Honarvar v Professional Painting AU Pty Ltd
[2022] NSWPICPD 12
•31 March 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12 |
| APPELLANT: | Ali Honarvar |
| RESPONDENT: | Professional Painting AU Pty Ltd |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-W2312/21 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 31 March 2022 |
ORDERS MADE ON APPEAL: | 1. The Member’s decision dated 9 August 2021 is revoked and the following decision is made in its place: (a) The respondent is to pay the appellant’s expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of employment injury sustained on 8 July 2017. (b) It is ordered pursuant to s 60(5) of the Workers Compensation Act 1987 that the expenses payable are to include: (i) the appellant’s reasonable costs of and incidental to surgery being an L5/S1 anterior lumbar interbody fusion as recommended by Dr Al Khawaja in his report dated 21 July 2020, and (ii) the reasonable costs of the supply to the appellant of a Tempur Elara mattress and base (or its near equivalent) consistent with the mattress and base described in the relevant quotation attached to the Application to Resolve a Dispute in these proceedings at pages 220 to 223. |
| CATCHWORDS: | WORKERS COMPENSATION – Sections 59 and 60 of the Workers Compensation Act 1987 – ‘reasonably necessary’, ‘curative apparatus’ – Diab v NRMA Ltd [2014] NSWWCCPD 72; Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216; evidence in the Commission – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308; factual error |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Malouf, counsel | |
| Alliance Compensation and Litigation Lawyers | |
| Respondent: | |
| Mr D Russell, solicitor | |
| Rankin Ellison Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr J Wynyard |
| DATE OF MEMBER’S DECISION: | 9 August 2021 |
INTRODUCTION
Ali Honarvar (the appellant) started working with Professional Painting AU Pty Ltd (the respondent) as a full-time painter from about 2016. On 8 July 2017 he was painting a ceiling in a residential property, working from a ladder. One of his work boots became caught between the rungs of the ladder, and he fell to the ground landing on his right ankle. He was taken to hospital by ambulance and has not worked since. On 11 July 2017 Dr Dave, an orthopaedic surgeon, performed an open reduction and fixation of the right ankle. The appellant states that he was on crutches thereafter. He developed low back and neck pain following the accident, for which the respondent’s insurer accepted liability.[1]
[1] Appellant’s statement, 23/10/20, [8]–[21], Application to Resolve a Dispute (ARD), pp 1–3.
The appellant developed difficulties with anxiety and depression. He saw a psychologist and psychiatrist from early 2018. He had further surgery on the right ankle on 14 April 2018, again performed by Dr Dave, to remove the plate and screws from the earlier surgery. In June 2019 the appellant had a further procedure to the ankle, this time performed by Dr Carmody, involving arthroscopic debridement.[2] None of these further procedures much helped. The appellant came under the care of Dr Al Khawaja, a neurosurgeon, from late 2019. An MRI scan demonstrated disc protrusions at C5/6 and C6/7. Dr Al Khawaja performed facet joint injections to the neck which provided limited assistance. The doctor recommended an anterior lumbar fusion at L5/S1.[3] He also recommended that the appellant sleep on a firm mattress.[4]
[2] Appellant’s statement, 23/10/20, [24]–[25].
[3] Appellant’s statement, [36]–[39]. Dr Al Khawaja report 21/7/20, ARD, p 68.
[4] Dr Al Khawaja report 30/9/20, ARD, p 70.
The respondent arranged a medical examination with Dr Sheehy, a neurosurgeon, who reported to the insurer on 8 September 2020.[5] Dr Sheehy described the appellant’s “prognosis for improvement” as “remote”. He said the failure of conservative treatment was “not an indication for anterior lumbar surgery”. The surgery was “not reasonably necessary”. The insurer, on 29 October 2020, issued a s 78 notice denying liability for the cost of the proposed lumbar surgery on the basis that it was not reasonably necessary,[6] relying on the opinion of Dr Sheehy. On 26 November 2020 the insurer issued a notice pursuant to s 78 denying liability for the cost of a bed, a “Tempur Elara Mattress and Base”.[7] That dispute notice relied on decisions in Cooper v State Rail Authority of NSW[8] and Tucci v Q C Cleaning Solutions Pty Ltd,[9] as authority that the mattress and base did not fall within the definition of ‘medical or related treatment’ in s 59 of the Workers Compensation Act 1987 (the 1987 Act). These decisions were not disturbed by the insurer on review pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[10]
[5] Reply, pp 1–7.
[6] ARD, pp 15–18.
[7] ARD, pp 19–22.
[8] (2001) 25 NSWCCR 25 (Cooper).
[9] [2016] NSWWCC 278.
[10] ARD, pp 23–30.
Dr Al Khawaja reported to the appellant’s solicitors on 16 March 2021.[11] He described the proposed lumbar fusion as “reasonably necessary”. He said the appellant had “tried all pain management types including painkillers, physiotherapy, injections and nothing helps his condition”. The doctor said “there is a good chance for this to help his current symptoms although I cannot guarantee it”.[12]
[11] ARD, pp 71–77.
[12] ARD, p 76.
The current proceedings were commenced on 11 June 2021 and were listed for arbitration hearing on 19 July 2021. Mr Malouf appeared for the appellant and Mr Hunt for the respondent. Counsel for the parties addressed and the Member reserved his decision.
The Commission issued a Certificate of Determination dated 9 August 2021.[13] The Member accepted the respondent’s argument that the bed and mattress did not fall within the definition of ‘curative apparatus’ in cl (e) of the definition of ‘medical or related treatment’ in s 59 of the 1987 Act. The Member did not accept that the proposed lumbar surgery was ‘reasonably necessary’ treatment. He entered an award in favour of the respondent.
[13] Honarvar v Professional Painting AU Pty Ltd [2021] NSWPIC 282 (the reasons).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE MEMBER’S REASONS
The Member summarised the appellant’s statements. This included the following from the statement dated 23 October 2020:[14]
“I feel that I should undergo the proposed treatment because I cannot live with this constant back pain. I would prefer not to have the surgery because I am scared of not waking up after the anaesthetic but I cannot handle this pain any longer. I will do anything to reduce my symptoms and hopefully return to a normal life”.
“I feel I have exhausted all other forms of conservative treatment and have no option but to undergo surgery.”
“[The appellant] observed that he had received extensive physiotherapy, cortisone injections, epidural injections, hydrotherapy and analgesic pain medication. He said he had done everything that his doctors had asked of him, but despite those treatments he continued to suffer symptoms in his lower back which interfered with his ability to carry out his daily duties.”
“[The appellant] explained that he used to be a fit and active person carrying out a variety of outdoor exercises and being able to work in a physical job without any problems. In contrast, because of the back injury he had to stay at home all the time to rest. His back pain had left him barely able to sleep, he struggled to walk, he could not bend over, he had to have a shower using a chair and his independence had been taken away.”
“In addition, I also want to undergo the proposed treatment so that I can have neck surgery”.
“He explained that Dr Al Khawaja had told him that he could not have the neck surgery until he had had the surgery to his back.”
[14] Reasons, [14]–[19].
The Member also referred to the appellant’s statement dated 27 May 2021 in which he described taking a number of medications “because of the increased psychological impact” and referred to himself as taking a “cocktail of different medication”. The appellant described “no improvement with pain management” and also stated “[w]hat I want is to get better so I can move along with my life”.[15]
[15] Reasons, [20]–[23], [27].
The Member summarised the reports from Drs Al Khawaja, Darwish and Carmody on which the appellant relied, together with a report from Recovre titled “Activities of Daily Living”.[16] He summarised the reports from Dr Sheehy.[17]
[16] Reasons, [28]–[62].
[17] Reasons, [64]–[71].
The Member summarised the parties’ submissions. The respondent acknowledged that injury to the back and neck had been accepted, in addition to injury to the right ankle. Dr Carmody (who treated the right ankle) described the appellant as not a “great candidate” for surgery. Dr Carmody considered pain management was necessary to assist the appellant in coping with his pain.[18] The respondent submitted the Member should not accept Dr Al Khawaja’s opinion on lumbar surgery. The doctor said that other conservative treatments were exhausted, he did not explain how the surgery would result in improvement. The respondent submitted the complaints of dermatomal pain were inconsistent.[19] The respondent submitted the evidence of Dr Sheehy should be preferred to that in the appellant’s case. There were no clinical notes from the appellant’s general practitioner, physiotherapist, psychiatrist or psychologist. It was significant that the appellant was under psychological care.[20]
[18] Reasons, [74]–[75].
[19] Reasons, [77]–[80].
[20] Reasons, [81]–[82].
The respondent submitted the claimed bed and mattress did not fall within the definition of ‘curative apparatus’ in s 59. The report from Recovre indicated the appellant’s existing bed was old, and it was submitted the need for the bed did not result from the injury.[21]
[21] Reasons, [84].
The Member referred to the appellant’s submissions. Dr Al Khawaja and Dr Sheehy both commented on compression of the left L5 nerve root. The appellant was a compliant patient. Dr Al Khawaja assessed the appellant nine times. There was no evidence of other conservative treatment that should have been trialled, beyond that which had been unsuccessful. Dr Sheehy regarded the prognosis as poor in any event, with or without surgical treatment. On the evidence there was a chance the surgery might assist, this was sufficient to satisfy the test in Diab v NRMA Ltd.[22] The appellant submitted the need for the bed was supported by Dr Al Khawaja, and that it fell within s 59 as ‘curative apparatus’.[23]
[22] [2014] NSWWCCPD 72 (Diab).
[23] Reasons, [85]–[91].
The Member referred to the test set out by Roche DP in Diab, which he quoted and described as “the accepted criteria that needs to be considered in cases of this nature”.
The Member said that the effectiveness of available alternative treatments is one of the factors to be considered, applying Diab. This requires more than just a worker’s self-assessment. The Member said the evidence about the effectiveness of alternative treatments came principally from the appellant’s statements. The Member raised questions about the adequacy of the appellant’s evidence on these matters based on his subjective beliefs. If the treatments were ineffective, why did the appellant continue with them? Reference was made to medication, physiotherapy and hydrotherapy.[24]
[24] Reasons, [94]–[101].
The Member said that the treating practitioners on whom the appellant relied “recommended the surgery on the basis that nothing else had worked”. Dr Al Khawaja recommended surgery because the appellant had tried “all pain management types including painkillers, physiotherapy, injections, and nothing helps his condition.” Dr Darwish thought surgery was reasonable as the appellant “has failed to respond to all forms of conservative treatment”. Dr Carmody eventually proceeded with right ankle surgery as the appellant had “exhausted non-operative treatment.” The appellant’s response to this ankle surgery was that he was “perhaps worse than pre-operatively”. [25]
[25] Reasons, [102]–[105].
The Member said that answers to many of the questions he asked in his reasons were “usually to be found in the clinical notes of the various treating practitioners”. The Member said that the appellant’s failure “to lodge any supporting material from any of the practitioners who provided the alternative treatment has left a lacuna in his evidence”. What was the opinion of the appellant’s psychiatrist and psychologist regarding his mental state? The absence of such evidence left open the possibility that the appellant’s recovery was not occurring due to his mental state, rather than the failure of alternative treatments. The Member said he was not satisfied that the criterion regarding the availability of alternative treatment had been properly addressed.[26]
[26] Reasons, [106]–[108].
The Member said that additionally he was not persuaded that the proposed surgery was appropriate. Dr Carmody had expressed misgivings regarding further right ankle surgery as some depression contributed to the appellant’s pain and this “compromised any result of major surgery”. The Member said these misgivings proved to be accurate.[27]
[27] Reasons, [109].
The Member said Dr Al Khawaja described the appellant’s back injury as “significant” as the MRI scan dated 4 December 2019 showed a bulge at L5/S1 “pushing the left L5 nerve root”, which explained the appellant’s symptoms. The Member said Dr Al Khawaja repeated this opinion in his report dated 16 March 2021, unaware that a further MRI scan on 17 September 2020 “showed no L5 nerve compression of significance”.[28]
[28] Reasons, [110]–[111].
The Member referred to Dr Darwish who compared “that scan” to an earlier scan dated 17 November 2007 (sic, 2017) saying that the “2007 scan showed ‘potential compression of the left L5 nerve root’”. The Member said that Dr Al Khawaja was unaware of the later scan that showed the pathology had “altered by 2020 to the extent that Dr Darwish simply described the injury as an aggravation of degenerative changes”. The Member said he was “not satisfied therefore that the injury is now as significant Dr Al Khawaja assumed on the basis of the outdated MRI”. He said this affected the question of the effectiveness of the surgery. Dr Darwish indicated there was “at best” only a 50 per cent chance of success, with a small chance of making the symptoms worse. This was “not a ringing endorsement”. Dr Al Khawaja thought there was a “good chance” the procedure would help but said “I cannot guarantee it”.[29]
[29] Reasons, [112]–[113].
The Member referred also to Dr Carmody’s reservations based on the appellant’s mental state, which he considered relevant to whether the proposed surgery was “actually or potentially effective”. The Member said this reinforced Dr Sheehy’s view that it was “unlikely that the proposed surgery would result in any significant improvement or associated functional gains”. He accepted that “failure of conservative management is not an indicator for anterior lumbar surgery”. He accepted the opinion of Dr Sheehy that pain management was the appropriate treatment, “more likely to alleviate [the appellant’s] condition than the proposed surgery”. The Member declined the application for a declaration regarding the proposed surgery.[30]
[30] Reasons, [115]–[116].
The Member referred to the claim for “$33,700 for an orthopaedic mattress and bed”. He said it was common ground that the only item in subp (e) of the definition in s 59, within which the bed and mattress could arguably fall, was ‘curative apparatus’. The Member said the reasons for the bed largely fell away given his view regarding the surgery (the bed would not be needed to recover from surgery). He said there are “no particular therapeutic or curative qualities in the purchase of a mattress of a type that is commonly used by members of the public”. He referred to the exorbitant cost. There was also an award for the respondent in respect of the claim for the cost of the mattress and the bed.[31]
[31] Reasons, [118]–[119].
GROUNDS OF APPEAL
These grounds and the associated submissions are taken from the appellant’s amended submissions on appeal dated 15 September 2021. It should be noted that the list of the “Member’s findings” appearing at [17] of its submissions does not fully marry up with the list of Grounds of Appeal appearing from [18] onwards in the appellant’s submissions. The grounds enumerated below follow the order in the grounds described at [18] onwards. The references to the respondent’s submissions are to the amended submissions dated 25 October 2021. The appellant raises the following grounds of appeal:
(a) The Member erred in failing to apply the correct legal test under s 60 of the 1987 Act. (Ground No. 1)
(b) The Member erred in making factual findings that were not open to him on the evidence including that the appellant had based his case on the assumption that all he has to prove is that alternative treatment has not been effective. This involved a breach of procedural fairness. (Ground No. 2)
(c) The Member erred in failing to provide sufficient reasons about why he was not assisted by the appellant’s self-assessment as to the effectiveness of the alternative treatment he received. (Ground No. 3)
(d) The Member erred in making factual findings that were not open to him on the evidence including that the evidence about the effectiveness of alternative treatment principally came from the appellant only. (Ground No. 4)
(e) The Member erred in making factual findings that were not open to him on the evidence including that treating practitioners recommended surgery on the basis that nothing else had worked. (Ground No. 5)
(f) The Member erred in making factual findings that were not open to him on the evidence including that there was a failure to lodge any supporting material from any of the practitioners who provided the alternative treatment. (Ground No. 6)
(g) The Member erred in finding that the appellant’s mental state is what is preventing him from recovery. This was an error of law and fact. (Ground No. 7)
(h) The Member erred in finding that the criterion of the availability of alternative treatment had not been properly addressed. This was an error of law and fact. (Ground No. 8)
(i) The Member erred in making factual findings that were not open to him on the evidence including that Dr Al Khawaja was not aware of the MRI dated 17 September 2020, which showed no nerve compression of significance and, therefore, that he was not satisfied that the claimant’s injury is now as significant [as] Dr Al Khawaja assumed on the basis of the outdated MRI. (Ground No. 9)
(j) The Member erred in finding that the surgery would not have potential or actual effectiveness. This was an error of law and fact. (Ground No. 10)
(k) The Member erred in relying upon Dr Carmody’s opinion of pain management being the appropriate treatment. This was an error of law and fact. (Ground No. 11)
(l) The Member erred in finding that the appellant’s mental state is what is preventing him from recovery. This was an error of law and fact. (Ground No. 12) (This ground repeats Ground No. 7 above.)
THE NATURE OF THE APPEAL
The appeal is one brought pursuant to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[32] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[33] to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[34]
[32] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[33] (1966) 39 ALJR 505, 506 (Whitely Muir).
[34] Raulston, [19].
Basten JA in Workers Compensation Nominal Insurer v Hill[35] said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[36]
[35] [2020] NSWCA 54 (Hill).
[36] Hill, [20].
In Northern NSW Local Health Network v Heggie[37] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[38]
[37] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[38] Heggie, [72].
LEGISLATION
The definition of ‘medical or related treatment’ in s 59 of the 1987 Act provides:
“medical or related treatment includes—
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(c) (Repealed)
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1) domestic assistance services,
(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
Section 60 of the 1987 Act relevantly provides:
“Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) 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).
…
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
THE TEST OF ‘REASONABLY NECESSARY’ IN SECTION 60
Burke CCJ dealt with the test of reasonably necessary in Rose v Health Commission (NSW).[39] His Honour referred to the word ‘includes’ at the commencement of the definition in s 59 (see [30] above). His Honour noted that whilst the definition “purports to ‘include’ the matters thereafter enumerated, that definition is in fact exhaustive: Lamont v Commissioner for Railways [1964] NSWR 406; Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216.” The ongoing relevance of Thomas, albeit in a different context, was confirmed in Pacific National Pty Ltd v Baldacchino.[40]
[39] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[40] [2018] NSWCA 281, [34].
His Honour, following a careful analysis of s 60, set out the following “general principles”:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
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, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party 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.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”[41]
[41] Rose, 47–48.
In Diab Roche DP dealt with the term ‘reasonably necessary’ in the context of s 60 of the 1987 Act. The Deputy President, applying Clampett v WorkCover Authority (NSW),[42] said that the word ‘reasonably’ was “used as a diminutive and moderated the effects of the word ‘necessary’ … reasonably necessary is a lesser requirement than ‘necessary’”.[43] The Deputy President concluded that matters relevant to the issue of ‘reasonableness’ included, but were not necessarily limited to, the matters raised in Rose at “5” in the passage quoted immediately above. The Deputy President also observed, and I agree, that “each case will depend on its facts”.[44]
GROUND NO. 1 – FAILURE TO APPLY THE CORRECT TEST
[42] [2003] NSWCA 52; 25 NSWCCR 99.
[43] Diab, [84]–[86].
[44] Diab, [88]–[89].
Appellant’s submissions
The appellant’s submissions state that numerous errors flow from a failure to correctly apply the appropriate test. The appellant submits the Member focussed “on what evidence of alternative treatment was not before him”, rather than what evidence was before him that may be helpful to the appellant. It is submitted the errors are “elucidated” by submissions dealing with the “decision that ought to have been made”.[45] This does not much assist in identifying the errors that allegedly constitute Ground No. 1.
[45] Appellant’s submissions, 1/9/21, [19]–[20].
Respondent’s submissions
The respondent refers to the decisions in Rose and Diab, on which it says it relies. It submits the Member was guided by those principles. It submits the appellant’s statements raised questions about alternative treatment, which the appellant’s evidence did not answer. This supported the Member’s conclusion that ‘alternative treatment’ had not been properly addressed. It submits the test was applied correctly.[46]
[46] Respondent’s submissions, [11]–[16].
Consideration
The appellant refers to a non-presidential member decision in Brown v Wingham Beef Exports Pty Ltd,[47] which is described as containing a helpful summary of the law.[48] The lengthy quoted passage includes references to authorities such as Briginshaw v Briginshaw[49] and Nguyen v Cosmopolitan Homes,[50] which are relevant to discharge of the onus of proof in a general sense more than the test to establish liability under s 60. The passage refers to Rose and Diab, both of which are accepted authorities dealing with the test of ‘reasonably necessary’ in s 60 of the 1987 Act. Diab and Rose are quoted in the Member’s decision and are there referred to as “the accepted criteria that needs to be considered”. The parties do not disagree on the statutory test. The Member accepted that Rose and Diab set out the criteria to be applied.
[47] [2021] NSWPIC 272.
[48] Appellant’s submissions, [6].
[49] [1938] HCA 34; 60 CLR 336.
[50] [2008] NSWCA 246.
The issue is whether there was error in its application. This is alluded to in only the most general way in the appellant’s submissions dealing with Ground No. 1, which do not satisfactorily identify error. Ground No. 1 is not a ‘stand-alone’ ground. The appellant submits the errors are elucidated by later submissions dealing with the decision which should have been made. The later grounds, which are dealt with below, identify various factual errors. The submissions dealing with “The decision that ought to have been made” are set out over three pages at [41] to [59] of the appellant’s submissions. These submissions do not purport to relate to any particular ground of appeal. Ground No. 1 does not sufficiently identify appealable error.
GROUND NO. 2 – MAKING FACTUAL FINDINGS THAT WERE NOT OPEN
GROUND NO. 3 – REASONS RELEVANT TO THE APPELLANT’S SELF-ASSESSMENT REGARDING ALTERNATIVE TREATMENT
GROUND NO. 4 – MAKING A FACTUAL FINDING NOT OPEN, THAT EVIDENCE ABOUT ALTERNATIVE TREATMENT CAME ONLY FROM THE APPELLANT
GROUND NO. 5 – MAKING A FACTUAL FINDING NOT OPEN, THAT TREATING PRACTITIONERS RECOMMENDED SURGERY AS NOTHING ELSE WORKED
GROUND NO. 6 – MAKING A FACTUAL FINDING NOT OPEN, THAT NO SUPPORTING MATERIAL WAS LODGED FROM PRACTITIONERS WHO PROVIDED ALTERNATIVE TREATMENT
There is overlap between these grounds and it is convenient to deal with them together.
Appellant’s submissions
Grounds Nos. 2 and 3
The appellant submits, in a general sense, that there are multiple errors that result from a failure to apply the correct test to what is ‘reasonably necessary medical treatment’ for the purposes of s 60 of the 1987 Act. Grounds Nos. 2 and 3 relate to alleged error in the reasons at [94] where the Member said:
“[The appellant] has clearly based his case on the assumption that all he has to prove is that alternative treatment has not been effective. I am grateful for the care taken by the [appellant] in preparing his statements by reference to the alternative treatments he has tried, and the chronology thereof, but such reference does not constitute proof of the assertion made by [the appellant] himself, and by the practitioners who supported him, of anything more than that alternative treatment was available. I was not assisted by [the appellant’s] self-assessment as to its effectiveness.”
The appellant submits that, in the running of the case, he submitted on the basis that what was required was proof that the claimed treatment was reasonably necessary by reference to Diab and Rose. It was inaccurate to state that the appellant’s case was based on some other assumption, that all the proof required was that alternative treatment had not been effective. The appellant submits it was accepted that the effectiveness of alternative treatment was one of a number of considerations. The appellant submits the Member, in the above passage from the reasons, misdescribed the basis on which the appellant’s case was conducted.[51]
[51] Appellant’s submissions, [19], [21].
The appellant submits the Member failed to give sufficient reasons for why he was not assisted by the appellant’s self-assessment of the effectiveness of alternative treatment (see reasons at [94] quoted at [40] above). The appellant submits that this involved a breach of the principles governing procedural fairness The intermingling of the arguments going to the adequacy of reasons and a breach of procedural fairness principles has the capacity to cause confusion.
The appellant submits:
(a) the respondent did not seek to cross-examine the appellant;
(b) other evidence was not inconsistent with that of the appellant on this topic, by either proving the appellant did not obtain the relevant alternative treatment or proving the alternative treatment was effective, and
(c) the appellant’s evidence on this topic was consistent with his medical histories, for example Dr Al Khawaja’s reports from 25 May 2020 onwards.
The appellant refers to a decision of Parker SC ADP in Finney Pty Ltd t/as Cut Price Car Rentals v Chequer.[52] The appellant submits the Commission owes procedural fairness to parties and witnesses. After considering New South Wales Police Force v Winter,[53] the Acting Deputy President in Chequer said:
“These decisions show:
(a) that in appropriate circumstances leave to cross-examine should be sought and obtained,
(b) section 354 required the Workers Compensation Commission to ensure that the parties are afforded procedural fairness and that the determination accords with good conscience.”[54]
[52] [2021] NSWPICPD 13 (Chequer).
[53] [2011] NSWCA 330 (Winter).
[54] Chequer, [58].
The appellant submits that, given the absence of cross-examination and contrary evidence, procedural fairness required that the Member not simply disregard the appellant’s evidence about the alternative treatment. “It must be asked - who else could possibly give evidence of the effectiveness of alternative treatment besides the patient.” The appellant submits the Member did not give “actual reasons” for not accepting the evidence, but simply said he was not assisted by it.[55]
[55] Appellant’s submissions, [22]–[26].
Ground No. 4
The Member made the following finding in the reasons at [97]:
“The evidence as to the effectiveness of the alternative treatment comes principally from [the appellant]. In his statements he mentioned that he had undergone pain management with Dr Nazha, but that he was frustrated with the advice he received that he should continue conservative treatment, and that he did not feel that the medication had any effect.”
The appellant submits the above failed to take account of an epidural injection to the lumbar spine on 26 February 2020. The pain settled for a few days but then returned.[56]
[56] Appellant’s submissions, [27].
Ground No. 5
In the reasons at [102] the Member found:
“The reports from those treating practitioners that [the appellant] relied upon were also unhelpful in considering the criteria, as they too recommended the surgery on the basis that nothing else had worked.”
The appellant submits this misstates the evidence from Dr Al Khawaja. The doctor did say that surgery was reasonably necessary because pain management had failed and nothing else helped. He also said that the appellant was getting worse, that an MRI showed significant damage at L5/S1 and the only option was a fusion, which had a good chance of helping. The doctor said that without the surgery the appellant would be disabled and unfit to perform any duties.[57]
[57] Appellant’s submissions, [28].
Ground No. 6
In the reasons at [106] the Member said:
“The answer to many of the questions that I have raised are usually to be found in the clinical notes of the various treating practitioners in the event that no reports had been lodged from them. The failure by the applicant to lodge any supporting material from any of the practitioners who provided the alternative treatment has left a lacuna in his evidence that Mr Malouf was, with respect, unable to repair in his submissions.”
The appellant submits the above fails to take account of Dr Al Khawaja, who performed an epidural injection by way of alternative treatment. The appellant refers to a referral from Dr Rawof which details medication taken by the appellant.[58]
[58] Appellant’s submissions, [29].
The appellant additionally adds a further point to this ground. He adds a reference to the reasons at [88] where the Member said:
“When asked as to why evidence from the various providers had not [been] tendered, Mr Malouf submitted that the evidence by the [appellant] sufficiently described his attempts to avail himself to further treatment, and that such further material was not relevant.”
The appellant submits that the transcript does not reveal any such submission on the part of the appellant’s counsel.[59]
Respondent’s submissions
[59] Appellant’s submissions, [29(a)].
Ground No. 2
The respondent submits the finding made by the Member at [94] of the reasons was open and “supported by the medical and factual evidence and should be undisturbed”.[60]
[60] Respondent’s submissions, [17].
Ground No. 3
The respondent submits the appellant has failed to identify error. It submits the Member did give sufficient reasons. It submits the Member did not reject the appellant’s evidence; rather he considered that further evidence was required to support the appellant’s assertions regarding the availability and effectiveness of the alternative treatment. The respondent disputes that the Member failed to provide procedural fairness to the appellant.[61]
[61] Respondent’s submissions, [18], [19], [26]–[27].
Ground No. 4
The respondent submits the factual finding made at [97] was open and was supported by medical and factual evidence.[62]
[62] Respondent’s submissions, [28].
Ground No. 5
The respondent submits the factual finding made at [102] was open and was supported by medical and factual evidence.[63]
[63] Respondent’s submissions, [29].
Ground No. 6
The respondent submits the factual finding made at [102] was open and was supported by medical and factual evidence.[64]
[64] Respondent’s submissions, [30].
Consideration of Grounds Nos. 2 and 3
Grounds Nos. 4 to 6 identify more confined factual errors. Grounds Nos. 2 and 3 are framed more generally, on the basis of the test applied and the alleged inadequacy of the reasons. The appellant specifically refers to the Member’s finding, that he was not assisted by the appellant’s “self-assessment” of the effectiveness of his alternative treatment. Ground No. 3 also alleges a breach of the principles of procedural fairness.
The appellant’s argument, relating to an alleged error in the opening sentence of the reasons at [94], requires a more general consideration of the basis on which the matter was conducted and decided. The Member said that the appellant “clearly based his case on the assumption that all he has to prove is that alternative treatment has not been effective”. The remark was unfortunate, but I doubt that it was meant to be taken literally. The parties did not conduct the case on such a basis.
The respondent’s counsel submitted, before the Member, on the absence of treatment records from the appellant’s “physiotherapist or the pain management specialists”.[65] He addressed in a more general sense on the treatment performed. The respondent’s counsel was critical of Dr Al Khawaja’s reports on the basis that they failed to provide a reasoned explanation as to how the surgery would assist”.[66] He was critical of Dr Darwish for the same reason.[67] He addressed on alleged inconsistencies in the neurological signs.[68] He commented on the absence of notes from the pain management team, “the physio” and the GP, which may have enabled consideration of whether there was “any positive outcome from conservative management”.[69]
[65] Transcript pf proceedings 19/7/21 (T), 3.20.
[66] T 8.20–21, 8.27–9.8, 10.17–19.
[67] T 11.1–5.
[68] T 11.28–32.
[69] T 12.20–12.25.
The appellant’s counsel addressed on conservative treatment undertaken by the appellant, on the basis of the appellant’s statement, which he was not cross-examined on. The Member interjected that there was no evidence of “what that alternative treatment was”, and the Member enquired whether that was the “best evidence”.[70] In response to a direct question from the Member, the appellant’s counsel replied that the “best test” was that described in Diab. The appellant’s counsel described the “availability of alternative treatment” as one of the criteria, but “not determinative”.[71] The Member enquired of counsel “What if they [the alternative treatment providers] said he’s too pain-focussed?”, to which the appellant’s counsel responded that this was “supposition”. The Member responded that the supposition “raises itself because that evidence is not here”.[72] It is apparent that the Member was concerned by the absence of records from the treating practitioners responsible for the alternative treatment. The appellant’s counsel continued. He addressed on the appellant’s symptoms, the MRI scan reports, and the multiple reports from Dr Al Khawaja. He addressed on the lumbar injection performed by Dr Al Khawaja, following which the pain returned. He addressed on the doctor’s recommendation of the lumbar fusion procedure.[73] The appellant presented his case in a fashion consistent with the conventional criteria, in Rose and Diab, that apply to s 60 of the 1987 Act.
[70] T 14.6–23.
[71] T 15.4–12.
[72] T 17.9–17.18.
[73] T 18.12–23.2.
The Member, in his reasons, quoted from Diab,[74] which in its turn applies Rose. The Member discussed the evidence relating to alternative treatment at some length, and ultimately concluded that he was not satisfied “the criterion of the availability of alternative treatment has been properly addressed”.[75] The Member then turned to deal with the issue of whether the proposed surgery was appropriate treatment. He discussed the MRI scan reports. He said that Dr Al Khawaja regarded the appellant’s back injury as “significant”, relying on a scan carried out in December 2019 that “showed an L5/S1 disc bulge ‘pushing the left L5 nerve root’”. Dr Al Khawaja said this explained the appellant’s symptoms. The Member said that Dr Al Khawaja reiterated this opinion in his report dated 16 March 2021. The Member said that Dr Al Khawaja was not aware that a further MRI scan carried out on 17 September 2020 showed “no L5 nerve compression of significance”. The Member referred to the report of Dr Darwish, in which Dr Darwish referred to an MRI scan dated 17 November 2017 (its date is misdescribed as 17 November 2007 in the reasons at [112]). The Member said that he was “not satisfied therefore that the injury is now as significant Dr Al Khawaja assumed on the basis of the outdated MRI”.[76]
[74] Reasons, [92]–[93].
[75] Reasons, [94]–[108].
[76] Reasons, [110]–[112].
The Member said he was “unpersuaded that the proposed surgery was actually or potentially effective in view of the comments I have made regarding the possible relevance of [the appellant’s] mental state”. The Member said he preferred the views of Drs Sheehy and Carmody, that pain management was “more likely” to alleviate the appellant’s condition than the proposed surgery.[77] He declined to make the declaration pursuant to s 60(5) of the 1987 Act. It will be observed that the Member considered and rejected the appellant’s case regarding (i) the appropriateness of the lumbar surgery, (ii) the potential effectiveness of the proposed lumbar surgery, and (iii) the availability of alternative treatment (see [33] above). Notwithstanding the comment referred to above, at [94] of the reasons, the matter was conducted and decided having regard to conventional principles consistent with Rose and Diab, which both parties and the Member agreed represented the appropriate approach. The appellant does not address how the statement at the commencement of [94] of the reasons potentially affected the result.[78] Ground No. 2 fails. I note that specific factual errors are raised in other later grounds and are dealt with below.
[77] Reasons, [113]–[115].
[78] Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419, quoted in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 (per Handley JA, Young JA agreeing), [110], Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828 (Gerlach), [7].
In Pollard v RRR Corporation Pty Ltd McColl JA summarised the principles that deal with a decision maker’s obligation to give reasons.[79] Her Honour said that “the extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. Her Honour said that “it is essential to expose the reasons for resolving a point critical to the contest between the parties”.[80]
[79] [2009] NSWCA 110 (Pollard), [56]–[67].
[80] Pollard, [58]. See also Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 (Christensen), [388].
The Member’s reasons did reveal his reasoning to an extent. The Member described the description by the appellant in his statements, of alternative treatment he had undergone, as not proving “anything more than that alternative treatment was available”. He said he was “not assisted by [the appellant’s] self-assessment as to its effectiveness”.[81] This essentially involved a conclusion that, in dealing with the potential effectiveness of available alternative treatment, the appellant’s statements were of no probative force. The Member said the test of whether a proposed treatment is reasonably necessary requires “further proof than simply the workers’ subjective view”.[82]
[81] Reasons, [94].
[82] Reasons, [96].
The appellant’s submissions on Ground No. 3 also deal with whether there was a denial of procedural fairness. They make the following points:
(a) The Commission is obliged to afford procedural fairness to parties and witnesses. This is true: South Western Sydney Area Health Service v Edmonds,[83] Christensen.[84]
(b) The appellant’s statement dealing with alternative treatment was consistent with other evidence in medical histories and Dr Al Khawaja’s reports.
(c) Cross-examination is discretionary in the Commission. In appropriate circumstances leave to cross-examine should be sought and obtained. Reference is made to Aluminium Louvres & Ceilings Pty Ltd v Zheng[85] and Winter.
(d) In the absence of cross-examination and contrary evidence, procedural fairness required that the Member not simply disregard the appellant’s evidence about alternative treatment.
[83] [2007] NSWCA 16 (Edmonds), [90].
[84] Christensen, [416].
[85] [2006] NSWCA 34.
The probative force of the appellant’s statements
The appellant’s statements described his subjective response to certain treatments. They referred to his response to increased pain medication prescribed by a pain specialist directed at pain control of the right ankle and back,[86] physiotherapy to the back and neck,[87] hydrotherapy,[88] psychological and psychiatric treatment,[89] further surgery to the right ankle,[90] proposed orthotics,[91] a cortisone injection to the lower back,[92] nerve block injections to the cervical spine,[93] an epidural injection to the lower back[94] and a nerve block to the neck.[95] The appellant stated: “I feel I have exhausted all other forms of conservative treatment and have no option but to undergo surgery.”[96] He also stated: “I feel the injury has taken away my independence and I am keen to try any treatment that may improve my quality of life and help me return to work.”[97] The appellant, in his submissions, asks rhetorically who could give evidence of such matters “besides the patient?” These matters, dealt with in the statements, were of clear relevance to the topic of whether there were potentially helpful treatments alternative to the proposed surgery.
[86] Appellant’s statement 23/10/20, [19]–[20], ARD, p 3.
[87] Appellant’s statement 23/10/20, [22], ARD pp 3–4.
[88] Appellant’s statement 23/10/20, [23], ARD, p 4.
[89] Appellant’s statement 23/10/20, [24], ARD, p 4.
[90] Appellant’s statement 23/10/20, [25], [28], ARD, p 4.
[91] Appellant’s statement 23/10/20, [26], ARD, p 4.
[92] Appellant’s statement 23/10/20, [30], ARD, p 5.
[93] Appellant’s statement 23/10/20, [33], ARD, p 5.
[94] Appellant’s statement 23/10/20, [35], ARD, p 6.
[95] Appellant’s statement 23/10/20, [38], [39], ARD, p 6.
[96] Appellant’s statement 23/10/20, [45].
[97] Appellant’s statement 23/10/20, [46].
In Onesteel Reinforcing Pty Ltd v Sutton Allsop P (as his Honour then was) said:
“… when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.
The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost. Thus, if a person has given a history to a doctor which is incorporated as an assumption for the doctor's opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor’s opinion.”[98]
[98] [2012] NSWCA 282; 13 DDCR 351 (Sutton), [3]–[4].
In the same case McColl JA said:
“Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Southwest Sydney Area Health Service v Edmonds (at [129]) referring to Smith v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 (at [32]) per Mason P (Handley JA and Campbell J agreeing).”[99]
[99] Sutton, [60].
In Shellharbour City Council v Rigby Beazley JA (as her Honour then was) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[100]
[100] [2006] NSWCA 308, [144].
The Member did not make any adverse credit finding in respect of the appellant. He did not make a finding that the appellant’s evidence was not reliable. He specifically said “I wish to make it clear that there can be no criticism of [the appellant] that his beliefs in the seriousness of his symptoms are not genuinely held.”[101] The Member did not reject the appellant’s evidence. He simply said that the appellant’s evidence did not assist him. The reasons at [96] give some indication of why this approach was taken. The Member there said: “as can be seen from the criteria set out in Diab, the test of whether a proposed treatment is reasonably necessary requires further proof than simply the workers’ subjective view”. There is no doubt that proof consistent with the principles in Diab does require more than the worker’s subjective view. It is, however, difficult to think of circumstances, at least in the absence of significant issues regarding reliability, where a worker’s subjective assessment, of the helpfulness (or lack of it) of alternative treatments which he or she had undergone, would not be relevant on that topic.
[101] Reasons, [96].
The Member referred to aspects of the evidence that raised “questions”. These were described as questions, “the answers to which are usually to be found in the clinical notes of the various treating practitioners”.[102] Such notes were not in evidence. A similar analysis was applied to the medical evidence from the doctors on whom the appellant relied on the issue.[103] The questions that were said to be raised were essentially speculative. They were not answered in any definitive way by the evidence relied on by either party. Against this background, the Member found that the relevant evidence, from the appellant and the doctors who gave his case support, was deprived of probative force.
[102] Reasons, [106].
[103] Reasons, [106].
Rule 15.2 of the former Workers Compensation Commission Rules 2010 (the 2010 Rules) was discussed in the reasoning in Sutton. Basten JA in Sutton[104] noted the observation by McColl JA in Edmonds that r 15.2 “broadly reflects fundamental principles of the common law concerning admissibility of evidence”.[105] The former r 15.2 continues in substantially identical form in r 73 of the Personal Injury Commission Rules 2021. The evidence in the appellant’s statements had probative value. The Member’s finding regarding the weight of the evidence was so against the weight of the material before him that error must have been involved.
[104] Sutton, [80].
[105] Edmonds, [128].
The probative force of the appellant’s medical case
The medical histories recorded from the appellant, by doctors who reported in the matter, also had probative value. The histories were not simply hearsay (see [69] above). Dr Darwish, a neurosurgeon qualified by the appellant’s solicitors, recorded:
“Two months after the fall, during physiotherapy, he complained of lower back pain and paraesthesia below the right knee. He was treated initially conservatively with physiotherapy, multiple medications and had epidural cortisone injection without improvement. In 2019 he was referred to Dr Al Khawaja who initially treated him conservatively with physiotherapy and epidural cortisone injection without improvement. Dr Al Khawaja recommended L5/S1 anterior lumbar discectomy and fusion which was declined by his insurer based on a report from Dr Sheehy.”[106]
“Regarding the surgery recommended by Dr Al Khawaja in the form of L5/S1 laminectomy, discectomy and fusion, I believe that the surgery is a reasonable option as Ali has failed to respond to all forms of conservative treatment.”[107]
[106] Dr Darwish report 28/10/20, ARD, p 34.
[107] ARD, p 37.
Dr Al Khawaja, the treating neurosurgeon, in his initial report dated 19 December 2019 recorded:
“… he started getting lower back pain going to the left side. His condition kept getting worse. [The appellant] was reviewed by Dr Nazha, the Pain Management Specialist who tried to help him with conservative treatment. [The appellant] tried everything, but he came to me today with pain more than 8/10. It is affecting his daily life and his sleep time. [The appellant] thinks that it is affecting his functional capacity significantly.”[108]
“I recommend trying injection one more time, and I will perform it. It may help him to try to avoid surgery, but I cannot guarantee it. I told him if it helps, it would be great news; if it does not, I need to proceed with surgical intervention.”[109] (emphasis added)
[108] ARD, p 60.
[109] ARD, p 61.
Consistent with the above, on 26 February 2020 Dr Al Khawaja performed a lumbar epidural injection.[110]
[110] ARD, p 74.
On 9 April 2020 Dr Al Khawaja reported:
“I contacted [the appellant] on upper [sic] today via telehealth as per Covid-19 protocol. The injection to the lumbar spine helped him for just a few days and his pain is back and he has difficulty at night time mainly and this pain is affecting his functional capacity. I told him the only option left in my hand is a surgical option.”[111]
[111] ARD, p 64.
On 21 July 2020 Dr Al Khawaja reported:
“For his lower back I recommend surgical intervention because he exhausted all the conservative treatment types. I told him all the surgical option is going from the front or the back. I recommend the anterior approach because it does not damage much muscle. I told him there is a good chance for this to help his condition although I cannot guarantee it.”[112] (emphasis added)
[112] ARD, p 68.
Dr Al Khawaja reported to the appellant’s solicitors on 16 March 2021. He recorded nine consultations regarding the appellant’s lumbar problem, from 19 December 2019 to 3 December 2020. In relation to the lower back pain, the doctor recorded:
“… his condition kept getting worse. [The appellant] was reviewed by the Pain Team, and he tried all types of conservative pain management. His pain was more than 8/10 and it was affecting his functional capacity and sleep significantly.”
Dr Al Khawaja, in this report, responded to a query regarding why surgical treatment was “the best option”, saying “conservative treatment was trialled”.[113] The doctor responded to a query regarding the prognosis without the lumbar surgery, saying:
“If the operation is not performed, the patient will be incapacitated and disabled because of severe back and neck pain with radiation to the left arm and the left leg. Without surgery, he will not be fit to do any duties.”
[113] ARD, p 76.
The above demonstrates that there was substantial evidence from the appellant, Dr Al Khawaja and Dr Darwish dealing with various treatments the appellant previously underwent that did not relieve his symptoms. The Member referred to the appellant having taken care in preparing his statements. He said he made no criticism of the appellant’s genuineness in describing his symptoms.[114] This evidence was clearly relevant.
[114] Reasons, [94], [96].
The Member dealt with the issue regarding the availability of treatment, alternative to lumbar surgery, at [94] to [108] of the reasons. The passage at [94] (see [40] above) set out the assumption dealt with at Ground No. 2 above. The Member described the appellant’s statements, and the evidence of the doctors who supported his case, as constituting proof of nothing except that the alternative treatments referred to were “available”. This was inconsistent with the discussion, in Sutton, of evidence in the context of the Commission. The Member described the appellant’s assessment of the effectiveness of these treatments as being of no assistance. The Member was critical of the evidence because of questions he said that it raised. These went to matters such as the detail of the consumption of medications.[115] The Member queried whether there was an explanation for why physiotherapy had not assisted, details including who referred the appellant for physiotherapy and on what terms, and what was the opinion of the physiotherapist. Similar concerns were raised regarding hydrotherapy.[116]
[115] Reasons, [98].
[116] Reasons, [99]–[101].
The Member referred to evidence from medical practitioners on whom the appellant relied as “unhelpful”, as they “recommended the surgery on the basis that nothing else had worked”.[117] It is not apparent why the failure of conservative treatment would not be relevant to the issue of whether surgery was a reasonable option.
[117] Reasons, [102].
The Member, in the reasons at [107], raised the “possibility” that there was “some other condition” preventing recovery. He then referred to the fact that the appellant had been under psychiatric care in the past and had been referred to a psychologist and a psychiatrist. He said that “[a]gain, questions arise” regarding these referrals and the opinion of those practitioners regarding the appellant’s “mental state”. He said:
“The absence of evidence from this source leaves open the possibility, if not the probability, that what is preventing [the appellant] from recovery is not the alternative treatment, but rather his mental state.”
The discussion and findings regarding alternative treatment were significant in the reasoning leading to the result. The approach taken had the consequence that a significant part of the appellant’s lay and medical case was taken to be without probative force. The Member’s discussion and findings regarding alternative treatment went to a point critical to the contest between the parties” (see [65] above). It was necessary that the reasoning on the issue be adequately exposed. The Member effectively concluded, in my view erroneously, that the lay and medical evidence supporting the appellant’s case was deprived of any probative force, because records relating to treatment by the general practitioner, physiotherapist and hydrotherapy provider were not in evidence. The Member’s reasons for this were not adequate. They consisted largely of speculative questions regarding what such records may have revealed. Ground No. 3 is made out. It is an error of law.
The submissions dealing with procedural fairness do not impact directly on the ground going to the adequacy of reasons. It is not necessary to deal with the alleged denial of procedural fairness.
Grounds Nos. 4, 5 and 6
It is convenient at this point to deal with Grounds Nos. 4, 5 and 6, which can be done relatively briefly. The submissions dealing with these grounds go to the Member’s fact finding dealing with the probative force of the evidence in the appellant’s case, on the topic of alternative treatment.
Ground No. 4
Ground No. 4 alleges error in the Member’s factual finding that the evidence about the effectiveness of alternative treatment principally came from the appellant only. The appellant submits this finding failed to take account of the evidence from Dr Al Khawaja, in particular that regarding the lumbar injection administered on 26 February 2020 (see [76] to [81] above). The respondent submits that the Member’s finding was available on the evidence.
It is apparent, from the passages of Dr Al Khawaja’s reports quoted above, that the doctor tried the lumbar injection as an alternative to the more radical option of lumbar fusion surgery. The doctor recorded there was only short-term relief with the injection. The doctor’s reports make it clear that in those circumstances the only remaining option he could offer the appellant was the proposed surgery. I accept the appellant’s submission that the finding, at [97] of the reasons, misstates the position regarding the source of the evidence on which the appellant relied, regarding alternative treatment. The evidence of Dr Al Khawaja dealt in clear and appropriate terms with the treatment he arranged for the appellant, before finally concluding the appropriate treatment option was lumbar surgery. The doctor also referred to his understanding of the history of alternative treatments which had been tried in the past. It is not suggested that this history was unreliable; it is generally consistent with the appellant’s statements on this topic. This was apparently reliable evidence from the treating neurosurgeon. It was entitled to weight. It was necessary that it be considered, including in a consideration of the availability of alternative treatment in compliance with the decision in Rose. The error alleged in Ground No. 4 is made out.
Ground No. 5
In the reasons at [102] the Member was critical of the treating practitioners on whom the appellant relied, saying they recommended the lumbar surgery on the basis that nothing else had worked. The appellant, dealing with Ground No. 5, submits that this fails to take account of Dr Al Khawaja’s opinion. The respondent again submits that the Member’s finding was available on the evidence.
Passages from Dr Al Khawaja’s reports are set out at [76] to [81] above. One factor the doctor referred to was the failure of conservative measures to alleviate the appellant’s symptoms. There were others. The appellant said he was getting worse. He suffered from a high level of pain, which he assessed at “8/10”. The pain was affecting the appellant’s daily life, his sleep and his functional capacity significantly. The doctor said that without the surgery the appellant would be “incapacitated and disabled because of severe back and neck pain with radiation to the left arm and the left leg … he will not be fit to do any duties”. The doctor considered that the surgery provided a good chance to help the appellant’s condition, although this could not be guaranteed.
The above clearly did not restrict itself solely to the fact that other treatments had not alleviated the appellant’s symptoms. The finding made in the reasons at [102] involved factual error in how the Member dealt with the evidence from Dr Al Khawaja. The error alleged in Ground No. 5 is made out.
Ground No. 6
The Member, in his reasons at [106], said there was a lacuna in the evidence due to a “failure by the [appellant] to lodge any supporting material from any of the practitioners who provided the alternative treatment” (emphasis added). The appellant again refers to the evidence from Dr Al Khawaja. The respondent again submits that the Member’s finding was available on the evidence. For reasons appearing above, it is clear that Dr Al Khawaja provided alternative treatment, in the form of a lumbar epidural injection, before making the final decision to proceed with the proposed lumbar surgery. The error alleged in Ground No. 6 is made out.
The errors identified in Grounds Nos. 4, 5 and 6 all go to the adequacy of the evidence relied on by the appellant regarding alternative treatment. Like the finding the subject of Ground No. 3, these erroneous findings undermined the appellant’s case on that issue. That issue was one on which the Member placed significant reliance in declining to make a declaratory order in respect of the proposed surgery. The errors identified in Grounds Nos. 3, 4, 5 and 6 have affected the result and constitute appealable error.[118]
GROUNDS NOS. 7 AND 12 – MAKING A FINDING THAT THE APPELLANT’S MENTAL STATE IS WHAT IS PREVENTING HIS RECOVERY
[118] Gerlach, [7].
Appellant’s submissions
The appellant refers to the reasons at [107] where it was said:
“The failure of the alternative treatment, including the right ankle surgery, raises of itself a question as to whether there is some other condition at work preventing [the appellant] from recovery. The answer to that question becomes more relevant when the evidence shows that he has been under psychiatric care, it would appear, for many years. Again, questions arise as to why he was referred to a psychologist and a psychiatrist; who referred him and, critically, what the opinion of these practitioners revealed as to his mental state. The absence of evidence from this source leaves open the possibility, if not the probability, that what is preventing [the appellant] from recovery is not the alternative treatment, but rather his mental state.”
The appellant submits there was no medical evidence to support the above. He says the Member did not refer to any medical opinion supporting this proposition.
This ground is additionally repeated as Ground No. 12.
Respondent’s submissions
The respondent submits that the appellant has not identified the relevant error. It submits the finding was open and is supported by the medical and factual evidence.[119]
[119] Respondent’s submissions, [31]–[32].
Consideration
The above passage of the reasons does not include any specific factual finding. It identifies four conjectural questions. The aspect of the appellant’s injuries at issue in the current application is his lower back. The passage postulates that it is possible, or probable, that the appellant’s recovery is prevented by his mental state. This is conjecture unsupported by evidence. The respondent submits in a general sense that there is such evidence but does not seek to identify it. The Member refers to the evidence of Dr Carmody, who had a “first impression” that the appellant may have been affected by “some depression”.[120] Dr Carmody treated the appellant’s ankle fracture. There is no evidence that would satisfactorily connect this impression of Dr Carmody’s to the ongoing symptoms (and lack of improvement) in the appellant’s lower back.
[120] Reasons, [114].
The highest one could put the ‘finding’ above is that there was a possibility that the appellant’s mental state prevented the recovery from his lower back symptoms. This is not supported by evidence and discloses error. Whilst this ‘finding’ was made in equivocal terms, the Member specifically relied on it, in the reasons at [114], in support of his finding that the appellant had not proved that “the proposed surgery would result in any significant improvement or associated functional gains”. This finding was said to “reinforce the view of Dr Sheehy”.[121] It was one of a series of findings, along with those referred to in the discussion of Grounds Nos. 4, 5 and 6, that (in the Member’s reasoning) undermined the appellant’s lay and medical case. These findings, taken together, affected the result. The error identified in Ground No. 7 (repeated as 12) involves appealable error. Ground No. 7 succeeds.
GROUND NO. 8 – MAKING AN ERRONEOUS FACTUAL FINDING THAT THE AVAILABILITY OF ALTERNATIVE TREATMENT WAS NOT PROPERLY ADDRESSED
[121] Reasons, [115].
Appellant’s submissions
In the reasons at [108] the Member said:
“I cannot be satisfied accordingly that the criterion of the availability of alternative treatment has been properly addressed.”
The appellant submits that it “clearly addressed” alternative treatment and the fact that such treatment had not assisted. Dr Al Khawaja took a history, consistent with the appellant’s evidence, and concluded that surgery was required. The appellant submits that, consistent with Rose and Diab, it was not necessary that all evidence from providers of alternative treatment be tendered. The Member was required to consider whether there was alternative treatment available and whether it would be effective. There was no evidence that there was such treatment available, besides surgery. Dr Darwish noted the various treatments that had been tried without improvement. Dr Darwish concluded all conservative treatment had been exhausted without improvement.[122]
[122] Appellant’s submissions, [31]–[33].
Respondent’s submissions
The respondent submits the appellant has not identified error. It submits that the Member’s factual findings were open and are supported by the medical and factual evidence.
Consideration
Paragraph [108] of the reasons came at the conclusion of a discussion at [94] to [107], in which the Member assessed the state of the evidence on the availability of alternative treatment. The Member’s statement that he could not “be satisfied accordingly …” depends on the findings of fact and discussion that went before. Much of the fact finding going to alternative treatment is the subject of the earlier grounds of appeal. I have above found that Grounds Nos. 3, 4, 5, 6 and 7 involve appealable error. It follows that Ground No. 8 is made out, as the Member’s summation of the fact finding which supports the reasons at [108] is itself flawed, because of the errors identified previously. For completeness I should add that I accept, as a general proposition, that it is not necessary that a worker in such an application tender material from the providers of all alternative treatment. The evidentiary material that needs to be tendered, for a worker to discharge his or her onus, will always depend on the facts of the individual case.
GROUND NO. 9 – THE MRI EVIDENCE RELIED ON BY DR AL KHAWAJA
Appellant’s submissions
The Member at [110] to [111] of the reasons said:
“110. Dr Al Khawaja maintained that the proposed surgery was appropriate because of the appearance of the MRI scan dated 4 December 2019, which I assumed he was referring to in his report of 19 December 2019. Dr Al Khawaja referred to the MRI scan in calling [the appellant’s] injury ‘significant’. This was because the scan showed an L5/S1 disc bulge ‘pushing the left L5 nerve root.’ These findings, Dr Al Khawaja then said ‘explained [the appellant’s] symptoms.’
111. Dr Al Khawaja repeated that opinion in his report of 16 March 2021, again saying that the disc bulge at L5/S1 showed that the L5 nerve root was being pushed. It is clear that Dr Al Khawaja was not aware that a further MRI scan had been taken on 17 September 2020, and that it showed no L5 nerve compression of significance.”
The appellant submits there is no basis for assuming that Dr Al Khawaja, the treating neurosurgeon, did not see the MRI scan report dated 17 September 2020. The doctor, as a treating neurosurgeon, saw the appellant twice subsequent to the scan being conducted. Secondly, the appellant submits the Member has mis-recorded the contents of the report of that later scan. The report of the scan refers to disc protrusion and annular tear with the “protrusion mildly distorting the exiting L5 nerve root. No change compared to previous report.” It is submitted that, even if Dr Al Khawaja did not see the scan and report dated 17 September 2020, that scan showed nothing different.[123]
[123] Appellant’s submissions, [34].
Respondent’s submissions
The respondent submits the Member’s factual findings were available on the medical and factual evidence.[124]
[124] Respondent’s submissions, [35].
Consideration
The MRI scan report dated 4 December 2019[125] describes the appearances at L5/S1:
“At the L5/S1 level, there is disc space narrowing. There is an annular tear with a broad-based left posterolateral and intraforaminal disc protrusion which compresses the exiting left L5 nerve root in the exit foramen. There is no compression of the descending left S1 nerve root in the lateral recess.”
[125] ARD, p 98.
The radiologist’s comment reads:
“Annular tear with broad-based left posterolateral and intraforaminal L5/S1 disc protrusion compressing the exiting left L5 nerve root in the exit foramen.”
The MRI scan report dated 17 September 2020[126] describes the appearances at L5/S1:
“At L5/S1, again disc desiccation and faint left foraminal annular tear and shallow broad left foraminal disc protrusion with mild indentation of the undersurface of the exiting left LS nerve root. No lateral recess or central canal stenosis.”
[126] ARD, p 102.
The radiologist included a passage headed “Interpretation” that relevantly reads:
“Persistent small left foraminal annular tear and disc protrusion at L5/S1 mildly distorting the exiting L5 nerve root within the foramen. No change compared with the previous report.”
The above two MRI scan reports are those discussed by the Member in his reasons at [110] to [111]. There is an earlier MRI scan report dated 17 November 2017.[127] That report described the appearances at L5/S1:
“At L5/S1, a left foraminal disc protrusion resulting in moderate marked narrowing of the left neural exit foramen with probable irritation of the left exiting left nerve root. There is no significant spinal canal narrowing.”
[127] ARD, p 87.
There was a comment referring to the level L5/S1:
“At L5/S1, a left foraminal disc protrusion resulting in moderate to marked narrowing of the left neural exit foramen with probable irritation of the left exiting L5 nerve root. However, I note the patient’s symptom is on the right side.”
I mention the report dated 17 November 2017 for the sake of completeness. It is referred to in the reasons at [112] in a reference to Dr Darwish’s report.
The two reports to which the Member referred, in making his comparison at [110] to [111] of the reasons, were those dated 4 December 2019 and 17 September 2020. The appellant’s point is valid; the radiologist in the later of these reports, commenting on the appearances at L5/S1, specifically said there was no change compared with the previous report. The respondent’s submissions do not take issue with the validity of the comparison.
This involves factual error. The Member specifically relied on this comparison in support of his conclusion that he was not satisfied “that the injury is now as significant as Dr Al Khawaja assumed on the basis of the outdated MRI”. The Member described this as impinging “not only on the question of whether the proposed surgery is appropriate, but it also raises the question as to whether it is actually or potentially effective”. The Member decided these issues contrary to the appellant’s interests. Ground No. 9 succeeds.
GROUND NO. 10 – WOULD THE SURGERY HAVE POTENTIAL OR ACTUAL EFFECTIVENESS?
Appellant’s submissions
The appellant submits the Member failed to apply the correct legal test. He submits the test requires the appellant to prove “that the surgery has actual or potential effectiveness”. The appellant submits there is strong evidence supporting the argument that the surgery is likely to be effective. The appellant refers to the reports of Dr Al Khawaja and Dr Darwish. Dr Al Khawaja says that there is a good chance of the surgery being effective. Dr Darwish says the surgery is reasonably necessary. Dr Darwish says the procedure is reasonably necessary, with at best 50% chance of improving the appellant’s back pain. The appellant refers also to Dr Al Khawaja’s evidence about the appellant’s likely outcome if the surgery is not undertaken. In that case the prognosis is for the appellant being incapacitated and disabled because of severe back and neck pain, with radiation to the left arm and the left leg, and unfit to perform any duties.[128] In its submissions dated 1 September 2021 the appellant submitted that the Member’s decision about the bed at [119] of the reasons ignored the evidence of Dr Al Khawaja and Recovre.[129]
[128] Appellant’s submissions, [35].
[129] Appellant’s submissions, 1/9/21, [37].
Respondent’s submissions
The respondent submits the Member applied the correct test and the factual findings he made were open to him. It submits the Member appropriately considered this topic in the reasons at [113] to [115].[130]
[130] Respondent’s submissions, [36]–[38].
The respondent, in its amended submissions dealing with this ground, also refers to the reasons at [117] to [119], in which the Member dealt with the claim in respect of an orthopaedic mattress and bed. It submits the Member specifically considered the evidence of Dr Al Khawaja and the Recovre report, he did not ignore that evidence.[131]
[131] Respondent’s submissions, [39]–[41].
Consideration
The Member specifically dealt with the issue of whether the proposed surgery would be actually or potentially effective at [113] to [115] of the reasons. He referred to his finding, at [112] of the reasons, that he was “not satisfied therefore that the injury is now as significant as Dr Al Khawaja assumed on the basis of the outdated MRI”. For reasons appearing above dealing with Ground No. 9, I have concluded that this finding, based on an alleged misunderstanding by Dr Al Khawaja of the most recent lumbar MRI scan, was erroneous. The Member further considered the issue of whether the proposed surgery would be actually or potentially effective, in the reasons at [114]. The Member said that he was “unpersuaded” on the issue, in view of his comments regarding the “possible relevance of [the appellant’s] mental state, which was also the subject of Dr Carmody’s first impression that [the appellant’s] condition might have been affected by some depression”. I have, in dealing with Ground No. 7 above, found there to be error in how the Member dealt with this issue. The Member continued, in the reasons at [115], to say that “[t]hese reservations reinforce the view of Dr Sheehy that it was unlikely that the proposed surgery would result in any significant improvement or associated functional gains.”
In context, “these reservations”, where the phrase is used in the reasons at [115], is a reference to the matters discussed at [112] to [114] of the reasons. The matters in [112] and [114], on the basis of the consideration of Grounds Nos. 7 and 9 above, involved erroneous fact finding. This infected the ultimate fact finding at [115], in which the Member rejected the appropriateness of the proposed surgery. It follows from the above that the finding at [115], going to whether “the proposed surgery would result in any significant improvement or associated functional gains” involved error. Ground No. 10 succeeds.
The respondent relied on the decision in Cooper, in which Geraghty CCJ declined to order the cost of a “firm bed”. His Honour referred to the fact that the bed in that case was “available for sale on the open market in a normal bed shop”. His Honour likened it to a worker seeking the cost of a lounge suite or a cushion, which he described as requests of “a similar kind”.[160] The provision of a firm, adjustable, orthopaedic bed, to assist in pain control for a worker who is approaching significant lumbar fusion surgery, consistent with advice from the treating neurosurgeon and under the advice of an occupational therapist, is not comparable. Such cases turn on their own facts and may involve questions of degree. The view I have formed is consistent with that reached by Byron DP in Grant (see [143] to [144] above).
[160] Cooper, [18]–[19].
The reasons do not indicate that the Member engaged with Dr Al Khawaja’s opinion on this topic. The Member remarked at [119] that there were no particular therapeutic or curative qualities in the supply of the bed and mattress. This failed to deal with the doctor’s explanation, which I accept, referred to at [146] to [147] above, regarding what the bedding was intended to achieve medically. Ms Davey’s report added a lay context to Dr Al Khawaja’s recommendation. The bed was intended to reduce pain and to improve sleep. This would lessen fatigue and assist in the control of mental health issues. There was no medical or related evidence contrary to the evidence from Dr Al Khawaja and Ms Davey. Dr Al Khawaja, a treating specialist for approximately one year, was well placed to comment. The Member referred briefly to the evidence of Dr Al Khawaja and Ms Davey on this topic and dismissed it. He did not engage with it or properly consider it.
In Waterways Authority v Fitzgibbon Hayne J said:
“… because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”[161]
[161] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816, [130].
I accept the appellant’s submission that the Member effectively ignored the evidence from Dr Al Khawaja and Ms Davey on this issue. He did not appropriately examine and consider that evidence, which was central to this aspect of the claim under s 60. Error is made out. It affected the result. Ground No. 12 succeeds.
DISPOSITION OF THE APPEAL
The majority of the appeal grounds have succeeded, on issues that are dispositive. It is necessary that the Member’s decision dated 9 August 2021 be revoked.
Section 352(6A) of the 1998 Act provides:
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.”
The primary relief the appellant seeks in these proceedings is a declaration pursuant to s 60(5) of the 1987 Act for payment of the surgery and associated costs, of the procedure recommended by Dr Al Khawaja. This involves “L5-S1 anterior lumbar interbody fusion”.[162] Dr Al Khawaja originally requested approval for the surgery from the respondent’s insurer in July 2020.[163] It is desirable that the issue be dealt with. The desirable course is that I re-determine the matter. The appellant has included submissions going to the decision it seeks on a re-determination. The respondent has had an opportunity to respond to those submissions had it wished. The respondent’s position is that the existing Certificate of Determination should be confirmed, that is, all heads of the claim should fail.[164]
RE-DETERMINATION
[162] ARD, p 68.
[163] ARD, p 75.
[164] Respondent’s submissions, [36].
The claim for the cost of the lumbar surgery
The test governing the recovery of expenses for medical or related treatment pursuant to s 60 is discussed above. The parties have proceeded on the basis, which I accept, that it is appropriate to apply the test described in Rose and Diab (see [33] to [34] above). In Diab Roche DP summarised the criteria going to ‘reasonably necessary’ as identified in Rose. The Deputy President said:
“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.”
The Deputy President in Diab also said:
“Reasonably necessary does not mean ‘absolutely necessary’. 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’ …”.[165]
And:
“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.[166] (omitting citations)
The medical evidence
[165] Diab, [86].
[166] Diab, [89].
Dr Al Khawaja
The surgery was recommended by Dr Al Khawaja, the treating neurosurgeon. His initial consultation with the appellant is described in his report dated 19 December 2019.[167] There was “severe lower back pain going to the left side”. The appellant’s condition “kept getting worse”. The appellant told Dr Al Khawaja that he had “tried everything” and his pain was 8/10. There was significant limitation of lumbar movements. The doctor said the MRI scan showed “significant injury to the L5/S1 disc with a disc bulge pushing the left L5 nerve root”. This was said to explain the symptoms. The doctor recommended “trying injection one more time … It may help him to try to avoid surgery, but I cannot guarantee it.” The next consultation regarded the appellant’s neck.[168] The report dated 9 April 2020 post-dated the lumbar injection. It helped for a few days and then the appellant’s pain was back. There was difficulty at night and his functional capacity was affected. The doctor said the only option left in his hand was surgical.[169] In his report dated 25 May 2020 the doctor said he was going to finish injections to the appellant’s neck, and he had warned him that he may require surgery for his neck and back.[170]
[167] ARD, pp 60–61.
[168] Report 30/1/20, ARD, p 62.
[169] ARD, p 64.
[170] ARD, p 66.
Dr Al Khawaja reported on 21 July 2020.[171] There was partial improvement of the neck symptoms following injection. The doctor suggested that, for the neck, the appellant continue with physiotherapy and exercises “for a few months and see how he goes”. For the lower back the doctor recommended “surgical intervention because he exhausted all the conservative treatment types”. The doctor said he told the appellant “there is a good chance for this to help his condition although I cannot guarantee it”. The doctor noted that the appellant “cannot live the way he is”. Reporting on 30 September 2020 Dr Al Khawaja said there was “increasing pain in his neck and his lower back”. He described the appellant as “functionally disabled”[172]
[171] ARD, pp 68–69.
[172] ARD, p 70.
Dr Al Khawaja issued a longer report dated 16 March 2021, addressed to both the appellant’s solicitors and the insurer.[173] It summarised a number of the consultations and complaints. Dr Al Khawaja repeated his recommendation of the L5/S1 fusion, which he described as “reasonably necessary”. He said the appellant had “tried all pain management types including painkillers, physiotherapy, injections, and nothing helps his condition. It is even getting worse.” He said the appellant had seen a pain specialist, Dr Nazha and “tried lots of pain treatment modalities but nothing helped.” He had “tried physiotherapy and hydrotherapy and pain medication with no success”. The doctor was asked to comment on the prognosis if the surgery was not performed. He said:
“If the operation is not performed, the patient will be incapacitated and disabled because of severe back and neck pain with radiation to the left arm and the left leg. Without surgery, he will not be fit to do any duties.”
[173] ARD, pp 71–77.
Dr Darwish
Dr Darwish, a neurosurgeon, examined the appellant at the request of his solicitors and reported on 28 October 2020.[174] The appellant complained of “lower back pain, more on the left side” and right ankle problems. He listed multiple medications that he took for pain, Palexia SR, Lyrica and Targin. The doctor referred to the MRI scan dated 17 November 2017 which was reported to show “L5/S1 left foraminal disc protrusion with potential compression of the left L5 nerve root”. He referred to an MRI scan dated 17 September 2020 which he said showed a small disc bulge on the left at L5/S1 but no significant nerve root compression. Dr Darwish described the changes in the lumbar spine as “most likely degenerative in nature aggravated by the fall on 7 July 2017”. Dr Darwish said the proposed surgery was “a reasonable option”. He said the recommended surgery had “at best 50% chance of improving his back pain and has small chance of making his symptoms worse”.
[174] ARD, pp 33–38.
Dr Sheehy
Dr Sheehy, a neurosurgeon, examined the appellant at the respondent’s request and reported on 8 September 2020.[175] The appellant gave a history of being treated with “various Analgesics and a radiofrequency ablation of the nerves of his back and an epidural injection.” He took Palexia, Targin and Lyrica. He was unable to sleep because of neck pain, walking increased his neck and back pain, “all body pain” developed after approximately 20 minutes walking. The doctor described the MRI scan report dated 4 December 2019, showing “broad based left posterolateral and intraforaminal L5/S1 disc protrusion compressing the exiting L5 nerve in the exit foramen”. Dr Sheehy referred to an MRI scan report of the cervical spine dated 13 January 2020:
“The study reveals mid cervical spondylosis most marked at C5/6 where there is a right posterolateral disc ridge posteriorly displacing and minimally indenting the cord. There is some mild foraminal narrowing at this level on the left. There are cervical facet joint degenerative changes.
There is a T8/T9 mid line annular tear with a focal disc protrusion with no cord compression. The foramina are adequate. There was a mild thoracic facet disease.”
[175] Reply, pp 1–7.
Dr Sheehy said there was a soft tissue injury of the low back, an MRI scan showed a tear at L5/S1. He said “Failure of conservative management is not an indication for anterior lumbar surgery.” He said there was no evidence that surgery was likely to produce significant improvement with associated functional gains. He said his recommendation was that the appellant should continue under the care of the pain specialist. He said the prognosis for the appellant returning to suitable duties or pre-injury duties was poor, his prognosis for improvement was “remote”.
The appellant’s evidence
Relevant aspects of the appellant’s evidence are discussed above. The appellant referred to treatment for the lumbar condition involving physiotherapy, cortisone injections, epidural injections, hydrotherapy, and analagesia. He said he had done everything the doctors asked of him.[176] The appellant, relevant to his lower back, described constant sharp pain radiating to the buttocks, restricted movements, he had difficulty sitting, standing, walking and driving for long periods. He described difficulty squatting, kneeling, bending and twisting. Lifting, pulling, pushing and carrying heavy objects was difficult. He was stressed and frustrated, had a loss of libido, was depressed, had mood swings, and relied on his family for support at home.[177]
[176] ARD, p 8.
[177] Appellant’s statement 23/10/20, [42], ARD, pp 7–8.
The appellant said that he could not live with the constant back pain, he had exhausted other forms of conservative treatment and felt he had no option but to undergo surgery.[178] He said of his daily activities:
“I stay at home all the time to rest and I try to limit my movements in order to not aggravate my back injury. My constant back pain has left me barely able to sleep, I cannot work, I struggle to walk, I cannot bend over and I cannot stand for longer than thirty minutes without feeling intense pain. I have to shower using a chair due to the pain and difficulty twisting my back to wash. I feel the injury has taken away my independence and I am keen to try any treatment that may improve my quality of life and help me return to work.”[179]
[178] Appellant’s statement 23/10/20, [44]–[45], ARD, p 35.
[179] Appellant’s statement 23/10/20, [46], ARD, p 9.
The appellant, in his statement dated 27 May 2021, said that it was when he found there was “no improvement with pain management in relation to [his] back” that he was referred to a neurosurgeon.[180]
[180] ARD, p 11.
The medical evidence does not cast doubt on the veracity of the appellant’s complaints.
Application of the test
It is convenient initially to refer to the criterion (b) described at [162] above, the availability of alternative treatment and its potential effectiveness. The appellant’s statements describe multiple alternative treatments he underwent (see [170] above) prior to his referral to a neurosurgeon. It is not suggested that the appellant did not undergo the alternative treatments which he describes. The appellant states that he did everything the doctors asked of him. Following that referral, Dr Al Khawaja trialled a lumbar injection in the hope of avoiding surgery. That did not assist in improving the appellant’s lumbar symptoms. Dr Al Khawaja recommended surgery, saying the appellant had “exhausted all the conservative treatment types” (see [165] above).
Dr Darwish described the appellant as having “exhausted all forms of conservative treatment without improvement”.[181]
[181] ARD, p 37.
Dr Sheehy said that he would recommend conservative treatment under the care of the pain specialist, Dr Nazha.[182] Dr Sheehy did not suggest that this treatment was likely to give rise to improvement. The doctor, without limiting this to any specific type of treatment, said:
“His prognosis for returning to suitable duties or preinjury duties is poor. He has been unemployed now for 3 years and his prognosis for improvement is remote.”[183]
[182] Reply, p 6.
[183] Reply, p 7.
Two of the three neurosurgeons regarded the role of conservative care as being exhausted. The third, Dr Sheehy, recommended ongoing conservative care although did not suggest that it would improve the appellant’s prognosis. This medical evidence, overall, did not suggest there was alternative treatment available that was potentially effective.
The Member found deficiencies in the evidence going to ‘alternative treatment’ on the basis that clinical notes were not put into evidence from the various practitioners who had supplied that treatment. On acceptable evidence, it was established that such treatment was carried out, that the appellant co-operated in the treatment, and that such treatment did not assist. It was open to either party to obtain and rely on additional material from treating practitioners. Neither did so.
The third of the criteria identified in Diab, ‘(c)’, is the cost of the treatment. The proposed L5/S1 spinal fusion is significant spinal surgery. Its cost had not been raised between the parties as an issue.
The criteria described at (a), (d) and (e) have a degree of overlap. It is convenient initially to deal with (e), the acceptance by medical experts of the treatment and the likelihood of it being effective. Lumbar spinal fusion is, in a general sense, an accepted treatment in appropriate circumstances for the treatment of back pain. The appropriateness of the treatment, in an individual case, is a different question.
The views of the three neurosurgeons who have reported are summarised above. Dr Al Khawaja described the surgery as “the only option left”. The doctor said there “is a good chance for this to help his current symptoms although I cannot guarantee it”.[184] Dr Darwish said that surgery was “a reasonable option as [the appellant] has failed to respond to all forms of conservative treatment”. Dr Darwish said the surgery had “at best 50% chance of improving his back pain and has small chance of making his symptoms worse”.[185] Dr Sheehy said the surgery was “not reasonably necessary”. He said it was “unlikely that he would obtain significant improvement with such surgical intervention with associated functional gains”. Dr Sheehy, in any event, considered the “prognosis for improvement is remote”.[186] Consideration of the doctors’ views on this criterion also goes to criterion (d), the actual or potential effectiveness.
[184] ARD, p 76.
[185] ARD, p 37.
[186] Reply, pp 6–7.
It is necessary to have regard to the appropriateness of the particular treatment (criterion (a)). Only Dr Sheehy considered there was little prognosis for improvement in any event. Dr Al Khawaja considered the prospects of improvement with the surgery to be “good”, although not guaranteed. Dr Darwish assessed the prospects of improvement as “at best 50%”. Dr Darwish assessed there to be some prospect of symptoms being worsened, although this prospect was “small”. The only suggested alternative treatment, at this point in time, is with a pain specialist. The only one of the doctors who recommended that treatment was Dr Sheehy, who did not anticipate that any treatment would result in improvement.
The only treatment that it was suggested could bring improvement was the proposed surgery. Dr Al Khawaja thought the prospects of improvement in that case were “good”. Dr Darwish thought they were “at best 50%”, with a small risk of making the symptoms worse.
It is necessary to have regard to the appellant’s situation. Dr Al Khawaja, in his report dated 21 July 2020, said he discussed the treatment options with the appellant. Dr Al Khawaja said he recommended the surgical option for the lower back. He discussed the various risks associated with the proposed surgery. The doctor said the appellant “cannot live the way he is and he is happy with the plan”. The appellant similarly said in his statement dated 23 October 2020 that he could not live with the constant pain (see [171] above).
In assessing the views of the three neurosurgeons who have commented on the matter, I am most persuaded by those of Dr Al Khawaja. Dr Darwish and Dr Sheehy each saw the appellant once for medicolegal purposes. Dr Al Khawaja treated the appellant over a substantial period of time and would have had the best opportunity to assess him and his likely response to treatment.
Having considered the matter in light of the criteria nominated in Diab and Rose, I am satisfied that it is reasonably necessary that the appellant undergo the proposed lumbar surgery and that a declaration to that effect should be made pursuant to s 60(5) of the 1987 Act.
The claim in respect of an orthopaedic bed and mattress
Relevant evidence, submissions and analysis, going to the claim in respect of an orthopaedic bed and mattress, are set out above in the reasons dealing with Ground No. 12. I accept the evidence of Dr Al Khawaja and Ms Davey on that issue. I accept that the relevant bed and mattress have therapeutic properties and fall within the definition of a ‘curative apparatus’ in subp (e) of the definition of ‘medical or related treatment’ in s 59 of the 1987 Act. The respondent is to pay the reasonable cost of the supply of a Tempur Elara mattress and base (or its near equivalent) consistent with the mattress and base described in the relevant quotation attached to the ARD in these proceedings at pages 220 to 223. I accept that it is reasonably necessary that the appellant be provided with the mattress and base pursuant to s 60 of the 1987 Act.
DECISION
The appeal succeeds. The Member’s decision dated 9 August 2021 is revoked and the following decision is made in its place:
1. The respondent is to pay the appellant’s expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of employment injury sustained on 8 July 2017.
2. It is ordered pursuant to s 60(5) of the Workers Compensation Act 1987 that the expenses payable are to include:
(a) the appellant’s reasonable costs of and incidental to surgery being an L5/S1 anterior lumbar interbody fusion as recommended by Dr Al Khawaja in his report dated 21 July 2020, and
(b) the reasonable cost of the supply to the appellant of a Tempur Elara mattress and base, consistent with the mattress and base described in the relevant quotation attached to the Application to Resolve a Dispute in these proceedings at pages 220 to 223.
Michael Snell
DEPUTY PRESIDENT
31 March 2022
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