mounted limb was “in space” immediately and without further rehabilitation. He explained why that would be the case and said that that reason alone was sufficient to warrant the surgery being performed and that this was of great importance in terms of the opportunity for the appellant to mobilise. He said that, in the appellant’s case, it would give him the confidence to weight bear.
A/Prof Al Muderis indicated that the osseointegration was the starting point and critical part of the appellant’s future rehabilitation plan. He also provided reasons in favour of the targeted muscle reintegration procedure, which was intended to address the appellant’s phantom pain.

Dr Phil Huang, orthopaedic and trauma surgeon

Dr Phil Huang provided a report dated 29 June 2021 at the request of the respondent.[10] He advised that, in addition to being qualified as an orthopaedic surgeon, he had studied biomedical engineering as an undergraduate and also as part of his master’s degree. He said that he had been involved in osseointegration procedures since the late 1990’s and was, at the time of the report, undertaking these procedures together with Dr Sean Nicklin, a plastic surgeon. He added that they were formally linked to an osseointegration group at the Alfred Hospital in Victoria and had monthly case conferences with that group, as well as quarterly discussions with their parent group in Sweden.
[10] Reply, pp 35–42.
Dr Huang noted that the appellant suffered a work injury in 1998 and had consulted Dr Al Muderis in relation to his right leg below the knee amputation. He noted the appellant’s recent medical problems of multiple chronic ulcers and lower limb infections, which were directly attributable to his diabetes, and serious cognitive impairment.
Dr Huang advised that osseointegration benefits those who have undergone an amputation and have failed a trial of a socket prosthesis because of stump or wound issues. He said that the suitable patient was one which was young, with minimal co-morbidities and risk factors and a body mass index of below 30. He reported that, for the surgery to be successful, the rehabilitation following the procedure required a heavy commitment and compliance and it was common for complications to arise, such as superficial wound infections.
Dr Huang considered that the appellant was not a suitable candidate for the surgery. He said that the appellant was over 70 years of age, had a number of co-morbidities, including poorly controlled diabetes, significant cognitive impairment, obesity and lack of insight into his medical conditions. He noted that the appellant had been hospitalised on a number of occasions due to diabetic ketoacidosis, chronic diabetic ulcers, renal impairment and multiple organism bacteraemia. Dr Huang remarked that the appellant had abnormal bladder and bowel control and needed full assistance with most of his activities. Dr Huang advised that the osseointegration procedure and rehabilitation was demanding on the patient and, given the appellant’s poor functioning and the results of an echocardiogram performed in March 2020, the outcome of the proposed procedure would be very poor.

Dr Huang noted that the appellant also suffered from lateral sided arthritis in the knee which was a contra-indication to performing the surgery because the implant required a fully functioning pain free joint. He said that the appellant’s pre-existing knee issues would be likely to lead to early revision surgery such as a modular knee prosthesis or an above the knee implant. Dr Huang was of the opinion that, in the appellant’s case, the benefits to the surgery would be minimal, there was a likelihood of failure and there were multiple risk factors present. He added that there was a low probability of improving the appellant’s mobility because the appellant’s present and long-term base line functioning was very low already. Dr Huang pointed out that the risks associated with the surgery were:
(a)    complications arising from the anaesthetic;
(b)    wound failure;
(c)    hardware issues such as the failure of the implant to be osseointegrated;
(d)    peri-prosthetic fractures from falling;
(e)    deep infections from underlying ulcers;
(f)    prior multi-organism bacteraemia, and
(g)    the requirement to perform revision surgery because of underlying end stage osteoarthritis.

Dr Huang was of the opinion that the likelihood of those complications occurring in the appellant’s case was significantly higher because of his pre-existing co-morbidities and low functional status.
Dr Huang turned to address the appellant’s request for targeted muscle reinnervation. He pointed out that he could not find any details of the appellant’s neuropathic symptoms. He indicated that the success of such a procedure is dependent upon the physiology of the host and that, because of the appellant’s advanced age and poorly controlled diabetes, the procedure would likely have a poor outcome. He listed the likely risk factors but suggested that the appellant should be assessed by a chronic pain specialist and any pain should firstly be treated by medication. He said that the appellant should undergo radiological imaging as well as an image guided diagnostic injection before the procedure was undertaken.
Dr Huang was of the opinion that, given the appellant’s co-morbid conditions, it would be highly unlikely that either a socket prosthesis or an osseointegrated implant would have any success in changing the appellant’s overall mobility and functional status. He said that the appellant would gain more benefit from non-surgical options to control his diabetes and improve his nutrition and should undergo a formal assessment of his cognitive status.
Dr Huang added that the barriers to prosthetic options for the appellant were both medical and psychosocial. He said that the multiple medical conditions were deteriorating, poorly managed and advanced in severity. He noted that those conditions imposed difficulties on providing an effective treatment plan. He further noted that the appellant lived in a high-level care facility and showed advanced cognitive impairment and his behaviour in the facility indicated that compliance was a major barrier to further treatment. He added that the appellant would have difficulty in overcoming those barriers.
Dr Huang concluded that the appellant was not a suitable candidate for osseointegration or targeted muscle reinnervation and it would be near to impossible that he would ever become suitable. He considered that the proposed procedure would likely result in further prolonged hospital admissions, as was the case when the appellant had previously been hospitalised for seven months for his co-morbid conditions without any discernible improvement.

Dr Sean Nicklin, plastic and reconstructive surgeon

Dr Sean Nicklin also provided an opinion dated 30 June 2021 at the request of the respondent.[11] He advised that he had a special interest in peripheral nerve surgery and was experienced in the field of osseointegration, targeted muscle reinnervation and nerve transfer surgery for amputees through his association with Dr Huang and also Dr Greg Bowring, a rehabilitation consultant at Prince of Wales Hospital. He confirmed that he and Dr Huang had professional links with the Advanced Surgical Amputee Program at the Alfred Hospital, Melbourne.
[11] Reply, pp 43–45.
Dr Nicklin referred to the appellant’s injuries and the multiple episodes of further injury, wound breakdown, ulceration, and poor healing, which resulted in the right leg amputation below the knee and left foot partial amputation. He recorded that the appellant had requested A/Prof Al Muderis to perform an osseointegration in his lower limbs.
Dr Nicklin noted that the appellant suffered from poorly controlled diabetes, had atherosclerosis, a documented history of peripheral neuropathy and had experienced diabetic ketoacidosis from lower limb infections. He further noted that the appellant suffered from vascular dementia with associated significant cognitive impairment and behavioural disorders, requiring psychiatric and psychological assessment and management. Dr Nicklin referred to the appellant living in full time nursing care, the appellant’s inability to use a motor scooter for safety reasons, and his requirement for nursing assistance to care for his wounds, administer insulin and assist with mobility.
Dr Nicklin expressed concern in relation to the appellant being offered the osseointegration surgery and was of the view that the appellant was not a suitable candidate. He said that the appellant’s age, his poorly controlled diabetes, associated peripheral neuropathy and atherosclerosis were factors that would severely impact on the capacity of the appellant’s wounds to heal. He observed that the proposed surgery was complicated and the appellant’s stump wound had not yet healed, so that he believed that it was unlikely that the osseointegration wound and importantly the soft tissue bone interface would heal. Dr Nicklin further observed that the appellant suffered from right knee arthritis which would make any weight bearing painful and would significantly limit his ability to weight bear on a prosthesis of either kind. Dr Nicklin also considered that the appellant’s cognitive impairment and behavioural issues were of concern as the patient is required to take care of the prosthesis, which, according to the available documentation, the appellant would not be able to do.

Dr Nicklin referred to the proposed targeted muscle reinnervation procedure which was intended to manage phantom limb pain. He said that while there was some support in the literature for the procedure, the pain management effect of the procedure in cases of amputees was not clear. He said that he believed that if a patient was undergoing stump modification such as osseointegration, it was very reasonable to perform the targeted muscle reinnervation at the same time, if there was clear evidence of significant phantom limb pain or neuroma related pain. Dr Nicklin considered, however, that the procedure was not appropriate for the appellant because there was only a mention of phantom limb pain in the correspondence from the Limb Reconstruction Centre and it was not mentioned anywhere else in the documentation. Further, the appellant had not been prescribed any of the usual pain medication to treat phantom pain. He added that it was common for amputees to experience limb awareness but that does not mean they were experiencing phantom limb pain.
Dr Nicklin advised that the appellant had significant co-morbidities including insulin dependent diabetes, peripheral vascular disease, peripheral neuropathy, obesity and renal dysfunction, which all have an impact on wound healing. He said that it was therefore most likely that he would have wound healing issues with infections if the procedure was performed and the appellant would likely develop infections in the bone which may result in further surgery, including an above the knee amputation. Dr Nicklin considered that the sepsis could lead to diabetic ketoacidosis, which was a life-threatening condition.
Dr Nicklin observed that any targeted muscle reinnervation surgery had a risk of post-surgery worsening of pain. He said that the appellant did not appear to have significant pre-existing phantom pain so that he would not offer the surgery to the appellant. He added that the appellant would also be exposed to the high risk of delayed healing and potential infection.
Dr Nicklin considered that the appellant required a formal wound and amputation stump assessment in order to determine if the appellant needed further surgery in order to heal the stump wounds. He remarked that if it was not possible to attain wound healing in the stump then it would be highly unlikely that it would heal following an osseointegration procedure.
Dr Nicklin considered that it was most unlikely that the appellant would be able to be fitted with prosthetics because of his co-morbidities, which would worsen with time and would make it very unlikely that the appellant would succeed in the rehabilitation process. He said that any patient who was under consideration for the proposed procedures would need to have achieved maximum medical fitness before proceeding with such surgery and the associated rehabilitation. He observed that this had not been undertaken in the appellant’s case and did not appear to have even been considered. He was of the view that it was unlikely that the appellant would ever reach the point where the surgery was appropriate.

Dr Kevin Tetsworth, orthopaedic surgeon

Dr Kevin Tetsworth of the Limb Reconstruction Centre of Macquarie University provided a medico-legal report dated 10 September 2021 at the request of the appellant’s legal representatives.[12] He advised that he understood that Dr Phil Huang, Dr Sean Nicklin and A/Prof Al Muderis had provided opinions in respect of the appellant’s claim, although he had not read their opinions. He noted that Dr Huang was of the view that the appellant was not a suitable candidate for osseointegration and that Dr Nicklin had the view that the appellant would not reach the point where surgery would be appropriate. Dr Tetsworth observed that neither of those surgeons had the knowledge or expertise to counter that of the Limb Reconstruction Centre or of A/Prof Al Muderis, who was the clinical leader of the Centre. Dr Tetsworth was confident that he and A/Prof Al Muderis could provide an opinion that was better informed. Dr Tetsworth stated that the proposed surgery was outside of the expertise of Dr Huang and Dr Nicklin.
[12] AALD dated 13 September 2021, pp 3–6.
Dr Tetsworth conceded that the appellant was not a well man, with multiple co-morbidities and a complicated medical history. He pointed to numerous conditions from which the appellant suffered and the appellant’s advanced age and deconditioning, which he said pointed to an osseointegration as the only suitable intervention. He indicated that the appellant may need and benefit from amputations alone but that would not be in the appellant’s interests because it did not achieve his clinical need, which was the basic goal of achieving mobility and the ability to ambulate.
Dr Tetsworth explained that the appellant would otherwise be bed bound, would become a complete invalid, and would ultimately die. He added that the proposed surgery was intended to eliminate bacterial burden, continued infections associated with ulcerated legs and enable the appellant to stand and walk upright.
Dr Tetsworth was of the view that, given the appellant’s weight, a socket mounted prosthetic was not suitable for the appellant. He opined that:
“an elderly, obese, deconditioned man with congestive heart failure does not have the physical capacity, the strength and the cardiovascular reserve to use a single artificial limb let alone two. It is hard to imagine how any surgeon familiar with the significant documented benefits of osseointegration in this at risk patient population could deny that this is his best and perhaps only option.”[13]
[13] AALD dated 13 September 2021, p 4.
Dr Tetsworth agreed that there were other options, namely to either accept his current condition as it is, or to consider euthanasia which was not a palatable or available option. He said that an amputation would assist with reducing the appellant’s bacteraemia but because of his lack of upper body strength, the appellant would find it very difficult to transfer from bed to chair. He explained that this would result in the appellant becoming bed bound and would probably reduce his life span.
Dr Tetsworth considered that the appellant was an unsuitable candidate for any other surgery, but particularly for an amputation followed by a rehabilitation plan using a socket mounted prosthesis. He considered the option to be “ludicrous”. He pointed out that if the appellant underwent osseointegration, he would be able to stand upright, ambulate independently and fully weight bear within three months and this was thus the best option, along with targeted muscle reinnervation to control the phantom pain. Dr Tetsworth conceded that there were risks involved in the surgery but observed that the surgery had been successful in a number of previous difficult and challenging cases and in the appellant’s case, the potential benefits far outweighed the associated risks. He added that the proposed surgery would likely reduce the appellant’s mortality and improve his quality of life.
Dr Tetsworth reiterated that he and A/Prof Al Muderis were better informed to provide an opinion on osseointegration surgery, A/Prof Al Muderis was a pioneer in the field and he himself had been clinically involved in osseointegration surgery for six and a half years.

Dr Jonathan Negus, Medical Assessor

Dr Jonathan Negus examined the appellant at the Northern Beaches Hospital where the appellant was an inpatient. Dr Negus issued a Medical Assessment Certificate dated 27 January 2022. He recorded a consistent history of the appellant’s injury in 1998, the development of the complications arising from the injury, the presence of multiple co-morbid conditions and the treatment afforded to the appellant. Dr Negus recorded that the appellant had issues with phantom pain and was prescribed Endone, but noted that the appellant did not complain to him of phantom pain, or right knee pain, or pain generally. He said that the appellant’s main complaint was his inability to mobilise.
Dr Negus listed the appellant’s co-morbidities. He performed a physical examination and noted that the right knee x-rays showed osteoporosis from disuse and severe osteoarthritis. He indicated that the appellant’s presentation was consistent with dementia and that the appellant showed little insight into his state of health.
Dr Negus formed the view that there was no “good option” for the appellant, who had a limited life expectancy and poor quality of life with a high dependency on others. Dr Negus considered that a conventional socket prosthesis was not suitable for the appellant. He was of the view that the appellant would be highly unlikely to walk again without osseointegration, however, the potential benefit to the appellant was low and the numerous risks were life threatening. Dr Negus explained that the proposed surgery was generally offered to younger patients whose body mass index was under 30 and who had no risk factors. He said that the procedure required a heavy commitment from and compliance by the patient. He added that even in those circumstances, complications arose, the most common of which was superficial wound infections.
Dr Negus referred to the appellant’s circumstances, noting that the appellant required complete assistance in most activities and his diabetes was poorly controlled, resulting in hospitalisation for treatment of diabetic ketoacidosis, chronic ulcers, renal impairment and bacteraemia. Dr Negus listed the appellant’s physical and cognitive co-morbidities which he described as severe and which he said limited the appellant’s life expectancy.
Dr Negus noted that, on examination, the appellant’s soft tissue at the end of the amputated stump was very poor. He considered that this finding indicated that a socket prosthesis was not suitable for the appellant, and neither was osseointegration surgery. He explained that the poor condition of the soft tissue would cause a very high risk of infection, osteomyelitis and sepsis if the prothesis was implanted into the tibial bone. He noted that A/Prof Al Muderis’s team had alluded to this complication when they referred to a revision implant into the femoral bone if the proposed surgery failed. Dr Negus reasoned that, if a tibial implant failed, then the appellant would face further surgery, which would have all the risks associated with surgery and anaesthesia and the complications of wound healing, infection and the very high likelihood of failure of the implant. He added that this rationale should be applied to surgery to the left leg as well.
Dr Negus referred to Dr Huang’s observation that, for the implant to be successful, the appellant needed to have a fully functional and pain free knee joint. Dr Negus confirmed that the knee x-rays showed severe lateral osteoarthritis of the right knee and fixed flexion, consistent with the observations made by Dr Huang. He said that, as outlined by Dr Huang, the findings meant that osseointegration was contraindicated.
Dr Negus further referred to the need for commitment and compliance on the part of the appellant. He observed that the appellant had been non-compliant with medical and nursing staff and lacked insight into his requirements, probably because of his cognitive impairment. He said that the appellant’s dementia, coupled with his history of non-compliance with rehabilitation, made it unlikely that the appellant would rehabilitate sufficiently in order to mobilise safely. Dr Negus pointed to the reason put forward by A/Prof Al Muderis for not fitting a socket prosthesis, namely the risk of fracture from falls. Dr Negus considered that the same risk was attached to an osseointegrated prosthesis because of the appellant’s size and deconditioning.
Dr Negus noted the treatment options put forward by Dr Tetsworth. He concluded that the only real options open were osseointegration or to provide the appellant with treatment for his co-morbidities and palliative care.
Dr Negus considered that Dr Tetsworth appeared to place weight on the appellant having to proceed to palliative care if he did not proceed to the proposed surgery. Dr Negus said that the appellant suffered from severe cardiac failure and vascular dementia, both of which give the appellant a five-year mortality risk, and he could not see how the proposed surgery would enable sufficient recovery in order to have a positive impact on those morbidities. Dr Negus was of the view that if the appellant underwent multiple osseointegration surgeries, he would be at a much greater risk of dying sooner because of the complications of surgery that may arise and, in the meantime, he would experience a significantly reduced quality of life.
Dr Negus said that he agreed with Dr Huang’s opinion that the appellant faced far greater risks associated with surgery and anaesthesia than other people and those risks were significant and outweighed any benefit the appellant might experience. Dr Negus added that the success of targeted muscle innervation depended upon the physiology of the patient, which in the appellant’s case was very poor, and that the likelihood of any benefit from the surgery was also very low.
Dr Negus concluded:
“In my opinion, [the appellant] is not indicated for the osseointegration and TMR procedure with the intensive rehabilitation that would follow, as the benefits need to outweigh the risks. I do not believe that they do. I also do not believe that he can be medically optimised to a point where he would be suitable.”[14]
[14] Medical Assessment Certificate, p 6.
Dr Negus said that he agreed with the opinions of Dr Huang and Dr Nicklin. He observed that Dr Tetsworth had referred to but not read the opinions of Dr Huang and Dr Nicklin. He referred to Dr Tetsworth’s criticism of the expertise of both Dr Huang and Dr Nicklin. Dr Negus countered that, on the basis of their experience and knowledge, both Dr Huang and Nicklin had the necessary expertise to assess the appellant and provide their opinions.
Dr Negus disagreed with the opinion of Dr Tetsworth and reiterated that the appellant had a high risk of dying within one to five years because of his co-morbidities and that assessment would not be improved by the proposed surgery. He observed that, if the procedure was undertaken, the appellant was:
“going to need a minimum of 1 major surgery and in all likelihood, multiple further surgeries including, by their own planning, further osseointegrations and that with his risk of complications being so high, his remaining time on earth would be spent in hospital being treated for those complications until his death.”[15]
[15] Medical Assessment Certificate, p 7.
In conclusion, Dr Negus stated that the proposed surgery was a life changing procedure in the right patent, but that the appellant was not such a patient. He stated that the treatment proposed by A/Prof Al Muderis was not an appropriate course in the appellant’s circumstances.

THE MEMBER’S REASONS

The Member recorded that the issue for determination was whether the surgery proposed by A/Prof Al Muderis was reasonably necessary as a result of the appellant’s injuries. The Member indicated that, at the conciliation and arbitration conducted on 20 September 2021, the parties agreed, and she considered it would be of assistance to her, that the matter be remitted to an independent Medical Assessor for a non-binding opinion as to whether, in the appellant’s circumstances, the proposed treatment was appropriate.
The Member further noted that the appellant attended the appointed Medical Assessor, Dr Jonathan Negus, on 16 November 2021 and she recorded the procedural path that followed. She noted that ultimately, directions were made that the parties were to file written submissions and the matter was to be determined on the papers.
The Member considered an application by the appellant to make further submissions beyond the timetable set by the Commission, which raised jurisdictional issues, and which were objected to by the respondent. The Member refused the application to lodge further submissions.
The Member reviewed the appellant’s statement evidence and the medical evidence, including the non-binding opinion of the Medical Assessor. She summarised the submissions made by the parties.
The Member pointed out that the onus of proving on the balance of probabilities, that the treatment was reasonably necessary rested on the appellant. The Member considered the observations of Burke CCJ in Rose v Health Commission (NSW)[16] as to what should be taken into account in assessing whether the treatment was reasonably necessary, as well as Burke CCJ’s later decision in Bartolo v Western Sydney Area Health Service.[17] The Member also extracted passages from Diab v NRMA,[18] in which Roche DP considered the observations of Burke CCJ in both Rose and Bartolo and provided a summary of the relevant principles.
[16] [1986] NSWCC 2 (Rose).
[17] [1997] NSWCC 1 (Bartolo).
[18] [2014] NSWWCCPD 72 (Diab).
The Member referred to and detailed the appellant’s “complex medical history and multiple comorbidities.”[19] Applying Diab, she observed that all of the medical experts considered that, in the appellant’s circumstances, the alternative treatment of a socket-mounted prosthesis was not an option and none of those experts suggested any other alternate option other than the proposed surgery. She noted that the respondent did not raise any issue in respect of the cost of the treatment.
[19] Ford v Narrabri Shire Council [2022] NSWPIC 119 (reasons), [171].
The Member identified that the real issue was whether the treatment proposed by A/Prof Al Muderis was appropriate in the appellant’s circumstances, including whether the treatment could or would be effective. The Member said that, while Dr Huang, Dr Nicklin and Dr Negus considered that the suggested procedure was appropriate and was likely to be effective in a suitable candidate, they were of the view that the appellant was not such a candidate. The Member observed that the osseointegration offered the appellant the only possibility of being able to walk again but must be considered in the context of its likely benefit and the risks attached to such surgery, given the appellant’s co-existing medical conditions. She further observed that “[j]ust because it is the only option for him to walk again does not necessarily make it reasonably necessary treatment for the purposes of section 60.”[20]
[20] Reasons, [175].
The Member pointed to the risks identified by Dr Sardelic, Mr Basten (psychologist who attended the appellant in hospital) and Dr Negus. She considered the views of both Dr Tetsworth and A/Prof Al Muderis. She reasoned that both Dr Tetsworth and A/Prof Muderis appeared to recommend the proposed surgery because it was the only option to assist the appellant to walk again. She further reasoned that:
(a)    A/Prof Al Muderis acknowledged that there were risks associated with the surgery;
(b)    Dr Tetsworth thought that there was a possibility that the appellant may not survive the surgery, and
(c)    Dr Doshi (on behalf of A/Prof Al Muderis) said that if the procedure was not successful, they may proceed to an above the knee amputation, which was not the preferred option.
The Member considered that the experts in favour of the procedure seemed to be focused on the proposed surgery without a detailed consideration of the potential risks, unlike the respondent’s experts and the independent evidence of Dr Negus. She said that Dr Tetsworth expressed the view that the surgery would most likely result in the appellant being able to walk and weight bear three months afterwards and would improve the appellant’s quality of life and his ability to ambulate.
The Member observed that she had real concerns about Dr Tetsworth’s opinion because he had not read the opinions of Dr Huang and Dr Nicklin and because Dr Tetsworth was of the view that neither of those doctors were well-informed or sufficiently experienced. She noted that Dr Negus’s opinion was independent, that he disagreed with Dr Tetsworth’s view and that he was satisfied that both Dr Huang and Dr Nicklin had the necessary expertise. She added that, in her view, Dr Tetsworth had not adequately considered all of the risks identified by the respondent’s doctors which pointed to very low prospects of success and nor did he take into account the appellant’s dementia and cognitive decline. In addition, she said that Dr Tetsworth’s view about the benefits of the surgery seemed to hinge upon a successful rehabilitation.
The Member turned to the evidence of A/Prof Al Muderis. She referred to his opinion that the surgery would enable the appellant to mobilise and to quickly resume weight bearing, he would be able to resume rehabilitation within a few weeks, and within 12 weeks he would be able to ambulate independently. She further referred to A/Prof Al Muderis’s statement that the appellant would immediately be able to perceive the presence of his limb, which was not possible with a socket mounted prosthesis, and which indicated that osseointegration was far more preferable. The Member observed, however, that there was no dispute that a socket mounted prosthesis was not suitable in this case.
The Member pointed to A/Prof Al Muderis’s indication of the appellant’s particular risk factors associated with a socket mounted prosthesis which would pose an extremely high risk of falls. She said that it was unclear why those risks would not also be associated with osseointegration, in particular that the appellant would be required to resume early ambulation and partially weight bear using a frame or crutches.
The Member noted that Dr Huang was of the view that the outcome of the surgery would be poor, and it was highly likely to fail. The Member observed that Dr Huang took into account the appellant’s poor compliance with care of his wounds and with his rehabilitation recorded in the Tamworth Hospital notes, and also took into account the appellant’s adversely high body mass index. The Member referred to Dr Huang’s description of what was required for the procedure to be successful, including strict compliance on the part of the appellant in respect of self-care and the demanding post-surgery rehabilitation program. The Member added that Dr Huang identified the risks factors relevant to the appellant, took into account the appellant’s advanced lateral arthritis, and provided reasons as to why the surgery in those circumstances was contraindicated. She also noted Dr Huang’s suggestion that treatment should be directed to control and assessment of the appellant’s co-morbid conditions.
The Member took into account the fact that Dr Nicklin also considered that the appellant’s poorly controlled diabetes, with its associated issues, would impact the ability of the appellant’s wound to heal and that in a complicated osseointegration procedure, it was highly unlikely (in this case) that the wounds would heal. She added that Dr Nicklin identified a number of adverse potential outcomes, which included the possibility of sepsis and a life-threatening bone infection, aggravation of the right knee arthritis, and the appellant’s inability to take care of his prosthesis because of his cognitive impairment. The Member referred to Dr Nicklin’s view that, before such surgery should be considered, the appellant required optimal medical treatment in respect of his co-morbid conditions, which had not yet been achieved.
The Member observed that it was not evident from the reports of A/Prof Al Muderis, and particularly that of Dr Tetsworth, that those experts had given consideration to the factors identified by Dr Huang and Dr Nicklin. The Member referred to the evidence provided by Dr Negus, the independent Medical Assessor, who agreed with the opinions of Dr Huang and Dr Nicklin, and who also listed the appellant’s physical disabilities and documented poor past compliance. She noted Dr Negus’ comment about the appellant’s lack of insight into his condition and his opinion as to the likely impact of the proposed surgery on the appellant’s lifestyle. She further noted Dr Negus’s conclusions that there were numerous life-threatening risks attached to the surgery as well as the likely need for further surgery, which also presented risks, and the very high prospect of failure in respect of that subsequent surgery.
The Member concluded that:
“Considering all of the evidence, I prefer the opinions of Dr Huang, Dr Nicklin and Dr Negus. In my view, they have each given careful and detailed consideration to the likely benefit to accrue to [the appellant] against the very real risks that they identify.
The reports from Prof Al Muderis, Dr Ong and Dr Tetsworth focus on osseointegration as [the appellant’s] only prospect of regaining mobility and walking again. There is no dispute about this. However, that is not the end of it. Dr Huang, Dr Nicklin and Dr Negus identify real risks of the procedure, some potentially life-threatening, to [the appellant]. Most significantly, they consider his prospects of successfully undertaking the necessary rehabilitation as low. I accept their opinions.
I am not satisfied, on the evidence before me, that [the appellant] has discharged his onus to establish, on the balance of probabilities, that the proposed treatment is reasonably necessary treatment for the purposes of section 60 of the 1987 Act.[21]
[21] Reasons, [214]–[216].
The Certificate of Determination issued on 22 March 2022 records:
“The Commission determines:
1.     The [appellant] sustained injury to his left and right lower limbs arising out of or in the course of his employment with the respondent.
2.     The treatment proposed by Prof Al Muderis, being ‘right transtibial osseointegration surgery with bone graft to tibia and targeted muscle reinnervation of tibial, saphenous and deep perineal nerves with reanastamosis’, is not reasonably necessary treatment as a result of the [appellant’s] injury.
3.     Award for the respondent.”

GROUNDS OF APPEAL

The appellant relies on the following grounds of appeal:
(a)    Ground A: The Member erred in law by misapplying the test or standard of “reasonably necessary”;
(b)    Ground B: The Member erred in fact by arriving at conclusions about the appellant’s ability to participate in rehabilitation, and
(c)    Ground C: The Member erred in fact by failing to have regard to the fact that the evidence relied upon by the appellant was cognisant of the appellant’s co-morbidities.

LEGISLATION

Section 60(1) of the Workers Compensation Act 1987 (the 1987 Act) relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
…
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

SUBMISSIONS

As to Ground A

The appellant’s submissions

The appellant asserts that the Member did not apply the correct approach in ascertaining whether the proposed surgery was reasonably necessary, which is a less demanding test than that of being reasonable and necessary. The appellant submits that the evidence, which was noted by the Member, established that:
(a)    the proposed treatment was the appellant’s only prospect of walking again;
(b)    there was no issue as to whether the cost of the procedure was reasonable, and
(c)    there was no other treatment option.
The appellant refers to Broadspectrum Australia Pty Ltd v Gunaratnam,[22] in which I observed that, when considering the potential effectiveness of the treatment, the intended purpose of the treatment was a necessary element. The appellant submits that the evidence showed that the proposed treatment had the potential to be effective and was reasonably necessary to assist the appellant to walk again.
[22] [2019] NSWWCCPD 36 (Gunaratnam), [107].
The appellant points to the evidence of A/Prof Al Muderis, in which he opined that if the appellant was able to weight bear and mobilise, it would improve the appellant’s mortality. The appellant quotes from the Member’s reasons, in which the Member observed that:
(a)    it was agreed that the proposed surgery was the only real prospect of the appellant becoming able to walk again;
(b)    that fact had to be considered in the light of the likelihood that the surgery would succeed, and the risks attached to the surgery because of his co-morbidities, and
(c)    the fact that it is simply the only option does not make the surgery reasonably necessary in accordance with s 60 of the 1987 Act.
The appellant asserts that the Member, when preferring the respondent’s medical opinions, emphasised the risks associated with the surgery when she observed that:
(a)    the appellant’s medical experts appeared to focus on the fact that it was the appellant’s only chance to walk again,
(b)    those experts had not appeared to take into account the appellant’s co-morbidities and associated risk factors, and
(c)    the respondent’s experts had identified the real, potentially life-threatening risks and had considered that the prospects of success were low.
The appellant submits that the Member’s conclusion that the treatment was not reasonably necessary was fundamentally based on those reasons. The appellant asserts that it is therefore apparent that, when the Member placed greater weight on the “aftermath” of the treatment rather than its potential effectiveness, she applied a more stringent test than the test required to assess whether the proposed treatment was reasonably necessary. The appellant contends that all that was required was to establish that the treatment was reasonably necessary.
The appellant asserts that, in accordance with Diab, the Member was required to consider the effectiveness of the surgery and have regard to the fact that all surgery carried the risk of a poor outcome. The appellant submits that a poor outcome did not necessarily mean that the treatment was not reasonably necessary and, in accordance with Diab, each case will be dependent upon its own facts.
The appellant contends that the Member erred because she treated the effectiveness of the treatment as being determinative, which ignored the fact that the treatment was not required to totally alleviate the symptoms but was only required to have the potential to be effective. The appellant adds that the Member ignored the fact that the treatment only had to be potentially effective when she accepted the opinion of Dr Negus in relation to the appellant’s mortality.
The appellant submits that the Member misapplied the test in respect of whether the treatment was reasonably necessary, which affected her assessment of the evidence. The appellant says that the Member should have looked to whether the medical experts had addressed the requirement that the surgery was reasonably necessary, rather than analysing the evidence of A/Prof Al Murderis and Dr Tetsworth against that of Dr Huang, Dr Nicklin and Dr Negus.
The appellant refers to his own statement evidence that his quality of life was poor, he was aware of the risks involved, and his life was not worth living without the surgery but indicated that he was committed to undergoing the post-surgery rehabilitation. The appellant asserts that, once it is established that:
(a)    there is a necessity for the proposed surgery;
(b)    the proposed surgery has the potential to be effective;
(c)    it is appropriate treatment to address his injuries;
(d)    there is no alternative treatment;
(e)    there are no issues as to the cost of the treatment, and
(f)    he wishes to proceed with the surgery notwithstanding the risks,
it ought to be determined that the proposed treatment was reasonably necessary.

The respondent’s submissions

The respondent submits that the Member took note of all of the matters to be taken into account, as referred to in Diab, and identified that two of those enquiries were in issue, namely the actual or potential effectiveness of the treatment, and the acceptance by medical experts of the treatment as being appropriate. The respondent asserts that the Member was correct to consider those matters, which were “crucial” to the determination of the issue. The respondent points out that the Member took into account that the proposed surgery was the only way to enable the appellant to walk again but then proceeded on the basis that that fact, of itself, was not determinative. The respondent asserts that this was a correct approach.
The respondent submits that the appellant appears to focus on the Member’s observations in respect of the risks of the surgery and overlooks the Member’s review of the medical evidence, including the need for compliance with the rehabilitation program in order to ensure success of the surgery. The respondent says that it disagrees with the appellant’s assertion that the Member applied a more stringent test by placing undue weight on the “aftermath” of the treatment, rather than the effect of the proposed surgery.
The respondent refers to the appellant’s reliance on Gunaratnam to say that the intended purpose of the treatment was a necessary element. The respondent submits that, on the basis that the undisputed purpose of the surgery was to enable the appellant to walk again, the appellant’s ability to survive the surgery and its sequelae without complications and deterioration of his co-morbid conditions was highly relevant. The respondent says that “such matters are indicative”[23] of the likely success of the surgery. The respondent concedes that the risk of a poor outcome is not, of itself, determinative, but asserts that each case turns upon its own facts and the facts found by the Member in this case were such that there was a significant risk attached to the surgery. The respondent submits that that fact weighed against the effectiveness and appropriateness of the treatment to the extent that the proposed treatment could not be considered reasonably necessary.
[23] Respondent’s submissions on appeal, [11].
The respondent refers to the Member’s consideration of the appellant’s ability to successfully participate in the post-surgery rehabilitation. The respondent submits that the post-surgery rehabilitation was an integral part of the proposed surgery and its effectiveness, particularly because the appellant’s ability to walk post-surgery was dependent upon the success of the rehabilitation program.
The respondent submits that the Member reviewed the evidence, accepted that the prospect of the appellant successfully completing the rehabilitation process was low, and afforded that fact significant weight. The respondent asserts that the Member’s approach was consistent with the matters identified in Diab, which she was required to take into account, and was consistent with the principle that each case turns on its own facts.

The respondent contends that this case did not turn upon whether the surgery had the potential to be effective. The respondent submits that the Member accepted that fact but determined that the surgery and rehabilitation would not be effective because of the high level of risk attached and the appellant’s limited ability to successfully participate in the required rehabilitation. The respondent asserts that the Member carefully considered the expert evidence relied upon by the appellant and that of the respondent, and her determination was supported by the expert evidence relied upon by the respondent, together with that of Dr Negus. The respondent submits that the Member’s consideration of that evidence, and acceptance of the opinions of Dr Huang, Dr Nicklin and Dr Negus, together with her ultimate conclusion that the proposed treatment was not appropriate, does not disclose error. The respondent asserts that the Member’s clear reasoning was consistent with the approach taken in Diab, her conclusion was open to her and her determination discloses no error.

As to Ground B

The appellant’s submissions

The appellant submits that the Member’s reasons for her conclusion emphasised the fact that the appellant’s prospect of being able to successfully participate in rehabilitation was low, which conclusion the appellant asserts was not rationally supported by the evidence. The appellant points to his own statement evidence, in which he stated that, without the proposed treatment, his quality of life would remain low. The appellant refers to his statement evidence in which he described a weight loss of almost 20 kilograms in two years and stated that he intended to comply with all advice given by his treatment providers in order to ensure the best possible outcome from the surgery. The appellant also refers to his evidence that he wished to pursue the surgery because his life was pointless. The appellant says that the Member noted that evidence, had regard to Dr Sardelic’s opinion and the clinical notes from Tamworth Hospital in relation to an admission to hospital some two years before, and observed that that evidence did not mean the appellant would not presently be able to participate in rehabilitation. The appellant refers to the Member’s view that it was a real and significant factor whether the appellant had the ability to participate in the rehabilitation program after the surgery and to the Member’s observation that the appellant had issues in complying with treatment.
The appellant asserts that the Member’s rejection of the appellant’s current evidence resulted in error in her conclusions and demonstrated that the Member’s factual findings in relation to the appellant’s inability to participate in rehabilitation did not have rational support in the evidence. The appellant explains that those conclusions were no longer correct because he had demonstrated a change in his approach over the previous two years and was prepared to co-operate with the health providers in order to benefit from the best outcome from the surgery.
The appellant submits that the Member erred by failing to have regard to his commitment to his wellbeing and treatment evidenced by his weight loss over the previous two years and to his awareness that, in order for the treatment to be successful, he needed to be committed and compliant to the procedure and to the advice given by the treatment providers.
The appellant asserts that the Member should have preferred that evidence over the past evidence which was no longer factually consistent with the circumstances. The appellant contends that his statement evidence was uncontradicted.
The appellant submits that the Member thus further erred by:
(a) overlooking material facts and giving too little weight to that evidence, consistent with the type of error identified in the Presidential decisions in Raulston v Toll[24] and Jamal v Nonabel Concrete Pty Ltd,[25] and
(b) showing a demonstrable misunderstanding of the evidence, namely the appellant’s statement evidence, in accordance with the type of error identified in Jamal.
[24] [2011] NSWWCCPD 25 (Raulston).
[25] [2018] NSWWCCPD 42 (Jamal).
The appellant asserts that had the Member given proper regard to his statement evidence, she would not have so readily considered that the risks associated with the rehabilitation were so great that they outweighed the benefit of the surgery, because the appellant had said that he would co-operate with the required rehabilitation.

The respondent’s submissions

The respondent disputes that the Member erred as asserted by the appellant. The respondent submits that there is ample medical evidence in support of the Member’s determination and points to the evidence of Dr Huang, Dr Nicklin and Dr Negus. The respondent contends that there was more recent evidence provided by Dr Negus which was as recent as two months prior to the issue of the Certificate of Determination. The respondent refers to the appellant’s assertion that his statement evidence was uncontradicted and submits that the assertion has to be weighed against the medical evidence about the appellant’s state of mind, which included Dr Negus’s assessment that the appellant was a poor historian, changed the conversation to an unrelated topic (consistent with his dementia), and showed little insight into his state of health.
The respondent refers to the Member’s reasons where the Member provided a detailed summary of the appellant’s statement evidence and stated that she had taken into account that evidence. The respondent further refers to the Member’s acknowledgment that Dr Sardelic’s evidence related to a hospital admission two years previously. The respondent submits that the Member’s conclusion that the appellant, despite his best intentions, would be unable to successfully participate in rehabilitation, was based upon the medical evidence.
The respondent submits that the medical evidence preferred by the Member was provided in the context of the doctors having each examined the appellant and formed their own views about the likely success of rehabilitation. The respondent asserts that the Member arrived at her determination on the basis of that evidence, which was a fair reading of the evidence before her and did not overlook the material facts. The respondent contends that the appellant has failed to establish error on the part of the Member sufficient to amount to appealable error.

As to Ground C

The appellant’s submissions

The appellant asserts that the Member overlooked or gave too little weight to the evidence of A/Prof Al Muderis, Dr Ong and Dr Tetsworth in respect of their appreciation of the appellant’s co-morbidities. The appellant refers to A/Prof Al Muderis’s evidence that he was aware of the extensive list of those conditions referred to by the respondent, as well as other conditions. The appellant points to A/Prof Al Muderis’s opinion that the proposed surgery was suitable in the context of the appellant’s co-morbid conditions.
The appellant submits that Dr Ong also noted the appellant’s co-morbid conditions, as well as his right knee arthritis and the conditions associated with his injury, including cellulitis. The respondent points to the history recorded by Dr Ong that the appellant denied any knee pain on the right-hand side. The appellant submits that Dr Ong considered that the surgery was appropriate and that it was not only reasonable but was necessary to improve the appellant’s quality of life and the only option to give him the ability to walk again.
The appellant also refers to Dr Tetsworth’s opinion that despite the appellant’s co-morbid conditions, the surgery was reasonably necessary.
The appellant asserts that, despite the above evidence, the Member considered that the experts did not give the same degree of consideration to the appellant’s co-morbidities as that given by the respondent’s medical experts or Dr Negus. The appellant maintains that the Member applied a more stringent test than that of the treatment being reasonably necessary and as a consequence the Member overlooked or gave too little weight to the opinions expressed by A/Prof Al Muderis, Dr Tetsworth and Dr Ong. The appellant submits that the Member expected the appellant’s evidence to address the co-morbid conditions to a standard that was not required, and that his experts were not required to address the appellant’s co-morbid conditions to the degree of detail provided by the other medical experts. The appellant submits that the medical experts only needed to address the co-morbid conditions and show that the treatment was reasonably necessary.

The respondent’s submissions

The respondent submits that the Member took into account the appellant’s medical experts and their understanding of the appellant’s co-morbid conditions but that the Member considered that the appellant’s medical experts did not give as sufficient attention to the potential risks as did the respondent’s medical experts and Dr Negus. The respondent says that a thorough assessment of the risks was fundamental to a consideration of the prospects of whether the surgery and the subsequent rehabilitation would be a success. The respondent refers to the Member’s reasons, in which she concluded that she preferred the opinions of Dr Huang, Dr Nicklin and Dr Negus because they had “given careful and detailed consideration to the likely benefit to accrue to [the appellant] against the very real risks that they identify.”[26]
[26] Reasons, [214].
The respondent refers to McColl JA’s observations in Hume v Walton[27] that, where there is a conflict in expert evidence, the parties are entitled to an explanation as to why the judge prefers one expert over the other. The respondent says that the Member clearly identified her reasons for preferring the respondent’s evidence over that of the appellant when she observed that those experts gave consideration to the likely benefit versus the risk.
[27] [2005] NSWCA 148.
The respondent submits that the Member’s conclusion was based upon how the appellant’s co-morbid conditions impacted upon their opinions in respect of the risk associated with the surgery and the rehabilitation, and such a conclusion was open to her. The respondent contends that the Member did not fall into error.

RELIEF SOUGHT

The appellant seeks to have the Certificate of Determination revoked and the matter re-mitted to a different member for re-determination. The respondent seeks to have the appeal dismissed and the Certificate of Determination confirmed.

CONSIDERATION

The appellant acknowledges in his submissions that the question of whether the surgery was reasonably necessary is a question of fact and that the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[28] (as summarised by Roche DP in Raulston), Allsop J’s observations (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[29] the observations of Sackville AJA in Northern NSW Local Health Network vHeggie[30] and those made by me in Jamal are relevant.
[28] (1966) 39 ALJR 505 (Whiteley Muir).
[29] [2001] FCA 1833.
[30] [2013] NSWCA 255.
In Grounds B and C of the appeal, the appellant asserts that the Member erred in fact in respect of her conclusions relating to the appellant’s ability to participate in rehabilitation (Ground B) and by failing to take into account that the appellant’s evidence was cognisant of the appellant’s co-morbidities (Ground C). It is convenient to consider those grounds before turning to the alleged error of law asserted in Ground A.
The authorities referred to by the appellant make it clear as to what is required in order to disturb the Member’s factual conclusions. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[31] The appellant must show that:
(a)    a member’s preference for one view of the facts over another is so outweighed by other probabilities that the conclusion must be wrong;
(b)    material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn, or
(c)    the available inference in the opposite sense to that chosen by the Member is so preponderant that the Member’s decision must be wrong.[32]
[31] Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby), [144].
[32] Whiteley Muir; Raulston, [19]–[20].

Ground B

The appellant submits that the Member’s finding that his ability to participate in rehabilitation was low was not rationally supported by the evidence. The basis upon which the appellant asserts that the conclusion was wrong is that he gave statement evidence that he was committed to ensuring the success of the surgery by:
(a)    having lost 20 kilograms in the past two years;
(b)    attending the gymnasium at the nursing home in order to strengthen his leg, and
(c)    expressing an intention to comply with the post-surgery rehabilitation requirements.
The appellant asserts that his statement evidence was uncontradicted.
The Member conceded in her reasons that the appellant’s failure to participate in rehabilitation and to follow nursing instructions after the amputation of his leg in 2019 did not necessarily establish that the appellant would not comply with those requirements when undergoing the osseointegration surgery and rehabilitating from that surgery.[33]
[33] Reasons, [178].
There was ample evidence, however, to support the Member’s ultimate conclusion that the prospect of the appellant complying with what was described by the medical experts as an intensive rehabilitation program was low. The Member concluded that, on the basis of Dr Tetsworth’s views about the benefits of the surgery, the rehabilitation was of critical importance to any benefit derived from the surgery. She referred to Dr Negus’s relatively contemporaneous observation that there needed to be greater commitment and compliance to nursing care by the appellant in order for the surgery to succeed. The Member provided a thorough summary of all of the medical evidence and concluded that she preferred the evidence of Dr Huang, Dr Nicklin and that of Dr Negus, the Medical Assessor.
Relevantly, Dr Huang recorded on 29 June 2021 that the proposed procedure and the rehabilitation process that followed was demanding on the patient and that the appellant’s poor functioning indicated that the outcome would be poor. He added that the appellant was living in a high care facility, showed significant cognitive impairment and his behaviour within the facility indicated that issues with compliance were a barrier to further treatment.
Dr Nicklin reported on 30 June 2021 and expressed concern that the appellant’s cognitive impairment and behavioural issues would impact the appellant’s recovery because he would be unable to take care of his prosthesis. Dr Nicklin considered that the appellant would be required to achieve maximum fitness in order to participate in the rehabilitation process, which had not been achieved. Further, the appellant’s co-morbidities would worsen with time and have greater impact upon his success in the rehabilitation process.
Dr Negus, in his Medical Assessment Certificate dated 27 January 2022, indicated that the appellant had little insight into his state of health and had been non-compliant with medical staff, probably because of his cognitive impairment. He said that the appellant’s dementia, coupled with his history of non-compliance with rehabilitation, made it unlikely that the appellant would rehabilitate sufficiently in order to mobilise safely.
The Member was entitled to rely on the evidence of all three of those medical experts to conclude that she was not satisfied that the appellant would be able to successfully participate in the rehabilitation process. That evidence was relatively contemporaneous to the consideration given as to the surgery being proposed. The Member also took into account the evidence of Dr Tetsworth that the appellant was physically deconditioned, elderly, obese and suffered from heart failure. She considered that those facts countered against the requirement that the appellant have a maximum level of fitness for the procedure to succeed. She further noted that Dr Tetsworth and A/Prof Al Muderis had described a successful outcome without having considered those impediments to the appellant’s ability to rehabilitate.
The appellant’s statement evidence simply pointed to some weight loss (which was not sufficient to bring the appellant under the maximum body mass index of 30) and asserted that he would comply with the advice and treatment given. That evidence was not consistent with the competing medical evidence and thus not “uncontradicted.” The competing medical evidence was compelling.
The Member did not overlook or misunderstand the appellant’s evidence in respect of his ability to participate in rehabilitation or afford it too little weight. The Member took into account the appellant’s evidence and provided cogent reasons for rejecting it. She said:
“[The appellant] acknowledges Dr Negus’s comment that there needs to be a ‘heavier investment from [him] in terms of commitment and compliance in order for the procedure to be successful’. The appellant refers to his weight loss of nearly 20kg over the previous two years and his attendance at the gym at the nursing home to strengthen his left leg. He says he is ‘prepared to comply with all recommendations from the treating doctors and health care professionals to ensure an optimum outcome for the surgery.’
Despite [the appellant’s] stated intentions, the evidence suggests that he is unlikely to be able to make the ‘heavier investment in terms of commitment and compliance’ necessary for a successful outcome, whether by reason of his age, his ‘deconditioning’ or the effects of vascular dementia, or a combination.”[34]
[34] Reasons, [181]–[182].
The Member concluded that the evidence pointed to the appellant being unlikely to be able to make that investment, which was an integral part of the proposed treatment. The conclusion was available to her on the basis of the medical evidence discussed above.
The appellant has not identified error on the part of the Member in the manner described and this ground of appeal fails.

Ground C

The appellant asserts that the Member erred in fact by failing to take into account that the appellant’s evidence was “cognisant of the appellant’s co-morbidities.” He asserts that the Member overlooked or placed too little weight on the evidence of A/Prof Al Muderis, Dr Ong and Dr Tetsworth as to their appreciation of the appellant’s co-morbid conditions. The appellant submits that the Member expected the appellant’s medical experts to address those conditions to a higher standard than was required and the experts’ opinions were sufficient.
The Member referred to and applied the matters for consideration in respect of her evaluation of whether the surgery was reasonably necessary, as set out in Rose and Diab. Those matters were summarised by Roche DP in Diab as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose …, namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’. Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not.” [35]
[35] Diab, [88]–[90].

The Member considered the availability of alternative treatment and the cost of the proposed surgery. She noted that there were no issues raised in respect of those matters. She then turned to consider the potential effectiveness of the treatment and the medical opinions as to whether the surgery was appropriate and likely to be effective.
As Roche DP identified, each case turns upon its own facts. The medical opinions accepted by the Member set out in detail the difficulties the appellant faced if he proceeded with the surgery. In the circumstances of this case, there were three medical experts who considered that the surgery was not appropriate for this candidate because it was highly unlikely to have an effective outcome and, on the basis of the appellant’s co-morbid conditions, posed a real risk to the appellant’s life. While the potential effectiveness of the proposed treatment is not always, of itself, a determinative factor, in this case it was most relevant in the context of the significant risks associated with the surgery for this particular individual.
The Member noted that both A/Prof Al Muderis and Dr Tetsworth acknowledged the risks of surgery, which included the possibility that the appellant may not survive the surgery. The Member considered that those doctors had not sufficiently considered the potential risks to the degree that the respondent’s medical experts and Dr Negus had done.
The Member provided valid reasons for rejecting the opinion of Dr Tetsworth. Firstly, she noted that Dr Tetsworth’s criticism of the expertise of the respondent’s doctors was unfounded. Secondly, she observed that Dr Tetsworth did not take into account the likelihood of repeated infections occurring, the pain and difficulty arising from the appellant’s arthritic condition and the likely effect of the appellant’s declining cognitive impairment on the rehabilitation process.
The Member referred to A/Prof Al Muderis’s reasons as to why a socket mounted prosthesis was not appropriate. She reasoned that it was unclear as to why those factors were not relevant considerations to the provision of the osseointegrated prosthesis, particularly in terms of the appellant having to weight bear using a frame or crutches. This was a valid observation about the reasons put forward by A/Prof Al Muderis.
The appellant submits that Dr Ong took into account the presence of the appellant’s co-morbid conditions and referred to the appellant’s right knee osteoarthritic condition as being painless. Dr Ong clearly did not have a history of the appellant’s significant cardiac issues. Dr Ong’s evidence was limited to an assessment of the appellant’s medical condition at the time the appellant presented and there were a number of health issues that needed to be assessed. The osteoarthritic condition in the appellant’s right knee was, in the opinion of both Dr Huang and Dr Negus, a relevant contraindication for the proposed surgery, despite it being asymptomatic at the time of examination when the appellant was not weight bearing on that knee. Dr Ong, as well as A/Prof Al Muderis and Dr Tetsworth, did not address that evidence. Although Dr Ong indicated that the aim was to improve the appellant’s quality of life and his ability to ambulate by proceeding to osseointegration, Dr Ong did not explain the effect, if any, that the raft of co-morbid conditions would have in the assessment of the likely outcome from that procedure.
At its highest, the inference that could be drawn from the evidence of A/Prof Al Muderis, Dr Ong and Dr Tetsworth was that, in their view, the anticipated outcome from the surgery outweighed the contraindications for the proposed surgery. Their view was contradicted by the evidence of Dr Huang, Dr Nicklin and Dr Negus. The Member proceeded to evaluate the evidence and provided a cogent and reasoned path to conclude that she preferred the opinions of Dr Huang, Dr Nicklin and Dr Negus over those experts who were in favour of the proposed surgery. In order to determine whether the surgery was reasonably necessary, the Member was required to evaluate the medical opinions that addressed that issue.
The Member did not overlook any aspect of the appellant’s medical evidence or apply a more stringent test in rejecting the evidence of the appellant’s medical experts. In accordance with Rigby, Whiteley Muir, and Raulston, the acceptance of evidence and the weight it is given are matters for the primary decision maker, unless it can be shown that the Member’s finding was so outweighed by the contrary evidence that it should be considered that her conclusion was wrong. In the circumstances of this case, it could not be said that the evidence in favour of the surgery was so preponderant that the Member’s conclusion must be wrong.
The appellant has not disclosed error of the kind required in order to disturb the Member’s conclusion. It follows that Ground C of the appeal fails.

Ground A

The appellant asserts that the Member erred in law by “misapplying the test of ‘reasonably necessary’.” The appellant says that the evidence showed that the proposed treatment was the only option for the appellant to walk again, there were no other treatment options, and the costs of the surgery was not in issue. The appellant says that the Member noted those factual matters.
The appellant submits that the Member rejected the appellant’s case on the basis that the surgery was not likely to succeed, which was erroneous. The appellant says that the Member placed greater emphasis on the “aftermath” of the surgery, rather than its potential effectiveness, and thus applied a more stringent test than was required. He submits that all he was required to do was to establish that the treatment was reasonably necessary (his emphasis).
The appellant correctly points out that a poor outcome does not necessarily mean that the surgery was not reasonably necessary. The question of whether any particular treatment is reasonably necessary as a result of an injury must be assessed on a case by case basis, and, in line with the observations of Burke CCJ in Rose, with the Commission:
“exercising prudence, sound judgment and good sense … 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.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”[36]
[36] Rose, 48B—C.
The exercise described by Burke CCJ is an evaluative exercise, requiring the Member to consider whether the treatment should be afforded to the appellant, taking into account the potential effectiveness of the treatment.
The intended purpose of the treatment was a necessary element to consider, which was to attempt to assist the appellant’s mobility and his ability to ambulate. The Member was cognisant of the fact that this was the expressed intention of the appellant’s treatment providers, however, that was not the end of the matters for consideration. The Member considered that it was not sufficient that the surgery was the appellant’s only option, and that that fact must be considered in the light of the likelihood as to whether the proposed surgery would succeed. There was nothing erroneous in the Member’s approach. Whether the proposed surgery would be likely to achieve that outcome, in the circumstances of this case, was a significantly relevant consideration. While there are risks associated with most surgeries, the risks to the appellant in this case, which included risk to his life and the very real risks of inhibiting the desired successful outcome, were substantial because of the nature of his co-morbidities.
There was cogent evidence provided by Dr Huang, Dr Nicklin and Dr Negus that the treatment was not appropriate in the circumstances of this case and was unlikely to be effective. The Member preferred that evidence over the evidence relied upon by the appellant and gave valid reasons for doing so. The acceptance by medical experts of the treatment as being appropriate and likely to be effective is one of the matters required to be taken into account identified by Burke CCJ in Rose in assessing whether the treatment was reasonably necessary.
As the respondent submits, the appellant’s ability to survive the surgery, together with the real risks of complications arising and the potential for a deterioration of the appellant’s co-morbid conditions were all matters relevant to the consideration of the potential effectiveness of the treatment, which necessarily was dependent upon successful rehabilitation.
It cannot be said that the Member erred by applying a more stringent test to her assessment of whether the treatment was reasonably necessary. The appellant has failed to identify any error of fact or law in the acceptance or rejection of the evidence or in arriving at her conclusions. It follows that Ground A of the appeal fails.
The appellant has been unsuccessful in establishing error on the part of the Member and the Member’s Certificate of Determination is confirmed.

DECISION

The Member’s Certificate of Determination dated 22 March 2022 is confirmed.

Elizabeth Wood
Deputy President

31 October 2022