Hancock v Select Civil Pty Ltd
[2024] NSWPIC 478
•28 August 2024
| 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 is reasonably necessary. There is no question that the need for any treatment carried out on the applicant’s lumbar spine is as a result of the injury in issue, which injury is not in dispute.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 27 August 2024. The applicant was represented by Mr Schonell instructed by Ms Celik. The respondent was represented by Mr Davis instructed by Ms Casey.
At the outset of proceedings, Mr Schonell made an application to lead brief oral evidence from the applicant concerning his smoking habits, which application was opposed by the respondent. After hearing submissions from both counsel, I declined to allow the leading of that evidence and the matter proceeded by way of oral submissions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) respondent’s Application to Admit Late Documents (AALD) dated 19 August 2024 and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the proposed surgery is reasonably necessary
The applicant’s injury is not in dispute. There is also no issue that the requirement for the proposed surgery, if found, relates to the accepted injury. The only issue for determination by the Commission is whether the proposed surgery is reasonably necessary.
Broadly speaking, the respondent opposes the application for the surgery on two bases as set out in the report of its independent medical examiner (IME), Dr Bentivoglio, namely:
(a) the proposed surgery is premature given the applicant’s comparatively young age, and
(b) the proposed surgery is not appropriate for anyone who smokes 10 or more cigarettes per day owing to the risk of non-union at the fusion site.
It is trite to note the applicant carries the onus of establishing the proposed surgery is reasonably necessary. The test adopted in determining whether treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ, Rose v Health Commission (NSW) [1986] 2 NSWCCR 2 (Rose), where His Honour said:
“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.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted that the Court of Appeal considered the meaning of “reasonably necessary” in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52 (Clampett), albeit in the context of home renovations rather than medical treatment. The Court noted the trial judge had sought guidance from the decision in Rose. Grove J referred to the dictionary definition of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Oxford Dictionary) and “that cannot be dispensed with” (Macquarie Dictionary). At [23] and [24], his Honour stated:
“23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit enquiry as to what may be thought reasonable in all, or any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of ‘necessary’.”
In Diab, Roche DP noted the effect of the decision in Clampett and commented as follows:
“85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Ltd v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply….
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, His Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include but are not necessarily limited to, the matters noted by Burke CCJ at (5) in Rose, namely:
(a)appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual potential or effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
In his statement dated 6 November 2020, the applicant gave the following history in relation to his post-injury treatment:
“12. I then consulted with Dr Pham at Horsley Park and was referred for physiotherapy.
13. I was then reviewed by Dr Soe at Wetherill Park and referred for an MRI investigation to my back.
14. The MRI showed evidence of issues with my L4/5 and L5/S1 and a disc bulge at L5/S1.
15. I was then referred to my treating neurosurgeon, Dr Abraszko, at Liverpool who recommended operative intervention.
16. I was admitted into hospital on 17 January 2019 and underwent microdiscectomies at L4/5 and L5/S1.
17. After this procedure, there was some resolution of the residual pain I was feeling into my left leg, however, this is also intermittent at times. I still experience ongoing back pain.
18. I continued with physiotherapy, hydrotherapy and a gymnasium strengthening program.
19. After my injury, I continued working until my operation in January 2019. After my operation, I was certified unfit to work for approximately two months, and then returned to work at part-time light duties for two months until in or around May 2019 when I ceased work and have remained unfit for employment since such time.
20. With respect to my injuries, I require assistance with domestic duties. I require assistance at times dressing myself and putting on my socks.
21. I have difficulty sleeping. I am very disturbed every night as a result of my back pain.
22. I am unable to drive a motor vehicle with manual transmission.
23. Around the house, I am unable to help with house tasks involving washing clothes, mopping or vacuuming. Most of my housework is now done by my mother.
24. I am unable to help with home maintenance activities like mowing and gardening, which are now done by my father.
25. Prior to my injury, I used to love golfing and playing with my children, however, I have been unable to perform/enjoy these activities anymore.
26. I also used to regularly like swimming, however, this has significantly decreased since my injury.
27. I have had discussions with my treating neurosurgeon, Dr Abraszko, with respect to a fusion on my back. At this stage, I do not wish to undergo this procedure.”
The applicant’s reluctance to undergo fusion surgery in the immediate aftermath of his microdiscectomies is further set out in the reports of Dr Gehr, IME dated 12 August 2020 and the initial reports of his now treating surgeon, Prof Owler. In his first report dated 25 August 2020 found at [44] of the Application, Prof Owler noted:
“The main issue really is the management of his discogenic lower back pain. Having exhausted conservative options and pain management, there is an option for surgery but this would require a two level lumbar fusion which I would normally perform via a posterior route. I went through with him the nature, indications and risks associated with that surgery and in particular, we discussed the expectations. Normally, the expectation for significant reduction in pain (a reduction of more than 50%) would be in the order of 65-70% with this type of surgery. Given his age and lack of other changes, I would try and avoid surgery for as long as possible in his situation. I think he should continue with a regular low impact exercise regime including physiotherapy, gym work as well as some hydrotherapy as well.
While I don’t think surgery will be unreasonable or should not be completely discounted, I would steer towards a conservative course of management if possible. He is happy with that approach and of course, I am happy to see him again if required. Again, thank you for referring this patient.”
On 9 December 2021, Prof Owler wrote to the applicant’s GP, Dr Chowdhury, and reported as follows:
“Jared has been doing a lot of physiotherapy but continues to have significant back pain. It is not as bad in the morning but is increased with any form of activity. He is unable to mow his lawn for instance. If he sits for too long or even lays down for too long, he develops symptoms as well. This includes lower back pain and also some numbness involving his right leg. He continues to take fairly large doses of Tapentadol as well as Gabapentin. I note that he is a smoker.
We again reviewed his MRI scan which is essentially unchanged. It shows loss of disc height with significant disc desiccation at both L4-5 and L5-S1 levels. There is bulging of the disc without significant neural compression. We had discussed the option of surgery previously which I had tried to avoid for him but given that he has ongoing symptoms despite conservative management, he would be a candidate potentially for surgery…
We discussed the expectations again and the limitations of surgery in relation to back pain. I have also told him that he will need to see a pain management specialist before we look at surgery and have suggested that he sees Dr Alan Nazha in relation to his ongoing pain management but in particular in relation to his medications. If we do go ahead with surgery, his input will be very valuable.
In addition, I have discussed with Jared the implications for smoking in relation to spinal fusion surgery. Essentially, he has to stop smoking to have the surgery and I would be very grateful if you could provide any assistance to him in relation to cessation of smoking given the risks of non-union. I have encouraged him to talk to you about that.”
In a further report to Dr Chowdhury dated 28 November 2023, Prof Owler said:
“It has been a while since I have seen him but Jared has essentially been under extensive conservative management. He has had a range of interventional procedures which have helped but only temporarily and his symptoms have now returned again. He has significant pathology at L4/5 and L5/S1 and we discussed the options of anterior and posterior surgical approaches to try and resolve his problem. I think given he has tried all forms of conservative management; it is reasonable to proceed with surgery. He did express a preference for posterior lumbar interbody fusion and I went through the nature, indications and risks associated with that. We discussed the risks of infection, bleeding, neurological deficit from nerve root or cauda equina injury, failure of fusion, adjacent segment disease and the risks associated with general anaesthesia. He indicated he understood all of those issues. We also discussed the expectations after surgery. Surgery for this type of situation would normally have about a 65% chance of significant improvement and he understands the limitations of surgery.”
As Prof Owler noted, the applicant had been referred for significant pain management treatment, the details of which are set out at least in part in the report of Dr Dalton, pain management specialist to Dr Chowdhury dated 2 December 2020 and in the report of Dr Nazha to Prof Owler dated 22 March 2022. I do not propose to repeat the details of that treatment in these reasons, noting there is no question the applicant has had significant pain management treatment since his microdiscectomy surgery.
On 17 March 2024, Prof Owler provided a further report. That report confirmed the history of the applicant’s injury and set out the history of the applicant’s treatment. Prof Owler noted the applicant has undergone extensive physiotherapy, had five cortisone injections and had seen a chronic pain psychologist. Additionally, the applicant had undertaken hydrotherapy together with a gym program with a physical trainer and later underwent treatment in the nature of a supervised exercise program with an exercise physiologist.
Prof Owler also noted the applicant had further treatment with Dr Nazha including pulse radiofrequency ablations to the right L5 nerve root together with further radiofrequency ablations involving the right L5/S1 facet joint. In Prof Owler’s words “it is very clear that he has had very extensive conservative management” in addition to the microdiscectomies carried out by Dr Abraszko in 2019 for radicular pain.
In considering the requirement for surgery, Prof Owler stated:
“It is clear that he has exhausted all forms of conservative management. The only other option that I could see would be a spinal cord stimulator with Dr Alan Nazha. The accident at work in September 2018 has already been decided as a substantial contributing factor to his lumbar spine pathology, hence his previous surgery and ongoing treatments. There are no other factors to cause such disc pathology at his age.
I think the surgery is reasonably necessary for treatment given his failure of conservative therapy. While his current condition is not dangerous or life-threatening, it is causing substantial impairment of day-to-day activities and quality of life. At this stage, I cannot see any other alternatives to this treatment, and I have explained as per my clinic letters that I have in the past tried to avoid surgery for him and hence my referral to Dr Alan Nazha. However, given his ongoing problems, he has again returned to see me and requested surgery and I think that approach to the L4/5 and L5/S1 disc pathologies is really the only other option available to him. As also documented in my previous clinic letters, the chances of significant improvement in pain and view that this is a work-related injury, is in the order of approximately 65%.
Certainly, posterior lumbar interbody fusion is a reasonable surgery for axial lower back pain. While the success rate is lower than in surgery for radicular pain, it is quite clear that there is a benefit from fusion surgery for axial back pain.
I am quite happy for Mr Hancock to undergo further treatment with Dr Alan Nazha although I don’t see that there are any further investigations that are likely to be of benefit at the moment. If Mr Hancock feels that there is another treatment under Dr Alan Nazha that is possible, I would be more than happy for him to do that but his preference expressed to me was to go ahead with surgery.
I am of the view that Mr Hancock has been under extensive conservative treatment as well as interventional pain management procedures without benefit and I think trying to find the definitive form of management is reasonable. I agree that it is unlikely that further medical management is going to provide any further benefit.”
The applicant’s IME, Dr Gehr, provided a second report dated 26 February 2024 in which he set out in detail the previous conservative management of the applicant’s injury. After reviewing the medical material, Dr Gehr opined the applicant had exhausted all non-operative or alternative treatment options, and it was now reasonable in the presence of continuing symptoms and signs to proceed to the proposed surgical option. Dr Gehr described the proposed L4/5 and L5/S1 posterior lumbar interbody fusion and rhizolysis as reasonably necessary for the treatment of the applicant, given it had now been over five years since the subject accident and he remains significantly symptomatic.
Dr Gehr was specifically asked to comment on the view of Dr Nazha, who had indicated some further pain management medical investigations may need to be considered. Dr Gehr’s view was consistent with that of Prof Owler, namely it had been too long since the subject accident and the applicant has undergone so many pain management procedures, all of which have only provided temporary relief. He opined, as did Prof Owler, that the surgical option now needs to be seriously considered over any further conservative management.
For the respondent, Prof Bentivoglio opined that the surgery was not reasonably necessary for two reasons, namely the applicant’s age and also the fact that he continues to smoke, which provides a risk of non-union at the fusion site.
In relation to the applicant’s age, I am not persuaded this factor alone is something which would obviate against the surgery being reasonably necessary. In particular, the applicant has plainly been patient in relation to his condition, undergoing significant and extensive conservative management over more than half a decade.
As a treating specialist, Prof Owler’s opinions are entitled to be given significant weight unless it can be demonstrated there is either a fundamental error in his methodology of assessing the nature of the proposed treatment and its effects, or he was not provided with an accurate history. In this instance, no such criticism can be made, and it is apparent on the face of his first report that Prof Owler has taken the applicant’s age into consideration in initially preferred conservative management over the fusion surgery. It is only after the applicant has exhausted the conservative options that Prof Owler recommends the surgery.
In relation to the question of the applicant’s smoking, Mr Davis noted Prof Owler’s view the applicant would need to cease smoking before the surgery could take place. Mr Davis submitted, and I accept that the respondent’s opposition to the proposed surgery is not that the treatment is inappropriate per se, rather it is proposed to be undertaken too soon in circumstances where the applicant has not ceased smoking. He submitted the failure by the applicant to cease smoking renders the proposed surgery not reasonably necessary owing to the risk of non-union at the fusion site.
With respect, I do not accept that submission. In his final report addressed to the respondent’s solicitors dated 14 July 2024, Prof Owler provided the following opinion:
“Thank you for your request for information in relation to Jared Hancock. I note the reports of Dr Gehr and Prof Bentivoglio. The reports appear to be balanced and reasonable. They note the limitations of the proposed surgery as I have also done and they also recognise that he has essentially exhausted conservative management.
In terms of the impact of smoking, that is obviously the largest risk factor for non-union and can substantially impact success rates of surgery. I recommend that he would cease smoking and we can also discuss the measures that he might undertake with his GP to assist with that. The estimated likelihood of pain reduction in relation to the surgery itself is not necessarily directly related to smoking but the potential effects of non-union.
I think it is reasonable for him to proceed with the surgery but he should agree to stop smoking and I think measures can be put in place to assist that.”
Mr Davis essentially submitted that the applicant ceasing smoking should be a condition precedent to a finding of the surgery being reasonably necessary. However, I do not find favour with that submission.
Prof Owler’s view is the surgery is reasonably necessary notwithstanding the applicant should cease smoking before it takes place. It is apparent on the balance of the medical evidence that the applicant has exhausted all other means of treatment at his disposal. Prof Owler’s opinion is positively disposed towards the surgery, noting steps may be taken through the help of his GP to enable the applicant to cease smoking.
Mr Davis submitted, and I accept that there is no evidence in relation to the applicant having ceased smoking. He quite appropriately noted the applicant sought to lead such evidence, however, the application to do so was refused. Accordingly, no criticism can be made of the applicant for the absence of that evidence in terms of a Jones v Dunkel (1959) 101 CLR 298 inference. Nevertheless, the applicant’s lay evidence is several years old.
However, the history in relation to smoking is but one of many factors to be taken into account in determining whether the surgery is reasonably necessary. The exercise of determining reasonable necessity involves an examination of the totality of the evidence. Thus, whilst the applicant’s smoking is a matter to take into consideration, and I have, it is not the only factor
The applicant has the benefit of extensive reports from his treating and IME specialists. They set out the range of treatment which has been afforded to him between the making of his statement and the date of the hearing. What is apparent, in my opinion, on the balance of probabilities is that the availability of beneficial conservative treatment to the applicant has come to a close. A myriad of treatment regimes have afforded him no meaningful long-term benefit.
Notwithstanding Mr Davis’ comprehensive submissions, I am of the view the proposed surgery is reasonably necessary. Prof Owler is cognisant of the applicant’s history in relation to smoking, and even though he hazards caution, still recommends the surgery and believes there is a 65 to 75% chance that it will be successful. Ultimately, Prof Owler will decide the precise timing of the surgery and the circumstances in which it will be carried out, having regard to all the relevant medical considerations, including the applicant’s history of smoking.
Prof Owler’s opinion is supported by IME, Dr Gehr. I do not criticise Prof Bentivoglio for his view that the request for surgery is premature given the applicant’s ongoing smoking, however, on balance, I am not satisfied that factor alone is sufficient to render the proposed treatment not reasonably necessary when one has regard to the entire factual matrix of the matter, including but not limited to the exhaustion by the applicant of all reasonable conservative treatment options.
There is no suggestion the proposed treatment is excessively expensive in the circumstances. Likewise, Mr Davis appropriately noted it may well be, even on the respondent’s case, that the applicant would need the surgery eventually. It is plainly an appropriate and widely recognised course of treatment for the applicant’s condition and his symptoms.
On balance, notwithstanding the potential risk of failure of bony union, I am of the view the proposed lumbar fusion surgery by Prof Owler is reasonably necessary.
As noted, there is no question the requirement for the treatment of the applicant’s lumbar spine has been brought about by the injury at issue. This being so, having found the treatment is reasonably necessary, it follows it is reasonably necessary as a result of the applicant’s injury, and accordingly the respondent will be ordered to pay the costs of an incidental to the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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