Hanna v Sargents Pty Ltd
[2022] NSWPIC 132
•28 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hanna v Sargents Pty Ltd [2022] NSWPIC 132 |
| APPLICANT: | Talaat Hanna |
| RESPONDENT: | Sargents Pty Ltd |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 28 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of left side diagnostic medical branch block and radiofrequency ablation; accepted injury to lumbar spine; whether proposed treatment reasonably necessary; Rose v Health Commission and Diab v NRMA Pty Ltd considered; Held- finding that proposed treatment reasonably necessary as a result of the worker’s injury. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his lumbar spine on 24 June 2018 arising out of or in the course of his employment with the respondent. 2. The left side diagnostic medial branch block and radiofrequency ablation proposed by |
| ORDERS MADE: | 1. The respondent to pay the cost of the left side diagnostic medial branch block proposed by Dr Ramachandran. 2. If Dr Ramachandran considers it appropriate following the left side diagnostic medial branch block to proceed with the radiofrequency ablation, the respondent to pay the cost of that procedure. |
STATEMENT OF REASONS
BACKGROUND
Mr Talaat Hanna (the applicant) was employed as a distribution officer and palette controller by Sargents Pty Ltd (the respondent) on 24 June 2018 when he tripped on some palettes and fell heavily, injuring his lower back and neck. The respondent has accepted liability for his injury.
Mr Hanna was seen at Nepean Hospital on the day of the fall. Next day, he saw his general practitioner, Dr Hani Bishara, who certified him unfit for work for six weeks, referred him for physiotherapy and prescribed pain medication.
Up until mid-2019, Mr Hanna continued with physiotherapy and pain medication. The pain worsened and Dr Bishara referred him to neurosurgeon, Dr Darweesh Al-Khawaja. In July 2020, Dr Al-Khawaja performed two cortisone injections at the L4/5 joint. When Mr Hanna’s back pain worsened, Dr Al-Khawaja recommended fusion surgery which Mr Hanna was reluctant to undergo.
In December 2020, Mr Hanna saw interventional pain specialist, Dr Alister Ramachandran, who recommended right side diagnostic injection and, if Mr Hanna had a good response, radiofrequency therapy on the right side. Mr Hanna underwent the diagnostic injection in March 2021 and radiofrequency therapy in May 2021.
In September 2021, Mr Hanna saw Dr Ramachandran again regarding treatment for the left side of his lower back. Dr Ramachandran recommended he undergo the same procedure for the pain on his left side.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 2 February 2022, Mr Hanna makes a claim under section 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of a left sided diagnostic medial branch block and radiofrequency ablation proposed by Dr Ramachandran.
By dispute notices issued on 6 September 2021, 1 October 2021 and 18 November 2021, the respondent has disputed liability to pay for the proposed treatment on the ground that it is not reasonably necessary treatment for the purposes of section 60 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the issue remaining in dispute is whether the surgery proposed by
Dr Ramachandran is reasonably necessary treatment for Mr Hanna’s injury.
PROCEDURE BEFORE THE COMMISSION
Parties attended a conciliation/arbitration hearing on 22 March 2022. Mr Hanna was represented by Ms Lyn Goodman of counsel, instructed by Ms Lana Karam. The respondent was represented by Mr Tony Baker of counsel, instructed by Ms Naomi Tancred.
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 Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence or to cross examine any witness.
Mr Hanna’s evidence
Mr Hanna provided a statement of evidence dated 18 November 2021.[1] He describes the fall on 24 June 2018 and subsequent treatment. His statement refers to the effects of injuries to his neck, shoulders and lower back. As only treatment to the lower back is an issue in these proceedings, I will not refer to the evidence as it relates to his neck and shoulders.
[1] ARD page 1.
Mr Hanna states that he saw Dr Bishara on the day after the fall. Dr Bishara recommended physiotherapy and “strong pain medication”. Mr Hanna attended physiotherapy sessions consisting of “gentle massage, exercises and targeted therapy” which gave him “short-term relief”. In between sessions, the pain in his lower back would return. He continued physiotherapy on a weekly basis.
An MRI scan on 6 August 2018 of Mr Hanna’s neck, middle and lower back revealed degenerative changes. Around mid-August 2018, he returned to work on light duties. He still had “significant pain” in his lower back but was happy to return to work. Throughout late-2018 to mid-2019 he managed his pain with physiotherapy and medication, and he consulted Dr Bishara regularly.
Mr Hanna states that around June 2019, the pain in his lower back worsened. He was finding that physiotherapy and medication no longer managed the pain, and continuous use of opioids caused extreme constipation which exacerbated the pain. He ceased using opioids and relied on Mobic and Panadol Osteo which were less effective. The pain was still “severe and debilitating” and he had numbness in his left leg. Dr Bishara recommended he consult a neurosurgeon.
Around 25 February 2020, Mr Hanna saw neurosurgeon, Dr Darweesh Al-Khawaja, who suggested cortisone injections and referred him for updated MRI scans which confirmed “issues at the L4/5 level” which Mr Hanna states he “found to be consistent with [his] excruciating pain symptoms”.
On 29 July 2020, Dr Al-Khawaja performed two injections at the L4/5 joints. Mr Hanna states they gave him relief for two days before his back pain worsened. Dr Al-Khawaja recommended fusion surgery but Mr Hanna “wished to exhaust all conservative treatment options before undergoing such an invasive procedure”. Dr Al-Khawaja referred him to interventional pain specialist, Dr Alister Ramachandran, whom he first saw around 17 December 2020.
Dr Ramachandran recommended Mr Hanna undergo a right side diagnostic injection and, if he had a good response to that procedure, that he undergo radiofrequency therapy[2] to the right side of his lower back. He had the diagnostic injection on 5 March 2021 after which his pain levels “decreased substantially” before he had a “severe flareup” of pain. On 22 March 2021, Dr Ramachandran explained the radiofrequency would likely reduce the pain due to his “initial positive response”. Mr Hanna underwent radiofrequency therapy on 4 May 2021.
[2] Also referred to in documents as radiofrequency ablation and radiofrequency neurotomy.
Mr Hanna states that the second procedure enabled him to return to normal duties. He still had pain in his buttocks. Dr Ramachandran explained that was normal and that “the best results would occur following 4-6 weeks”.
Mr Hanna states that, between May and June 2021, he experienced an increase in his pain levels. The pain was “so severe” that he was certified unfit for work duties on 10 days. Following “rest and recovery”, he was able to return to work on full duties. He was “frustrated as [he] desperately wanted this procedure to work”.
Around August 2021, Mr Hanna states, the pain in his lower back “mildly improved”. He was experiencing fewer flareups and was able to return to work with less pain and restriction in his lower back.
Around 16 September 2021, Mr Hanna saw Dr Ramachandran regarding treatment for the left side of his lower back. He explained to Dr Ramachandran he had “mild relief in left side [of] my lower back 4 weeks after the radio frequency procedure”. Dr Ramachandran recommended the same procedure on the left side of his lower back. Mr Hanna states that although he still had “mild right-sided lower back pain”, Dr Ramachandran explained that “both sides would support each other for overall better pain relief”.
Mr Hanna states that he “felt the left side of [his] lower back was bearing the pain load due to the moderate success of the right-sided radiofrequency procedure”. He states that, despite “the initial poor results from the right-sided radiofrequency injection, the pain in the right side of my lower back has significantly reduced due to the radiofrequency injection”. He wishes to undergo the same procedure on the left side.
Mr Hanna states that his lower back is “constantly tender” and the pain radiates into his left buttock and thigh. He experiences a “sharp and electric shock sensation” in his lower back when he walks and his “quality of life has been completely diminished”. His current treatment consists of monthly consultations with Dr Bishara, weekly physiotherapy, pain medication in the form of Mobic and Panadol Osteo, and consultations with
Dr Ramachandran and Dr Al-Khawaja as required.The final two pages of Mr Hanna’s statement are headed “Treatment in Dispute”. He refers to the clinical notes and Dr Ramachandran’s recommendation for the left side treatment. He states that Dr Bishara supports his need for treatment “due to the debilitating nature of [his] lower back pain” and has explained it is reasonable as an alternative to medication.
Mr Hanna states that Associate Professor Courtenay’s report (below) that he said he did not obtain any benefit from the right procedure is “a false representation” of what he said. He says he explained that, initially, the injection did not provide him with any relief and that, four weeks after the procedure, the pain in the right side mildly improved. At the time that he saw Associate Professor Courtenay, he “had not yet experienced the full benefits that [he] currently experiences”. He states that he was “not completely sold on the procedure until it was explained to [him] that the combination of frequency therapy would alleviate [his] symptoms”.
Mr Hanna states that, in late September 2021, the pain in the right side of his lower back lessened further. Despite not initially working, the procedure has “now made a huge difference” in his pain levels. He no longer experiences down aches and tenderness on the right side. While it took “longer than expected to work” he is eager to experience similar results on the left side. He has exhausted all treatment options other than invasive fusion surgery. He describes “excruciating” pain in his lower back and disabilities including pain in his lower back radiating down into his buttocks and thighs, and says he wants to have the left side treatment.
Medical evidence
Dr Al-Khawaja’s reports
Dr Al-Khawaja reported to Dr Bishara following Mr Hanna’s first consultation with him on 25 February 2020.[3] Mr Hanna told him he had tried physiotherapy and medication but his pain had become worse in the previous nine months. On examination he had severe limitation of lumbar spine movements. Dr Al-Khawaja said he would review Mr Hanna after a new MRI and a SPECT scan.
[3] ARD page 76.
On 23 April 2020, Dr Al-Khawaja reported on the findings of the MRI of the lumbar spine.[4] He recommended Mr Hanna continue with physiotherapy and pain management for his cervical and thoracic spine, and an epidural block at L4/5 for his lumbar spine to “see if this helps him to get on top of physio”. He carried out the epidural injection on 22 May 2020.[5]
[4] ARD page 78.
[5] ARD page 80.
On 9 June 2020, Dr Al-Khawaja reported that Mr Hanna had had a bilateral facet joint injection which helped him “for a short bit of time” and his pain was back. Dr Al-Khawaja said he believed surgery should be kept as a last resort and he recommended Mr Hanna have a booster dose of injection in the facet joints which might give him more relief. If it did not, he would refer Mr Hanna for pain management for some time and exhaust every other avenue before talking about the surgical option.[6]
[6] ARD page 83.
Dr Ramachandran’s reports
Dr Ramachandran first saw Mr Hanna on 17 December 2020. He provided reports dated 17 December 2020, 22 March 2021, 20 May 2021, 17 June 2020, 16 September 2021 and 12 November 2021.[7] He provided reports to the insurer dated 11 January 2021 and 24 August 2021.[8]
[7] ARD pages 37, 72, 70, 68, 63, 36.
[8] Reply pages 52 and 74.
On 17 December 2020, Dr Ramachandran reported to Dr Al-Khawaja that Mr Hanna presented with “chronic axial lumbosacral spinal pain with somatic referred bilateral gluteal pain from probable ongoing discovertebral/facetogenic origin”.[9] He conducted a “pain focused clinical examination”. He noted that Mr Hanna was under the care of a physiotherapist and did regular hydrotherapy sessions along with land-based exercises. He suggested to Mr Hanna that his next step would be to consider diagnostic injections “to look at possible pain generators which might be addressed as part of interventional pain management techniques” and, thereafter, to have radiofrequency therapy if he had a good response to the diagnostic procedure.
[9] ARD page 65.
On 11 January 2021, Dr Ramachandran reported that Mr Hanna wanted to consider ongoing conservative management and interventional pain management to avoid surgery.
Dr Ramachandran recommended diagnostic injections “to identify potential pain generators and target them with simple interventions” and provide him with “a good quality reduction in pain”. He described the radiofrequency as “a minimally invasive technique” which “usually works for 8-12 months”, giving “a window of opportunity to engage in pain management and rehabilitation”.On 22 March 2021, Dr Ramachandran reported to Dr Bishara that he had seen Mr Hanna for follow-up after his diagnostic lumbar medial branch block on 5 March 2021.[10] He said
Mr Hanna reported he had had “over 80% reduction in his pain levels coinciding with the duration of the local anaesthetic” but, unfortunately, this coincided with a flareup of his lower back symptoms. Dr Ramachandran said he had suggested they proceed with the radiofrequency neurotomy to the right lower lumber facet joints and thereafter consider the same process on the left to assist with his left-sided axial spinal pain.[10] ARD page 72.
On 20 May 2021, Dr Ramachandran reported to Dr Bishara that the right radiofrequency neurotomy was performed on 4 May 2021.[11] Mr Hanna had a “marginal flareup” after the procedure. Dr Ramachandran said he had reassured Mr Hanna it was normal to have some flareup of pain initially and “the maximum benefits are expected in the 4-6 weeks mark”.
[11] ARD page 70.
Dr Ramachandran reported to Dr Bishara again on 17 June 2021.[12] He said Mr Hanna had recovered from the radiofrequency neurotomy on the right and, as previously planned, he would proceed with the left diagnostic lumbar medial branch blocks and thereafter see if he was a suitable candidate for radiofrequency neurotomy on the left. He had suggested
Mr Hannah use low dose Tramadol plus paracetamol if needed for his flareup management and to help him engage in ongoing physical therapy.[12] ARD page 68.
On 16 September 2021, Dr Ramachandran wrote to Dr Bishara noting that the insurer had declined his request for approval of the left sided diagnostic injections.[13] He reported that he had suggested Mr Hanna continue using Tramadol for “breakthrough management” and continue his physical therapy exercises.
[13] ARD page 63.
On 12 November 2021, Dr Ramachandran provided a report to United Healthcare Group in which he outlined his consultations with Mr Hanna and his recommendations for treatment. In response to a question as to why he considered the left side lumbar spinal block to be reasonably necessary, Dr Ramachandran referred to his reasons for deciding on the right side treatment. He said Mr Hanna would require left-sided diagnostic procedure to assess his suitability for radiofrequency on the left. A positive diagnostic should be followed by lumbar radiofrequency ablation.
Dr Ramachandran was asked to provide a critique of A/Prof Courtenay’s opinion and whether or not he agreed with his findings. Dr Ramachandran reiterated his outline of
Mr Hanna’s initial presentation and his opinion that his next step would be diagnostic injections and radiofrequency therapy. He said Mr Hanna had recovered from the procedure on the right “with a reduction in pain” but he still complained of left-sided pain.
Associate Professor Courtenay’s reports
Associate Professor Courtenay saw Mr Hanna for assessment on 9 July 2021. He provided a report of his assessment dated 20 July 2021 and a supplementary report dated 7 September 2021.[14]
[14] ARD page 28 and 25.
Associate Professor Courtenay took a history from Mr Hanna that he had had cortisone injections with “some limited benefit”; it has been suggested he have surgery but he would prefer not to have surgery while he could still manage his situation. He noted that Mr Hanna had had one procedure for radiofrequency ablation on the right side after which he had some flaring up of his pain “but it has now settled down and it is improving”. He noted there was some suggestion that he have it done on the left side. He noted that Mr Hanna had “essentially continued working in his normal office duty capacity” and had avoided getting involved with other work in the warehouse.
Associate Professor Courtenay noted that Mr Hanna was restricted in his walking; he could manage most other activities; sleeping was not a problem. On examination there was restricted lateral flexion on the left and the right and about 50% normal rotation.
Associate Professor Courtenay reported that Mr Hanna had a soft tissue sprain to his low back and cervical spine with ongoing residual problems related to any increased level of activity. He noted that, overall, Mr Hanna was not very active and had quite a lot of extra weight. He considered this combination was probably the reason his symptoms had persisted much more than one would expect. Physiotherapy was keeping it under control and permitting him to do most of his normal activities. Mr Hanna told him he was aware that his weight was an issue and he was looking at addressing this with his general practitioner.
In his supplementary report, Associate Professor Courtenay commented on Mr Hanna’s capacity for work which is not presently in issue and I will not refer to those parts of his report. As to whether the left side lumbar medial branch block was reasonably necessary, he said:
“I understand that [Mr Hanna] really got no benefit from the right-sided lumbar radiofrequency and when I saw him he was in two minds whether or not to proceed but he did relate that he had not had much benefit so for that reason I cannot see why one would consider doing it on the left-hand side. However, if his symptoms were very much left-sided and not generally across the low back it may be worth considering but overall failure on one side generally would indicate there would be a failure on the other side.”
Associate Professor Courtenay was asked whether Mr Hanna would benefit from further physiotherapy for his lumbar spine. He said, “without knowing the exact circumstances”, focused physiotherapy and getting himself back into an exercise program to strengthen his back was the way forward. He noted that Mr Hanna had “not been very active been doing a lot of exercises in the past” and this was a problem at his age; he needed to do exercises and keep his weight under some control for the longer term, otherwise he would continue to have a lot of back pain, most of it unnecessary if he did some good exercises. He said he would not recommend any other treatment.
SUBMISSIONS
The applicant’s submissions
Ms Goodman submits that it is not in dispute that Mr Hanna continues to have pain in his lumbar spine as a result of his accepted injury.
Ms Goodman refers to Dr Al-Khawaja’s first report in which he noted that Mr Hanna’s pain had worsened over the previous nine months, and his subsequent recommendation that
Mr Hanna have an epidural block. He noted at that time that Mr Hanna was continuing with physiotherapy and pain management. Dr Al-Khawaja reported that the epidural had helped for only a short time before the pain returned. He believed surgery should be kept as a last resort and every other avenue exhausted first, and he recommended a “booster” injection. When the booster on 29 July 2020 provided improvement for two days, he referred Mr Hanna to a pain specialist.Ms Goodman submits that it is clear that, at this point, Mr Hanna was reluctant to undergo surgery and was looking for all nonsurgical options.
Ms Goodman refers to Dr Ramachandran’s recommendation for diagnostic injections and, if Mr Hanna had a good response, for radiofrequency therapy. She refers to his report to the insurer on 11 January 2021 that Mr Hanna wanted to consider ongoing conservative management and interventional pain management as a means to avoid surgery and to assist in his return to work.
Ms Goodman refers to Dr Ramachandran’s report following the right side procedure that
Mr Hanna reported 80% reduction in pain coinciding with the anaesthetic, and his assurance that it was normal to have some flareup of pain initially and that the maximum benefits were expected at the four to six weeks mark. Dr Ramachandran reported on 17 June 2021 that
Mr Hanna had recovered from the procedure, he had no intermittent complications, and he proposed the same procedure on the left side.Ms Goodman refers to the history taken by Associate Professor Courtenay on 20 July 2021 of Mr Hanna’s restrictions and that he was reluctant to proceed with surgery. He noted that Mr Hanna reported some “flaring up of his pain” following the first procedure but that it had settled and was improving. He noted that Mr Hanna was doing normal office duties. He referred to
Mr Hanna’s weight and relative inactivity, and that physiotherapy was keeping the pain under control and permitting him to do most of his normal activities.Ms Goodman refers to Associate Professor Courtenay’s statement into his second report that he understood Mr Hanna had no benefit from the first procedure and, for that reason, he could not see why the second should be carried out. Ms Goodman submits that was his only reason for saying the treatment was not reasonably necessary.
Ms Goodman refers to Mr Hanna’s statement on 18 November 2021 that the right-sided block enabled him to return to work, even though with some pain. It had mildly improved by August 2021 and he told Dr Ramachandran in September 2021 that he had mild relief four weeks after the procedure. His evidence is that, despite initial poor results, the pain on the right side has significantly reduced. His evidence is that A/P Courtenay has not recorded what he said accurately, and his pain has continued to improve. He still has pain but not as much as before.
Considering the factors set out in Diab v NRMA Ltd[15], Ms Goodman submits there is no suggestion from Associate Professor Courtenay or any doctor that the proposed treatment is not appropriate. Associate Professor Courtenay’s opinion is based on his understanding that Mr Hannah said he did not get a good result from the first procedure but Mr Hanna’s evidence is that he did get relief.
[15] [2014] NSWWCCPD 72 (Diab).
Ms Goodman submits that surgery is an extreme alternative and Mr Hanna is not ready to undergo a fusion; he wants to manage his pain as best he can so that he can get back to work. With respect to cost, surgery is expensive whereas cost of the treatment as quoted by Dr Ramachandran is approximately $720 for the diagnostic medial branch block and approximately $2,250 for the radiofrequency ablation.
Ms Goodman submits that there is no suggestion that the treatment itself is not accepted by the medical experts. Dr Ramachandran believes the treatment will be potentially effective, and whether Mr Hanna has the radiofrequency ablation will depend on the first procedure, both of which are non-invasive.
The respondent’s submissions
Mr Baker submits that Mr Hanna seeks funding for both procedures but Dr Ramachandran states that the radiofrequency ablation will only be carried out if the diagnostic procedure is successful. At most, Mr Baker submits, I could only find for Mr Hanna in relation to the diagnostic test.
Mr Baker refers to Mr Hanna’s evidence that Dr Ramachandran told him the best results would be four to six weeks after the procedure, that is by early to mid-June 2021. Contrary to that, Mr Hanna’s evidence is that between May and June 2021, the pain increased and was so severe that he was certified unfit for work duties on 10 days through to mid-July 2021.
Mr Baker submits that clearly the treatment on the right side did not work. He submits that
Mr Hanna’s statement that he told Dr Ramachandran in September 2021 that he had mild relief about four weeks after the procedure is disingenuous. What has helped has been time, rest, physiotherapy and medication.Mr Baker submits there is no basis for Mr Hanna’s “quasi-medical opinion” that he felt the left side of his lower back “was bearing the pain load due to the moderate success of the right-sided procedure”.
Mr Baker submits that Mr Hanna’s statement the pain reduced following the procedure on the right side is not borne out by the timetable he outlines in his evidence. His statement that his lower back is “constantly tender” and he experiences sharp pain when walking flies in the face of his asserted improvement. Mr Baker submits that the disabilities described by
Mr Hanna are exactly the same now as they were prior to the procedure and there has been no material improvement.Mr Baker submits that the part of Mr Hanna’s statement headed “Treatment in dispute” should be disregarded; much of it comprises submissions and statements not borne out by the evidence. For example, he states the Dr Bishara and Dr Al-Khawaja support the proposed treatment but there is no evidence to that effect.
Mr Baker submits that Associate Professor Courtenay took a history as given to him by Mr Hanna. Where Mr Hannah says Associate Professor Courtenay misrepresents what he told him, the history he took is consistent with what had in fact occurred.
Mr Baker submits that, to the extent that Mr Hanna has had any improvement in his lower back pain, it is due to physiotherapy and medication. When he did not have the results that Dr Ramachandran said he would get in four to six weeks, the procedure cannot have been the reason for any improvement, and he was actually worse after the procedure such that
Dr Ramachandran recommended Tramadol. His claim that the procedure “significantly reduced” his pain is at odds with being satisfied as having no capacity around four to six weeks later, and it is at odds with his current claimed disabilities.With respect to alternative treatments, Mr Baker refers to Associate Professor Courtenay’s recommendation that Mr Hanna continue with physiotherapy, exercise, and weight loss. Mr Baker submits that these enabled him to get back to work, as he told Dr Ramachandran and Associate Professor Courtenay.
With respect to the factors outlined in Diab, Mr Baker submits that alternative treatment is available and effective and, to the extent there has been any improvement, it has been because of these. The experts are divided as to the likely effectiveness of the treatment.
Dr Ramachandran cannot say it will improve Mr Hanna’s back but, given the outcome from the first treatment, improvement cannot be expected this time. Looking at all of the evidence, Mr Baker submits I could not be satisfied that the treatment is reasonably necessary.
Reply
In reply, Ms Goodman submits that, if I am satisfied that the treatment is reasonably necessary, the order should be for the respondent to pay for the diagnostic treatment and then, if appropriate, for the radiofrequency ablation. Ms Goodman submits that Mr Hanna should not have to come back to the Commission for a further order.
Ms Goodman submits that Mr Hanna’s statement was prepared on his behalf and it should not be approached with the fine-tooth comb used by the respondent.
Ms Goodman submits that it can be inferred from his statement that at the time Mr Hanna saw Associate Professor Courtenay he had not had much relief from the procedure, contrary to Dr Ramachandran’s expectations. However, Ms Goodman submits, pain management is not an exact science and many attempts do not work. She refers to the statement of Deputy President in Diab that effectiveness of treatment is relevant but not determinative of whether it is reasonably necessary.
Ms Goodman submits that Associate Professor Courtenay is an orthopaedic surgeon and Dr Al-Kawaja is a neurosurgeon, whereas Dr Ramachandran is a pain management specialist which should be given considerable weight. Ms Goodman submits that pain management is not an exact science. In November 2021, Dr Ramachandran reported that Mr Hanna had recovered from the radiofrequency therapy and had a reduction in pain. On this basis, he proposes to proceed with the left side treatment.
Ms Goodman submits that Mr Hanna has had an injection, he continued with physiotherapy and medication and has tried hydrotherapy, but he is still in pain. The only treatment that has made any difference was the radioneurotomy. Dr Ramachandran is essentially saying he should try the diagnostic procedure and, if it succeeds, he should go ahead with the radioneurotomy. Mr Hanna has no other real option to try to manage his pain except surgery which he does not want.
FINDINGS AND REASONS
Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
It is not in dispute that Mr Hanna suffered injury to his lumbar spine arising out of or in the course of his employment with the respondent. Nor is it in dispute that he continues to have pain in his lower back as a result. The only question is whether the treatment proposed by
Dr Ramachandran is reasonably necessary treatment for his injury.What constitutes reasonably necessary treatment was considered in Rose v Health Commission (NSW)[16] in which Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[16] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
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, Deputy President Roche cited Rose with approval and summarised the relevant principles as follows:
“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, 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.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.”
Mr Hanna’s evidence is that the first procedure has made “a huge difference” in his pain levels, it has “significantly reduced” his lumbar pain, he no longer experiences aches and tenderness on the right side, and he has only “mild right-sided back pain”.
Mr Hanna’s statement is difficult to reconcile with his statement that he continues to experience “debilitating” and “excruciating” pain in his lower back and pain radiating down into his buttocks and thighs. It also appears at odds with his statement that, between May and June 2021, the pain was “so severe” that he was certified unfit for work duties on 10 days and that he “frustrated as [he] desperately wanted this procedure to work”. It is not easily reconciled with his statement that he explained to Associate Professor Courtenay that four weeks after the procedure, the pain in the right side mildly improved, or with his statement that, when he saw Associate Professor Courtenay, he “had not yet experienced the full benefits” that he currently has.
It seems to me that Mr Hanna is overstating the benefits he had had from the right side procedure. The different parts of his statement cannot be reconciled, and they are odds with the contemporaneous evidence. However, that is not to say he had no benefit from the procedure. His statement that, by August 2021, the pain had “mildly improved” is probably closer to the truth.
I am not persuaded that the first procedure carried out by Dr Ramachandran has given
Mr Hanna benefits to the extent he now claims. However, I accept that it has given him some relief from pain.Mr Hanna states that he “felt the left side of [his] lower back was bearing the pain load due to the moderate success of the right-sided radiofrequency procedure”. I agree with Mr Baker that Mr Hanna is not qualified to make that statement and there is no medical evidence to support it. Relevantly, he describes the success of the procedure as “moderate”. Nor is there any evidence from Dr Bishara that he supports the proposed treatment as Mr Hanna claims. If Dr Bishara told Mr Hanna that he did support it,, it does not appear in his reports.
Associate Professor Courtenay saw Mr Hanna on 20 July 2021. He states in his later report that he understood that Mr Hanna “really got no benefit from the right-sided lumbar radiofrequency” and he was “in two minds” whether to proceed or not. Associate Professor Courtenay said Mr Hanna related that “he had not had much benefit”. For that reason, he said, he could not see why one would consider doing it on the other side.
In his first report, Associate Professor Courtenay noted that Mr Hanna had some flaring up of his pain following the first procedure but it had “now settled down and it is improving”. It is not clear whether the flareup had improved or his pain overall, although it appears he was referring to the flareup.
As I understand Associate Professor Courtenay’s report, Mr Hanna did not say he had no benefit at all from the first procedure; rather, that it had not given him “much benefit” and certainly not the benefit he hoped.
Mr Hanna saw Associate Professor Courtenay on 20 July 2021 at which time, according to
Dr Ramachandran, he could have expected “maximum benefit” from the procedure. However, as Ms Goodman submits, treatment is not an exact science. The fact that
Mr Hanna did not achieve the benefits he hoped and in the time that was anticipated is not to say he had no benefit at all. I accept that he had some benefit from the procedure, although not to the extent he now claims.Dr Ramachandran reported on 17 June 2021 that Mr Hanna had recovered from the procedure on the right side and did not present with any intermittent complications; as previously planned, he would proceed with the diagnostic block on the left side and thereafter see if he was suitable for radiofrequency neurotomy. He suggested low dose Tramadol and paracetamol for “flareup management” and to help engage in ongoing physical therapy.
Dr Ramachandran had previously told Mr Hanna that some flareup initially was normal.Associate Professor Courtenay does not say he is opposed to the second procedure and he does not say it is not an appropriate form of treatment, rather that he sees no reason for doing it based on what he understood from Mr Hanna was the outcome of the first. He referred to Mr Hanna’s weight and relative inactivity, and that physiotherapy was keeping the pain under control and permitting him to do most of his normal activities.
Dr Ramachandran saw Mr Hanna on 16 September 2021, after the insurer had declined payment for the second procedure. He noted that Mr Hanna was in discussion with the case manager “to reconsider the approval process” and recommended he continue his current medication for "breakthrough management" and continue his physical therapy exercises pending that process.
It is not clear how much physical exercise Mr Hanna was doing as distinct from physiotherapy. He describes in his statement that his current treatment comprises physiotherapy and medication. Accepting what Associate Professor Courtenay says about losing weight and maintaining physical activity, it appears probable that both will assist with pain management. However, given his history of treatments, it is less clear that it will be enough to manage his pain.
Dr Ramachandran is an experienced pain management specialist. It is reasonable to infer that he would not recommend proceeding with the procedure on the left side if he saw no reason to do so. He explains the purpose of the diagnostic procedure as part of a two-step process.
The evidence shows that Mr Hanna has had injections, physiotherapy, pain medication hydrotherapy and physical therapy exercises. Mr Baker submits that any improvement in his pain levels is attributable to that treatment and that he should continue as recommended by Associate Professor Courtenay, including losing weight. Ms Goodman submits that, despite all that treatment, he continues to have pain, and Mr Hanna’s only other option now is fusion surgery which is invasive and which he does not want.
It is virtually impossible to determine from the evidence how much of the improvement is attributable to the other treatments Mr Hanna has already tried, or how much difference it will likely make if he loses weight, but that does not exclude the improvement, even if mild, from the first procedure.
The respondent does not submit that cost is a relevant factor against the procedure. There is no suggestion that the proposed treatment is not appropriate for the kind of injury and pain Mr Hanna complains, rather that it will not achieve what he hopes.
Mr Hanna might have a poor outcome from the proposed treatment but, considering he had some improvement following the first procedure, that he has tried injections, physical therapies and medication and his only other option is fusion, I am satisfied on the balance of probabilities that it is reasonably necessary for him to undergo the proposed treatment.
Mr Baker submits that, at most, the respondent should have to pay for the diagnostic procedure but I agree with Ms Goodman that Mr Hanna should not be required to come back to the Commission if that procedure is successful and if Dr Ramachandran recommends proceeding with the radiofrequency neurotomy. That would only involve additional cost and potential delay.
For these reasons, I find that the proposed treatment is reasonably necessary and make the following orders:
i) the respondent to pay the cost of the left side diagnostic medial branch block proposed by Dr Ramachandran, and
ii) if Dr Ramachandran considers it appropriate following the left side diagnostic medial branch block to proceed with the radiofrequency ablation, the respondent pay the cost of that procedure.
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