Hancock v Select Civil Pty Ltd - [2024] NSWPIC 478

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hancock v Select Civil Pty Ltd [2024] NSWPIC 478
APPLICANT:	Jared Hancock
RESPONDENT:	Select Civil Pty Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	28 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for future lumbar fusion surgery opposed on grounds the surgery is not reasonably necessary; applicant suffered an accepted injury to his lumbar spine on 14 September 2018; he underwent multilevel microdiscectomies in January 2019; following this surgery, the applicant underwent a lengthy and diverse regime of conservative treatment; having come under the care of his current treating surgeon in 2020, the applicant originally eschewed lumbar fusion surgery in favour of conservative modalities; over time, the conservative treatment did not provide relief and he now seeks payment by the respondent of multi-level spinal fusion surgery; respondent denies liability on two bases, namely the surgery is premature owing to the applicant’s age, and that it is not suitable for anyone who smokes ten or more cigarettes per day owing to the risk of non-union at the fusion site; Held – the proposed surgery is reasonably necessary as a result of the applicant’s injury; the applicant’s treating surgeon has factored into consideration both the applicant’s age and his history of smoking; while the effect of smoking on the risk of non-union at the fusion site is a real one, it is only one of multiple factors to take into account in assessing whether the surgery is reasonably necessary, rather than the single determinative factor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his lumbar spine in the course of his employment with the respondent on 14 September 2018. 2. The fusion surgery proposed by Professor Owler is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of an incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

On 14 September 2018, the applicant, Jared Hancock, was working for Select Civil Pty Ltd (the respondent) at a landfill site at Kemps Creek driving a D9 Bulldozer. As the applicant was reversing the machine up a hill, it rolled over a large lump of concrete causing its left side to drop suddenly. The applicant felt an immediate jarring sensation in his back.
The applicant’s pain did not cease and he made a claim for compensation which was accepted. The applicant consulted with his general practitioner (GP) who referred him for an MRI which showed discogenic pathology at L4/5 and L5/S1. On 17 January 2019, the applicant underwent microdiscectomy of L4/5 and L5/S1 at the hands of Dr Abraszko.
Following his surgery, the applicant has undergone lengthy periods of conservative treatment. He brings these proceedings seeking payment by the respondent for the cost of decompression and fusion surgery recommended by his treating surgeon, Prof Owler.
The respondent denies liability for the cost of the proposed surgery on the basis that it is not reasonably necessary.

ISSUES FOR DETERMINATION

The only issue for determination is whether the proposed surgery…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 478
Decision Date: 28 August 2024

CaseChat Overview and Summary

In the matter of Hancock v Select Civil Pty Ltd, the applicant sought a determination from the Workers Compensation Court of Queensland concerning the necessity of future lumbar fusion surgery. The applicant, who had suffered an accepted injury to his lumbar spine on 14 September 2018, underwent multilevel microdiscectomies in January 2019. Following this initial surgery, the applicant participated in a comprehensive conservative treatment program, which proved ineffective in providing relief. The applicant's treating surgeon, who assumed care in 2020, initially advocated for continued conservative treatment but later supported the necessity of multi-level spinal fusion surgery. The respondent contested the claim, arguing that the surgery was premature due to the applicant's age and unsuitable because of his smoking habit, which posed a risk of non-union at the fusion site.

The court had to address several legal issues, including whether the proposed lumbar fusion surgery was reasonably necessary as a result of the applicant's injury. The court also needed to consider the respondent's argument that the surgery was not reasonably necessary due to the applicant's age and smoking habit. The court had to weigh the factors supporting the necessity of the surgery against those arguing against it. This involved evaluating the applicant's age, his smoking history, and the overall risk-benefit analysis of the proposed surgery.

The court concluded that the proposed surgery was reasonably necessary. The applicant's treating surgeon had taken into account both his age and smoking history in making the recommendation. While the risk of non-union at the fusion site due to smoking was acknowledged, it was not the sole factor determining the necessity of the surgery. The court recognised that the decision to proceed with surgery was multifaceted and required a comprehensive assessment of all relevant factors. The court held that the surgery was reasonably necessary, and the respondent was liable for the costs.

The court ordered the respondent to pay for the multi-level spinal fusion surgery as requested by the applicant. The decision underscored the importance of a holistic approach to medical necessity in workers' compensation claims, ensuring that all relevant factors are considered in determining the appropriateness of proposed treatments.

Orders