Gonzalves v Wideline Pty Limited
[2021] NSWPIC 472
•18 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gonzalves v Wideline Pty Limited [2021] NSWPIC 472 |
| APPLICANT: | Andrew Gonzalves |
| RESPONDENT: | Wideline Pty Limited |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 18 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987; expenses for surgery to cervical spine; Diab v NRMA Ltd considered; quality of medical evidence; South Western Sydney Area Health Service v Edmonds and Hancock v East Coast Timber Products Pty Limited discussed; Held - award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Andrew Gonzalves was employed by Wideline Pty Limited (Wideline) as a delivery driver, delivering window and door frames. On 21 March 2019 when co-worker began to untie the load on the back of the truck, the doors and frames fell toward Mr Gonzalves, striking him on the head. He fell back when struck by the frames, suffering a fracture of his left ankle, an injury to his left elbow, facial injuries and an injury to his neck.
Mr Gonzalves suffered a serious injury and he has undergone extensive treatment, including surgery to his ankle, his left elbow, damaging the ulnar nerve, and his face.
Mr Gonzalves was referred to Dr B Singh, neurosurgeon, who has recommended surgery to his neck. Wideline disputes liability for that surgery so that the issue for determination in these proceedings is whether the proposed C3 to C 5 anterior discectomy and fusion is reasonably necessary medical treatment as a result of the injury.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference and arbitration hearing on 28 September 2021 when Ms Grotte of counsel appeared for Mr Gonzalves and Mr Doak of counsel appeared for Wideline.
At the telephone conference on 25 August, Ms Tancred, Wideline’s solicitor said that Wideline sought to obtain a report from Dr V Perotti, the neurosurgeon it had qualified. The report was served shortly before the conciliation conference and Mr Gonzalves sought to respond to it. After conciliation, an order was made permitting that to occur and for written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply;
(c) Wideline’s Application to Admit Late Documents dated 22 September 2021, and
(d) Mr Gonzalves’ Application to Admit Late Documents dated 8 October 2021.
There is no dispute that Mr Gonzalves suffered a neck injury and it is therefore only necessary to consider the medical evidence that goes to the question of the reasonable necessity of surgery.
After in-patient treatment at John Hunter Hospital for about three weeks, Mr Gonzalves saw Dr S Calvache-Rubio, general practitioner, on 9 April 2019. Dr Calvache-Rubio referred Mr Gonzalves for an MRI scan of his cervical spine and right shoulder, noting radiculopathy.
The report of the MRI scan is dated 26 April 2019. The report reads:
“C3/4
There is a focal left posterolateral disc protrusion causing narrowing of the left nerve root entry zone with potential irritation of the left C4 nerve root from this not excluded.C4/5
There Is a posterocentral disc protrusion abutting the spinal cord and causing mild canal stenosis.
…COMMENT:
Left sided disc protrusion of C3/4 and posterocentral disc protrusion of C4/5.”
Mr Gonzalves saw Dr G Soo, orthopaedic surgeon, on 30 May 2019. Dr Soo said:
“Currently he Is getting ongoing neck pain with restricted range of motion. He has associated numbness from the left elbow down to the ulnar digits. He finds that when he holds the elbow in a flexed position for extended periods he would get numbness to his fingers. When he wakes up in the morning he has numbness and he has to extend the elbow. He has an extension elbow brace which he wears at night time.
…
On examination of his neck he has midline tenderness to his cervical spine with marked restriction in his movement especially rotation. On examination of the left elbow he has clear subluxing ulnar nerve with a positive Tinel’s test. He has paraesthesia to the ulnar distribution of his left hand. He has normal motor function.”
Dr Soo said that the MRI of Mr Gonzalves’ neck showed multi-level disc bulges. He continued to treat Mr Gonzalves in respect of his ankle and elbow injuries.
On 16 August 2019, Mr Gonzalves saw Dr Singh for the first time. Dr Singh said:
“He has persistent pain in the neck and the interscapular area, and this is related to the disc bulging at C4-5 which is indenting the spinal cord as well as foraminal stenosis on the left side at C3-4 from a disc bulge. It is difficult to examine his gait, as he has an antalgic gait from his ankle fracture which is still healing, however on examination he does demonstrate brisk knee jerk. Ankle and plantar reflex is equivocal. He does have some radiating pain in the left CB distribution, and I note that a neurophysiological study mentions moderate ulnar neuritis at the elbow.
MRI scan of the cervical spine reveals disc injury at C4-5 and C3-4 giving rise to central stenosis at C4-5 with indentation of the spinal cord and foraminal stenosis at C3-4, worse on the left side. He demonstrates significant stiffness of the cervical spine associated with pain, and this is related to his neck pathology.
He can trial a cervical injection as a diagnostic and therapeutic measure and I would like to review him in two months’ time. If his pain does not improve with conservative treatment, then he may need to consider anterior cervical decompression and fusion from C3 to C5. It is also possible that his ulnar neuritis may be secondary to a double crush phenomenon.”
Dr Singh attached a clinical note to that report in which he said:
“Available for review today is an MRI scan of the cervical spine which reveals central disc bulge at C4-5 giving rise to indentation of the spinal cord without signal change in the neurological elements. At C3-4 there is a disc bulge giving rise to foraminal stenosis on the left. Scans were done at PRP imaging on the Central Coast.”
Dr Singh reviewed Mr Gonzalves on 1 October 2019 but he had not yet had the injections.
A report from Dr G Soo dated 10 October 2019 said that he had booked Mr Gonzalves for left ulnar nerve neurolysis and transposition on 25 October 2019. Dr Soo’s subsequent reports deal only with Mr Gonzalves’ left ankle.
On 29 October 2019, Dr Singh noted that Mr Gonzalves had undergone surgery for a release of his left ulnar nerve. Because Mr Gonzalves was taking significant amounts of pain killers, Dr Singh considered it appropriate to defer the cervical injections until they would provide clear diagnostic information.
On 17 March 2020, Dr Singh noted that Mr Gonzalves had relief from his left arm pain after the left C3/4 injection, the level at which he had foraminal stenosis. Dr Singh said that Mr Gonzalves had a central disc protrusion at C4/5 indenting the spinal cord which was responsible for his interscapular pain and proposed an injection at that level.
Dr Singh reviewed Mr Gonzalves by a telehealth conference on 16 June 2020, noting that he had ongoing neck pain with radicular symptoms in his arms. On 7 July 2020, he noted that Mr Gonzalves had had a turbulent post-operative course after a septoplasty operation with recurrent nasal bleeding. Mr Gonzalves had recovered from that surgery by the time of a further telehealth consultation on 21 July 2020 and Dr Singh recommended updated imaging.
Dr Singh wrote to Mr Gonzalves’ general practitioner on 18 August 2020, noting that he had ongoing symptoms of neck and arm pain. He said that a repeat MRI scan:
“reports that there is disc bulging from C3 to C5 which contacts accord. There is moderately severe foraminal stenosis at these two levels, worse on the right side.”
The report is said to have been dictated but not checked by Dr Singh and I presume that “accord” was meant to read “the cord”. Dr Singh said that an injection to the right C4/5 disc had improved Mr Gonzalves’ symptoms for a short time due to the local anaesthetic. Dr Singh said that Mr Gonzalves had trialled conservative treatment but had ongoing symptoms and:
“In view of ongoing symptoms, surgery is reasonably necessary. His surgical option is to have decompression of the cervical spine nerve roots with insertion of a prosthesis. He will attend my rooms with his scans, and we will plan his surgery in greater detail at that time. As you know he is due to have a revision surgery for his sinuses.”
There is no copy of the report of the updated MRI scan in the file.
On 21 May 2021 Dr Singh wrote to Wideline’s insurer. He provided short answers to a series of questions. He said that Mr Gonzalves had persistent neck and arm pain.
On 20 June 2021 Dr Singh prepared a report intended to support a claim in the Commission. He confirmed the information in the reports summarised above and said that he had last seen Mr Gonzalves on 1 April 2021. He said that sensory examination of the upper limbs demonstrated mildly decreased sensation in the left C8 dermatome and that the right brachioradialis reflexes were inverted. He considered that “surgical decompression and stabilisation is the recommended mode of treatment in the presence of ongoing symptoms which have failed other modalities of conservative treatment.” He said that the latest scan from August 2020 showed disc bulging contacting the spinal cord with moderately severed foraminal stenosis at both levels, worse on the right.
Mr Gonzalves’ solicitors qualified Dr E Gehr, orthopaedic surgeon, who reported on 14 May 2021. He reviewed the reports he was provided with at length but that material did not include the results of the MRi scan in August 2020.
Wirth respect to Mr Gonzalves’ cervical spine, Dr Gehr noted persisting pain with guarding and dysmetria. He noted plans for fusion surgery. Dr Gehr was asked a large number of questions to which he provided brief answers. He said that he supported the surgery proposed by Dr Singh because “it is appropriate with this kind of problem.” He said it was 30 to 70% effectiveness in relieving symptoms, that all alternatives have been explored, that it is cost beneficial and accepted among spinal surgeons in Australia. Dr Gehr did not provide any reasoning for those statements.
Dr Gehr noted that Mr Gonzalves had undergone surgery for his left ulnar nerve but that he still reported electric shocks going down his left hand.
Dr Gehr provided a supplementary report in which he assessed 5% whole person impairment (WPI) for Mr Gonzalves’ cervical spine, placing him in DRE category II for a soft tissue injury with guarding and dysmetria. He added 2% for the impact of the injury on the activities of daily living.
Wideline’s evidence
Wideline arranged for Dr A Keller, occupational physician, to examine Mr Gonzalves and he reported on 5 December 2019. Though I was told at the telephone conference on 25 August 2021 that Wideline did not reply on the reports of Dr Keller, they are referred to in the dispute notices and Wideline’s submissions.
Dr Keller described Mr Gonzalves’ presenting complaints:
“Mr Gonsalvez reports constant neck pain. He rates the pain at 8/10 in intensity on a scale where 10 is the most severe. He reports constant left elbow pain radiating into the hand that he rates at 8/10 in intensity. He reports constant left lower limb pain from the hip down to the foot rated at 8/10 in intensity. He states he suffers daily headaches.”
Dr Keller set out his examination findings. He summarised Mr Gonzalves’ current diagnoses with respect to his left ankle and left ulnar nerve. He said:
“He reports pain in his neck and shoulders though no objective evidence of neck or shoulder injuries has been provided to me.”
Dr Keller considered that there were inconsistencies on examination and that Mr Gonzalves’ capacity was greater than he wished to demonstrate, though he conceded that there may be psychological restrictions on his work capacity. He said that he would strongly recommend an independent neurological opinion before considering any cervical spine interventions.
Dr Keller reported again on 30 September 2020. He noted that Mr Gonzalves had been diagnosed with post-traumatic stress disorder. He said that no injury of the cervical spine was evident to him. He said that Mr Gonzalves did not require further investigation of the musculo-skeletal system.
Dr V Perotti, neurosurgeon, reported for Wideline on 10 March 2021. She recorded that Mr Gonzalves had severe neck pain which is unchanged and occasional left arm pain which has improved since the surgery on his ulnar nerve.
Dr Perotti set out her findings on examination, which included decreased sensation to soft and sharp touch on the outer part of his fourth and fifth finger on the left. Dr Perotti reviewed imaging of Mr Gonzalves’ cervical spine dated 4 August 2020 which showed:
“MRI cervical spine-Mild disc bulge at C3-C4 and C4-C5 which makes contact but does not compress the spinal cord. Mild right foraminal stenosis at C5/C5, C4/C4 and mild foraminal stenosis left C3/C4.”
Dr Perotti diagnosed, among other conditions, cervical axial neck pain without radiculopathy. She considered that he suffered an aggravation of cervical spondylosis which had not ceased. She said:
“I am not in agreement with Dr Keller's belief that Mr Gonzalves physical assessment was inconsistent with Mr Gonzalves reported symptoms. I found Mr Gonzalves to be honest, if not distressed psychologically throughout the assessment. His stated symptoms are consistent with the physical examination. I note Dr Keller made reference to Mr Gonzalves having no scars or injuries to his face, this is not correct; Mr Gonzalves has obvious scaring to his face. Mr Gonzalves physical examination did improve slightly during the examination i.e. his range of motion improved but this was with a lot of encouragement and reassurance. I do not find this uncommon with patients especially if they are stressed and there is some guarding.”
With respect to treatment of Mr Gonzalves’ cervical spine, Dr Perotti said:
“Mr Gonzalves has axial neck pain and limited range of motion (ROM) in lateral rotation bilaterally. There is no convincing radiculopathy. Without radiculopathy the benefits of a two level cervical fusion to manage axial pain and decreased ROM is very limited. I do not consider the C3-C5 anterior decompression and fusion to be reasonably necessary.”
At the end of her report Dr Perotti said;
“Mr Gonzalves was very distressed during the assessment and I allowed him a lot of time to vent and discuss his concerns. He is confused by the multiple doctors and appointments he has undertaken. He feels that he is to blame for the accident and that he ‘ruined his life’. I have given him reassurance that this is not the case. He has a very firm belief that he requires ‘permission’ to engage in any activity from the multitude of specialists because he feels he is severely damaged and that he would not be able to participate in meaningful employment or complete exercise. Mr Gonzalves was a professional weight lifter entering multiple competitions prior to this incident. This is evident in the surveillance images taken with his fiancee where it is evident that he was quite a large, fit body builder. He seemed surprised when I said that there is no reason why he can't exercise and/or compete in a sport but that the sport would have to be low impact such as swimming. He was also a competitive swimmer and he was happy to hear he could go swimming. It may assist Mr Gonzalves for his therapists such as his physiotherapist or exercise physiologist to tap into that ‘competitive sporting side’ in order to engage him. He is pursuing a diploma in Real Estate management and I have encouraged him to continue his studies.”
Wideline’s insurer asked Dr Singh to comment on Dr Perotti’s report and he said:
“I am not in agreement with the statement that surgery is not indicated. Mr Gonzalves has intrascapular, periscapular and axial neck pain. He has pathology at C3/4 and C4/5. There is foraminal stenosis resulting in arm symptoms. The pain radiates to the shoulder in the upper arm. He had a response to an injection at C4/5 during the anaesthetic phase, and this is diagnostic.
His non-surgical option is to accept permanent functional impairment and trial chronic pain management.
His surgical option is to undergo decompression and stabilisation from C3 to CS with the insertion of a prosthesis.”
Dispute notices
Wideline’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 6 January 2021 stating that, on the basis of Dr Keller’s report dated 25 September 2020, the proposed surgery was not reasonably necessary but the insurer offered to “pro-actively” review its opinion on receipt of Dr Perotti’s report.
That pro-active review did not take place. Mr Gonzalves’ solicitors sought a review on the basis of Dr Gehr’s report.
On 7 June 2021 the insurer again declined liability for the surgery saying:
“For an entitlement to medical or related treatment for an injury, consideration is given to whether the treatment is reasonably necessary for a work-related injury, pursuant to section 60 of the 1987 Act. Whether treatment is reasonably necessary requires consideration of evidence which addresses whether the treatment results from the work-related injury, the treatment’s appropriateness, effectiveness, cost, and any treatment alternatives.
Whilst we note that your treating spinal doctor and IME are of the opinion that the C3-5 anterior decompression and fusion is reasonably necessary, both Dr Keller and Dr Perotti are of a different opinion.
The insurer’s orthopaedic surgeon, Dr Keller is of the view that there is no evidence of injury to your cervical spine. As such, you do not require any treatment to your cervical spine. Furthermore, the insurer’s neurosurgeon does not consider that the proposed surgery is reasonably necessary as without signs of radiculopathy, the benefits of a two-level cervical fusion to manage axial pain and decreased range of motion is very limited.
On the basis of the available evidence, we are satisfied that the requested C3-5 anterior decompression and fusion is not reasonably necessary for your injury to your cervical spine.”
Further reports
At the telephone conference on 25 August 2021, Wideline said that it sought a further report from Dr Perotti to respond to Dr Gehr’s report. That further report is dated 17 September 2021.
Dr Perotti was asked to elaborate on her statement that, without radiculopathy, the benefits of a two-level fusion to manage axial pain and decreased range of motion was limited. Dr Perotti said:
“There is no high grade quality/current medical evidence that fusing a patient’s cervical spine for axial (neck pain) only, provides any change in short or long term outcomes for the patient, particularly when there is no associated radiculopathy. This is consistent in the cervical spine and in the lumbar spine. The benefit to fusing an individual’s cervical spine for pain i.e. the benefit far out-ways any risk/s and also there is a long term functional benefit, is only provided when there is established instability. Examples of instability in the spine would include, malignant fractures caused by cancer within the vertebral bony column, trauma such as spinal fractures and ligamentous injury and also spondylolisthesis. Mr Gonzalves has no evidence of any of these features clinically and radiologically.
This opinion in regard to managing axial neck pain without surgery is consistent with
the Orthopaedic Disability Guidelines ODG Guidelines which are stated within the
guidelines under fusion of the cervical spine, anterior cervical fusion.”
Dr Perotti footnoted the source of the Official Disability Guidelines:
“Official Disability Guidelines (ODG) 2019 ( provides unbiased evidence-based guidelines to assist in returning individuals to health. The ODG Treatment Guidelines are based on a comprehensive, ongoing, and worldwide systematic review of the medical literature by a multidisciplinary professional group, including up to date clinical summaries with medical necessity guidance, patient selection criteria, and citations into medical literature; while the Return to Work (RTW) Guidelines and Activity Modifications are informed by a statistical analysis of approximately 10 million cases from the USA, Canada, and Australia using a relational database system, with target and benchmark durations by diagnosis, at the claim level. All ODG guidelines undergo an annual modified Delphi peer review and consensus process by the ODG Advisory Board, of approximately 100 leading physicians in multiple specialties, including specialists in occupational and disability medicine. The ODG guidelines serve as an adjunct to the medical expert’s opinion, with modifications made to suit the needs of individual patients. ODG is published by MCG Health ( is part of the Hearst Health Network.”
Dr Perotti was asked if the proposed procedure would be more appropriate if Mr Gonzalves had radicular symptoms. She said:
“If the applicant presented with radicular symptoms and demonstrated radiological evidence of a cause for the radicular symptoms or radiculopathy for example compression of a nerve on MRI of the cervical spine by a disc or foraminal narrowing, which also clinically correlated with the applicant’s pattern of symptomatic pain and objective clinical findings, then the proposed procedure would be a more appropriate method of treatment.”
Dr Perotti said:
“Fusing patterns with axial cervical or back pain without instability or radicular symptoms or radiculopathy is not consistent with my training within the neurosurgical Australian training pathway for brain and spine. There is no current literature supporting a proposed benefit of ‘30-70%’ for the proposed procedure. I have never associated the benefit of the proposed surgery be quoted at ‘30-70%’ and I cannot recall within my training in the public system any patient receiving a fusion for axial pain. A 30-70% benefit for the proposed surgery is inconsistent with Dr Gehr’s report of a 5% WPI for cervical neck pain.”
Dr Perotti attached a 2013 document from the North American Spine Society headed “Appropriate Use Criteria – Cervical Fusion”.
Mr Gonzalves sought to obtain reports from Drs Gehr and Singh commenting on Dr Perotti’s report. Dr Singh provided a report dated 29 September 2021 in which he said:
“Mr Gonzalves has intrascapular, periscapular and axial neck pain. He has pathology at C3/4 and C4/5. There is foraminal stenosis resulting in arm symptoms. The pain radiates to the shoulder in the upper arm. He had a response to an injection at C4/5 during the anaesthetic phase, and this is diagnostic.
His pain in the scapular and upper arm responded transiently to the local anaesthetic component of the cervical injection at C4/5. This tells us that the symptoms are not axial neck pain but from neurological compression which is clearly evident on the MRI scan.
To answer your question, radiculopathy need not be classically present for cervical fusion to be considered reasonably necessary.
…
Symptomatic foraminal stenosis, which this gentleman certainly has, is an indicator for cervical spine surgery. The purpose of surgery is to decompress the exiting nerve, and stabilise motion segment in order to improve the symptoms.This gentleman has pain which radiates to the shoulder blade from the neck. This is in addition to axial neck pain. Neurological signs in the upper limb are confusing because he has had ulnar nerve decompression.”
Dr Gehr provided a report dated 30 September 2021. He said:
“There is no requirement that radiculopathy be present for a cervical fusion to be performed. The cervical fusion can be performed for unremitting or severe neck pain and/or for severe cervical spine pain associated with radiculopathy. This is usually performed when all nonoperative measures have been exhausted.”
SUBMISSIONS
Ms Grotte prepared submissions on behalf of Mr Gonzalves. She summarised the evidence and set out a long passage from Diab v NRMA Limited[1] (Diab). She said that the evidence of Dr Singh should be preferred over the evidence of Dr Keller and Dr Perotti. Dr Keller’s opinion carried no weight because it had been diminished by that of Dr Perotti.
[1] [2014] NSWWCCPD 72.
Ms Grotte’s substantive submissions were brief. She said that the passage quoted at [45] above was relevant because the MRI scan demonstrated foraminal stenosis at the level of the proposed fusion. Mr Gonzalves had undergone two years of conservative treatment with no lasting relief, the procedure is not novel and the cost was “the usual costs.” Ms Grotte said that the Commission should find that the treatment is reasonably necessary and order Wideline to pay the costs.
Mr Doak prepared submissions on behalf of Wideline. He said that Dr Singh recommended surgery because of “ongoing structural pathology” in the cervical spine. He noted a difference in Dr Singh’s report dated 16 August 2019 compared to the attached clinical note.
Mr Doak noted that in the report dated 17 March 2020 after the injection at C3/4, Dr Singh said that Mr Gonzalves appeared to experience relief of left arm pain but did not identify any nerve root compromise which would support the conclusion that the injection caused relief for any reason other than anaesthetic effect. In a report dated 16 June 2020 Dr Singh asserted that Mr Gonzalves had radicular symptoms in the arms without identifying the basis of the diagnosis.
Mr Doak said that the shortcomings in Dr Singh’s opinion are highlighted in his report dated 21 July 2020 in which he said that pins and needles in the left ring and little finger were most likely secondary to the ulnar decompression he had undergone. Mr Doak summarised Dr Singh’s reports, stressing the lack of description of radicular symptoms. He said that that problem with Dr Singh’s rationale for the proposed surgery was that, before his report dated, 20 June 2021 in which he said that the symptoms were due to neurological compression, he did not make that diagnosis.
Mr Doak said that Dr Singh had not provided a properly reasoned basis to support his opinion that surgery is reasonably necessary to treat neurological compression due to the injury. He said that the report did not fulfil the requirements for evidence in the Commission in r 73 of the Personal Injury Commission Rules 2020 and cited the authorities dealing with expert evidence in the Commission[2].
[2] Including a decision in Brannigan v Elbon Consulting Services Pty Limited [2021] NSWPICPD 27, a decision which the President directed not be published under r 132 of the Personal Injury Commission Rules.
Summarising the reports relied on by Wideline, Mr Doak submitted that the restriction of movement demonstrated to Dr Perotti contrasted markedly with that observed by Dr Keller, which pointed to inconsistency of presentation and perhaps the involvement of psychological factors, neither of which had been considered by Dr Singh. Mr Doak said that Dr Perotti’s interpretation of the MRI scan was consistent with Dr Soo’s observation of disc bulging at multiple levels.
During conciliation, I queried the relevance of the material on which Dr Perotti relied and Mr Doak noted that I raised a question about the independence of the North American Spine Society publication on which she relied. He said I would accept that publication as not slanted toward any viewpoint and that I would accord it significant weight. He noted that neither Dr Singh nor Dr Gehr commented on it.
There is, as is usual, no recording of the conciliation. In fact, the query I raised was with respect to the “Official Disability Guidelines” on which Dr Perotti also relied.
Mr Doak said that Dr Gehr’s supplementary report did not provide a properly reasoned and convincing response to Dr Perotti’s opinion. Dr Gehr was asked if foraminal stenosis was a surgical indicator for cervical fusion and was careful in his response to say that it can lead to nerve compromise. Mr Doak said that I would reject Dr Singh’s opinion in the absence of a reasoned analysis and maintained that the need for the surgery arose from cord compression due to foraminal stenosis. The report was not consistent with Dr Gehr’s opinion that the surgery was reasonable to address ongoing neck pain in the absence of compression.
Mr Doak also referred to Diab and said that I would not be satisfied that the surgery was reasonably necessary as a result of the injury.
In submissions in reply, Ms Grotte said that Mr Doak’s submissions had misrepresented Dr Singh’s reports which should be considered as a whole. When that was done, it could be seen that Dr Singh concluded that decompression was the most effective treatment to alleviate the symptoms arising from neurological compression and without it, the prognosis was guarded. Ms Grotte said that Dr Singh has consistently held the view that Mr Gonzalves has evidence of disc bulging and canal stenosis which was causing radicular symptoms as opposed to ulnar nerve symptoms. The injections had confirmed his view as to the pathology. Ms Grotte again quoted the passage at [45] and said that Dr Singh said there was evidence of foraminal narrowing which clinically correlated with Mr Gonzalves’ symptoms, so that there was no real contest between the opinions of Drs Singh an Perotti.
Ms Grotte said that Dr Singh had provided a sound basis for his opinion that the surgery is to decompress the exiting nerve because of the foraminal stenosis and stabilise the motion segment in order to improve Mr Gonzalves’ symptoms.
With respect to the 2020 MRI scan, Ms Grotte said that Dr Singh had set out what it demonstrated and that Dr Perotti had commented on it so that no adverse inference should be drawn from its absence.
Ms Grotte noted that Mr Gonzalves had undergone other surgeries and there was no reason to believe that his psychological condition would be a barrier to a successful outcome.
FINDINGS AND REASONS
Section 60 of the Workers Compensation Act 1987 (the 1987 Act) requires employers to pay the cost of reasonably necessary medical treatment required as a result of an injury.
Roche DP considered the meaning of reasonably necessary in Diab:
“… ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113] (Moorebank).
Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. ...
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[3] (see [76] above), 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’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). 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. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
[3] Referring to Rose v Health Commission NSW [1986] NSWCC 2; (1986) NSWCCR 32 (Rose).
Because it is a specialist jurisdiction which deals with questions of the reasonable necessity of surgery on a daily basis, the Commission sees many cases in which the results of surgery are not what the worker hoped they would be. As Roche DP said, reasonably necessary medical treatment can result in a poor outcome. The mere fact that surgery has been recommended by a treating practitioner does not mean that it should be undertaken. The medical evidence needs to be reviewed with some care, on an objective basis and in the context of the other conditions which Mr Gonzalves suffers.
Evidence in the Commission
Rule 73 of the Personal Injury Commission Rules provides:
“73 Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Those principles are consistent with appellate authorities with respect to the requirements for evidence in the Commission. They must be borne in mind when determining if the evidence shows that the proposed treatment is reasonably necessary.
In South Western Sydney Area Health Service v Edmonds[4] McColl JA (with whom the other members of the Court agreed) said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”[4] [2007] NSWCA 16 at [130]-[132].
In Hancock v East Coast Timber Products Pty Limited[5] (Hancock) Beazley JA said:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. …
… what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”
[5] [2011] NSWCA 11 at [81]-[85].
Consideration
There is no copy of the August 2020 MRI scan report in the file. Presumably that was an oversight but it was a careless one. I do not draw any adverse inference from its absence other than to say that the omission is serious and consequently makes the Commission’s task more difficult.
Dr Singh’s summary of the scan contains an obvious typographical error (in the reference to accord) and the doctors draw different conclusions from it, without stating if those conclusions arise from their own reading of the films or reliance on the report. Without the report, it is impossible to form a conclusion as to which interpretation is correct.
I agree with Ms Grotte’s submission that Dr Singh’s reports should be read together. It is one thing, however, to read them as a whole but another to skate over the inconsistencies between them.
Because of the range of injuries suffered by Mr Gonzalves and the possible overlap between the effects of his neck injury and left elbow injury, it was necessary for Dr Singh to pay careful attention to the effects of each of those injuries. At least in the reports prepared for the purpose of these proceedings, to provide the detailed basis for his opinion.
In the clinical note attached to his report dated 16 August 2019, Dr Singh noted that the disc bulge at C4/5 gave rise to indentation of the spinal cord but “without signal change in the neurological elements.” He listed his observations on examination. Dr Singh said that Mr Gonzalves had a left arm injury. He observed a decreased range of motion. Motor power was grade 5 which I understand to be normal. He observed mildly decreased sensation at the left C8 dermatome but he did not comment on the relevance of that when it is not the level at which disc bulges were observed on the MRI scan. Dr Singh noted that the right brachioradialis reflex was inverted but the other reflexes tested were in Mr Gonzalves’ leg.
Dr Singh suggested from that first consultation that surgery may be required and said in his second report that Mr Gonzalves was aware that he may require surgery. He did not describe left arm pain other than from the left arm injury and diagnostic injections were deferred until after he recovered from left arm surgery.
When the injection was undertaken, Dr Singh noted that Mr Gonzalves had relief from his left arm pain. In the following report dated 16 June 2020, Dr Singh described for the first time radicular symptoms in Mr Gonzalves’ arms. Two telehealth reviews were undertaken at which Dr Singh merely noted that Mr Gonzalves was recovering from nasal surgery.
On 21 July 2020, at another telehealth consultation, Dr Singh said that pins and needles in the left ring and little finger were most likely secondary to the ulnar nerve decompression. By 18 August, the second MRI scan had been undertaken. Dr Singh said that Mr Gonzalves had neck and arm pain without describing the arm pain. He proposed surgery, noting some improvement of symptoms from the local anaesthetic of the injection into C4/5.
In May 2021, Wideline’s insurer sought advice from Dr Singh about the surgery but he answered their questions in a report dated 21 May in a series of terse responses. The only answer which provided any information not already known to the insurer was a reference to “ongoing structural pathology in the cervical spine.” The report provided no assistance to the insurer in making a decision about surgery – it was a series of “bare ipse dixits”.
Mr Gonzalves’ lawyers asked Dr Singh a series of questions and the answers in his report dated 20 June 2021 were similarly brief. By that time, liability for the surgery had been declined. Instead of providing information which would assist the Commission to make a determination, Dr Singh repeated information from previous reports. He was asked to provide detailed reasoning in response to questions framed by reference to the matters set out by Burke CCJ in Rose. No detailed reasoning was required. The justification offered for the surgery was that Mr Gonzalves had ongoing symptoms which had failed conservative treatment.
In fact there is little evidence of the conservative treatment which was provided. There is no reference to medication or to the extent of physiotherapy. Dr Singh said that physiotherapy had been undertaken but there is no description of it or its duration. Dr Singh referred to the possibility of “trial chronic pain management” but there is no reference to that being considered.
In his report dated 29 September 2021 Dr Singh said that the scapular and upper arm pain responded to the diagnostic injections which he said was consistent with neurological decompression, clearly evident on the MRI scan. He did not explain his statement that radiculopathy need not be classically present for cervical fusion to be reasonably necessary. Dr Singh also said that the neurological signs in the upper limb were confusing because of the ulnar decompression surgery. The report is confusing and inconsistent.
There is no doubt that Dr Singh has the specialised knowledge to provide an opinion on the reasonable necessity of surgery. As well as providing the basis for the report, as described in Hancock, Dr Singh was required to provide the reasoning for his opinion. The inconsistencies and bald statements in his report mean that he has failed to do that. A short answer to a question does not provide a sufficient basis for the Commission to make findings.
Ms Grotte argued that Dr Singh’s report fulfilled the criteria for surgery set out by Dr Perotti, which I set out again for ease of reference:
“If the applicant presented with radicular symptoms and demonstrated radiological evidence of a cause for the radicular symptoms or radiculopathy for example compression of a nerve on MRI of the cervical spine by a disc or foraminal narrowing, which also clinically correlated with the applicant’s pattern of symptomatic pain and objective clinical findings, then the proposed procedure would be a more appropriate method of treatment.”
Dr Singh’s reports do not describe in detail the symptoms which are said to be radicular. While there is foraminal narrowing on the scans, he did not explain if the compression of a nerve by foraminal narrowing was the cause of symptoms, nor did he correlate them to Mr Gonzalves’ pattern of symptomatic pain. The description of his clinical findings is inconsistent.
The brevity of his reports and the inconsistency between them, taken with the lack of the MRI scan report means that Dr Singh has not provided the evidence necessary to find that the proposed surgery is reasonably necessary.
Dr Gehr’s report does not assist in explaining the basis for surgery. The thrust of his opinion in his first report is that the surgery is appropriate for “this type of problem”. He observed only guarding and dysmetria and, in that report, attributed the sensory problems in Mr Gonzalves’ left arm to the left elbow injury.
In his second report, Dr Gehr said that the fusion can be performed for severe pain or for severe pain with radiculopathy. He did not accept that there was radiculopathy and his report is inconsistent with that of Dr Singh. Dr Gehr also provided short statements in answer to each question asked of him, without setting our his reasoning. Like Dr Singh, his opinion is not probative of the issues.
Dr Keller’s reports can be put to one side. As an occupational physician, his opinion as to whether or not surgery is reasonably necessary carries less weight than a neurosurgeon. More importantly, Dr Keller’s reports are based on the premise that Mr Gonzalves suffered an injury to his neck. Wideline accepts that Mr Gonzalves suffered an injury to his neck.
Dr Perotti accepted that Mr Gonzalves has axial neck pain but did not observe radiculopathy, nor did she obtain a history of left arm symptoms apart from the residual pins and needles which had improved since left arm surgery. She said that without radiculopathy the benefit of a fusion to manage axial pain and a reduced range of motion is limited. That statement rings true when the effect of a fusion is to limit the range of motion. She expanded on that statement in her second report where she said that the only benefit in fusing a patient’s spine for pain is only beneficial where there is established instability. There is no evidence in Dr Singh’s reports of instability.
I remain concerned about the objectivity of the “Official Disability Guidelines” to which Dr Perotti referred. However the reference to the North American Spine Society Appropriate Use Criteria for cervical fusion, which have been provided in their entirety, is different. I agree that the Criteria have been formulated with care and with concern as to conflicts of interest. Those Criteria support Dr Perotti’s opinion.
Dr Perotti’s general comments at the end of her first report are apposite. Mr Gonzalves’ treatment has been highly compartmentalised and a focus on rehabilitation and exploration of pain management may benefit him. I accept that he suffered an injury to his neck and that he has ongoing pain but I am not persuaded that the surgery proposed by Dr Singh is reasonably necessary medical treatment as a result of the injury.
For those reasons, I make an award for the respondent.
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