Handcock v Illawarra Retirement Trust

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Handcock v Illawarra Retirement Trust [2023] NSWPIC 139
APPLICANT:	Vicki Handcock
RESPONDENT:	Illawarra Retirement Trust
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	3 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed claim pursuant to section 60 relating to lumbar spine surgery; pursuant to section 60 the proposed lumbar spine surgery involving decompression, removal of synovial cyst and posterior interbody and posterolateral fusion is reasonably necessary treatment as a result of the agreed lumbar injury sustained by the applicant with a date of injury of 17 May 2021 in the course of her employment with the respondent; Held – the respondent is to pay the costs of the proposed surgery pursuant to section 60 in accordance with the workers compensation gazetted rates.
determinations made:	1. Pursuant to s 60 of the Workers Compensation Act 1987 the proposed lumbar spine surgery involving decompression, removal of synovial cyst and posterior interbody and posterolateral fusion is reasonably necessary treatment as a result of the agreed lumbar injury sustained by the applicant with a date of injury of 17 May 2021 in the course of her employment with the respondent. 2. The respondent is to pay the costs of the proposed surgery pursuant to s 60 of the Workers Compensation Act 1987 in accordance with the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Vicki Handcock, the applicant, was employed with the respondent, Illawarra Retirement Trust, as a nurse for about seven years. She had worked as a nurse at various other facilities since 1979. Her job for the respondent was in the dementia unit, with residents with high needs. On 17 May 2021 she and a colleague were moving a resident from a low lying lounge chair into a wheelchair when she sustained an injury to her lower back. She claims this aggravated her pre-existing degenerative lumbar spine. She also suffered a further aggravation in July 2022 when assisting a restive resident.
The claim for compensation in these proceedings is confined to the costs of the proposed lumbar spine surgery involving decompression, removal of synovial cyst and posterior interbody and posterolateral fusion.
The respondent confirmed the only issue in dispute is whether the proposed surgical treatment is reasonably necessary treatment as result of the injury pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
1 February 2023. Mr Luke Morgan, counsel, instructed by Ms Peta Kava, solicitor, appeared for Ms Handcock, who was present. Mr David Saul, counsel, instructed by Mr Peter Lichaa, solicitor, Ms Melinda Hatfield from EML, and Ms Edwards from the employer appeared for the respondent.
5.

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 that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant dated
23 January 2023;
(d)    Application to Admit Late Documents filed by the respondent dated
24 January 2023, and
(e)    Application to Admit Late Documents filed by the applicant dated
1 February 2023.

Oral evidence

There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Legal principles

Section 60 of the 1987 Act has two limbs, firstly, a causal component as the treatment being claimed needs to be as a result of the injury and secondly, whether the type of treatment proposed is reasonably necessary treatment.

“As a result of”

In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd,[1] whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under s 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
[1] [2015] NSWWCCPD 49, Murphy.
In this case the respondent has not relied upon a causal argument and the sole issue is whether the proposed surgery is reasonably necessary treatment.

“Reasonably necessary”

The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Ltd[2] wherein Roche DP stated at [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.”
[2] [2014] NSWWCCPD 72, Diab.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[3] with approval and stated:
[3] [1986] NSWCC2; (1986) 2 NSWCCR 32, Rose.
“[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 point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

Submissions

As both counsels’ submissions have been sound recorded I will not refer to them verbatim. The main thrust of their submissions is referred to below.
Mr Morgan submitted that Ms Handcock’s claim is straightforward. He submitted that there has been an accepted work-related lumbar injury and that in her statement Ms Handcock refers to her subsequent treatment and efforts to return to work. He noted that she states that her specialist Dr Cherukuri in October 2021 recommended surgery in the form of decompression, removal of synovial cyst and posterior lumbar interbody and posterior posterolateral fusion. Mr Morgan observed that at [12] of her statement Ms Handcock said she was reluctant to undergo surgery at that time because she was making reasonable progress with regular physiotherapy.
Ms Handcock also related in her statement that she returned to pre-injury duties in
March 2022 but in July 2022 she had a recurrence of the pain when rolling a patient and, despite treatment, including physiotherapy, her back pain worsened.
Mr Morgan submitted that she suffered escalating symptoms since that time and
Ms Handcock wants to have surgery. He noted that in her second statement dated
13 December 2022 Ms Handcock says she had discussed with Dr Cherukuri Dr Casikar’s recommendation that she only have a laminectomy procedure. Ms Handcock says
Dr Cherukuri explained he could do the laminectomy, but it would be inevitable she would need the fusion surgery in the not too distant future and Ms Handcock states she does not want to have two surgeries performed.
Mr Morgan placed reliance on [9] of Ms Handcock’s second statement wherein she states she has tried everything to avoid surgery without success and she has increasing pain and struggles every day. She says she has faith in Dr Cherukuri’s judgement and ability and he has been honest about the risks and benefits of the proposed surgery, and that she would like to have this done to improve her quality of life and get off the medications that she takes to get out of bed.
It was submitted that Ms Handcock is well placed to weigh up the risk/ benefit analysis of a surgeon’s advice as she is a nurse, having worked in that capacity since 1979. Mr Morgan submitted that Ms Handcock has been under Dr Cherukuri’s care since 2021.
In relation to the respondent’s specialist, Dr Casikar, Mr Morgan submitted his view that surgical treatment is an option for a simple laminectomy procedure, but he recommends some effort to continue with conservative management. Mr Morgan submitted that the Commission should be satisfied from Ms Handcock’s statement that conservative measures have been tried and exhausted.
Reliance was placed on Dr Cherukuri’s reports which he submitted have a consistent history of the injury and that he flagged the need for surgery initially. In the report dated
21 October 2021 Mr Morgan noted the doctor explained it is the Lyrica that has improved her paraesthesia in her legs and the improvement is not from the other treatment modalities. He also relied upon Dr Cherukuri’s opinion that a simple laminectomy may not improve the left leg pain and the demonstrated instability is likely to worsen from a laminectomy alone, necessitating redo surgery carrying higher risks.
Mr Morgan submitted in the records of Dr Cherukuri there are serial reports to the general practitioner identifying consultations through 2022 confirming the need for surgery, lack of positive outcome through conservative treatment, repeat MRI scan performed July 2022 and that Ms Handcock has reached the stage where she would like to consider surgery in view of her severe symptoms and restrictions of her activities of daily living and the fact she is unable to work. He observed that the doctor states in the report dated 21 July 2022 he has sought approval from the insurer for the surgery.
It was submitted on behalf of Ms Handcock that this is a matter contemplated by Diab and Rose. Mr Morgan relied on the factors that the proposed surgery is an accepted form of treatment, Ms Handcock has exhausted conservative treatment, there is potential with the proposed surgery to have improvement in her activities of daily living with a return to work and reduction in narcotic medication. It was submitted that the evidence points to the need for the proposed surgery. It was also submitted Dr Yui Key-Ho’s medico- legal opinion supports the surgery proposed by Dr Cherukuri.
Mr Saul submitted on behalf of the respondent that there is no credit issue, quite the reverse as Ms Handcock has been a long time worker. However, he was critical of Dr Cherukuri as he submitted the doctor had advocated for the surgery early on, for both the laminectomy and the fusion. Yet, Mr Saul argued, with the conservative treatment Ms Handcock had improved and she was able to get back to essentially her normal duties. It was acknowledged that she did have the flare up in July 2022 but it was submitted that this was only seven months ago and, therefore, it may well be with further conservative treatment and the passage of time Ms Handcock may again improve and avoid the need for what Mr Saul describes as quite drastic surgery.
It was argued that the most recent clinical entry of 6 December 2022 referred to the pain radiating down the left leg to behind the back of the knee having settled. It was submitted that the reason given by Dr Cherukuri for the surgery was the left leg pain. So it was argued rhetorically, “what is the rush to operate?”. Mr Saul acknowledged that Dr Casikar did recommend a laminectomy due to the passage time and flare up of Ms Handcock’s symptoms. It was submitted it is a matter of what is the safest surgery and, if there has been improvement, then the proposed surgery by Dr Cherukuri should not go ahead.
Mr Saul submitted that the respondent does not stand in the way of laminectomy surgery and Dr Casikar advises strongly against fusion as he is of the opinion it is likely to have negative consequences.
Mr Saul agreed that the legal principles quoted by Mr Morgan are correct. However, he submits applying those principles, particularly dealing with appropriateness of the treatment, would lead the Commission to the view that the surgery claimed is not reasonably necessary. It was submitted that Dr Ho’s report does no more than echo Dr Cherukuri.
Mr Saul also referred to Corrimal physiotherapy notes and report of 18 November 2021 which says Ms Handcock had made excellent progress and manipulation and specific exercise had rendered her symptoms free and she had stopped Lyrica a few weeks ago without any regression of symptoms. Mr Saul therefore urged the Commission to reject the claim for surgery made in these proceedings.
Mr Morgan submitted in reply that Dr Cherukuri was correct in his opinion about the need for surgery because he predicted that if Ms Handcock got back to full duties she would have a problem and that is what happened when she had the flare up in July 2022. It was submitted that the entries for 25 November 2022 and December 2022 refer to continuing treatment and the need to see Dr Cherukuri and that Ms Handcock was taking Cipramil because she was so down about her situation. So he argued it is not appropriate to regard her pain as having settled. He submitted that the entry of 6 December 2022, while it refers to settling of left leg pain, it should be noted that the same entry refers to taking medication, Palexia IR, which I note is an opioid pain relief medication. Mr Morgan submitted that the evidence of Dr Cherukuri should be accepted and the Commission should find that the proposed surgery is reasonably necessary and that respondent should be ordered to pay the cost of the proposed surgery.

Determination

The respondent has relied heavily on the thesis that because Ms Handcock’s lumbar injury improved with treatment after the injury on 17 May 2021 enabling her to return to work in March 2022, she should now persist with conservative treatment as it may also be effective, with time, to again settle her lumbar symptoms. It is argued she could then avoid the surgery recommended by Dr Cherukuri. I do not accept this submission for the following reasons.
I find it is instructive to consider the nature of Ms Handcock’s work in the dementia unit. It was only three months after her return to full work duties that she suffered a flare up in
July 2022. At [14] of her first statement she describes the duties she was performing at the time, rolling a resident to change her incontinence pad. Even though Ms Handcock had the help of a male colleague, who was also a nurse, the resident, who had cognitive impairment pulled away from Ms Handcock resulting in her suffering immediate low back pain. Tim Mann, physiotherapist, wrote to Dr Ooi on 5 August 2022 that she had extensive physiotherapy from September to November 2021 and did very well but she has had a recurrence of her left gluteal and posterior thigh pain and has apparent left L5 nerve root impingement confirmed by clinical tests. Mr Mann states;
“given the relatively trivial mechanisms leading to this recurrence, the protracted treatment to get an initially good result and the confirmatory MRI findings, I think the time has come to consider a surgical decompression option”
I find it is significant that Mr Mann acknowledged that the work task causing the flare up was trivial and that it had taken protracted treatment initially to bring her symptoms to a level where she could return to work and if a trivial incident could result in such severe symptoms surgery should be considered.
Mr Morgan has submitted that even though the respondent refers to there being some settling of symptoms one needs to consider the extent of medication that Ms Handcock has been prescribed and that it is not desirable for her to remain upon such medication if surgery would remove the need for the same. The clinical records of Dr Ooi in my view support this submission.
Dr Ooi’s clinical record for 8 July 2022 records that the lower back pain woke her at 3am and he issued prescriptions for Palexia SR, Lyrica, and Celebrex. By 15 July 2022 the Palexia dosage had been increased from 50mg to 100mg. I note Palexia is an opioid pain relief medication and it is apparent from Dr Ooi’s note it is a drug concerning which there are questions about a patient developing dependence on it, as is evident by the doctor having to answer questions before he is authorised to prescribe the medication.
On 19 July 2022 Ms Handcock’s low back was so sore Dr Ooi recorded she could not bend down and on 4 August 2022 Dr Ooi notes she had physiotherapy and manipulation which at first felt fine but, by the afternoon her back became very sore. Celebrex was ceased and Mobic and Targin MR were prescribed.
On 23 August 2022 Dr Ooi records she was getting increasing back pain and she had resumed physiotherapy. The Targin medication was ceased and Palexia IR was prescribed instead of Palexia SR. On 21 October 2022 Dr Ooi records Ms Handcock was crying in bed because she had had enough and on 24 October 2022 Cymbalta was prescribed and she was given the names of psychologists. The Cymbalta medication was changed the next week to Cipramil.
On 15 November 2022 Dr Ooi recorded in his clinical notes that Ms Handcock had extremely severe depression and chronic pain and that medication and physiotherapy had been utilised. On a good day her pain was 5/10 but on a bad day it was 10/10. On
25 November 2022 Dr Ooi noted that Dr Cherukuri had agreed to perform just the laminectomy that the respondent’s doctor had recommended, but Dr Cherukuri told her that she would need further surgery down the line. Dr Ooi noted on 6 December 2022 that
Ms Handcock had been resting, having physiotherapy and the pain radiating down her left leg to behind the back of her knee had settled, but he notes she still was experiencing left buttock pain. While the respondent relied upon this entry to submit the leg pain had settled, I find it should be considered in the context that the doctor states she had been resting, having physiotherapy and she was taking the medication. I find it is significant that Dr Ooi continued to prescribe Palexia IR and stated she was still experiencing left buttock pain. There is no evidence that this “settling” of leg pain is a long term amelioration of her symptoms.

It is also relevant in my view that Ms Handcock’s second statement was signed by her on
13 December 2022, a week after this entry, and she says she is in ever increasing pain and struggling every day. I find that weight should be afforded to the evidence from Ms Handcock about the effect her symptoms were having on her, as Mr Saul conceded her credit is not in issue and I am satisfied she has tried her best to keep working and she did not take up the surgical option until she had tried all conservative measures and her symptoms became worse.
Dr Yiu-Key Ho, orthopaedic surgeon, in his medico-legal report dated 7 September 2022 was supportive of the proposed surgery being undertaken and cast doubt about the long term prognosis with just conservative treatment. He provided the opinion:
“Prognosis remains not good. These types of symptoms can be relieved by conservative treatments but there was a very good chance that it can recur because the pathology shown in the MRI scan is showing reasonably bad pathology and prognosis for a good and symptom free back is rather poor without operation.”
I reject the submission of the respondent that Dr Ho just “echoed” Dr Cherukuri’s opinion. I find his report is detailed and considers the radiological evidence and the passage quoted above explains why he supports the proposed surgery.
Dr Cherukuri is a neurosurgeon and spinal surgeon and Clinical Associate Professor at the University of Wollongong. He has seen Ms Handcock several times including on
21 October 2021, 5 November 2021, 21 July 2022 and he has provided the report dated
4 January 2023. In his consultation on 21 October 2021, Dr Cherukuri noted the MRI scan showed L4/5 severe stenosis with a large synovial cyst on the left side and a disc bulge at this level and a left-sided disc protrusion at L2/3 and facet arthropathy especially at L4/5. He discussed surgery versus conservative treatment and, while he ordered further investigations, he stated that “given the persistent symptoms significantly affecting activities of daily living and severe canal stenosis with cauda equina compression, I advised her surgery to be considered”. In his report dated 21 July 2022 Dr Cherukuri noted she has reached the stage where she would like to consider surgery in view of the severe symptoms and restriction of her activities of daily living and the fact she is unable to work.
In his report dated 4 January 2023 the doctor says the Lyrica improved her paraesthesia in her legs but he adds walking is extremely difficult. I find the respondent’s submission that
Dr Cherukuri had recommended the surgery because of the leg pain is not correct. Certainly that was one factor but in his 2023 report, in addition to the severe left leg pain, he lists “severe compression on the left at L4/5 including foraminal stenosis and instability with worsening listhesis at L4/5 on standing will only be served with fusion in addition to decompression” as reasons for performing the type of surgery he recommends. The doctor adds that if he does a laminectomy alone, as recommended by Dr Casikar “the left leg pain may not improve (from foraminal stenosis) and demonstrated instability is likely to worsen with laminectomy alone necessitating redo surgery carrying higher risks”.
I find Dr Cherukuri has explained why the type of surgery he recommends is reasonably necessary. He considers it to be the most appropriate procedure with the better chance of success for Ms Handcock. I find that Dr Cherukuri’s opinion as to the type of surgery to be undertaken should be preferred to that of Dr Casikar because Dr Cherukuri has seen
Ms Handcock on more than two occasions in a treatment setting. I find he is therefore in a better position to gauge the type of treatment that is likely to be the most effective for
Ms Handcock.
Dr Casikar examined Ms Handcock on 14 March 2022 and reported to the insurer on
30 March 2022. He provided a supplementary report on 10 August 2022 without further examination. He then re-examined Ms Handcock on 19 September 2022. In the report following that last examination Dr Casikar provides the opinion that Ms Handcock would benefit from a laminectomy and she does not require a spinal fusion. In my view Dr Casikar does not give sufficient reasons for his difference of approach. He says if a laminectomy was performed she could return to her full pre-injury duties with some restriction on lifting heavy patients without adequate support. He says it is doubtful that she would return to work after a spinal fusion. He does acknowledge that conservative management has been exhausted.
An additional reason why I prefer Dr Cherukuri’s opinion is he has considered Dr Casikar’s views and has provided reasons why he does not believe a laminectomy procedure will be sufficient, because Ms Handcock will need further surgery. Naturally there are less risks with one surgical procedure and Ms Handcock acknowledges that she only wishes to have the one surgery. Furthermore, it is Dr Cherukuri who has to actually perform the surgery, not
Dr Casikar, and Dr Ho has supported his opinion about the type of surgery. Therefore, I find the weight of medical evidence is in favour of the surgery proposed by Dr Cherukuri.
Applying the principles in Diab, I find the type of surgery proposed by Dr Cherukuri is the appropriate treatment and I find that laminectomy alone is potentially the less effective surgery in the long term. Dr Casikar has conceded Ms Handcock has exhausted conservative alternate treatment and I so find. I have explained why I do not accept the respondent’s submissions that there should be a continuation of conservative treatment. I have found that both Dr Cherukuri and Dr Ho have accepted the treatment as appropriate and likely to be effective. The cost of the treatment has not been raised as a factor of concern and certainly given the expected benefits of the surgery I find this outweighs the actual costs of the surgery and associated treatment in her recovery.
In summary, I find that pursuant to s 60 of the 1987 Act the proposed lumbar spine surgery involving decompression, removal of synovial cyst and posterior interbody and posterolateral fusion is reasonably necessary treatment as a result of the agreed lumbar injury sustained by the applicant with a date of injury of 17 May 2021 in the course of her employment with the respondent.
I order that the respondent is to pay the costs of the proposed surgery pursuant to s 60 in accordance with the workers compensation gazetted rates.

[2023] NSWPIC 139

3 April 2023