Gonzalves v Wideline Pty Ltd

[2022] NSWPICPD 33

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Gonzalves v Wideline Pty Ltd [2022] NSWPICPD 33

APPELLANT:

Andrew Gonzalves

RESPONDENT:

Wideline Pty Ltd

INSURER:

Employers Mutual NSW Ltd

FILE NUMBER:

A1-W3315/21

PRESIDENTIAL MEMBER:

Acting President Michael Snell

DATE OF APPEAL DECISION:

23 August 2022

ORDERS MADE ON APPEAL:

1.     The Certificate of Determination dated 18 November 2021 is revoked.

2.     The matter is remitted to a different Member for re-determination consistent with these reasons.

CATCHWORDS:

WORKERS COMPENSATION – Medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 – expert evidence – factual error

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms E Grotte, counsel

Turner Freeman Lawyers

Respondent:

Mr F Doak, counsel

Hicksons Lawyers

DECISION UNDER APPEAL

MEMBER:

Ms C McDonald

DATE OF Member’s DECISION:

18 November 2021

INTRODUCTION AND BACKGROUND

1. Andrew Gonzalves (the appellant) was employed by Wideline Pty Ltd (the respondent) from about March 2019 as a driver. He drove a truck that was loaded with windows and doors. The truck was pre-loaded by night shift employees. The items weighed from about 25 kilograms to 90 kilograms each. On 21 March 2019 the appellant was making a delivery. Another employee began untying frames that were stacked on a trailer and the frames fell towards the appellant, striking him on the head and body. He stated that a number of frames fell, so that he was completely covered by them.[1] He suffered injuries involving the neck and left arm, together with a left ankle fracture which required internal fixation.[2] He was hospitalised for three weeks.

   [1] Appellant’s statement 9/7/21, [5]–[38], Application to Resolve a Dispute (ARD), pp 1–3.

   [2] ARD, p 87.

2. A cervical MRI scan, dated 26 April 2019, reported the presence of disc pathology at C3/4 and C4/5.[3]

   [3] ARD, pp 143–144.

3. The appellant came under the care of Dr Singh, an “Orthopaedic and Spine Surgeon”. On 16 August 2019, the doctor suggested trialling “a cervical injection as a diagnostic and therapeutic measure”. He said that if the appellant’s pain “does not improve with conservative treatment, then he may need to consider anterior cervical decompression and fusion from C3 to C5”.[4]

   [4] ARD, p 85.

4. On 18 August 2020, Dr Singh reported that “an injection to the right C4/5 improve[d] his symptoms partly for a short time during the effect of the local anaesthetic”. Dr Singh noted the appellant “has trialled conservative treatment including physiotherapy but has ongoing symptoms which have not improved”. The doctor said “surgery is reasonably necessary”.[5] In a report to the insurer dated 21 May 2021, Dr Singh described “Anterior Cervical Decompression and Fusion surgery C3–C5” (the proposed surgery) as treatment that was likely to “significantly improve condition and assist in return to work”.[6]

   [5] ARD, p 95.

   [6] ARD, p 97.

5. A claim for the cost of the proposed surgery was disputed by icare in a notice dated 6 January 2021. It stated that the C3/5 anterior cervical decompression and fusion was not reasonably necessary.[7] It referred to an assessment by an occupational physician, Dr Keller, conducted on the respondent’s behalf on 25 September 2020. It said, in part, “Dr Keller is hesitant to suggest you undergo any cervical spine surgery before you are reviewed by an Independent Neurosurgeon/specialist.”[8] The insurer issued a further notice dated 7 June 2021.[9] It referred to a request for review of the initial decision, made by the appellant’s solicitors, accompanied by a report from Dr Gehr, an orthopaedic surgeon, dated 14 May 2021. Dr Gehr supported the need for the proposed surgery. The notice referred to a report obtained by the insurer from Dr Perotti, a neurosurgeon, dated 10 March 2021. Consistent with Dr Perotti’s report, the notice stated that the proposed surgery was not reasonably necessary.

   [7] Reply, pp 14–18.

   [8] Reply, p 16.

   [9] Reply, pp 19–23.

6. The matter was listed for arbitration hearing on 28 September 2021. Ms Grotte appeared for the appellant and Mr Doak for the respondent. The respondent’s solicitors had, shortly prior to the arbitration hearing, served a report of Dr Perotti dated 17 September 2021, with some accompanying documents.[10] The appellant wanted time to respond to this material. An “order was made permitting that to occur and for written submissions”,[11] which were subsequently lodged. The Member issued her decision accompanied by reasons on 18 November 2021. The issue was whether the proposed surgery was ‘reasonably necessary’ medical treatment as a result of the injury. The Member found that it was not. There was an award for the respondent.

   [10] Application to Admit Late Documents dated 22 September 2021, pp 2–117.

   [11] Gonzalves v Wideline Pty Ltd [2021] NSWPIC 472 (the reasons), [4]–[5].

ON THE PAPERS

1. 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.”

2. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the 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

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE NATURE OF THE APPEAL

1. The appeal is one brought pursuant to s 352(5) of the 1998 Act, which provides:

   “An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

2. In Raulston v Toll Pty Ltd[12] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[13] to the nature of the appeal process pursuant to s 352 of the 1998 Act:

   “(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.

   (b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

   (c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[14]

   [12] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).

   [13] (1966) 39 ALJR 505, 506.

   [14] Raulston, [19].

3. In Workers Compensation Nominal Insurer v Hill,[15] Basten JA said:

   “With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[16]

   [15] [2020] NSWCA 54 (Hill).

   [16] Hill, [20].

4. In Northern NSW Local Health Network v Heggie,[17] Sackville AJA said:

   “A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”[18]

   [17] [2013] NSWCA 255; 12 DDCR 95 (Heggie).

   [18] Heggie, [72].

THE MEMBER’S REASONS

1. The Member noted there was no dispute that the appellant injured his neck in the relevant incident. She said it was “only necessary to consider the medical evidence that goes to the question of the reasonable necessity of surgery”. She referred to an MRI scan report dated 26 April 2019. She referred to Dr Singh’s reports, which recommended the proposed surgery.[19]

   [19] Reasons, [13]–[14], [16]–[22].

2. The Member referred to the reports of Dr Gehr, an orthopaedic surgeon qualified in the appellant’s case. Dr Gehr supported the proposed surgery, which he described as having 30 to 70 per cent effectiveness in relieving symptoms. The doctor said that all alternatives had been explored, the surgical option was cost beneficial and accepted among spinal surgeons in Australia. The Member said that Dr Gehr did not provide any reasoning for these statements.[20]

   [20] Reasons, [24]–[25].

3. The Member moved to the respondent’s medical case. She referred to Dr Keller’s report dated 5 December 2019.[21] She noted the respondent had advised it did not rely on Dr Keller’s reports. Dr Keller, an occupational physician, recommended independent neurological opinion before “considering any cervical spine interventions”. The Member referred to Dr Keller’s report dated 30 September 2020. The doctor said that “no injury of the cervical spine was evident to him” and that the appellant “did not require further investigation of the musculo-skeletal system”.[22]

   [21] Reply, pp 40–45.

   [22] Reasons, [28]–[32].

4. The Member referred to the reports of Dr Perotti, a neurosurgeon qualified by the respondent. In her report dated 10 March 2021 Dr Perotti recorded complaints of “severe neck pain which is unchanged and occasional left arm pain”. She described a second MRI scan on 4 August 2020 as showing “[m]ild disc bulge at C3-C4 and C4-C5 which makes contact but does not compress the spinal cord”. The doctor referred also to mild right sided foraminal stenosis. The doctor diagnosed cervical axial neck pain without radiculopathy. She thought there was an aggravation of cervical spondylosis which had not ceased. She described the appellant as honest throughout the assessment, his symptoms were consistent with the physical examination. She said that “[w]ithout radiculopathy the benefits of a two level cervical fusion to manage axial pain and decreased ROM is very limited”. She did not regard the proposed surgery as reasonably necessary.[23]

   [23] Reasons, [33]–[36].

5. The Member referred to comment made by Dr Singh, in his report dated 1 April 2021, relating to Dr Perotti’s report. Dr Singh 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 C5 with the insertion of a prosthesis.”[24]

   [24] Reply, p 80; Reasons, [38].

6. The Member referred to a second report from Dr Perotti, dated 17 September 2021,[25] in which the doctor 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.” She said this applied to both cervical and lumbar surgery, and that benefit was only provided where there is “established instability”, such as spinal fracture, ligamentous injury or spondylolisthesis. Dr Perotti said that the appellant did not have these features.

   [25] AALD, 22/9/21, pp 2–4.

7. The Member referred to a report of Dr Singh dated 29 September 2021,[26] which referred to Dr Perotti’s opinion. Dr Singh said that there was pathology at C3/4 and C4/5, and foraminal stenosis caused pain radiating to the shoulder and upper arm. The scapular and upper arm symptoms responded to the anaesthetic phase of the cervical injection at C4/5, which revealed that those “symptoms are not axial neck pain but from neurological compression which is clearly evident on the MRI scan.” The doctor said “[s]ymptomatic foraminal stenosis, which this gentleman certainly has, is an indicator for cervical spine surgery”. Dr Singh said that the radiating pain to the shoulder blade “is in addition to axial neck pain”.[27]

   [26] AALD, 8/10/21, pp 4–5.

   [27] Reasons, [48].

8. The Member quoted from Dr Gehr’s report dated 30 September 2021:

   “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.”[28]

   [28] Reasons, [49].

9. The Member summarised Ms Grotte’s written submissions on the appellant’s behalf. Ms Grotte referred to Diab v NRMA Limited.[29] Ms Grotte submitted the MRI scan demonstrated foraminal stenosis at the levels to be operated on. Two years of conservative treatment had produced “no lasting relief”. The procedure was not novel and the costs were those usually associated with the procedure. Dr Keller’s opinion carried no weight, Dr Singh’s opinion should be preferred to that of Dr Perotti.[30]

   [29] [2014] NSWWCCPD 72 (Diab).

   [30] Reasons, [50]–[51].

10. The Member referred to Mr Doak’s written submissions for the respondent. Mr Doak referred to Dr Singh’s report dated 17 March 2020 following the injection at C3/4. He submitted that Dr Singh did not identify any nerve root compromise to support the proposition that pain relief was due to anything other than the anaesthetic effect of the injection. Mr Doak said Dr Singh referred to the presence of radicular symptoms without identifying the basis of the diagnosis. Dr Singh had not referred to neurological compression until his report dated 20 June 2021. Mr Doak submitted the reports of Dr Singh and Dr Gehr were not properly reasoned and did not fulfill the requirements of r 73 of the Personal Injury Commission Rules 2021 (the Rules).[31] Mr Doak referred to Diab.

    [31] Reasons, [53]–[55].

11. The Member summarised Ms Grotte’s submissions in reply. Dr Singh consistently held the view that there was disc bulging and canal stenosis which caused radicular symptoms. There was evidence of foraminal narrowing that correlated with the appellant’s symptoms. The proposed surgery was to decompress the exiting nerve which was affected by the stenosis and to stabilise the motion segment. Dr Singh had set out what was demonstrated in the 2020 MRI scan and no adverse inference should be drawn from the absence of the report of that scan. The appellant had undergone other surgical procedures and there was no basis to believe that his psychological condition would be a barrier to a successful outcome.[32]

    [32] Reasons, [61]–[64].

12. The Member quoted a lengthy passage from Diab. She said that “the mere fact that surgery has been recommended by a treating practitioner does not mean that it should be undertaken”. The medical evidence required objective and careful review, in the context of other conditions from which the appellant suffers.[33]

    [33] Reasons, [67].

13. The Member referred to r 73 of the Rules. She quoted from South Western Sydney Area Health Service v Edmonds,[34] at [130]–[132] and from Hancock v East Coast Timber Products Pty Limited,[35] at [81]–[85] (both of these passages deal with expert evidence).[36]

    [34] [2007] NSWCA 16 (Edmonds).

    [35] [2011] NSWCA 11 (Hancock).

    [36] Reasons, [68]–[71].

14. The Member referred to the absence of the August 2020 MRI scan report. She said she did not draw an adverse inference, other than to say this was a serious omission and made the Commission’s task “more difficult”. Dr Singh’s summary of the scan contained an obvious typographical error. Doctors drew different conclusions from the scan without saying whether these were based on the report or their own reading of the films.[37]

    [37] Reasons, [72]–[73].

15. The Member accepted the appellant’s submission that Dr Singh’s reports should be read together. The Member said there was possible overlap between the effects of the neck injury and the left elbow injury. She said it was necessary for Dr Singh to pay careful attention to the effects of each and provide a detailed basis for his opinion. In her reasons at [76] to [86] the Member said she identified deficiencies in Dr Singh’s reporting. Reporting on 16 August 2019, Dr Singh noted there was a left arm injury. There was mildly decreased sensation in the left C8 dermatome (a level different to the levels at which disc bulges were observed on the MRI scan). The doctor did not comment on the relevance of this. On his initial consultation the doctor said that the appellant “was aware that he may require surgery”. The doctor did not, on that consultation, describe left arm pain other than coming from the left arm injury. The right brachioradialis reflex was inverted. When the diagnostic injection was administered Dr Singh noted relief from left arm pain. The Member said that in the following report on 16 June 2020, “Dr Singh described for the first time radicular symptoms in [the appellant’s] arms”.[38]

    [38] Reasons, [74]–[78].

16. On a telehealth consultation on 21 July 2020, Dr Singh said pins and needles in the left ring and middle finger were “most likely secondary to the ulnar nerve decompression”. By 18 August 2020 the second MRI had been carried out. Dr Singh said there was neck and arm pain without describing the arm pain. The doctor proposed surgery, noting some improvement with the local anaesthetic injection at C4/5.[39]

    [39] Reasons, [79].

17. The respondent’s insurer asked a series of questions of Dr Singh, about the surgery, in May 2021. The Member said that there were “a series of terse responses” in a report dated 21 May 2021. The Member said the only response that gave the insurer any additional information was a reference to “ongoing structural pathology in the cervical spine”. She described the doctor’s responses as “a series of ‘bare ipse dixits’”. The Member said that the appellant’s solicitors asked a series of questions regarding the need for surgery, which the doctor responded to in a report dated 20 June 2021. Liability for the surgery had, by then, been declined. The Member said the doctor repeated information from previous reports. He was asked questions framed by reference to the decision in Rose v Health Commission (NSW).[40] The Member said that Dr Singh’s “justification offered for the surgery was that Mr Gonzalves had ongoing symptoms which had failed conservative treatment”.[41]

    [40] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).

    [41] Reasons, [80]–[81].

18. The Member said there was little evidence of conservative treatment. There was no reference to medication. The doctor said that physiotherapy was undertaken but there was no description of it or its duration. Dr Singh referred to “trial chronic pain management” but there was no reference to that being considered. The Member referred to the doctor’s statement that “radiculopathy need not be classically present for cervical fusion to be reasonably necessary”, which she said was unexplained. The doctor said that the neurological signs in the upper limb were confusing because of the ulnar decompression surgery. The Member described Dr Singh’s report dated 29 September 2021 as “confusing and inconsistent”.[42]

    [42] Reasons, [82]–[83].

1. The Member referred to a submission by the appellant that Dr Singh’s report fulfilled the following criteria for surgery described by Dr Perotti:

   “If the [appellant] 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 [appellant’s] pattern of symptomatic pain and objective clinical findings, then the proposed procedure would be a more appropriate method of treatment.”[43]

   [43] Reasons, [85].

2. The Member said that Dr Singh did not describe in detail the symptoms said to be radicular. He did not explain if the compression of a nerve by foraminal narrowing was the cause of symptoms. The description of Dr Singh’s clinical findings was inconsistent. The Member said of Dr Singh:

   “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.”[44]

   [44] Reasons, [86]–[87].

3. The Member said that Dr Keller’s reports could be put to one side. His opinions carried less weight than those of a neurosurgeon. The respondent accepted that the appellant injured his neck.[45]

   [45] Reasons, [90].

4. The Member said that Dr Gehr did not assist in explaining the basis for surgery. The thrust of his first report was that surgery was appropriate for “this type of problem”. He observed only guarding and dysmetria and attributed the left arm symptoms to the elbow injury. In his second report, Dr Gehr said “fusion can be performed for severe pain or for severe pain with radiculopathy”. Dr Gehr did not accept there was radiculopathy, his report was inconsistent with that of Dr Singh. The Member said Dr Gehr provided short statements in response to questions without setting out his reasoning, his opinion was not probative of the issues.[46]

   [46] Reasons, [88]–[89].

5. The Member referred to Dr Perotti’s reports. Dr Perotti accepted there was axial neck pain but did not observe radiculopathy. The only arm symptoms of which she obtained a history were residual pins and needles which improved following left arm surgery. Dr Perotti said that in the absence of radiculopathy the benefit of a fusion is limited. The Member described this as ringing true given the effect of fusion is to limit the range of motion. Dr Perotti said that the only benefit in fusing the spine to deal with pain is if there is “established instability”. There was no evidence of instability in Dr Singh’s reports.[47] The Member was generally accepting of the Appropriate Use Criteria, which she said supported Dr Perotti’s opinion.[48] The Member made an ultimate finding of fact:

   “[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.”[49]

   [47] Reasons, [91].

   [48] Reasons, [92].

   [49] Reasons, [93].

6. There was an award for the respondent.

LEGISLATION

1. The definition of ‘medical or related treatment’ in s 59 of the Workers Compensation Act 1987 (the 1987 Act) provides:

   “medical or related treatment includes—

   (a)     treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,

   (b)     therapeutic treatment given by direction of a medical practitioner,

   (c)     (Repealed)

   (d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,

   (e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,

   (f)      care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,

   (f1)    domestic assistance services,

   (g)     the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and

   (h)     treatment or other thing prescribed by the regulations as medical or related treatment,

   but does not include ambulance service, hospital treatment or workplace rehabilitation service.”

2. Section 60 of 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

   (b) any hospital treatment be given, or

   (c) any ambulance service be provided, or

   (d) any workplace rehabilitation service be provided,

   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).

   ...

   (5)     The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

SOME PRINCIPLES GOVERNING LIABILITY UNDER SECTION 60

1. In Rose Burke CCJ identified the following “general principles” governing whether medical treatment is ‘reasonably necessary’ within the meaning of s 60 of the 1987 Act:

   “In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:

   1.      Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.

   2.      However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.

   3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.

   4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.

   5.      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.”[50]

   [50] Rose, 47–48.

2. In Diab Roche DP said that the word ‘reasonably’ in s 60 moderated the effects of the word ‘necessary’; ‘reasonably necessary’ is a lesser requirement than ‘necessary’.[51] The Deputy President said that the matters relevant to the issue of ‘reasonableness’ included, but were not limited to, the matters set out in Rose at [5] in the above passage. The Deputy President said that the ‘actual or potential effectiveness’ is relevant but not determinative, for example where a different treatment may produce the same outcome at a much lower cost. He said that “each case will depend on its facts”.[52]

   [51] Diab, [86].

   [52] Diab, [89].

SOME PRINCIPLES GOVERNING EXPERT EVIDENCE

1. In ASIC v Rich Spigelman CJ, dealing with the requirements of expert evidence, said:

   “The focus of attention - the ‘prime duty’ - is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.”

   And:

   “An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated.”[53]

   [53] [2005] NSWCA 152; 218 ALR 764 (Rich), [105], [170].

2. In HammondCare v Calka Roche AP referred to the reasons in Rich (at [170]) and said: “In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.”[54] In Diab Roche DP quoted with approval from Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd where the Full Court of the Federal Court said that “[i]t cannot be sensibly suggested that an expert should offer chapter and verse in support of every opinion against the mere possibility that it may be challenged”.[55]

   [54] [2016] NSWWCCPD 2, [47].

   [55] [2002] FCAFC 157 (Red Bull), [89].

3. In Hancock Beazley JA (as her Honour then was) referred to Rich at [105] and said: “I accept this analysis, which I consider to be clearly correct.”[56] In the same decision her Honour said:

   “82.   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.

   83.    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 …

   …

   85.    … what was required for satisfactory compliance with the principles governing expert evidence was for [Dr Summersell’s] 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.

   86.    Those requirements were all satisfied. In this case, as the appellant pointed out, neither Dr Summersell’s field of specialised knowledge, nor his status as an expert, was challenged. Insofar as his opinion was based upon facts ‘observed’ by him, those facts were contained within his examination findings in his report of 29 April 2008 to Dr Barrell and the report of the MRI scan.

   87.    Insofar as Dr Summersell’s opinion was based on assumed facts, those matters were set out in his various reports …

   88.    The fact that the reports did not refer to the subsequent non-work related incidents did not amount to a failure to satisfy the requirements of expert evidence. As explained above, the principle in Makita does not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case … The extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports.”[57]

   [56] Hancock, [77]–[78].

   [57] Hancock, [82]–[88].

4. Her Honour also said:

   “… the question as to whether Dr Summersell’s [report] satisfied the principle discussed above had to be determined by having regard to all of his reports. A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence: see the discussion in Rhoden v Wingate at [55]–[73] …The question as to whether there was a scientific or intellectual basis for Dr Summersell’s opinion had to be determined by reference to all of his reports. It was not a determination that could be made by singling out an isolated part from the whole of that witness’s material before the Commission.”[58]

   [58] Hancock, [92].

GROUNDS OF APPEAL

1. The appeal as initially lodged was non-compliant with s 352 of the 1998 Act, the Rules and Practice Direction WC3, in that the original submissions did not address each ground of appeal separately. It was unclear which submissions related to which grounds. A Direction was issued on 17 December 2021 requiring that this be rectified. Amended submissions were lodged by the appellant on 10 January 2022. References in this decision to the submissions are to the amended document. The appellant raises the following grounds:

   (a)    Error in finding that Dr Singh failed to provide sufficient reasons for his opinion that the proposed surgery was reasonably necessary. (Ground No. 1)

   (b)    Error in finding that Dr Singh’s opinion did not satisfy the requirements for an expert opinion. (Ground No. 2)

   (c)    Error in ignoring the opinion of Dr Gehr set out in his report dated 30 September 2021, which supported the opinion of Dr Singh in respect of the reasonable necessity of the proposed surgery. (Ground No. 3)

   (d)    Error in ignoring the opinion of Dr Singh set out in his report dated 29 September 2021. (Ground No. 4)

   (e)    Error in misapplying the test of ‘reasonable necessity’ resulting in findings that were wrong and contrary to the evidence. (Ground No. 5)

2. Following lodgment of the appellant’s amended submissions, the Commission forwarded an email to the appellant’s solicitors dated 11 January 2022, enquiring which submissions addressed Ground No. 2, in the absence of any sub-heading indicating that Ground No. 2 was addressed. The appellant replied on the same date, stating that submissions at [9] and [11] addressed Ground No. 2. The submissions at [9] are those summarised below, which deal with Ground No. 1. The submissions at [11] are those dealing with Ground No. 4. The submissions at [11] essentially restate submissions previously made in support of Ground No. 1. What the appellant has effectively done is deal with Grounds Nos. 1, 2 and 4 together. The respondent has accordingly addressed Grounds Nos. 1, 2 and 4 together. I will adopt the same approach. Additionally, Ground No. 3 (dealing with Dr Gehr’s opinion) has overlap with Grounds Nos. 1, 2 and 4, and it is convenient to deal with Ground No. 3 at the same time.

GROUNDS NOS 1, 2, 3 AND 4

Error in finding that Dr Singh failed to provide sufficient reasons for his opinion.

Error in finding that Dr Singh’s opinion did not satisfy the requirements for an expert opinion.

Error in ignoring Dr Gehr’s opinion in his report dated 30 September 2021.

Error in ignoring Dr Singh’s opinion in his report dated 29 September 2021.

Appellant’s submissions

1. Dr Singh’s reports are summarised below in the discussion dealing with whether they satisfied the requirements of an expert opinion. The appellant’s submissions referred to Dr Singh’s reports dated 16 August 2019, 17 March 2020, 18 August 2020, 20 June 2021 and 29 September 2021. It was observed in the report dated 20 June 2021 that the appellant had suffered from ongoing symptoms for more than two years without improvement from conservative treatment. There was reference in the report dated 18 August 2020 to the cervical injection which resulted in a temporary improvement in symptoms. The doctor thought that pins and needles in the left ring and little finger were probably “secondary to the ulnar nerve compression”.[59] The appellant referred to Dr Singh’s reference (in his report dated 18 August 2020) to the second MRI scan, which “reported disc bulging from C3 to C5 which contacted a cord, as well as moderately severe foraminal stenosis at those two levels, worse on the right side”. An “injection to the right C4/5 improved his symptoms partly for a short time”. The doctor at this point recommended the proposed surgery (“anterior cervical decompression and fusion surgery C3–C5”) to address the ongoing symptoms of neck and arm pain.[60]

   [59] Appellant’s amended submissions (appellant’s submissions), [9.3]–[9.6].

   [60] Appellant’s submissions, [9.5].

2. The appellant referred to Dr Singh’s report dated 29 September 2021, in which the doctor responded to questions asked by the appellant’s solicitors flowing from the report of Dr Perotti. Dr Singh said the appellant’s response to the C4/5 injection “was diagnostic and showed that the symptoms were not emanating from the neck pain but from neurological compression which was clearly evident on the MRI scan” (emphasis in appellant’s submissions). The doctor said that radiculopathy need not be classically present for cervical fusion to be considered to be reasonably necessary. The doctor said that the appellant “has radiating pain in the upper back and both shoulders, which is from the central stenosis and the foraminal stenosis in the cervical spine.”[61]

   [61] Appellant’s submissions, [9.7].

3. The appellant referred to the Member’s remark that Dr Singh did not explain his comment that “radiculopathy need not be classically present”. The appellant submitted it was “tolerably clear” that the doctor’s remark responded to Dr Perotti’s view that there was “no convincing radiculopathy”. Dr Singh was of the view that the neck pain, together with pain in the scapular region, emanated from the pathology seen on the MRI scan, “that is the stenosis, which had been caused by the injurious event”. The appellant submitted Dr Singh explained that “symptomatic foraminal stenosis, which this gentleman certainly has, is an indicator for cervical spine surgery”. Dr Singh said that the “purpose of the surgery is to decompress the exiting nerve, and stabilise motion segment in order to improve the symptoms”. Dr Singh repeated that the neurological signs in the upper limbs were confusing, given the ulnar nerve decompression. The appellant submitted that Dr Singh was always clear that the appellant has axial neck pain which “radiates to the shoulder blade from the neck” and that this was due to the central and foraminal stenosis.[62]

   [62] Appellant’s submissions, [9.8]–[9.9].

4. The appellant dealt with two discrete issues that were raised. The Member commented on the absence of the second cervical MRI scan report dated 4 August 2020. Dr Perotti, in her report dated 10 March 2021, said she had viewed that MRI scan. The appellant submitted Dr Perotti confirmed what Dr Singh had reported, that the scan demonstrated “disc bulges at C3-4 and C4-5 with contact with the spinal cord (although no compression) and evidence of mild right foraminal stenosis at C5/5 and C4/4 and mild foraminal stenosis on the left at C3/4”. Although the report of the scan was not in evidence the medicolegal experts commented on it.[63]

   [63] Appellant’s submissions, [9.11].

5. A second discrete issue was the Member’s finding that there was “little evidence of conservative treatment provided to the [a]ppellant”. The appellant submitted this was factually incorrect. Dr Singh referred to injections into the neck, with short-lived benefit. The appellant referred also to a history recorded by Dr Perotti, in her report dated 10 March 2021, that the appellant was having physiotherapy every week. It was submitted this “indicates a couple of years at least of ongoing physiotherapy”.[64]

   [64] Appellant’s submissions, [9.16].

1. The appellant referred to Dr Perotti’s views. Dr Perotti considered there was no benefit in performing a cervical fusion if there was neck pain only. She considered long term benefit existed where there was established instability. If there were radicular symptoms, for example compression of a nerve, with a demonstrated radiological cause, for example nerve compression by foraminal narrowing demonstrated on an MRI scan, which clinically correlated with the pattern of symptomatic pain and objective clinical findings, the proposed surgery would be a more appropriate method of treatment.[65]

   [65] Appellant’s submissions, [9.10].

2. The appellant submitted there was no disagreement between the experts regarding the presence of foraminal stenosis at C3/4 and C4/5. This was one of the scenarios in which surgery may be appropriate, according to Dr Perotti, if there was also clinical correlation with the symptoms and objective clinical findings. The appellant submitted that Dr Singh reported clinical correlation – in his opinion pain in the scapular regions was radiating from the neck. There were objective clinical findings, in the form of the injections which were diagnostic and gave short-lived relief.[66]

   [66] Appellant’s submissions, [9.12].

3. The appellant submitted the Member’s findings, viewed in the light of the views of Dr Singh and Dr Perotti, were “unsustainable”. Dr Singh considered the symptoms in the scapular regions were radicular. The MRI scans correlated with those symptoms because of the presence of both central and foraminal stenosis.[67] The appellant submitted the Member erroneously gave Dr Singh’s opinion no weight in circumstances where he complied satisfactorily with the principles governing expert evidence. The criticism of Dr Singh’s reports as “inconsistent” was unfair. The doctor set out the facts observed, the history of injury and treatment, and the relevant findings of the investigations. He distinguished between the radicular symptoms involving the scapular region and the ulnar nerve symptoms, he gave detailed reasons for the surgery and why it would be beneficial, given the evidence of central and foraminal stenosis at two levels which caused persisting pain.[68]

   [67] Appellant’s submissions, [9.13].

   [68] Appellant’s submissions, [9.14]–[9.15].

4. The appellant referred to Dr Gehr’s report dated 30 September 2021. The appellant submitted that Dr Gehr described foraminal stenosis as a surgical indicator for cervical fusion. If foraminal stenosis resulted in nerve compression, causing severe neck and arm pain, confirmed by clinical examination and imaging, this can be an indicator for cervical fusion. It was submitted that this was consistent with Dr Perotti’s opinion in her second report at [9.10]. The appellant submitted that the Member concluded that Dr Gehr’s opinion was like Dr Singh’s, and not probative of the issues. In doing so she ignored the above opinion evidence from Dr Gehr.[69]

   [69] Appellant’s submissions, [10.1]–[10.2].

Respondent’s submissions

1. The respondent submitted that Dr Singh’s reports did not meet the requirements for expert evidence. It referred to a passage from Rolleston v Insurance Australia Ltd in which Emmett JA said:

   “Section 79 of the Evidence Act will not be satisfied unless the opinion in question is that of a person who has specialised knowledge, being knowledge based on that person’s training, study or experience and the opinion is wholly or substantially based on that specialised knowledge. The requirement that the opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached, provided of course that it exposes the author’s reasoning in a way that shows that the opinion is based on particular specialised knowledge.”[70]

   [70] [2017] NSWCA 168 (Rolleston), [32].

2. The respondent referred to the reasons at [75] to [87], which it submitted supported the conclusion that Dr Singh’s reports did not meet the requirements for expert evidence. It submitted the appellant failed to identify where Dr Perotti “support[s] the contention that foraminal stenosis of itself may be a basis for performing surgical fusion” (emphasis in original). It submits that Dr Perotti’s opinion is misrepresented. It quotes the following from Dr Perotti’s report dated 17 September 2021:

   “If the [appellant] 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 [appellant’s] pattern of symptomatic pain and objective clinical findings, then the proposed procedure would be a more appropriate method of treatment.”

3. The respondent submitted it was quite clear that the key requirement in the above was compression of the nerve, either by a disc or foraminal narrowing. Dr Perotti did not say that foraminal stenosis alone was sufficient. It submitted the submission that there was no disagreement between Dr Perotti and Dr Singh was “demonstrably wrong”.[71]

   [71] Respondent’s submissions, [6]–[11].

4. The respondent submitted the substance of the Member’s criticism of Dr Singh’s evidence was that it did not properly identify the basis of the assertion that hand and arm symptoms were radicular, due to neural compression. There was not a properly reasoned explanation for the opinion that the proposed surgery was reasonably necessary. Dr Singh’s opinion was based on the premise that there was spinal cord compression. The respondent submitted the Member’s analysis demonstrated that there was no persuasive evidence to support that view.[72]

   [72] Respondent’s submissions, [12].

5. The respondent referred to Dr Singh’s reports dated 16 September 2019 and 17 March 2020. The earlier of these referred to the initial MRI scan on 26 April 2019, which revealed bulging at C3/4 and C4/5, indenting the cord, together with foraminal stenosis. Dr Singh did not refer to evidence of neural compression and there was no recorded history of radicular symptoms. In a clinical note of the same date, Dr Singh said the disc bulge at C4/5 “indented the spinal cord ‘without signal change in the neurological elements’” (emphasis in respondent’s submissions). The respondent submitted Dr Singh did not provide a reasoned opinion for why he recommended surgery in the absence of any identified basis for concluding there was neurological compression and with no recorded complaint of radicular symptoms. The respondent submitted there was inconsistency between the report and clinical note. The clinical note recorded normal power in the upper limbs, the only sensory deficit was at C8 (which did not correlate with the pathology identified in the MRI scan).[73]

   [73] Respondent’s submissions, [13]–[14].

6. The respondent referred to a report from Dr Singh dated 16 June 2020, addressed to Dr Calvache-Rubio. Dr Singh referred to “ongoing symptoms of neck pain with radicular symptoms in the arms”. The respondent submitted Dr Singh failed to identify any cause for these symptoms, although they were different from the situation in his report and note written in September 2019. The respondent said Dr Singh did not refer to the onset or duration of these symptoms or the possible causes, given the absence of neural compromise identified in the 2019 MRI scan.[74]

   [74] Respondent’s submissions, [16].

7. The respondent referred to a report from Dr Singh to Dr Lee dated 21 July 2020 in which Dr Singh refers to the 2019 MRI scan as showing C4/5 and C5/6 disc bulging. The doctor did not refer to C3/4 bulging or to foraminal narrowing, contrary to his earlier references to that scan. He did not refer to neural compromise. The respondent describes this as “a clear example of one of the inconsistencies identified by the Member in her analysis of Dr Singh’s evidence”.[75]

   [75] Respondent’s submissions, [17].

8. The respondent’s submissions go on to criticise Dr Singh’s report to Dr Lim, a general practitioner from the same practice as Dr Lee, dated 18 August 2020. The respondent points out a clerical error where Dr Singh referred to disc bulging from C3 to C5 which “contacts accord”, which the Member took to be intended to read “contacts a cord”. The respondent submits Dr Singh did not identify a basis for concluding there were neurological symptoms in the arms, and Dr Singh’s comment was inconsistent with his note on 16 September 2019 that there was “no signal change to indicate neurological compromise”. The respondent referred to Dr Singh’s reference to injection at C4/5 improving the appellant’s symptoms “during the effect of the anaesthetic”. It submits Dr Singh failed to provide evidence of the “diagnostic significance” of this.[76]

   [76] Respondent’s submissions, [18]–[19].

9. The respondent submits Dr Singh provided no reasoned analysis to support his recommendation of the proposed surgery, by reference to the MRI scans, clinical findings or the “diagnostic affect [sic] from the injection”. It submits this is consistent with Dr Singh’s report to the insurer dated 21 May 2021. It refers to Dr Singh’s report to Unified Healthcare Group dated 20 June 2021, which made no reference to upper limb complaints. The doctor referred to pain in the neck and interscapular area, equally consistent, the respondent submits, with Dr Perotti’s diagnosis of axial neck pain without radicular pathology. Dr Singh’s view that “surgery is reasonably necessary” was not accompanied by reasoned explanation. There was no comment about the clinical or diagnostic significance of the short-term improvement following the injection. It submits this is a problem with Dr Singh’s evidence, it consists of “a series of short, unexplained and often inconsistent statements” without reasoned explanation.[77]

   [77] Respondent’s submissions, [20]–[23].

10. The respondent refers to Dr Singh’s response to question 6(a) in that report. It submits the doctor referred to “structural pathology in the cervical spine resulting in neck and arm symptoms” (emphasis and underlining in the respondent’s submissions) without providing “an analysis of the evidence to support that assertion”. The respondent submits the Member correctly described this as a “bare ipse dixit which should be given no weight without proper compliance by the expert witness with the requirement for giving expert evidence”.[78] The respondent submits Dr Singh’s report dated 21 September 2021 (responding to Dr Perotti) made a “bare assertion” that “there is foraminal stenosis resulting in arm symptoms”, which he attempted to support by saying there was “neurological compression which is clearly evident on the MRI scan” (emphasis and underlining in the respondent’s submissions).[79]

    [78] Respondent’s submissions, [24].

    [79] Respondent’s submissions, [25].

11. The respondent describes a “fundamental inconsistency” in Dr Singh’s evidence. On one hand, the doctor says that radiculopathy need not be classically present for cervical fusion to be reasonably necessary, on the other hand, the doctor asserts there is clear evidence on the MRI scan of neurological compression. This is notwithstanding the note dated 16 September 2019 which referred to the absence of signal change which would identify neurological compression. The respondent submits the finding that Dr Singh’s evidence did not sufficiently comply with the requirements for expert evidence was open to the Member and did not involve error. Dr Singh did not provide proper evidence “of compression or spinal instability” or sufficient reasoning to support the reasonable necessity of the proposed surgery. The respondent submits it is not for a Presidential Member to comb through the findings and reasons in search of error. [80]

    [80] Respondent’s submissions, [26]–[28].

12. Dealing with Ground No. 3, the respondent submits the Member did not ignore Dr Singh’s opinion. Rather, the Member considered it was not properly reasoned so as to support the opinion it conveyed. Dr Gehr stated that fusion can be performed where there is unremitting or severe neck pain, or there is radiculopathy. The doctor failed to provide reasoning or analysis to support this. He failed to relate this opinion to the appellant’s situation, by reference to clinical evidence or investigations. The proposed surgery involved “cervical decompression and fusion” (emphasis in respondent’s submissions). Dr Gehr’s opinion addressed a different issue, whether fusion was appropriate in the absence of radiculopathy. It is submitted Dr Gehr’s opinion addressed surgery that was not the basis of Dr Singh’s recommendation. The Member was entitled to conclude that Dr Gehr’s opinion was not probative of the procedure the subject of the claim.[81]

    [81] Respondent’s submissions, [31]–[35].

Appellant’s submissions in reply

1. The appellant lodged submissions in reply dated 8 March 2022. These are grouped under, and respond to, three heads of error alleged by the respondent.

Failure to comply with the requirements of expert evidence

1. The appellant quotes from Hancock at [81] to [82]. The appellant submits that sufficient compliance by Dr Singh, with the requirements of expert evidence in the Commission, required that the doctor “provide a scientific or intellectual basis for his opinion”. This was to be determined by reference to all of his reports, not by “singling out an isolated part from the whole”. A deficiency in one report may be made good by material in another report.[82] The appellant submits that Dr Singh’s reports are “those of a treating specialist”. They were not, in the main, prepared for the purpose of litigation. They are short because they were prepared so as to report “on the progress of the treatment”. The final reports do set out Dr Singh’s reasoning for the proposed surgery. These sufficiently comply with the requirements of expert evidence as stated by Beazley JA in Hancock. They provide a scientific or intellectual basis for the conclusion that the proposed surgery is reasonably necessary.[83]

   [82] Hancock, [92]. Appellant’s submissions in reply, [1]–[2].

   [83] Appellant’s submissions in reply, [3].

2. The appellant refers to the respondent’s criticism that Dr Singh failed to provide an analysis to support his “assertion” that the appellant “has structural pathology in the cervical spine resulting in neck and arm symptoms”. The respondent submits the Member correctly described this as a “bare ipse dixit’ that should be given no weight. The appellant submits this was not appropriately described as an “assertion”. It was a conclusion based on clinical observations, radiological investigations, the transient relief from injections at C3/4 and C4/5, and the continuing symptoms over two years in the presence of conservative treatment. Dr Singh’s opinion was that there were disc bulges contacting the cord with severe foraminal stenosis and the pathology was responsible for the interscapular and arm symptoms. Dr Singh’s reports viewed as a whole complied with the requirements of expert evidence. The finding to the contrary was an error of law.

3. The appellant submits Dr Singh’s recommendation of the proposed surgery was to address the ongoing neck and arm pain in the context of disc bulging at C3 to C5 as well as foraminal stenosis. The reasoning was well explained in Dr Singh’s material. His reasoning was based on the specialised knowledge of the treating specialist. [84]

   [84] Appellant’s submissions in reply, [4]–[5].

The assertion there was no reasoned analysis

1. The respondent’s assertion that there was no reasoned analysis in support of the proposed surgery, by reference to the MRI scans, clinical findings and diagnostic effect from the injections, is submitted to be “simply wrong”. The appellant quotes the following passage from Dr Singh’s final report:

   “I have read the report prepared by Dr Vanessa Perotti. 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.

   1)      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.

   This gentleman has radiating pain in the upper back and both shoulders, and this is from the central stenosis as well as foraminal stenosis in the cervical spine.

   2)      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.

   3)      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.

   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 C5 with the insertion of a prosthesis.”

2. The appellant submits there was clearly a scientific and intellectual basis for the conclusion that there was neurological compromise causing symptoms.

The assertion that Dr Singh failed to identify a basis for the conclusion there was neurological compromise causing symptoms

1. The appellant submits the absence of signal change, to indicate neurological change, was not determinative of whether the proposed surgery was reasonably necessary. Dr Singh, in his final report dated 29 September 2021, said that symptomatic foraminal stenosis, which the appellant certainly had, was an indicator for cervical spine surgery. The doctor described the purpose of surgery as decompression of the exiting nerve and stabilisation of the motion segment to improve symptoms. Dr Gehr supported this and further explained it. In his report dated 30 September 2021, Dr Gehr 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”.

2. The appellant submits this was further explained by Dr Gehr:

   “… foraminal stenosis means narrowing of the exits between the vertebral bodies where the nerve roots go down into the arm. It is here where the nerves can be compressed and cause severe pain both at the neck level and down the arm. So, if the foraminal stenosis is indicated from clinical examination and confirmed by imaging then it can be an indicator for cervical spine fusion in the presence of severe pain and failure of nonoperative management.”

3. The appellant submits the whole of the evidence supports the presence of central and foraminal stenosis with persistent neck and arm symptoms that can be alleviated by the proposed surgery. The appellant submits the adverse findings made by the Member were not open, nor were her findings that Dr Singh and Dr Gehr had not complied with the requirements of expert evidence.

CONSIDERATION

1. Both parties addressed on the basis that Diab correctly described the test posed by s 60 of the 1987 Act, in considering whether medical or related treatment is ‘reasonably necessary’. The Member, with apparent acceptance, set out a lengthy excerpt of the reasons in Diab, dealing with the meaning of ‘reasonably necessary’. It is not argued on this appeal that Diab was wrongly decided.

1. The essential issue between the parties was whether the proposed surgery was ‘reasonably necessary’ having regard to their competing medical cases. The Member accepted that Dr Singh had the specialised knowledge to provide an opinion on whether the proposed surgery was reasonably necessary. She accepted that the reports of Dr Singh should be read together. The Member said that the requirements of r 73 of the Rules should be borne in mind when determining whether the appellant’s onus is met to establish that the proposed treatment is reasonably necessary.[85]

   [85] Reasons, [68]–[69].

Dr Singh’s reports

1. The Member was critical of Dr Singh for not providing “the reasoning for his opinion”, saying that “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 findings.[86] The Member, at [85] to [89] of the reasons, said:

   “85.   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 [appellant] 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 [appellant’s] pattern of symptomatic pain and objective clinical findings, then the proposed procedure would be a more appropriate method of treatment.’

   86.    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.

   87.    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.

   88.    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.

   89.    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 ou[t] his reasoning. Like Dr Singh, his opinion is not probative of the issues.”

   [86] Reasons, [74]–[75], [84].

2. The Member quoted a passage from Dr Perotti’s report dated 17 September 2021 (set out in the paragraph immediately above) that described the criteria for the proposed surgery which Dr Perotti considered required satisfaction. The Member set out aspects of Dr Singh’s reports that she considered fell short of the requirements identified by Dr Perotti. Dr Singh’s reports failed to “describe in detail the symptoms which are said to be radicular”. Dr Singh did not explain if nerve compression by foraminal narrowing was the cause of symptoms nor correlate them to the “pattern of symptomatic pain”. The Member said the “description of [Dr Singh’s] clinical findings is inconsistent”. She said the “brevity” of Dr Singh’s reports, the inconsistency between the reports and the lack of the MRI scan report meant that Dr Singh’s reports failed to provide adequate evidence to find that the proposed surgery was reasonably necessary.[87]

   [87] Reasons, [85]–[87].

3. The MRI scan referred to in the above paragraph was the second such scan, carried out on 4 August 2020. It is referred to (described as a “repeat scan”) in Dr Singh’s report to Dr Lim dated 18 August 2020.[88] Dr Singh said that the second MRI showed “disc bulging from C3 to C5 which contacts accord [sic]. There is moderately severe foraminal stenosis at these two levels, worse on the right side”. The way in which Dr Singh referred to the second MRI (see [86] below) suggests that he may have had access to a report of it, although this is not clear. Dr Perotti’s report dated 10 March 2021 referred to the cervical MRI scan dated 4 August 2020. Dr Perotti said that she “reviewed imaging”. Dr Perotti describes the MRI dated 4 August 2020 as showing “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.”[89]

   [88] ARD, p 95.

   [89] Reply, p 76.

4. The requirements of an expert report were discussed in Hancock in the passages quoted at [44] to [45] above. The appellant makes the valid point that many of Dr Singh’s reports were provided in Dr Singh’s role as a treating specialist, reporting back to referring practitioners. Dr Singh described himself as an “Orthopaedic and Spine surgeon”. Dr Singh’s initial report dated 16 August 2019 was addressed to Dr Lee, the general practitioner. It referred briefly but appropriately to the circumstances of the accident. It described the neck symptoms:

   “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 C8 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.”[90]

   [90] ARD, p 85.

5. Dr Singh referred to a trial of a cervical injection as “a diagnostic and therapeutic measure”. The doctor included further comment in an accompanying clinical note.[91] This included a note of the findings on examination of the appellant’s upper limbs. It indicated the available MRI scan (the earlier one) had been reviewed, the doctor commenting:

   “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.”

   [91] ARD, pp 87–­88.

6. Dr Singh reported to Dr Lee on 17 March 2020,[92] saying:

   “He had relief from his left arm pain following a left C3/4 injection. As you know he has foraminal stenosis secondary to disc bulging on the left side at C3/4. At C4/5 there is a central disc protrusion indenting the spinal-cord, and this is responsible for his interscapular pain. He would like to trial an injection at this level and I will review him following the result of a right C4/5 renewal injection.”

   [92] ARD, p 91.

7. Dr Singh reported to Dr Lim on 21 July 2020,[93] following a telehealth consultation. The report refers to a review of the earlier MRI scan (that dated 26 April 2019) as showing “C4/5 and C5/6 disc bulging”. (This appears to be an error as the previous investigation showed bulging at C3/4 and C4/5.) The doctor commented that “updated imaging for his cervical spine” was needed. Dr Singh reported to Dr Lim on 18 August 2020[94] following a telehealth consultation. Dr Singh said an injection to the right C4/5 improved symptoms “partly for a short time during the effect of the local anaesthetic”. The doctor noted the appellant “has trialled conservative treatment including physiotherapy but has ongoing symptoms which have not improved”. The doctor referred to the second MRI scan performed on 4 August 2020:

   “A repeat MRI scan from Blacktown and Mount Druitt Hospital reports that there is disc bulging from C3 to C5 which contacts accord [sic]. There is moderately severe foraminal stenosis at these two levels, worse on the right side.”[95] (emphasis added)

   [93] ARD, p 94.

   [94] ARD, p 95.

   [95] Dr Singh’s report was signed off with a note stating: “This letter has been dictated but not checked by Dr Singh”.

8. On this occasion Dr Singh expressed the view that the proposed surgery was reasonably necessary.

9. Dr Singh reported to the insurer on 1 April 2021,[96] in response to it forwarding him a copy of Dr Perotti’s report with a request for an opinion. Dr Singh noted Dr Perotti suggested there was cervical pathology related to the work injury. Dr Singh said he disagreed with the statement that surgery was not indicated, saying:

   “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 C5 with the insertion of a prosthesis.”

   [96] Reply, p 80.

10. Dr Singh reported on 21 May 2021,[97] responding to specific questions from the insurer. His answers were short and specific. Reported symptoms were described as “ongoing symptoms of neck and arm pain”. The diagnosis was given as “disc bulging from C3-C5 as well as foraminal stenosis”. Treatment likely to “significantly improve condition and assist in return to work” was given as “Anterior Cervical Decompression and Fusion surgery C3-C5”. Asked to describe “why do you believe there has been stagnation in [the appellant’s] progress and what plan is currently in place to overcome this?” Dr Singh said: “Ongoing structural pathology in the cervical spine”.

    [97] ARD, pp 97–98.

11. Dr Singh reported at greater length on 20 June 2021 to Unified Healthcare Group.[98] That report set out the ten occasions when the appellant had consulted with Dr Singh. The doctor described the appellant’s injuries in a way generally consistent with his original report. 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.”

    [98] ARD, pp 99–101.

12. Dr Singh said that “[s]ensory examination of the upper limbs demonstrates mildly decreased sensation in the left C8 dermatome.” The doctor said “incapacity is the result of the injury sustained in the workplace, and I believe that his employment was the major substantial contributing factor to the injury”. Dr Singh was asked whether the proposed surgery was reasonably necessary, including providing detailed reasoning and having regard to specified matters set out in the letter requesting the report. Dr Singh’s response to this was in the following terms (emphasis in original):

    “Are you of the view that the proposed cervical spine fusion surgery, by way of C3/5 anterior cervical decompression fusion and fusion surgery is reasonably necessary? Why/why not? Please provide detailed reasoning taking into account the below:

    He has trialled conservative treatment including physiotherapy but has ongoing symptoms which have not improved. He had a short-term response to an injection at the involved levels. In view of ongoing symptoms, surgery is reasonably necessary.

    A decision about reasonably necessary treatment must include consideration of all of the following:

    (a) appropriateness, effectiveness, the alternatives available, cost benefit and

    its acceptance among the medical profession:

    He has structural pathology in the cervical spine resulting in neck and arm symptoms. Surgical decompression is appropriate and effective. Other treatment modalities have been trialled, but he continues to have significant symptoms for more than two years.

    (i) appropriateness - the capacity to relieve the effects of the injury

    Surgical decompression will improve his neck and arm pain.

    (ii) effectiveness - the degree to which the treatment will potentially alleviate the consequences of the injury

    Decompression is the most effective treatment to alleviate the symptoms arising from neurological compression.

    (iii) alternatives - consideration must be given to all other viable forms of treatment for the injury

    His nonsurgical alternative is to accept permanent functional limitation and trial chronic pain management.

    (iv) cost benefit - there must be an expected positive benefit, given the cost involved, that should deliver the expected health outcomes for the worker

    Improvement of symptoms is likely to improve his chances of returning to the workforce.

    (v) acceptance - the acceptance of the treatment among the medical profession must be considered, ie is it a conventional method of treatment and would medical practitioners generally prescribe it?

    Surgical decompression and stabilisation is the recommended mode of treatment in the presence of ongoing symptoms which have failed other modalities of conservative treatment.”

13. Dr Singh said: “Without surgical decompression and fusion, his prognosis is guarded. Following surgery, his prognosis is of improvement of neck and arm pain.”

14. Dr Singh’s final report, dated 29 September 2021, was addressed to the appellant’s solicitors (the only one that was).[99] The appellant’s submissions on appeal quote at some length from it. In his initial report dated 16 August 2019 Dr Singh referred to the earlier MRI, noting “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” (emphasis and underlining added). It appears from the discussion quoted at [84] to [85] above that Dr Singh considered there was correlation between the appellant’s complaints and the appearances on the MRI. This was before Dr Perotti first reported in the matter.

    [99] AALD, 8/10/21, pp 4–5.

15. Whether Dr Singh’s reports complied with the requirements of an expert’s report was not, of course, necessarily dependent on whether his reports responded to the matters raised by Dr Perotti in the passage quoted at [85] of the reasons. Dr Perotti’s essential view appears to have been that the question of whether the proposed surgery was reasonably necessary depended on the presence of:

    (a)    radicular symptoms, with accompanying neurological compression caused by disc or foraminal narrowing demonstrated on appropriate investigation, which clinically correlated with the symptoms and objective findings, and/or

    (b)    cervical pain in the presence of “established instability”, such as malignant fractures in the vertebral column, spinal fractures, ligamentous injury and spondylolisthesis.

16. Dr Perotti stated that none of the class of matters at (b) were present “clinically and radiologically”.[100] There was a factual disagreement between Dr Singh and Dr Perotti regarding whether radiculopathy was present. Dr Perotti examined the appellant once, on 22 February 2021. Dr Perotti recorded that at John Hunter Hospital following the accident the appellant:

    “… had neck pain and shoulder pain both shoulders, the left being worse. He had pins and needles extending down his left arm. He had significant pain in his right shoulder and limited movement. His left leg was broken and he required surgery.”

    [100] Dr Perotti’s report 17/9/21, AALD 22/9/21, p 1.

17. Dr Perotti, examining the neck and upper limbs, recorded:

    “He has severe neck pain which is unchanged. He has occasional left arm pain but this has improved since his ulnar surgery. He has residual pins and needles in the 4th and 5th fingers. He has ongoing right shoulder pain.”[101]

    “In regard to his cervical mobility he could not turn his neck to the left and would not attempt it. He was able to turn his neck to the right only marginally about 5°. This improved with encouragement and he was able to turn his neck to the right (about 50%) of normal. On palpation he had some mild midline tenderness but he had right paravertebral tenderness.”

    “There was no muscle wasting or asymmetry noted. There was no muscle wasting in his left hand. He had weakness lifting his arms directly up in the air which he believed to be related to his shoulder pain. He had decrease in power 4/5 in flexion and extension of his left elbow. The normal deep tendon reflexes were all present. His thumb adduction was normal. There was decreased sensation to soft and sharp touch to the outer part of his 4th and 5th finger on the left hand side.”[102]

    [101] Reply, p 74.

    [102] Reply, p 75.

18. Dr Perotti, commenting on the indications for the proposed surgery, 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.”[103]

    [103] Reply, p 78.

19. There were multiple references to radiculopathy in other medical evidence, referred to below.

20. The respondent’s submissions make a number of references to the absence of signal change in the initial MRI scan.[104] The reference to the absence of signal change is found in a note dictated by Dr Singh to Dr Lee dated 16 August 2019.[105] Dr Singh would have been aware of this note (of which he was the author) and therefore aware of the absence of signal change at the time of the initial MRI. Dr Singh referred to the presence of “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”. He referred to a “central disc protrusion [at C4-5] indenting the spinal cord” being responsible for the appellant’s interscapular pain. The doctor said that, with the proposed surgery, the prognosis was for improvement of “neck and arm pain”. Dr Singh’s reports contain multiple references to discal abnormality at C3/4 and C4/5 indenting the spinal cord in association with radiating pain involving interscapular and arm pain.

    [104] Respondent’s submissions, [14], [18], [22].

    [105] ARD, pp 87–88.

21. The respondent submits the absence of signal change in the initial MRI scan was inconsistent with the presence of neurological compromise causing arm symptoms.[106] Dr Singh’s reports do not support this proposition; Dr Singh’s reports as a whole suggest the contrary. The initial MRI scan was performed on 26 April 2019 (about three weeks post-accident) and reported on by Dr Chai.[107] It relevantly read:

    [106] Respondent’s submissions, [18].

    [107] ARD, pp 143–144.

    “MRI CERVICAL SPINE

    HISTORY:

    Cervical spine radiculopathy.

    TECHNIQUE:

    Routine sequences.

    FINDINGS:

    There is straightening of the normal cervical lordosis. No fracture or worrying marrow replacing lesion.

    C2/3

    Unremarkable.

    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.

    C5/6, C6/7 and C7/T1

    Unremarkable.

    The craniocervical junction is normal. Cervical spinal cord has normal calibre and signal throughout.

    COMMENT:

    Left sided disc protrusion of C3/4 and posterocentral disc protrusion of C4/5.” (emphasis added)

1. Dr Perotti, in her initial report dated 10 March 2021, said the initial MRI showed a mild disc bulge at C3/4 and C4/5 “which makes contact but does not compress the spinal cord”. She relevantly diagnosed “[c]ervical axial neck pain without radiculopathy”.[108] Dr Perotti referred also to mild stenosis at these levels. Dr Perotti held a different view to Dr Singh regarding the presence of neurological compromise. I note the reporting radiologist, Dr Chai, was of the opinion that the focal left posterolateral disc protrusion caused narrowing of the left nerve root entry zone and potential irritation of the left C4 nerve root from this was not excluded.

   [108] Reply, p 76.

2. Dr Perotti did not, in either of her reports, specifically comment on whether the absence of signal change was inconsistent with neurological compromise. Dr Perotti’s report dated 17 September 2021 had two attachments, which were admitted as part of the respondent’s case, the “Official Disability Guides” (ODG) and the “North American Spine Society, Appropriate Use Criteria for Cervical Spine Surgery” (Appropriate Use Criteria).[109] The reasons note a submission by the respondent, before the Member, that “significant weight” should be given to the Appropriate Use Criteria. The Member indicated that there was an exchange between herself and the respondent’s counsel during the conciliation phase of the hearing, in which she enquired about a different document, the “Official Disability Guides” (ODG).[110]

   [109] AALD, 22/9/21, pp 5–117.

   [110] Reasons, [57]–[58].

3. The Member’s reasons said she was “concerned about the objectivity of the [ODG]”. She said, of the Appropriate Use Criteria, that these, which were provided in their entirety, were “different”. The Member relied to an extent on the Criteria. She said:

   “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.”[111]

   [111] Reasons, [92].

4. In its ‘Introduction’ the Appropriate Use Criteria sets out the following:

   “These criteria do not represent a ‘standard of care’, nor are they intended as a fixed treatment protocol. It is anticipated that there will be patients who will require less or more treatment than the average. It is also acknowledged that in atypical cases, treatment falling outside these criteria will sometimes be necessary. This document should not be seen as prescribing the type, frequency or duration of intervention. Treatment may be based on this information in addition to an individual patient’s needs as well as the doctor’s professional judgment and experience. This document is designed to function as a guide and should not be used as the sole reason for denial of treatment and services. It is not intended to expand or restrict a health care provider’s scope of practice or to supersede applicable ethical standards or provisions of law. This is not a legal document.”[112]

   [112] Appropriate Use Criteria, p 7, AALD, 22/9/21, p 12.

5. The following rider appears as a footnote on every page of the Appropriate Use Criteria:

   “This content of this document should not be construed as including all proper methods of care or excluding other acceptable methods of care reasonably directed to obtaining the same results. The ultimate judgment regarding any specific procedure or treatment is to be made by the physician and patient in light of all circumstances presented by the patient and the needs and resources particular to the locality or institution.”

6. The Appropriate Use Criteria defines ‘radiculopathy’:

   “Symptoms in a radiating pattern in one or both upper extremities or into the scapular area, and/or signs that can include varying degrees of sensory, motor and/or reflex changes related to nerve root(s) without evidence of myelopathy.”[113]

   [113] Appropriate Use Criteria, p 11, AALD, 22/9/21, p 16.

7. The Appropriate Use Criteria defines ‘Axial Pain’ as: “Pain confined to the neck without radiation to the upper extremities or scapulae.”[114]

   [114] Appropriate Use Criteria, p 11, AALD, 22/9/21, p 16.

8. The Appropriate Use Criteria defines ‘Signal Change in the Cord’:

   “This refers to presence of hypointensity in the cord on T1 images and/or hyperintensity on T2 images, present on both sagittal and axial images.”[115]

   [115] Appropriate Use Criteria, p 12, AALD, 22/9/21, p 17.

9. The Appropriate Use Criteria sets out an ‘Executive Summary’ in which it deals with a large number of different clinical circumstances.[116]

   [116] Appropriate Use Criteria, pp 16–81, AALD, 22/9/21, pp 21–86.

10. Some guidance may be taken from State of New South Wales v Seedsman in which Spigelman CJ (Mason P and Meagher JA agreeing) said that the diagnostic criteria in DSM IV “are only guidelines for professional judgment”.[117] The Appropriate Use Criteria is plainly intended dominantly for use by medical practitioners and significant caution would need to be exercised in its use by decision makers.

    [117] [2000] NSWCA 119, [114], see generally, [114]–[119].

11. At its outset, the Executive Summary indicates that the “document reviews appropriateness of fusion for the treatment of various degenerative cervical conditions”.[118] One matter that does appear from the Appropriate Use Criteria is that the absence of signal change in the cord is not necessarily inconsistent with the presence of radiculopathy. Tables in the document deal with situations where signal change is absent, in the presence variously of myelopathy or radiculopathy or axial pain.[119] That is, at the least, the absence of signal change did not necessarily exclude radiculopathy. This is inconsistent with the respondent’s submission referred to at [100] above.

    [118] Appropriate Use Criteria, p 16, AALD, 22/9/21, p 21.

    [119] Appropriate Use Criteria, pp 25–26, 28­–­29, AALD, 22/9/21, pp 30–31, 33–34.

12. The Member described Dr Singh’s report dated 21 May 2021, responding to a letter from the insurer, as “a series of ‘bare ipse dixits’”.[120] This description does not take appropriate account of the need to read Dr Singh’s reports together. It is illuminating to compare the substance of Dr Singh’s report dated 21 May 2021, considered in concert with his reports as a whole, with the evidence (“in general all the problems are work-related”) described by McColl JA as a “bare ipse dixit” in Edmonds.[121]

    [120] Reasons, [80].

    [121] Edmonds, [132].

13. In Hancock Beazley JA referred to a failure by a treating surgeon to refer, in his reports, to later non-work related incidents. Her Honour held this did not involve a failure to identify “the facts and reasoning process which he or she asserts justify the opinion” (referring to Rich at [105]). Her Honour said “[t]he extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports”.[122] McColl JA agreed with this approach in Onesteel Reinforcing Pty Ltd v Sutton.[123]

    [122] Hancock, [88].

    [123] [2012] NSWCA 282 (Sutton), [68].

14. In his report dated 29 September 2021, Dr Singh referred to “intrascapular, periscapular and axial neck pain”. He referred to arm symptoms resulting from foraminal stenosis and radiation to the upper shoulder. Dr Singh specifically referred to the injection of local anaesthetic at C4/5, saying “this tells us that the symptoms are not axial neck pain but from neurological compression which is clearly evident on the MRI scan”. The Member was critical of how Dr Singh described symptoms the doctor regarded as radicular. She referred to a failure by the doctor to describe such symptoms “in detail” (see [80] above). Dr Singh practises as an “orthopaedic and spine surgeon”. The Member appropriately accepted that Dr Singh had the relevant specialised knowledge to express an expert opinion in the matter. The Member said the doctor had failed to provide “the reasoning for his opinion”, and as a consequence she rejected his opinion (and that of Dr Gehr) as “not probative of the issues”.[124]

    [124] Reasons, [89].

15. I note the passages from Rich quoted at [42] above. Dr Singh is a spinal surgeon. One can readily accept that, in referring to whether symptoms are of a radicular nature, Dr Singh’s identification of such symptoms involves drawing on a body of experience which is “so fundamental to his or her professionalism, that it is not able to be articulated”. The identification of radicular symptoms would be part of the everyday practice of a medical practitioner working in Dr Singh’s field. I note also the passage from Red Bull quoted at [43] above.

16. In his report dated 17 March 2020, Dr Singh referred to “a central disc protrusion indenting the spinal-cord, and this is responsible for his interscapular pain”.[125] In his report dated 16 June 2020, Dr Singh recorded complaints of “ongoing symptoms of neck pain with radicular symptoms in the arms”.[126] In his report dated 18 August 2020 Dr Singh recorded “ongoing symptoms of neck and arm pain”.[127] Reporting to the insurer on 21 May 2021, Dr Singh referred to “ongoing symptoms of neck and arm pain”.[128] Reporting on 20 June 2021 to Unified Health Care Group, Dr Singh recorded “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”.[129]

    [125] ARD, p 91.

    [126] ARD, p 92.

    [127] ARD, p 95.

    [128] ARD, p 97.

    [129] ARD, p 99.

17. Dr Chai, a radiologist, reporting on the initial MRI scan performed on 26 April 2019 (about three weeks post-accident) recorded a history of “[c]ervical spine radiculopathy”.[130] Dr Soo, an orthopaedic surgeon, saw the appellant predominantly to treat the injuries to his fractured ankle and ulnar nerve. Dr Soo, reporting to Dr Lim on 5 September 2019, recorded that the appellant “continues to get neck pain and radicular signs in his left shoulder from compression of his C4/5 nerve roots”.[131]

    [130] ARD, p 143.

    [131] ARD, p 115.

18. Dr Perotti examined the appellant once, on 22 February 2021. She said “Mr Gonzalves has axial neck pain and limited range of motion (ROM) in lateral rotation bilaterally. There is no convincing radiculopathy”. Dr Singh was repeatedly criticised in the reasons for failing to describe signs of radiculopathy with precision. Dr Perotti does not identify why whatever potential signs of radiculopathy she identified were not convincing. If she simply failed to observe any signs of radiculopathy it would have been a simple exercise to say so.   

19. Rule 73 of the Rules provides:

    “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.”

20. Rule 73 is in substantially identical terms to r 15.2 of the former Workers Compensation Commission Rules 2011. The previous rule was described by Allsop P (as his Honour then was) in Sutton as “a sound approach for the reliable disposition of important cases for individuals”. His Honour said:

    “Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”[132]

    [132] Sutton, [3].

21. The rationale behind the passage from Rolleston quoted at [57] above is that frequently an expert’s specialised knowledge will be made clear by the reasoning process that forms the relevant opinion. Dr Singh practised as a spinal surgeon. His specialised knowledge was not in issue.[133] Although the Evidence Act does not have application in the Commission, authorities dealing with expert evidence, in the context of the Evidence Act, may be relevant in Commission proceedings. Expert evidence in the Commission is subject to Rule 73 of the Rules. In Edmonds McColl JA referred to “the desirability [in the former Workers Compensation Commission] of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value”.[134] Her Honour referred to her reasons in Hevi Lift (PNG) Ltd v Etherington in which she said “a court … should not act upon an expert opinion the basis for which is not explained by the witness expressing it”.[135] In Edmonds her Honour, after concluding that a piece of medical evidence was a bare ipse dixit, said it was “not probative of the issue before the Arbitrator”. Her Honour said:

    “… the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”[136]

    [133] Reasons, [84]

    [134] Edmonds, [131].

    [135] [2005] NSWCA 42, 2 DDCR 271, [84].

    [136] Edmonds, [133]. (Section 352 of the 1998 Act, which governs Presidential appeals in the Commission, has subsequently been amended to restrict such appeals to errors of fact, law or discretion.)

22. Dr Singh’s reports are summarised in some detail above, given the nature of the attack made on them. This does not need to be repeated. His reports referred to the appellant’s injury, and to the complaints relevant to the injury at issue in these proceedings. Dr Singh referred to the symptoms relevant to the surgery at issue and to the matters identified in Hancock (see [44] to [45] above). He referred to the lack of benefit from previous treatment. He referred to the surgery that he considered would be beneficial. The Member did not analyse the medical evidence from both parties and conclude that she preferred that of the respondent for stated reasons. Rather, she found that Dr Singh’s reports were not probative of the issue between the parties, they lacked any probative value. On a fair reading of Dr Singh’s reports, considered as a whole, the doctor’s opinion could not appropriately be dismissed as a bare ipse dixit which lacked any probative force. I accept the appellant’s submission that this finding cannot be sustained (see [55] above). This was not properly open on the evidence and comprised error within the meaning of s 352(5) of the 1998 Act. Dr Singh’s expressed opinion complied sufficiently with the requirements of expert evidence in the Commission, consistent with the principles outlined in Edmonds, Hancock and Sutton. It was material upon which the Commission was entitled to act.[137]

    [137] Sutton, [3].

23. This is sufficient to dispose of Grounds Nos. 1, 2 and 4, which succeed. Ground No. 3 relates to the Member’s finding that Dr Gehr’s reports lacked any probative force due to their lack of reasoning.

Dr Gehr’s reports

1. Dr Gehr (an orthopaedic surgeon) furnished two reports to the appellant’s solicitors, both dated 14 May 2021.[138] He also furnished a supplementary report dated 30 September 2021.[139] In his longer primary report Dr Gehr referred to the MRI scan of the cervical spine dated 26 April 2019 as showing “left-sided disc protrusion of C3/4 and posterocentral disc protrusion of C4/C5”. He referred to a “CT cervical spine and brain” dated 21 March 2019 as showing “No acute intracranial haemorrhage. No skull fracture. No acute bony cervical spinal injury.”[140] Dr Gehr took a generally consistent history of the accident. He summarised Dr Singh’s report dated 16 August 2019. He summarised a report of Dr Soo dated 5 September 2019 which included reference to neck pain and radicular signs in the left shoulder. Dr Gehr recorded the appellant’s current symptoms. The appellant felt that “overall conditions are getting worse”. Dr Gehr said the appellant continued with physiotherapy under the care of his GP. He recorded “tenderness in the left paracervical area”, the “axial compression test [was] negative”, the “[b]rachial plexus stretch test causes trapezial pain, no radicular pain”, neck movements were reduced, guarding and dysmetria were present. Dr Gehr specifically recorded the absence of pain behaviours, non-physiological behaviours, exaggerations and embellishments. By way of summary and conclusion relating to the neck injury, Dr Gehr said:

   “This is a 44-year-old man, injured in an industrial accident on 21/3/2019 with an injury to his cervical spine and he has persisting pain to the cervical spine with guarding and dysmetria changes on imaging with discogenic changes at C4-5 and C3-4. There has been a discussion by his treating spinal surgeon to have an anterior cervical decompression and fusion at C3 to C5.”[141]

   [138] ARD, pp 54–76.

   [139] AALD 8/10/21, p 1.

   [140] ARD, pp 61–62.

   [141] ARD, p 67.

2. The Member, in her reasons at [49], quoted the following passage from Dr Gehr’s supplementary report:

   “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.”

3. The Member referred to Dr Gehr’s opinion in the reasons at [88] to [89]:

   “88.   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.

   89.    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 ou[t] his reasoning. Like Dr Singh, his opinion is not probative of the issues.”

4. The issue between the parties involved whether it was reasonably necessary that the appellant undergo the proposed surgery. Dr Gehr said the appellant “will need the surgical procedure as recommended”, likely “[o]ver the next 6 to 12 months” with three months off work as a result. The report contains the following question and answer dealing with the surgery:

   “Are you of the view that the proposed cervical spine fusion surgery, by way of C3/5 anterior cervical decompression and fusion surgery is reasonably necessary? Why/why not? Please provide reasoning taking into consideration the below:

   A decision about reasonably necessary treatment must include consideration of all of the following: appropriateness, effectiveness, the alternatives available, cost benefit and its acceptance among the medical profession:

   (a)     appropriateness - the capacity to relieve the effects of the injury

   I would support the C3/C5 anterior cervical decompression and surgery as proposed by his treating spinal surgeon Dr. D. B. Singh.

   It is appropriate with this type of problem.

   (b)     effectiveness - the degree to which the treatment will potentially alleviate the consequences of the injury

   There is 30% to 70% effectiveness in relieving symptoms.

   (c)     alternatives - consideration must be given to all other viable forms of treatment for the injury

   All the attempts have been explored.

   (d)     cost benefit - there must be an expected positive benefit, given the cost involved, that should deliver the expected health outcomes for the worker

   It is cost beneficial.

   (e)     acceptance - the acceptance of the treatment among the medical profession must be considered, i.e., is it a conventional method of treatment and would medical practitioners generally prescribe it?

   It is accepted amongst the spinal surgeon profession in Australia.”

5. Dr Gehr’s opinion on this central issue contains some briefly stated conclusions. It does not seek to explain the reasoning for any of them.

1. For Ground No. 3 to succeed it would be necessary that I conclude the Member’s finding, that Dr Gehr’s opinion lacked probative force due to its lack of reasoning, was wrong. I am not persuaded that that is so. Ground No. 3 fails.

DISPOSITION OF THE APPEAL

1. The finding that the reports of Dr Singh and Dr Gehr lacked any probative force effectively deprived the appellant’s case of any specialist medical support. The outcome in those circumstances became inevitable. In the case of Dr Singh, I have concluded that this involved error. It clearly affected the result and constitutes appealable error. It is unnecessary to deal with Ground No. 5.

2. The Member stated that she accepted Dr Singh’s reports should be read together.[142] Her consideration of the evidence of Dr Singh centred largely on criticism of the doctor’s reports for their brevity and asserted inconsistency. Dr Singh was a treating specialist who examined the appellant on multiple occasions, and the bulk of his reports were generated in that context, both to keep referring doctors informed and on occasions to deal with queries from the insurer. The reports should be genuinely read together, bearing in mind the purpose for which they were produced. The Member also relied on the absence of the second MRI scan report as a reason why the appellant could not discharge his onus.[143] The appellant has made the point that both of the primary doctors who commented and were central to the parties’ cases (Dr Singh and Dr Perotti) had access to the second MRI scan and an opportunity to consider it and to comment.

   [142] Reasons, [74].

   [143] Reasons, [87].

3. It is appropriate in my view that the matter be remitted to a different Member for redetermination consistent with these reasons.

DECISION

1. The Certificate of Determination dated 18 November 2021 is revoked.

2. The matter is remitted to a different Member for re-determination consistent with these reasons.

Michael Snell
Acting President

23 August 2022