Henc v Michalis Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Henc v Michalis Group Pty Ltd [2022] NSWPIC 390
APPLICANT:	Jordan Henc
RESPONDENT:	Michalis Group Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	19 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed left hip replacement surgery and associated treatment pursuant to section 60 of the Workers Compensation Act 1987; conflicting medical opinion as to whether the surgery is reasonably necessary treatment given young age of applicant and adverse anaesthetic reaction experienced during prior surgery; Held – left hip replacement surgery is reasonably necessary treatment as a result of the agreed workplace injury; opinion and recommendation of treating orthopaedic surgeon accepted; Diab v NRMA Ltd applied.
DETERMINATIONS MADE:	1. Pursuant to section 60 of the Workers Compensation Act 1987 the left hip replacement surgery, and associated treatment, is reasonably necessary treatment as a result of injury sustained by the applicant on 11 January 2019 in the course of his employment with the respondent. 2. The respondent is to pay the costs of the proposed left hip replacement surgery and associated treatment pursuant to section 60 of the Workers Compensation Act 1987 in accordance with the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Jordan Henc, the applicant, was employed with the respondent, Michalis Group Pty Ltd, as a labourer when he sustained injury to his left hip on 11 January 2019 when lifting multiple 25kg bags of citric acid powder. Liability for the left hip injury has been accepted by the respondent’s workers compensation insurer, Employers Mutual Limited (EML).
The claim for compensation in these proceedings is confined to the proposed left hip replacement surgery and associated treatment and costs. The respondent disputes this treatment is “reasonably necessary treatment” pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act), causation is not in issue.
The Application to Resolve a Dispute (ARD) on page 7 was amended to delete the reference to “right” hip and insert “left” hip.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
28 June 2022. Mr Luke Morgan, counsel, instructed by Mr Peter Naddaf, solicitor, appeared for Mr Henc, who was present. Ms Lyn Goodman, counsel, instructed by Ms Elizabeth Cincotta, solicitor, and Mr Albert Shum, EML, appeared for the respondent. The proceedings were conducted by Ms Teams audio-visual platform due to the COVID-19 situation.
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)    ARD and attached documents;
(b)    Reply and attached documents; and
(c)    Medical Assessment Certificate- Assessment of General Medical Dispute issued by Medical Assessor Kuru dated 10 June 2022.

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

Mr Henc has provided statement dated 18 March 2022 in which he provides evidence of the circumstances relating to the injury to his left hip and his treatment[1]. It is not necessary to summarise the entirety of this statement given the issue in dispute has been agreed by the parties to be within a narrow compass and is largely dependent on which of the medical evidence is to be accepted by the Commission. Mr Henc gives evidence that he wishes to undergo the left hip replacement surgery recommended by Dr O’Sullivan to attempt to restore his quality of life.
[1] ARD p 1.
He states most days he does not have the strength to get up and he relies upon pain medication to function daily. He states even then he is overwhelmed by sheer exhaustion and constant pain along his left side and back. He adds that he understands he is young for this type of surgery. He is aged 33 years and 8 months. He says he simply cannot continue to live the rest of his life this way. He says he has had the risks of the procedure explained to him by different practitioners and he says he has decided it is worth the chance to undertake the surgery to reduce his pain and symptoms.

Treating medical evidence

On 20 August 2019 Dr Halpin, sports and exercise medicine physician, reported to
[2] ARD p 102.
Dr Schofield, Mr Henc’s general practitioner[2]. At that stage Dr Halpin was exploring whether the low back injury was the reason for Mr Henc’s pain.
An MRI left pelvis/hip scan dated 16 September 2019 found nothing to confirm left piriformis syndrome[3]. It was noted that the left hip demonstrates superior labral tears with bony convexity to the femoral head neck junction suggesting femoro-acetabular impingement (FAI). It was noted that there were similar but mild changes in the right hip.
[3] ARD p 90 and Reply p 24.
Dr Halpin reviewed Mr Henc on 4 October 2019 taking into account the MRI scan. He recommended the use of a CT guide injection to determine if the left hip was the primary pain generator[4]. The insurer approved this procedure.
[4] ARD p 32.
On 22 October 2019 Dr Halpin reported that the injection had given complete relief of pain for about seven hours and the effects of the injection had lasted about two weeks. Dr Halpin advises:
“the response to the local anaesthetic indicates the pain is intra-articular rather than extra-articular or referred from elsewhere. Clinically and radiologically he has a torn acetabular labrum and evidence of femoroacetabular impingement, and this is almost certainly the correct diagnosis[5].”
[5] ARD p 104.
Dr Halpin advised that all conservative options should be considered before arthroscopic surgery is undertaken. On 20 November 2019 Dr Halpin re-examined Mr Henc and noted he walked with normal gait, and he had “only mild irritability of his hip on FAIR”. He recommended a continuation of physiotherapy[6].
[6] ARD p 107.
On 1 February 2020 Dr Halpin reported to Dr O’Sullivan about Mr Henc’s condition and his treatment thus far and his opinion that the pain was coming from the left hip joint. Dr Halpin referred Mr Henc to Dr O’Sullivan for him to consider whether arthroscopic surgery should be performed[7].
[7] ARD p108.
An X-ray of the pelvis and left hip was undertaken on 17 February 2020[8] noting:
“There are bilateral femoral dysplastic bumps causing abnormal convexity to the femoral head neck junctions, more prominent on the left and right. There is also impression of mild collar osteophytosis of the femoral head neck junctions bilaterally, as well as the acetabular rims. These changes may predispose to femoroacetabular impingement. There is mild joint space narrowing in both hip joints.”
[8] ARD p 94 and Reply p 26.
On 25 February 2020 Dr O’Sullivan reported to Dr Halpin noting that on examination
[9] ARD p 43.
Mr Henc had restricted movement of the left hip, which is irritable. He noted the radiology showed some early arthritic change affecting the left hip. Dr O’Sullivan recommended a well-structured hip rehabilitation program and weight loss in the next three months, rather than at that time performing an arthroscopic procedure[9].
On 27 February 2020 Caroline Morrissey, physiotherapist, reported to Dr Schofield[10]. She advised the second hip injection had settled the majority of the resting pain and movement discomfort. However, she states that the hip/lumbar spine remained highly provocative to weightbearing activity and sharp hip pain was easily elicited with body weight loaded exercises. She noted that Dr O’Sullivan had recommended three months of rehabilitation and advised on weight loss. She sets out a program of treatment as follows:
“• Weekly physio to progress rehab and provide manual treatment when indicated.
• Weekly remedial massage to manage pain and soft tissue tightness relating to rehab.
• Referral to a dietician for assistance with weight loss.
• Continuation of clinical psychology to manage stress and mental health issues.
• Gym program (as set by physio) x3-4 weekly.
• Hydrotherapy x2-3 weekly for pain relief and continuation of CV fitness training/weight loss.
• Home assistance with chores and yard work etc.”
[10] ARD p 34.
On 21 April 2020 Ms Morrissey reported to Dr Schofield recommending a further pain relieving injection as physiotherapy had been unable to settle Mr Henc’s symptoms[11].
[11] ARD p 95.
On 6 May 2020 Dr O’Sullivan reported that Mr Henc had a fall in March 2020 which exacerbated his left hip and a cortisone injection in the hip did afford some relief, although he continues to have problems with the hip. The doctor advised he will review Mr Henc’s X-rays and decide whether to perform an arthroscopy or if the arthritic change has progressed to consider if he is a candidate for a hip replacement[12].
[12] ARD p 44.
On 18 June 2020 Dr O’Sullivan sought permission from the insurer to perform a left hip arthroscopy, labral repair and femoral osteochondroplasty[13].
[13] ARD p 45.
On 27 August 2020 Dr O’Sullivan provided a report recommending the arthroscopy surgery, noting it was the doctor’s expectation that there was a 90% chance that Mr Henc could return to work at full capacity in six months after the procedure[14]. On 16 September 2020
[14] ARD p 46.
[15] ARD p 50.
Dr O’Sullivan responded to the insurer who sent him a report of Dr Isaacs, that it would be reasonable to investigate Mr Henc’s back pain prior to undertaking surgery on the hip[15].
On 12 October 2020 Dr Halpin reported to Dr Schofield that he thinks Mr Henc’s problem is coming from the left hip due to the response to the injection and the MRI of the lumbar spine did not show a disc protrusion, nerve impingement or canal stenosis. Dr Halpin advised that Mr Henc has quite marked pain, particularly at night and has only about 45° flexion and little internal rotation before he develops hip pain. Dr Halpin expressed the view that he could see no cause for Mr Henc’s symptoms apart from the hip joint itself[16].
[16] ARD p 63.
On 17 November 2020 Dr O’Sullivan reported to Dr Halpin that Mr Henc had sent an email that he was suffering debilitating pain and he had been bed ridden and suffered incontinence. Dr O’Sullivan advised this presentation cannot be explained on the basis of the pathology in the hip joint. The doctor asks Dr Halpin if he is happy to rule out any contribution from Mr Henc’s back, if so he will consider hip surgery[17].
[17] ARD p 51.
On 21 January 2021 an X-ray of the left hip revealed tears of the anterosuperior and superolateral labrum and probable element of femoroacetabular impingement. MRI scan revealed the tears and probable impingement and mild osteoarthritic change in the left hip. The radiologist noted the overall appearances are similar to the prior scan on 16 September 2019[18].
[18] ARD p 65.
On 27 Janaury 2021 Dr O’Sullivan reviewed Mr Henc and he warned Mr Henc any symptoms in the left leg and low back may not be improved by arthroscopy of the left hip[19].
[19] ARD p 53.
On 16 February 2021 Dr O’Sullivan reported to Dr Schofield about the complications encountered in the surgery as follows:
“Jordan was given a general anaesthetic and placed on the traction table as is our routine. A needle was then introduced into the hip joint under image intensifier control, again as is quite routine. Once the nitenol wire was passed, dilators are passed over this to enlarge the portal. On doing this, Jordan had an episode of profound asystole and dropped his cardiac output.
The operation at that stage was ceased whilst the Anaesthetist administered some atropine.
When it was safe to proceed we again redilated the hip joint capsule and again Jordan had a profound episode of asystole with a subsequent drop in cardiac output. ·
The decision was then made to abandon the procedure given the potential to cause significant cardiac compromise.[20]”
[20] ARD p 55.
On 18 February 2021 Professor Peter Vale, cardiologist, reported to Dr O’Sullivan[21]. Professor Vale performed a cardiac review following the severe cardiac complications when the left hip arthroscopic procedure was commenced on 16 February 2021. Professor Vale advised that Mr Henc has no structural heart disease. He advised when he comes to surgery again Atenolol should be withheld on the day of the surgery, and he should be pre-treated with a dose of Atropine on induction and it would be worthwhile having external pacing pads in place.
[21] ARD p 35.
On 23 February 2021 Ms Morrissey reported to Dr Schofield that they had assessed Mr Henc for hydrotherapy and had sought approval from the insurer to start the same. She noted that Mr Henc was reliant on Targin to function, and she recommended his enrolment in a pain management program[22].
[22] ARD p 74.
On 10 March 2021 Dr O’Sullivan reviewed Mr Henc and noted he was due to start the pain management program at Royal North Shore Hospital in May and was keen to have his hip replacement scheduled after that[23]. On 23 March 2021 Dr O’Sullivan sought approval from the insurer, mistakenly referring to the right hip instead of the left hip. On 6 April 2021 he answered the insurer’s questionnaire giving the reason for the surgery as “progression of the arthritic change in the right [sic] hip”. He advised that Mr Henc’s symptoms are more than suggested on the MRI scan imaging[24].
[23] ARD p 56.
[24] ARD p 60.
Dr O’Sullivan provided a report dated 30 September 2021[25]. He states Mr Henc has been a patient of his since 25 February 2020. He noted he recommended Mr Henc undergo a well structed hip rehabilitation program and subsequently in February 2021 an arthroscopy on the left hip, but that could not be completed because Mr Henc experienced a cardiac issue on induction of the anaesthetic. Dr O’Sullivan says following this Mr Henc recommenced a pain management program at Royal North Shore Hospital. Dr O’Sullivan says rather than pursuing a hip arthroscopy he has decided to proceed with a left hip replacement as he feels it is the best way to get Mr Henc back to gainful employment, despite his young age.
[25] ARD p 29.
In an earlier report dated 7 September 2021 to the insurer, Dr O’Sullivan stated that Mr Henc continues to be significantly disabled by his arthritic left hip and he thinks the arthritis has gone beyond the stage where arthroscopic intervention would afford him any meaningful relief. The doctor advises he has exhausted all non-operative measures[26].
[26] ARD p 31.
Mr Henc mentions at [27] of his statement that later in 2021 he was referred to Dr Nathan Taylor at the Northern Pain Centre where he stayed for three weeks where he was taught different methods to deal with his pain and that thereafter Dr Taylor referred him for hydrotherapy. Mr Henc says he underwent hydrotherapy in 2021 which was helpful, but he continued to suffer from pain in his left hip and low back. There are no reports before the Commission from Dr Taylor. Dr Bodel has a history about this treatment which means it must have occurred before October 2021, the date of Dr Bodel’s report.
In addition to the abovementioned treating reports, there are clinical notes and reports from Dr Schofield, many dealing with Mr Henc’s psychological conditions including reference to an adjustment disorder, generalised anxiety and major depression. In report dated
[27] ARD p 209.
31 March 2021 Dr Schofield advises the insurer of his belief that Mr Henc has substantial hip pathology which is causing chronic pain and attending a proposed pain clinic is appropriate to help maximise the gains after his proposed total hip replacement. Dr Schofield seems to support the need for such surgery[27].

Dr Isaacs

Dr Abe Isaacs provided medico-legal reports for the respondent dated 29 July 2020[28] and
[28] ARD p 81.
16 April 2021. Dr Isaacs diagnosed that Mr Henc had a “labral tear left hip/FAI, degeneration left hip and left sided sciatic nerve root irritation involving the S1 nerve root-cause not confirmed”. He advised that the prognosis was guarded because the source of the pain in the left hip had not been confirmed whether it was coming from degeneration of the left hip or labral tear. He added that the incident at work on 11 Janaury 2019 could have torn part of the labrum in the left hip and aggravated the underlying degeneration and injured the low back. Dr Isaacs advised the insurer the proposed arthroscopic surgery was reasonably necessary.
In the second report Dr Isaacs advised that he would prefer to review all the MRI scans of the left hip and their reports and clinically examine Mr Henc before answering the respondent’s question about the proposed surgery.

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided a medico-legal report dated 15 October 2021 for
[29] ARD p 21.
Mr Henc. Dr Bodel says he finds it “somewhat disconcerting” that Dr O’Sullivan has recommended a total hip replacement for Mr Henc given his age.[29] He lists the treatment being undertaken by Mr Henc as including Targin, Meloxicam, Lyrica, Melatonin and Panadol Oesteo as well as being under the care of a psychologist.
Dr Bodel conducted his examination via telehealth and stated that it was very difficult to assess his hip as he could not accurately measure the range of movement in either hip nor could he test reflexes or signs of sensory loss. Dr Bodel did note that Mr Henc has a very severe left sided limp which appears to be arising from his hip joint.
Dr Bodel noted the report of Dr Halpin finding a torn acetabulum labrum and femoroacetabular impingement and that the doctor had given a CT guided injection and found this was of temporary benefit which Dr Bodel says seems to imply that was the source of pain and the main pain generator is the hip joint itself. Dr Bodel also notes that
Dr O’Sullivan found that Mr Henc was struggling with pain arising from his left hip and he had recommended a hip rehabilitation program and Mr Henc try to lose weight. He also referred to the attempt by Dr O’Sullivan to perform an arthroscopy in February 2021 when Mr Henc experienced significant anaesthetic complications.
Dr Bodel says it is a very difficult decision whether to perform hip replacement surgery given Mr Henc’s young age and the complications he experienced previously with the anaesthetic. Dr Bodel says he is very reluctant and cautious in strongly recommending the surgery, notwithstanding there does not seem to be a viable alternative treatment. He states that he accepts Dr O’Sullivan’s extensive experience in this field, but Dr Bodel says he personally is reluctant to recommend the surgery in a 32 year old whose only joint abnormality is in the region of the left hip, without rheumatoid or systemic arthritic progress where this may have to be done at such an early age. He acknowledges it is probably inevitable that he should go ahead with the hip replacement.
Dr Bodel says a total hip replacement at age 32 inevitably will require revision at least twice and possibly three times in Mr Henc’s lifetime, which is quite a daunting proposition to set up for him.

Dr Bentivoglio

Dr John Bentivoglio, orthopaedic surgeon, provided a medico-legal report for the respondent dated 2 July 2021[30]. After setting out details of Mr Henc’s injury, subsequent treatment and examination findings Dr Bentivoglio provided the opinion that Mr Henc has a rather confusing and unusual history of initially developing low back pain as a result of his work activities and about one month later he started to experience symptoms in his left hip. He noted that an MRI scan of the left hip indicated that Mr Henc had a labral tear together with early degenerative osteoarthritis involving his hip.
[30] Reply p 15.

Dr Bentivoglio stated that Mr Henc displays far greater disability than he would expect considering his minor abnormalities seen on his investigations. Dr Bentivolio was also referred to investigations of the lumbar spine which he says showed some minor discal damage.
The doctor recorded that on physical examination by him Mr Henc had some discomfort on movement of the left hip, particularly at extremes of movement. Dr Bentivoglio found he had full range of movement.
Dr Bentivoglio says that Mr Henc is exceptionally young at age 32 to consider having a total hip joint replacement for the minor abnormalities seen on his investigations. The doctor casts doubt on the causal connection of the hip complaints to work activities. He noted that
Mr Henc had a significant anaesthetic complication in relation to the earlier attempt at arthroscope but acknowledges this is not his field of expertise.
The doctor advises that most people following a hip replacement have a good result. He does not recommend any alternate treatment.

Medical Assessor Kuru

Medical Assessor Kuru issued a Medical Assessment Certificate, Assessment of General Medical Dispute dated 10 June 2022. He noted at the time of his examination Mr Henc’s predominant symptom was left groin pain and he had pain in his left buttock and his back pain comes and goes. He was being treated with physiotherapy, hydrotherapy, exercise physiology, and is taking Targin, Nurofen, Lyrica and Meloxicam. He has a history of depression and anxiety and takes Fluoxetine and Noten. Mr Henc advised the doctor that he is restricted in all aspects of daily living due to his pain.
On examination Medical Assessor Kuru noted that Mr Henc walked with an antalgic gait and the Trendelenburg test was positive. Heel-toe stance was normal and lower limb reflexes were symmetrical. The hip range of motion was grossly irritable in all directions and on the left formal examination was not pursued. There was restricted range of motion in the right hip, which was less irritable than the left.
Medical Assessor Kuru advised that Mr Henc is significantly limited by his pain and ultimately will come to left total hip replacement. He suspects in the relatively near future he will become similarly symptomatic in the right hip and likely head to surgical treatment on the right. He adds:
“If Mr Henc is unable to manage his pain, the only real interventional option for him is a total hip replacement. Unfortunately, from my assessment today, I have grave concerns he will not have significant improvement in his pain subsequent to undergoing surgery and will remain significantly impaired.”
Medical Assessor Kuru says he agrees with Dr Bodel’s concerns about undertaking the surgery in a young man, but he says he is also in agreement that there is really no other option which has the capacity to relieve Mr Henc’s pain. He says the decision to undertake the surgery is appropriately referred to the treating surgeon and it is ultimately a decision for Mr Henc and Dr O’Sullivan. Medical Assessor Kuru expresses the opinion that the surgery is necessary due to a constitutional abnormality rather than the injury at work on 11 Janaury 2019.

Legal principles

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 section 60 of the 1987 Act was considered in Diab v NRMA Ltd[31] 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.”
[31] [2014] NSWWCCPD 72, Diab.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[32] with approval and stated:
[32] [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

These principles need to be considered in the context of the evidence in Mr Henc’s case. There is a divergence of opinion as to whether the left hip replacement surgery is reasonably necessary treatment.
As both counsels’ submissions have been sound recorded I will not refer to them verbatim and the main thrust of their submissions is referred to below.
Mr Henc’s counsel summarised Mr Henc’s statement and the medical evidence before the Commission, the main points of which I have summarised earlier in these reasons. Counsel submitted that Mr Henc has undertaken a wide range of conservative treatments such as physiotherapy, in-patient pain management, hydrotherapy, medication, sessions with a sports physician Dr Halpin, as well as consultations with his general practitioner and orthopaedic surgeon, Dr O’Sullivan, two injections into the hip, as well as the attempted arthroscopic surgery.
It was submitted that Dr O’Sullivan has not rushed into considering the performance of a left total hip replacement. In his initial assessment he arranged for Mr Henc to undergo a structured rehabilitation program and other conservative treatment. It was submitted that the proposed hip replacement surgery is not an ill-conceived recommendation.
It was also submitted that Professor Vale does not recommend against further surgery in relation to cardiac concerns.
Mr Henc’s counsel submits he should be afforded the opportunity of having the positive prospects of a change in course, rather than having to put up with his ongoing pain for the remaining 48 years of his life expectancy, as he has done for the last three years.
It was also submitted that Dr Isaacs had supported the arthroscopic surgery and the insurer had approved that surgery. It is noted in Dr Isaacs second report he is asked about
Mr Henc’s age as being too young for a total hip replacement, and he said “no”.
In relation to Dr Bentivoglio, counsel submitted his expression of opinion is more directed to his views about causation which has not been put in issue by the respondent. Mr Henc’s counsel relied upon Dr Bentivoglio’s statement that most people have a good result from hip replacement surgery.
Counsel submitted that while Dr Bodel did express reservations, he does accept the expertise of Dr O’Sullivan in this age group. It is also submitted that Medical Assessor Kuru at the end of his analysis finds there is no alternate treatment.
It was submitted that it is no way for Mr Henc to live his life, to continue on with his medication regime and other treatment, and the Commission should find the proposed total left hip replacement is reasonably necessary treatment.
The respondent relied upon the reservations expressed by Dr Bodel and Dr Bentivoglio. It was submitted that in addition to the concern about Mr Henc’s young age, Dr Bodel is concerned about the nature of the pathology in the left hip and noting that Dr Bentivoglio classed it as minor. It was also argued that the degenerative changes do not seem to have progressed as the 2021 MRI scan of the hip was compared by the radiologist with the earlier scan and the results were found to be similar.
The respondent observed that Medical Assessor Kuru found femoroacetabular impingement of both hips and he states that Mr Henc will ultimately come to left total hip replacement and it was submitted that the doctor, therefore, is not saying he needs the hip replacement now. It was also submitted that it is relevant that Medical Assessor Kuru states that Mr Henc will develop symptoms in the right hip. It was submitted that Medical Assessor Kuru has grave concerns that the total hip replacement may not be successful in improving his pain.
The respondent urged the Commission to find this surgery is not reasonably necessary treatment.
Mr Henc’s counsel submitted that a clinical examination was found by Dr Isaacs to be necessary to express an opinion as he would not give an opinion just based on the scans. It is noted that Dr Bodel did not examine Mr Henc physically and in the Medical Assessor Kuru’s recent examination he found Mr Henc walked with an antalgic gait and had a positive Trendelburg test. It was submitted these findings support Dr O’Sullivan’s recommendation that a hip replacement be undertaken. It was also submitted that Dr O’Sullivan emphasises the clinical presentation and not just the scan findings.

Determination

This matter is difficult to determine. I was concerned about the divergence of opinion as to whether the proposed hip replacement was reasonably necessary treatment, and in particular, the reluctance of Dr Bodel to endorse the performance of the same. Because of my concerns I caused a referral to be made to a Medical Assessor for a non-binding general medical assessment.
It does concern me that Mr Henc is very young for such surgery to be performed and as
Dr Bodel states a hip replacement now will lead Mr Henc to require further revisions as he ages, as a hip replacement now will not last for the duration of Mr Henc’s life expectancy.
Dr Bodel also expresses reluctance for the surgery to be undertaken because of the significant cardiac reaction Mr Henc had when Dr O’Sullivan tried to perform the arthroscopic procedure. Fears of repeat problems in that regard have been somewhat allayed by the opinion from Professor Vale, who has provided advice to Dr O’Sullivan how to manage future surgery.
Other factors that cause me concern is Mr Henc’s weight and that he suffers from a psychological condition. Often workers with such presentations do not have optimal outcomes from surgery.
Of more particular concern is Dr Bodel’s comment that the only joint abnormality is in the region of the left hip without generalised rheumatoid or systemic arthritic progress where hip replacement may have to be done at an early age.
However, Dr Bodel does advise that Dr O’Sullivan is a very experienced orthopaedic surgeon in this particular aspect of treatment in this age group. Also, clearly Dr Halpin and
Dr Schofield have faith in Dr O’Sullivan’s recommendation for a left total hip replacement.
Medical Assessor Kuru on his recent physical examination noted that Mr Henc walked with an antalgic gait and the Trendelenburg test was positive and his hip range of motion was grossly irritable in all directions. He states there is no other treatment option to relieve
Mr Henc’s pain and the decision to perform the operation should be left to Mr Henc and
Dr O’Sullivan. Medical Assessor Kuru considers the hip surgery to be as a result of an underlying condition not the work injury and as the respondent submitted he does express some concern as to whether Mr Henc’s pain will be resolved by the surgery.
Dr Bentivoglio does not recommend the surgery due to Mr Henc’s age but also because he considers the pathology in his left hip to be minor. He also finds the presentation of Mr Henc to be disproportionate to his injury.
I consider that the weight of the medical opinion is supportive of the recommendation of
Dr O’Sullivan being accepted. Not only does Dr Bodel attest to his expertise, I find it is of relevance that Dr O’Sullivan has seen Mr Henc over quite a lengthy period of time and has had the opportunity to evaluate his left hip on more than one occasion. I find he is ultimately in the best position to judge whether left hip replacement surgery is appropriate treatment taking into account the nature of pathology in the left hip and Mr Henc’s age. I accept the submission made by Mr Henc’s counsel that Dr O’Sullivan has not rushed into performing this surgery and he caused Mr Henc to undergo a wide range of conservative treatment measures first. This included the hip rehabilitation program that Ms Morrissey devised which included the following:
“• Weekly physio to progress rehab and provide manual treatment when indicated.
• Weekly remedial massage to manage pain and soft tissue tightness relating to rehab.
• Referral to a dietician for assistance with weight loss.
• Continuation of clinical psychology to manage stress and mental health issues.
• Gym program (as set by physio) x3-4 weekly.
• Hydrotherapy x2-3 weekly for pain relief and continuation of CV fitness training/weight loss.
• Home assistance with chores and yard work etc.”
I find this was a comprehensive program and later it was augmented by the in-patient pain management program as well as the ongoing treatment and investigations undertaken by both Dr Halpin and Dr O’Sullivan.
In the case of Diab several criteria are discussed including the availability of alternative treatment, and its potential effectiveness. I consider that Mr Henc has established that there is not alternate treatment, which he has not tried which has the potential to be effective. The cost of the total hip replacement has not been raised by the respondent as a factor to decide against the treatment and, in any event, I find it is within the range of accepted costs for treatment. The main issue is whether this type of surgery is appropriate for Mr Henc. There is ample evidence that hip replacements generally are recognized as effective treatment.
I have taken into account the evidence relating to Mr Henc’s young age and the fact that it is likely he will need several revisions of the surgery in the future. As I have mentioned, while there was an adverse outcome when the arthroscopy was attempted Professor Vale has given advice to Dr O’Sullivan as to how further surgery can be safely undertaken and I accept Mr Henc’s submission that it is relevant that Professor Vale did not rule out further surgery being undertaken.
It does concern me that Dr Bodel and Dr Bentivoglio have commented on the pathology in the left hip as being of a lesser level than to support surgery at a young age. However,
Dr O’Sullivan has caused various scans and X-rays to be undertaken and he has considered that a left total hip replacement is appropriate to deal with the pathology in the hip largely based on his clinical examinations of Mr Henc. I consider more weight should be afforded to his opinion given he is the treating orthopaedic specialist who is to undertake the surgery and given his expertise attested to by Dr Bodel.
In support of this conclusion, I accept the submission of Mr Henc that it is relevant that Medical Assessor Kuru on his recent physical examination noted that Mr Henc walked with an antalgic gait and the Trendelenburg test was positive and his hip range of motion was grossly irritable in all directions. These findings, in my view, support the approach being recommended by Dr O’Sullivan. As to the timing of the surgery and the respondent’s argument that Assessor Kuru did not recommend it be undertaken now, I consider that is a matter for the treating surgeon to evaluate.
As to the respondent’s submissions that Medical Assessor Kuru expressed views that he was concerned that the surgery would not end Mr Henc’s pain, in Diab at [88] Roche DP found “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”. Dr Halpin and Dr O’Sullivan have expressed quite firm views that the hip is the source of Mr Henc’s pain and hopefully the operation will relieve the pain, particularly with the supports which are put in place to support patients like Mr Henc after such surgery.
Even though I have some reservations about this surgery, for the reasons given above I have determined it is reasonably necessary treatment.

SUMMARY

Pursuant to section 60 of the 1987 Act I find the left hip replacement surgery and associated treatment is reasonably necessary treatment as a result of injury sustained by the applicant on 11 January 2019 in the course of his employment with the respondent.
I order that the respondent is to pay the costs of the proposed left hip replacement surgery and associated treatment pursuant to section 60 of the 1987 Act in accordance with the workers compensation gazetted rates.

[2022] NSWPIC 390

19 July 2022