GREGORY BUNYI and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 655
•1 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 655
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1271
GENERAL ADMINISTRATIVE DIVISION ) 2008/1906
2009/0588Re GREGORY BUNYI Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date1 September 2009
PlaceMelbourne
Decision 1. Application No. 2008/1271 – The decision under review is affirmed.
2. Application No. 2008/1906 – The decision under review is set aside and in substitution IT IS DECIDED:
(i) The applicant was incapacitated from working overtime between 20 February 2008 and November 2008; and
(ii) He is entitled to weekly compensation which when calculated will include a component of overtime of two and three quarter hours per week.
3. Application No. 2009/558 – The decision under review is set aside and in substitution IT IS DECIDED the applicant is entitled to the cost of medical treatment which is, in his circumstances, is reasonable, being the implanting of a spinal cord stimulator.
4. The respondent is liable to pay the legal costs of the applicant with respect to applications 2008/1906 and 2009/0558 pursuant to paragraph 6.8 of the Guide to the Workers' Compensation Jurisdiction published by the Tribunal.
(sgd) John Handley
Senior Member
COMPENSATION – Severe back injury in workplace – three surgical procedures, one involving spinal fusion at L5/S1 – continuing severe neuropathic pain – severe depression with a suicide attempt – denial of lawn mowing costs, refusal to calculate weekly compensation with an overtime component and denial to meet the cost of spinal cord stimulator – decision concerning lawn mowing expenses affirmed – other two decisions set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16(1), s 29, s 29(2), s 29(2)(d)
REASONS FOR DECISION
1 September 2009 Mr John Handley, Senior Member 1. Mr Bunyi, the applicant in these proceedings applied to review three decisions made by Australia Post, the respondent.
2. The first decision (Application No. 2008/1271) under review was a refusal on the part of the respondent to pay expenses pursuant to s 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for household services, being, lawn mowing expenses. Liability had previously been accepted pursuant to those provisions but was denied from March 2008.
3. The second decision (Application No. 2008/1906) concerns the rate of weekly compensation payable pursuant to s 19 of the SRC Act. The applicant asserted that his normal weekly earnings should be calculated on the basis of salary payable for work comprising 39 hours and 30 minutes per week which included an overtime component of two and three quarter hours. The entitlement under this head of claim was confined only to the period 20 February 2008 to November 2008 when he ceased work. From the latter date the applicant has been totally incapacitated and is in receipt of weekly payments.
4. The third decision (Application No. 2009/0558) under review, and over which there was considerable focus in these proceedings, was a denial on the part of the respondent to meet the cost of medical treatment which was asserted by the applicant to be reasonable and the cost of same to be appropriate, pursuant to s 16 of the SRC Act. That claim concerned the insertion of a spinal cord stimulator (SCS). That procedure was described as initially involving a surgical implanting of electrodes into the applicant's spine by way of trial. Only in the event that that procedure gave the applicant relief from his pain, would the stimulator be surgically implanted. Mr Seit, who appeared on behalf of the respondent, submitted at the outset that the cost of the stimulator (if it was ultimately undertaken) would be in the vicinity of $38,800 but absent the cost of hospital and associated fees. He estimated that the total costs would exceed $50,000.
5. A number of doctors gave evidence in these proceedings and their evidence will be summarised later.
grigorio bunyi
6. The applicant is presently 51 years of age. He was born in the Philippines and was a member of the Philippines Air Force for about 10 years. He served as a member of its intelligence section providing security services. He was not engaged in combat. He migrated to Australia in 1989 with his wife and first child who is presently 26 years of age. Another child was born in Australia and he is presently aged 14 years.
7. On 25 August 1994 the applicant commenced work with the respondent undertaking varying duties comprising sorting mail, lifting bags and working on the respondent's machines. Initially he was a part time employee but ultimately became a permanent full time employee. He worked overtime and higher duties on a permanent and regular basis. The applicant said that he applied to work overtime in order to earn monies to meet the cost of private school fees which he incurred by having his oldest child enrolled and educated at Xavier College in Melbourne.
8. Initially the applicant worked at the Eastern Mail Centre at Nunawading but later moved to the new facility at Dandenong in 2001. He worked a permanent shift between 7.30pm and 4.00am with overtime being worked on a regular basis before the base hours commenced at 7.30pm.
9. On 2 July 2001 the applicant suffered back pain. He said that occurred following an episode of lifting an express post mail bag which was unlabelled and which he estimated to be 35kgs in weight. He said he was lifting the bag from the floor onto a conveyor about 700mm above floor level and felt a crack in his back. An Incident Report was completed and he kept working on modified duties in a seated position separating letters. He felt a numb sensation in his back, predominantly on the left side with the numb sensation progressing into his left leg extending to his ankle. Thereafter he attended a facility doctor from time to time and he was referred for physiotherapy treatment. A CT scan was undertaken approximately one month later and he was then referred to Mr Thien, a neurosurgeon. Painkilling medication and anti-inflammatory drugs were prescribed and consumed and physiotherapy continued. The applicant remained at work but on light duties. An MRI scan was later undertaken and the applicant was referred back to Mr Thien who recommended a discectomy. That was undertaken in June 2002 and following a period of inpatient treatment and rehabilitation, the applicant returned to work in 2003 on reduced hours and modified duties.
10. The applicant later noticed that he was experiencing pain in his left leg which he did not experience prior to surgery. He continued to have physiotherapy and hydrotherapy and his hours of work gradually increased. He was then working five hours per day, sorting mail, and was able to sit and stand at will. He did not undertake any lifting. He also undertook work inserting letters and other mail items into pigeon holes. The applicant was under the care of Dr Foo, his family practitioner, who referred him for another MRI scan in May 2003. Eventually the applicant was referred to Mr Malham, a neurosurgeon who performed a reverse discectomy in April 2004.
11. Following the second operation the applicant received extensive inpatient and rehabilitation treatment and was consuming medication by reason of his pain and his depression. He also suffered nausea and was frequently drowsy. He eventually returned to work on modified and lighter duties and pursued treatment of physiotherapy and hydrotherapy.
12. The applicant remained under the care of Dr Foo who was prescribing medication for his pain and for the depression that he was then suffering. The applicant said that the pain affected him to the extent that he had considered suicide and in evidence said I always praying not to wake up any more (Transcript, p26). The respondent referred the applicant to Dr Botvenik, a psychiatrist, and liability was accepted for the cost of prescription medication for depression. The applicant continued to suffer leg pain which he described as burning which extended into his left ankle and left foot.
13. In January and February 2005, by reason of continuing pain, the applicant had a number of CT guided epidural injections in an attempt to relieve or decrease his back pain. He said he was given relief for about 30 minutes only. He was eventually referred to Cedar Court Rehabilitation Hospital and was referred to Ms Baston, a psychologist. The applicant remained at work on reduced hours and the respondent was making up his salary to his pre-injury level of earnings. The applicant said that he was required to drive to work from Blackburn to Dandenong, a journey of between 30 and 40 minutes which he said caused him considerable discomfort and pain and which he regarded as unsafe because he was drowsy and on occasions he said he passed through red lights and had also been speeding and had been apprehended and fined. The applicant continued to have treatment from Ms Baston and he continued to work.
14. In October 2005 he was referred to Mr Brazenor, a neurosurgeon, who advised that he should undertake walking type exercise but in the event that it was not successful in relieving pain, consideration should be given to a spinal fusion.
15. The applicant said that he did undertake walking, gradually increasing it from 10 minutes to 30 minutes twice per day but pain continued radiating into his left foot. The applicant said that he was depressed and preoccupied with pain and despite an initial rejection, the respondent eventually accepted liability for the cost of fusion surgery. The applicant had that procedure in August 2006 and following discharge he was encouraged by Mr Brazenor to walk, increasing in duration. However the applicant said that he was experiencing pain in his left leg which was worse than prior to the fusion surgery. He said Mr Brazenor would not accept his complaints and said that he did not understand me (Transcript, page 36). In January 2007 he said Mr Brazenor wrote a certificate indicating that he was ready to return to work and despite the applicant's misgivings he said it was hard for me to refuse what the surgeon said. Despite the presence of pain and depression he did return to work, initially at four hours per day at three days per week. He said pain was constant, he was consuming large quantities of prescribed medication and at the end of each working day, despite the presence of pain, he said he could not take any more painkilling medication because he then had to drive home (being mindful of the affect upon him when under the influence of that medication and when driving a motor car). Later the medication that was prescribed changed and Lyrica was consumed but without success.
16. The applicant gradually increased his hours at work and ultimately was able to achieve the base of 36 hours and 45 minutes each day but without working any overtime. Despite a history recorded by Dr Barton to whom the applicant was referred by the respondent, he denied that he was working 39 and a half hours per week and said that he did not notify Dr Barton that he was then working overtime. In fact he said that he had not worked any overtime since the initial injury in June 2002.
17. The work being undertaken by the applicant was repairing damaged mail items which permitted him to work at a bench, wrapping or repairing items and placing them on a trolley known as a Kingfisher which had a number of shelves which caused him some difficulty especially when having to place items on a lower shelf which exposed him to bending. He also attempted to work at a sorting frame but that caused difficulty because he was required to bend to lower levels and twist his lower back when inserting mail items into the pigeon holes within the sorting frame.
18. In early 2008 the respondent decided to cease paying the overtime component that was previously being worked. He said he was unable to work any more than the base hours because he was in pain and the medication being consumed caused him to be drowsy. He said that his head was spinning and he was frustrated that Mr Brazenor had not accepted that he was experiencing pain. Eventually Dr Foo referred the applicant to Mr Roy Carey, an orthopaedic surgeon who referred him to Dr Thomas, a rehabilitation physician. Insertion of a spinal cord stimulator was discussed but the applicant was recommended to attempt increased consumption of Lyrica which he said caused him to remain drowsy and it did not relieve pain. Mr Carey referred the applicant to Mr Thien where the insertion of the spinal cord stimulator was discussed. It would be a two stage process, initially involving external electrodes and later, should the initial process succeed in relieving pain, implanting the stimulator into his abdomen. The applicant said that his depression was becoming worse he was taking medication in an attempt to treat it or relieve the effects of it and was content, at least to undertake the first stage of the spinal cord simulation procedure. He said his depression was becoming worse and in late 2008 he attempted suicide by an overdose of medication which caused admission into the Delmont Private Psychiatric Hospital. The applicant said at the present time his depression was his biggest problem and he associated that with the presence of pain. He said most of the time I still want to die. He said he would undertake any treatment that would relieve him of pain and was prepared to undergo a trial of spinal cord stimulation.
19. In cross-examination the applicant said since the respondent ended its liability to pay the cost of lawn mowing, his grass has been cut on three occasions by his wife and by a relative. He said that he has also engaged a private person for which he paid a fee. He agreed that his wife and two children aged 26 and 14 live at the house, but his oldest son works between Monday and Friday and is not at home on weekends. He said he feels useless, hopeless in not being able to undertake lawn mowing (Transcript, page 50). He agreed that his wife is capable of using the lawn mower but she is not able to start it.
20. The applicant said that he returned to work in February 2007 after the spinal fusion initially at 12 hours per week but by June of 2007 he had increased his work to 36 hours and 45 minutes per week being full time hours. He said after June 2007 he was unable to work overtime of 2 hours 45 minutes per week despite the advice of Mr Brazenor that he was capable of undertaking it. He said that Mr Brazenor did not believe about my pain, and he pushed me to do that, and even though that I was telling – I was complaining of pain and everything – every time to him (Transcript, page 51).
21. The applicant agreed that he did not attempt to work overtime and said that he knew that it would not be safe for him to do it because of the pain that he was suffering, the medication that he was consuming and the risk that he faced by having to drive home. He denied the suggestion put to him that it was unfair to be forced to work overtime and also denied that working overtime should be regarded as being voluntary. He said that he always worked overtime whenever it was available in order to earn extra income but because of his back pain and his present circumstances he was unable to work any more than base hours. He said Australia Post had suggested to him that he should work overtime having regard to an opinion expressed by Mr Brazenor but said that Dr Foo had advised him not to undertake it.
22. With respect to the spinal cord stimulator the applicant said that he had been advised by Mr Thien that there were side effects to the implanting being infection, malfunction of the machine, replacement of batteries and mal-alignment of the wires. He said that no one had recommended to him that he should not undertake the procedure. He rejected the suggestion put to him that it would be inappropriate to undertake that procedure by reason of his depression. He said that he had been advised by his doctors that he is depressed because of his pain and it had not been recommended to him that his depression should be treated before the implant is considered. He said that he had recently been advised by Dr Thomas that he should proceed with the procedure.
dr clayton thomas
23. Dr Thomas is a specialist physician who has practised as a consultant in rehabilitation and pain medicine since 1991. He has treated the applicant and was satisfied that his predominant pain was neuropathic in nature, involving the left S1 nerve with persistent pain in his left buttock and his left leg. It was his opinion that the neuropathic type pain arose out of the original injury which also involved the S1 nerve root.
24. Dr Thomas was aware that the applicant had three surgical procedures with Mr Thien, Mr Malham and Dr Brazenor. Whilst he has an expectation that surgery to relieve pressure on a nerve will achieve a good outcome in 80 to 90% of persons undertaking such a procedure, in others there is no difference in pain and in some persons the pain is worse. He was aware of a phenomenon known as failed back syndrome which manifests in persons who have technically successful surgery without any complication but where there is persisting pain or, on occasions, pain which is worse. Dr Thomas had not seen clinical notes from the surgeons but he regarded the three persons who performed surgery on the applicant to be highly skilled and he had no reason to doubt their competence.
25. In his experience, pain suffered by a person is a physical and emotional response to an injury. Emotional aspects will magnify pains to a significant degree but in the present case he noted that the applicant returned to work on a number of occasions after surgery despite persisting pain and there was nothing which pointed to the applicant initially suffering emotional distress. However, over time, the persistence of the applicant's symptoms caused him to suffer from pain which became chronic and present 24 hours of each day without relief and he, like 80% of his patients, was prescribed anti-depressants.
26. In a report to the applicant's solicitor of 30 September 2008 (Ex A1), Dr Thomas expressed the opinion that starting and pushing a heavy lawn mower would not be appropriate for the applicant and would aggravate his pain. He also thought that the use of a whipper snipper would also be inappropriate.
27. With respect to the applicant's ability to undertake overtime during the limited period in 2008, Dr Thomas said that it was difficult to reach a conclusion in retrospect however in his view a patient should balance functional ability at work and functional ability at home. He said if the balance is wrong persons will find that they cannot function at all or they may resort to consuming large quantities of medication. He said he was impressed that the applicant was working full time hours and in his experience he thought the applicant had done well to reach that level of function at work.
28. As to the spinal cord stimulation, Dr Thomas said that it is regarded professionally as a pain modulating device which has been available for 30 or 40 years and is a device providing spinal cord stimulation with which he has had experience since the early 1990's. He has had three or four dozen patients who have had the device fitted and he is one of two doctors on a Workcover and TAC Panel who provides recommendations whether patients meet statutory criteria for neuromodulation. He has also had an association with Mr Thien who he regarded as the technician. He said that Mr Thien would be required to find the sweet spot in the spinal cord. Dr Thomas said that he would be regarded as the person managing the patient's pain. He said he has had long term relationship with Mr Thien and spinal cord stimulation is a process that he regards as treatment and management of chronic disease. He said that a person's pain will not disappear but it will be considerably lesser in intensity because neuromodulation involves blocking pain processing pathways from developing long term changes at the higher spinal and brain levels from occurring. In his experience the earlier the stimulation is implanted the better the outcome.
29. Dr Thomas said that the process will involve two stages. Initially there is a trial where electrodes are inserted under a light anaesthetic with the patient being conscious. During the course of the trial, which might vary between five and seven days, if pain is decreased and if sufficient relief is experienced by the patient, full surgical insertion of the device is then undertaken. If no satisfactory outcome is achieved by the trial the electrodes are removed. He said the intention was not only to give the patient pain relief but to reduce the consumption of medication.
30. Dr Thomas was aware of the applicant's psychological history including inpatient admissions in 2008 and early 2009 following a suicide attempt. He said that it is not uncommon with persons in chronic pain to have dual pathology however their emotional distress does not mean that they are prohibited from having at least a stimulator trial or the stimulator later inserted. He said a process of liaison with a patient is undertaken and if that person is coping and there is a recommendation made by the treating psychiatrist there is then a liaison with Mr Thien and the trial is then undertaken. In the present case, Dr Thomas said even if the applicant remained emotionally distressed but was committed to having the procedure undertaken, he would recommend it and liaise with Mr Thien.
31. In practise Dr Thomas said that the process commenced with having approval for funding being made by the employer or the employer's insurer. There was then a process of working with the patient and the surgeon and the psychiatrist to determine the timing for undertaking that procedure. In his experience, when these surgical procedures were first undertaken there was a one out of 10 improvement. However, in recent years the processes involving the selection of the patient and the advances in technology have caused an improvement in outcome with some persons being able to give up medication totally and return to full time productive work. In his experience he has also observed patients over a 5 or 10 year period subsequent to the stimulator being inserted and if there is good outcomes in the first six months there is no reason to suspect that there would not be continued success. He acknowledged that there might be battery failure or movement of wires but being familiar with the strategies undertaken by Mr Thien at surgery, he said the chance of the wires moving were negligible. Should the battery expire it can be replaced.
32. In cross-examination Dr Thomas agreed that Mr Thien wrote to him in a letter of 31 July 2008 and recorded that he was uncertain as to whether this will be effective for him. Dr Thomas said that he understood Mr Thien to be expressing an opinion that it could not be said with any certainty whether the outcome would be successful but it was his opinion that the applicant satisfied all the criteria to justify a stimulator being used. He said that Mr Thien is a excellent neurosurgeon and he did not have or share the reservations that Mr Thien might have. He thought the applicant should be given the opportunity to at least have a trial of neuromodulation. He said Mr Thien would not undertake the procedure unless there was a good chance that it would succeed. He said it would not be undertaken on a speculative basis. He was not deterred by the applicant having had three surgical procedures to date.
33. Dr Thomas was also asked to comment on part of a letter that he wrote to Dr Foo on 11 February 2009 where he expressed his concern about the applicant's continuing depression. He also recorded that whilst the applicant was severely depressed it would be inappropriate to consider a trial of neuromodulation. In evidence he said that if a person is really rock bottom, severely depressed, highly suicidal the intention was to improve their mental well being and encourage them to have adequate coping skills. Nonetheless persons in chronic pain will be unhappy and will be depressed but those who have severe psychological problems and suffering from severe depression, are not likely to obtain relief by neuromodulation. Whilst acknowledging that the applicant has had two periods of inpatient treatment in a psychiatric hospital, he would not discourage the applicant from having the procedure because he was aware that he was now functioning well, he was coping and although he had hit rock bottom and he crashed, he found the applicant to be unique, he had a high degree of motivation and he previously had an ability to continue to work.
34. Dr Thomas said that it was critical that the applicant obtain funding to have the procedure undertaken without delay. He said these proceedings were interfering with the clinical management of the applicant because he is now satisfied that neuromodulation is required. He said the applicant's pain will not disappear and approval from the employer or the employer's insurer was necessary to allow the neuromodulation to commence. Once approval is given, arrangements will be made between the treating psychiatrists, the surgeon and himself and the patient to determine the time for the trial to commence. He said delay will diminish the likelihood of improvement because the pain pathways change with time and a continuing neuropathic process will cause change at multiple spinal levels. The intention therefore is to stop that process from occurring or developing.
35. Dr Thomas said that he was satisfied that the applicant's complaints were organic in nature and there was nothing about his behaviour or the expression of symptoms which would cause him to believe otherwise. He was also impressed by the applicant's motivation and the extent of his pathology. Despite being aware of an opinion expressed by Mr Barton that the applicant was capable of working overtime, Dr Thomas said he was not prepared to change the opinion that he previously expressed. He did agree that the applicant probably could undertake lawn mowing if he had a light lawn mower, that had an on and off button that the quantity of lawn was small and he could work at his own pace.
mr roy carey
36. Mr Carey has been in practice as an orthopaedic surgeon for 26 years. He examined the applicant in January 2008 upon referral from Dr Foo.
37. In a report of 6 November 2008 and in his evidence in these proceedings, Mr Carey reported that the spinal fusion completed by Mr Brazenor was perfect technically and there was no other indication of further surgical intervention. He said he was not qualified to give opinions with respect to pain management and he had suggested that the applicant should be referred to Dr Thomas. Additionally he said that he was not sufficiently qualified to give opinions with respect to spinal cord stimulation.
38. With respect to the applicant's ability to work overtime he said that a commonsense approach should be adopted. He said it was his practice to accept a patient's history unless there was some contrary indication. In those circumstances if a patient was able to tolerate pain he would not counsel against continuing to work. However, (refer report at page 5) if after having undergone surgical procedure on three occasions, if the patient has had enough at the end of the normal working day, he would support a contention of inability to work overtime. Additionally, if a patient was able to undertake lawn mowing he would not counsel against it but should that be beyond the physical capacity of the patient it would be preferable that it not be undertaken.
39. In cross-examination Mr Carey acknowledged that the applicant had progressively increased his working hours but said that would be more an indication of an improvement in function not necessary a decrease in pain. He acknowledged that Mr Brazenor had reported that the applicant was capable of working overtime of 2 hours 45 minutes per week but said that complaints of pain were entirely subjective and that a person should not be required to work in discomfort. Additionally he said that whilst he has respect for the professional skills of Mr Brazenor, he was not aware that he had qualifications as an occupational physician and was not aware that any workplace visit had been undertaken by him.
david barton
40. Dr Barton has been an occupational physician since 1981. Dr Barton also acknowledged that he did not have specialist qualifications in pain management. He examined the applicant at the request of the respondent in November 2007 and provided a report of 8 November 2007 (T127) with an Addendum at T128.
41. Dr Barton was of the opinion that the applicant was restricted from lifting above 5kgs in weight and thought that the applicant was also opposed to performing work other than light physical activity. He thought the applicant had a strong illness belief and had a predominantly entrenched sick role but without any gross overlay or significant exaggeration of his condition.
42. Although he misunderstood the number of hours worked by the applicant, Dr Barton thought that he was capable of working overtime of an extra two and three quarter hours which would average at 35 minutes per day over a five day week.
43. In cross-examination Dr Barton said on the history that he obtained, the applicant was of the belief that the surgery that he had undertaken on three occasions had not been of any real benefit. He thought that the inability to have his symptoms resolved by surgery had imposed a barrier to him returning to more normal work. However, he did acknowledge that the applicant had symptoms which were real. Despite reporting that the applicant could increase his range of duties with a greater degree of motivation, he clarified in evidence that the inability of the applicant to extend his range of duties was because of a belief in incapacity to perform additional or more varied type of work activity. Nonetheless he acknowledged that the persisting symptoms suffered by the applicant also imposed a barrier on extending the range of duties that he could undertake. He also thought that the applicant had a psychological barrier, probably arising from the failure of surgery on three occasions and persisting pain.
yoke ling foo
44. Dr Foo has been a general practitioner for 21 years and has treated the applicant since 2001. He has provided a number of reports and is very familiar with the applicant's history of back injury and the three occasions that he had surgery. He has also provided a number of certificates especially from February 2008.
45. Dr Foo said, consistent with a report that he wrote in April 2008, that he was not very happy at all with him doing any extra hours and in addition, in view of his psychological state then, I was also not particularly happy with him doing the overtime (Transcript, page 100). At the time he completed a report on 23 April 2008, he was satisfied, based on the applicant's presenting symptoms, that he had an inability to do much at home, he has episodes of feeling worthless, useless associated with loss of self esteem and confidence. He referred the applicant to a psychologist and he prescribed antidepressant medication.
46. Dr Foo said that throughout 2008 he was doubtful whether the applicant could complete a full day's work. He also doubted whether the applicant was capable of increasing his full time hours. He wrote certificates which recorded that the applicant should not work overtime. When he was asked to explain why he recorded that the applicant should not work any longer than 8 hours per day he explained that he understood that the working day comprised 8 hours but did have allowance for meal and other breaks. He said that he intended to mean by the language of his report that the applicant should not be at the workplace for any more than 8 hours per day. He did not intend to mean that the applicant was capable of working for 8 hours per day.
christopher thien
47. Mr Thien has been in practice as a neurosurgeon for 14 years. He completed the first surgery undertaken by the applicant and the applicant was also referred to him by Mr Carey in 2008. He has also worked in conjunction with Dr Thomas.
48. Mr Thien said that the procedure for spinal cord stimulation involved the insertion of electrodes into an appropriate place within the applicant's spine to determine whether relief of pain could be achieved. The electrodes would remain in place for a number of days and if pain relief was achieved the stimulator would be surgically implanted.
49. Mr Thien said he relied on the expertise of Dr Thomas who is a pain management specialist and who also practises in rehabilitation medicine. He said the applicant suffered from neuropathic pain for which there is prescribed medication available but if it does not relieve that type of pain, a spinal cord stimulator is sometimes considered because it is known to be effective in relieving neuropathic pain. He acknowledged that he wrote a report to the respondent where he said that it was uncertain whether a spinal cord stimulator would provide ongoing relief. He said that no surgical or therapeutic intervention could offer a 100% guarantee of a successful outcome. He said the process involved assessing whether the electrical stimulation to the spinal cord by the external electrodes would reduce the applicant's pain before the impulse generator was inserted. Prior to that procedure, the patient (the applicant) is able to manipulate the electrical stimulation by an external generator and then advise the treating physician whether pain relief is being achieved.
50. Mr Thien said he did not believe that the applicant was a malingerer, that he was fairly genuine in his complaints of pain and had always been reasonable in his return to work and was willing to try as much treatment as was possible.
51. In cross-examination Mr Thien said that the procedure for implanting a spinal cord stimulator involved two stages. Initially external stimulation was trialled and only if it provided pain relief would consideration be given to implanting the stimulator. He acknowledged that Mr Brazenor had reported that he would not recommend the procedure of spinal cord stimulation without objective evidence of left sided L5 or S1 nerve root dysfunction but said that you're never going to get an objective evidence of someone's pain. I put it to you, sir, do you know how painful your wife's labour when she was giving birth to your child was? And I put to you that there would be no objective measure of how painful that would be because it's never your pain.
52. Mr Thien acknowledged that Mr Brazenor had also reported that spinal cord stimulation had a dubious track record but said that description would only apply if all other reasonable attempts at treatment had not been undertaken. He said spinal cord stimulation was not the first choice of treatment and physicians would usually commence by assessing the patient, prescribing medication and then progress through a number of other interventions or strategies to achieve pain relief. In the present case, a recommendation to have the procedure, at least trialled, was recommended by Dr Thomas and only if there was relief from pain would the device be implanted.
53. Mr Thien agreed that suitability for these procedures may be affected by whether the patient had significant psychological symptoms but said the presence of symptoms of that type would not determine that the procedure was inappropriate. He said that persons who have chronic pain usually have a significant psychological disturbance. He said a history of self harm would be a relevant matter to determine whether it would be appropriate to have the procedure undertaken by the patient, but on balance he said you might also argue that his pain is causing him so much distress that this is an appropriate procedure to try and help him (Transcript, page 111).
graham brazenor
54. Mr Brazenor has been in practice as a neurosurgeon since 1981. He performed the spinal fusion undertaken by the applicant in 2006 and also provided reports in January, February and October 2008 which are found within the T‑documents. The first two reports concern the ability of the applicant to undertake lawn mowing and work overtime. It was the opinion of Mr Brazenor that the applicant could undertake both.
55. The third report of 7 October 2008 essentially concerns the spinal cord stimulator. It was his opinion that it had a rather dubious track record in terms of permanent good effect (T‑documents, page 465). In evidence he said that continued use of a stimulator two years after it has been implanted exists in 50‑60% of patients. He interpreted those figures to mean that there is a failure rate of 40‑50%. He said that there were occasions where there can be a failure within months or there can be, what he described to be, late failures which he said from the literature was 60% at two years.
56. Additionally in his report of 7 October 2008 he recorded that Mr Thien should assure himself that he is not trying to treat psychiatric disease or malingering. The significance, according to Mr Brazenor, of psychiatric disease was that in his experience persons in a similar situation to the applicant fail to continue to work and continue to hunt for other solutions for one of three reasons. The first two are either those persons are gross malingerers who simply fabricate their symptoms and the others are those who suffer from a primary endogenous depression. It was his opinion that the applicant did not fall into either of those two groups. He said that the applicant was in a third group of persons who have a bona fide injury, they are left, after the best treatment, with some symptoms and although they are capable of some work, they are unable to psychologically sustain it. They finally subside into if you like, ceasing to strive and not being able psychologically to draw themselves up to the barrier to come to work every day and I suspect that Greg is in that group, and they do get depressed. In his experience, persons who suffer from severe depression are not going to achieve a successful outcome from surgery. He added that he would not operate on a person with severe depression because he would not accept those persons as competent to make the decision.
57. Mr Brazenor also said that there were complications associated with the procedure of spinal cord stimulation being haemorrhage and consequent paraplegia and infection with resulting abscess. He said one in 1000 patients suffer from paraplegia as a consequence of the proposed procedure. He said that batteries for the device would also need to be replaced, the electrodes could fracture and the device could stop working at a later time because of a fibrous reaction. In those circumstances further surgery would be required.
58. In cross-examination Mr Brazenor acknowledged that there are risks associated with all surgical procedures, of which he advises his patients. He also said that he does not implant spinal cord stimulators and, save for some experience with the devices as a Registrar, he has not had any training in procedures involved in implanting the devices. His reference in the report of 7 October 2008 to the devices having a dubious track record was based on current literature and by advice he had been given by another practising Melbourne neurosurgeon of a success rate with respect to these devices of between 50 and 60%. Those discussions with that neurosurgeon occurred three or four years previously and whilst acknowledging that the assessment given by that person could have come from literature of between three and five years before the conversation the witness said that he recently reviewed literature which indicated the best long term success rate was 60%. That literature he agreed was between three and four years old. He said there had been not much development of the technology with respect to the device over the years and whilst acknowledging that there had been a slow but gradual evolution in the technology, from his personal experience in medico‑legal consultations nothing startling (has) happened in the last five years.
59. Mr Brazenor disputed the proposition put to him that a methodology had been developed amongst physicians in the selection of appropriate patients for undertaking this procedure. He said that it was highly questionable that a pain therapist would be the person making the selection, he said the applicant was a good case in point and thought that he had been under investigated for such a potentially serious operation. Nonetheless he said it would be appropriate for Mr Thien to satisfy himself in conjunction with a pain therapist which patient would be suitable for undertaking the procedure. He also acknowledged that it would be a matter for Mr Thien and Dr Thomas to satisfy themselves that the level of the applicant's psychiatric symptoms were sufficient to recommend that the spinal cord device should be implanted and ultimately it was a decision to be made by the applicant in conjunction with his physicians.
60. Mr Brazenor said that Mr Thien did not say in evidence that the applicant suffered from neuropathic pain. He doubted whether any doctor could diagnose neuropathic pain although he acknowledged that such a condition could exist. He said that the applicant had not been properly assessed and whilst the procedure could relieve neuropathic type pain, in the case of the applicant, it could result in further injury and if he was severely depressed, as evidenced by him previously attempting suicide, he doubted that the applicant was sufficiently competent to make an informed decision. With that type of history, Mr Brazenor said that he would need to have a signed release from a treating psychiatrist to satisfy him that the applicant was competent to consent to undergoing surgery.
61. Mr Brazenor acknowledged that 50-60% of persons continued to use a similar device two years after it was implanted which would suggest that those persons have enjoyed success, but that could not be translated to the applicant, in his opinion, because the extent of the applicant's pain was not known. He said the applicant had been capable of working full time after the third operation, there was nothing which would have caused his pain to increase and it would appear in the last two years that the applicant has suffered depression which he thought would arise from attempts to cope with residual symptoms, having to work with a job that he hated and having to get up in the morning and go to work, all being features of a person who has been through the workers' compensation mill (Transcript, page 120).
62. Mr Brazenor thought that the applicant was capable of increasing his working hours and therefore able to complete overtime because he was coping perfectly well with the hours that he was doing, and he does not have a pain that is mechanic so nothing that he does makes his pain worse. He agreed that he had previously been providing certificates restricting the hours worked but said that was part of a graduated return to work program which had the objective of causing the applicant to work on a full time basis. He said if a patient had indicated that they were incapable of working any more than a designated number of hours you cannot necessarily accept at face value everything your patient tells you. He said he became suspicious of the applicant because he was telling me that he was more disabled and limited than he was. He thought the applicant was magnifying his disabilities, consciously, and also thought that he was in a way, lying. However he later said that he did not believe that the applicant was making them all up, that he did have some discomfort and did have a mild disability but he actually embroiders and exaggerates this and that's why he started to try and make these restrictions and to cling to the very restricted work situation that I had initially put him back into. He did not believe that Dr Foo was in an equally good position as he was to assess the applicant's capacity to work overtime because he wasn't inside Mr Bunyi's back as I was and he doesn't understand what the import of the various CT scans and other scans which have been done since which show no pain generator. He said that dysfunction of the left S1 nerve root could only be determined by electrical testing and the local doctor knows nothing about this. However Mr Brazenor did acknowledge that he had not seen Mr Bunyi for two years and he was not in an equivalent position to Dr Foo who had monitored him throughout 2008 and had also been able to determine and assess his psychological condition.
63. Mr Brazenor also thought that the applicant was capable of mowing his lawn and said that he was familiar with the procedures involving having to bend and pull a cord to start the engine and also bend to fit and remove a grass catcher. He said he would not recommend that the lawn mower be lifted and that history was another worrying thing because why would you not position the lawn mower so you didn't have to lift it?
conclusion and reasons for decision
64. A striking feature of this review was the unity and consistency of opinions held by Dr Foo, Dr Thomas and Mr Thien of the applicant. Equally striking was the regard they had for him. The opinions held and the regard that they did have were in my view well founded.
65. The applicant impressed me as being a diligent hardworking person who shortly after arrival in Australia obtained a permanent position with the respondent and who worked overtime whenever it was available in order to earn monies which eventually permitted him to have both of his children educated in private schools. He suffered a severe back injury and was prepared to undertake surgery on three occasions in order to find relief from severe disabling pain. After each operation he returned to work and, significantly, he returned to full time hours following the third operation which involved a spinal fusion. To the credit of the respondent it did provide him with lighter modified duties and the applicant successfully negotiated a graduated return to work program and was working full time hours despite the presence of persisting pain from which minimal relief was achieved by consumption of a wide range of prescribed medication. I had the benefit also of observing the applicant giving his evidence throughout the first day of this review. He was in apparent discomfort and there was nothing about his demeanour that would suggest exaggeration. I regard him as being a witness of truth and of considerable humility. He impressed me as a person who has the primary motivation to become pain free by continuing to undergo treatment which will achieve that aim and which will ultimately permit him to return to work to earn monies to support his family and to achieve a life free of the pain and consequent depression that he suffers.
66. In this review I was particularly impressed by Dr Thomas. He has the special qualifications of pain management and rehabilitation medicine who has broad experience in treating persons who ultimately have had a spinal cord stimulator implanted. He is also one of two persons appointed by the Victorian Workcover Authority and the Transport Accident Commission of Victoria to determine liability for the cost of undertaking such procedures.
67. Mr Thien is a senior neurosurgeon also experienced in the use and implanting spinal cord stimulators and who has a special relationship with Dr Thomas. Between them, especially on the recommendation of Dr Thomas, assessments are made whether patients are suitable for application of a stimulator. Mr Thien, in recognition of the perception that may be drawn against him indicated that he preferred the ultimate decision to proceed to be made by the recommendation of Dr Thomas least it be thought that he is profiting by the exercise.
68. Dr Foo attended and treated the applicant extensively and regularly from 2001 and especially throughout 2008. He observed him, formed opinions and satisfied himself concerning the applicant's ability to work and inability to work overtime.
69. On balance therefore I am satisfied that the three medical witnesses called on behalf of the applicant gave opinions which were sound, balanced and well reasoned.
70. I do not hold similar opinions with respect to the medical witnesses called by the respondent.
71. Dr Barton is an occupational physician of longstanding but who has no specialist qualification or experience with respect to spinal cord stimulators. He examined the applicant once only in November 2007. Mr Brazenor previously treated the applicant and performed the spinal fusion being the third operation that was undertaken. No one doubted that the surgery that he performed was technically correct however the rigidity of his opinions and some of the comments directed towards the applicant, his former patient, were unhelpful especially considering that he had not treated for more than 12 months. During that time the applicant had been under the care of Dr Thomas, Dr Foo and Mr Thien. For reasons which follow I prefer the evidence given by them and was impressed by their respect for their patient, their acknowledgement that he suffers pain which is genuinely experienced and the need for him to undertake treatment by spinal cord stimulation.
lawn mowing services
72. The evidence from the applicant and the medical witnesses with respect to this application was equivocal.
73. The applicant said that he was unable to mow his lawns with the lawn mower that he presently has because it involved him having to bend, start it by repeatedly drawing a cord, having to bend to fit and remove a grass catcher and having to lift it from the position that it is stored at his house. He said that his wife has been able to cut the lawns but she is unable to start the mower. He agreed that his 26 year old son could start the mower but he denied that he had time available to do it. Dr Thomas thought the applicant could use a lawn mower and cut his lawns if it could be easily moved from a stored position, that it could be started automatically by button rather than manually drawing on a cord and if it was light in weight and the cutting of the lawns could be undertaken at his own pace. Dr Foo said that the applicant should not undertake lawn mowing even if he believed he was capable of doing so.
74. On balance I am satisfied the applicant is incapable of using the lawn mower presently owned by him because it would require him to lift it and then manually start it. There is no suggestion that the respondent is prepared to provide a lawn mower of a type described by Dr Thomas. But it would appear that members of the applicant's household are capable of undertaking lawn mowing. The applicant said that he did not have rainwater tanks or grey water diversion systems at home and with the water restrictions that have been in place in Melbourne for some time and the modest extent of rainfall it would appear that the applicant's lawns would only need to be cut on three or four occasions per year. The relative size of his garden and nature strip would indicate that the time occupied in cutting his lawns would be relatively small. I am satisfied that the applicant is unable to provide the services of lawn mowing (refer s 29(2) of the Act) but I am obliged to find on the evidence heard in these proceedings that members of the applicant's household can reasonably be expected to provide the services of lawn mowing (refer s 29(2)(d) of the Act). I acknowledge that the applicant's wife and eldest son are both full time employees and his younger son is a student. However I can think of no reason, having regard to the evidence heard of their respective abilities to undertake the lawn mowing, or at least start the lawn mower, why they would not be able to undertake this responsibility. Accordingly I am satisfied that the decision with respect to this claim should be affirmed.
overtime
75. Dr Thomas said it was difficult for him to give an opinion on the ability of the applicant to work overtime during the period in issue. However it was his practice to recommend a balance between the ability to function at work and the ability to function at home. He said that if he had been observing the applicant gradually increase his hours but his ability to function at home decreased and he required greater quantities of medication, the balance would be wrong. He was impressed that the applicant had gradually returned to full time hours and he thought that the applicant had done remarkably well (Transcript, page 67).
76. In cross-examination Dr Thomas said it was a matter between the applicant and his general practitioner to determine the ability to work overtime. He said the applicant was not a malingerer, that he had an organic injury with chronic intractable pain which caused emotional consequences (Transcript, page 77).
77. Dr Foo treated the applicant throughout 2008 and reviewed him regularly. It was his opinion that the applicant could not increase his hours and he said he doubted that he was capable of undertaking a full day's work. He wrote certificates restricting the applicant from working overtime. He certified the applicant was not capable of working longer than eight hours per day but when cross-examined he said that he intended to mean that the applicant should not work any more than the base hours and his reference to eight hours was a reference to the period of time in the workplace (therefore taking account of rest and meal breaks) as opposed to the quantity of hours actually undertaken by work.
78. Dr Barton said in evidence that he thought the applicant had a strong illness belief, that he observed a predominantly entrenched sick role and he was poorly motivated. He thought the applicant could work the extra hours constituting overtime. However in cross-examination Dr Barton qualified his earlier evidence and the contents of his report. He said that his opinion of the applicant having poor motivation was directed towards the range of duties being undertaken as opposed to the quantum of hours worked. He gave a similar response when questioned concerning the meaning given by him to the opinion that he expressed of the applicant having an entrenched sick role.
79. Dr Brazenor reported in January 2008 that the applicant was capable of working overtime and in evidence said that having previously imposed restrictions on the hours that he worked there was no longer any rational basis for doing so (Transcript, page 122). He said he was suspicious of the applicant who was magnifying his disabilities, consciously, was lying and despite having a mild disability he embroiders and exaggerates (Transcript, page 122).
80. The comments made by Mr Brazenor were entirely unhelpful and are not shared by any other witness. They are certainly not held by me. That the applicant was able to return to work after each surgical intervention, especially the third involving fusion and ultimately working full time hours is to his credit and is indicative of him being motivated. He performed the modified work duties made available to him largely by the limited benefit of prescribed medication yet still experienced considerable pain. The medication affected his clarity of thought in the workplace and impaired his ability to drive a motor car to and from the workplace. He also suffered severe pain and cramping when driving.
81. His general practitioner was doubtful that the applicant was capable of working full time hours and Dr Thomas was impressed that he had rehabilitated himself to working full time hours. It seemed to me, having heard the applicant and being mindful of the opinions of Doctors Thomas and Foo, that by the end of each working day the applicant was incapable of continuing to work. He said he could not consume any other medication because he had reached certain limits and that of itself suggests to me that the prescribed medication was at least partially ineffective and to consume any greater quantities in order to work overtime would have been unsafe.
82. I am therefore satisfied that at the end of each work day the applicant had reached the limit of his endurance, having regard to the nature of the injury suffered and the consequent pain and discomfort and influence upon him by the prescribed medication. I am therefore satisfied that the applicant was incapacitated from working overtime and the decision made by the respondent concerning this issue should be set aside.
spinal cord stimulator
83. Section 16(1) of the Act is in the following terms:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
84. Whilst the respondent conceded that the treatment associated with the spinal cord stimulator was medical treatment within the meaning of the Act and is obtained in relation to the compensable back injury (refer submissions at para 2.1), there appeared to be a focus by it on the probable cost (if it ultimately was implanted) and the present state of the applicant's psychiatric illness.
85. Having reviewed the evidence of Dr Thomas and Mr Thien I am satisfied that the respondent is liable for this form of compensation. Both of those practitioners are well qualified and well experienced in assessing the suitability and appropriateness of the patient to undertake the treatment contemplated. They are also well qualified in the use and anticipated benefits of the device.
86. The applicant is a person who has undertaken surgery on three occasions. Despite that history and having also endured spinal fusion he still suffers continuing unrelenting severe pain. The third operation was technically sound but the extent and severity of the continuing pain has caused a severe emotional reaction which, according to Dr Thomas and Mr Thien, is not unexpected. Prescribed medication has not assisted the applicant and it would appear from the evidence that whilst no guarantee is being offered by the practitioners that the applicant would become pain free, it was their considered opinion that an attempt to achieve that outcome should be undertaken by the stimulator. That will involve a two stage process. Only if the applicant becomes pain free or has a reduction in his pain by a trial of external stimulation will the stimulator be surgically implanted. The second stage will expose the respondent to considerable cost but it may not be undertaken. It is treatment, in my view, which is reasonable in the circumstances of the applicant.
87. The evidence of Mr Brazenor with respect to this device I thought was unhelpful, was largely hearsay and was substantially based on journals which he did not identify or produce and which appear to relate to reported outcomes from many years earlier. The applicant is denied the opportunity to contest or examine that material. The neurosurgeon with whom Mr Brazenor had discussed the effectiveness of a stimulator was not called. The focus by Mr Brazenor on the risks of the procedure displayed an attitude of negativity which was unfortunate when equally he was capable of adopting a more favourable and positive attitude to the statistics that he quoted from the unidentified journals which showed a significant percentage of persons did achieve benefit by the device.
88. The opinion of Mr Brazenor that the applicant would need to demonstrate objective evidence of pain, before he would recommend neuromodulation, was puzzling. The response to that proposition by Mr Thien was appropriate. It was disappointing that the applicant's description of his pain was not accepted or believed. He did concede the decision to proceed with the stimulator was a matter between the applicant and his current practitioners, a conclusion with which I agree.
89. I am satisfied that all reasonable treatment to date has been undertaken by the applicant and he is left with no reasonable alternative but to undertake the procedure. He should not be expected to continue to endure the pain that has distressed him for many years and which has caused an emotional reaction precipitating a suicide attempt in late 2008.
90. Dr Thomas was adamant that the applicant should undertake this procedure without any further delay because there is presently an interference with clinical management of the applicant by him not having the benefit of the stimulator and further delay exposes the risk to the development of pain processing pathways being blocked and interfering with the likely benefit from neuromodulation (Transcript, page 68).
91. Dr Thomas and Mr Thien were aware that the applicant has had treatment for his psychiatric illness but upon agreement to meet the costs of the procedures it was Dr Thomas's intention to liaise with the applicant and his treating psychiatrist and commence this form of treatment. He was satisfied that the applicant was well motivated to undertake the treatment which he again emphasised should commence without delay. It was critical that liability for the funding of it be resolved because until it is, the process of liaison with the applicant and his treating psychiatrist cannot commence and arrangements for Mr Thien to undertake the procedure cannot be made (refer Transcript, pages 70 and 75).
92. During the hearing there were amounts quoted of the probable cost of both the device and the charges of doctors and hospitals if the device is ultimately implanted. Those amounts were relatively expensive compared to the medical and like expenses usually considered in compensation proceedings in this Tribunal. But this is not an ordinary application and the device itself has the potential to achieve a benefit which is not presently being enjoyed by the applicant by the surgery and other forms of treatment that he has undertaken.
93. The respondent submitted that it would not presently be reasonable to determine the respondent's liability on the evidence heard in these proceedings until the applicant's circumstances arising out of the liaison between Dr Thomas and the applicant's psychiatrist is known (refer written submissions at pages 23 and 24). With respect I disagree. I am satisfied that the spinal cord stimulation is a reasonable medical and like expense to which the respondent is liable. The extent of its monetary liability will become known only after the outcome of the first stage of the process of stimulation is known. That stage will only be undertaken when the preliminary stages of readiness are completed between Dr Thomas, the applicant and his psychiatrist which would be expected to occur without delay. The respondent submitted that the decision under review should be affirmed but the applicant should make a claim for this device, later, when the change of circumstances occurs (refer submission at 4(p)). I also respectfully disagree. That has the potential to cause delay which is contrary to the opinion expressed by Dr Thomas and would not in the circumstances be reasonable. On the evidence of Dr Thomas, it was critical that a decision on liability with respect to the device should be made. What will then follow is the discussions between the appropriate practitioners and the applicant to decide the timing of undertaking the procedure.
94. Having become satisfied that the proposed treatment is medical treatment within the meaning of the Act and being satisfied that the treatment arises out of the back injury and also being satisfied that that treatment is reasonable, the decision under review should in the circumstances be set aside and a decision in substitution for it in accordance with these reasons should be made.
95. I am also satisfied that the respondent should pay the applicant's costs, arising out of the successful review of two decisions of the respondent, as above, pursuant to paragraph 6.8 of the Guide to the Workers' Compensation Jurisdiction published by the Tribunal.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
Signed: Grace Carney, Personal Assistant
Dates of Hearing 14 and 15 July 2009
Date of Decision 1 September 2009
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Mr D Opie, Opie and Associates
Counsel for the Respondent Mr R Seit
Solicitor for the Respondent Ms L Adams, Frenkel Partners
0
0
0