Honarvar v Professional Painting AU Pty Ltd
[2021] NSWPIC 282
•9 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Honarvar v Professional Painting AU Pty Ltd [2021] NSWPIC 282 |
| APPLICANT: | Ali Honarvar |
| RESPONDENT: | Professional Painting AU Pty Ltd |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 9 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for declaration that proposed surgery reasonably necessary and for the cost of a bed and mattress; applicant based claim on failure of alternative treatment but lodged no supporting documents as to that treatment; Held- Applicant failed to satisfy his onus; required to prove reasons for failure of alternative treatment and its potential effectiveness beyond subjective statement; Diab v NRMA applied; mattress and bed not curative apparatus; applicant sleeping in a child’s bed; cost of mattress commonly used by members of the public not compensable; award respondent. |
| DETERMINATIONS MADE: | The Commission finds: 1. The proposed surgery is not reasonably necessary. 2. The provision of a bed and mattress is not an item claimable under s 59 (e) of the The Commission orders: 1. There is an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Ali Honarvar, the applicant, brings an action for declarations pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) against Professional Painting AU Pty Ltd, the respondent, regarding an injury he suffered on 8 July 2017.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) is the proposed surgery recommended by Dr Al Khawaja reasonably necessary, and
(b) is the claim for an orthopaedic mattress and bed maintainable.
PROCEDURE BEFORE THE COMMISSION
The matter was heard by way of video link conciliation and arbitration. The applicant was represented by Mr George Cham of Alliance Compensation and Litigation Lawyers instructing Mr Jarryd Malouf of counsel. The respondent was represented by Mr Declan Rainer from Messrs Rankin Ellison Lawyers briefing Mr Simon Hunt of Counsel. Also present was Mr Bagher Ghazavi, the interpreter. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Oral Evidence
No application was made with regard to oral evidence.
FINDINGS AND REASONS
Mr Honarvar was born in 1983 in Iran and came to Australia in 2012. He commenced employment with the respondent some time in 2016 as a painter. On 7 July 2017 he suffered an accident when, as he was ascending a ladder, his right boot was trapped between two rungs of the ladder. Mr Honarvar fell heavily and fractured his right ankle so badly that the bone obtruded out of his ankle.
The respondent accepted liability regarding the right ankle and lumbar spine. It resisted the current claims, which were for the provision of an orthopaedic mattress and bed, costed at “approximately $33,700”, and “a further amount” for surgery in the form of an L5/S1 anterior interbody fusion.
Mr Honarvar made two statements dated 23 October 2020[1] and 27 May 2021[2] respectively.
[1] ARD page 1.
[2] ARD page 10.
Statement 23 October 2020
The earlier statement was detailed and contained a chronology of the treatment Mr Honarvar has subsequently undergone. From its particularity I infer that, as is not unusual,
Mr Honarvar had assistance in compiling this statement. It is convenient to set out the events therein described in point form:
· 11 July 2017: Mr Honarvar comes to surgery with Dr Dave on the right ankle for an open reduction, internal fixation of a bi-malleolar fracture. Pain medication prescribed by his GP, Dr Rawof.
· 11 September 2017: onset of stomach pains and Dr Rawof advised he had developed GORD as a result of the strong pain medication.
· 16 October 2017: consulted Dr Rawof about back pain, complaining that it prevented Mr Honarvar from sleeping. CT scan organised.
· 23 October 2017: consulted with GP and referred to pain specialist Dr Nazha.
· 8 November 2017 consulted Dr Nazha. Mr Honarvar alleged:
“Mr Nazha increased my medication dosage and advised that I should continue with conservative treatment. I was frustrated with this advice as
I did not feel the medication was having any effect on my pain[3].”[3] ARD page 4 [20].
· 17 November 2017: MRI scan taken of the lumbar spine.
· Late 2017: Mr Honarvar begins to attend physiotherapy in Merrylands where, he said, he attended sessions approximately twice a week:
“I told my Physiotherapist that I had been having neck and back pain since the workplace incident but I was told that this was normal. I knew the pain was not normal and I worried the physiotherapy exercises were making my injuries worse. …. My doctor and physiotherapist told me to keep attending treatment and that progress would be slow.”[4]
[4] Ibid page 4.
· Mr Honarvar said that “over the next few years” he continued to attend physiotherapy with “various providers” in Merrylands, Guildford and Parramatta.
· In late 2017 Mr Honarvar began to attend hydrotherapy sessions which he did not find helpful.
· In about March 2018 Mr Honavar said:
“I began I began to consult with Psychologist, Massoud Amani and Psychiatrist, Dr Raymond Way in regards to the anxiety and depressed mood I had been experiencing since my injuries occurred. It is very hard to be happy when you are living in constant pain and cannot do the things that you used to be able to do.”[5]
[5] Ibid page 4.
· 14 April 2018: Mr Honarvar came to further surgery with Dr Dave for the removal of the plate and screws at Sydney South West Private Hospital. Mr Honarvar did not find the surgery to be helpful and he continued to have pain and difficulty walking.
· In about July 2018 Mr Honarvar was advised by his physiotherapist, Ms Lauren Studdert, to get orthotics. Ms Studdert also advised the use of a foam roller for the improvement of Mr Honarvar spinal strength and posture.
· In or about February 2019 Mr Honarvar consulted with an ankle specialist,
Dr Brian Martin, who advised fusion of the ankle. Mr Honarvar was reluctant to accept that advice and sought a second opinion from Dr David Carmody.
· 21 June 2019: Mr Honarvar underwent surgery to the right ankle in the form of a right arthroscopic debridement with Dr Carmody. Mr Honarvar said that he did not find this surgery to be helpful as it neither fixed his pain nor the stiffness in his right ankle.
· 4 December 2019: Mr Honarvar said he was still having frequent pain in his lower back and that it radiated to both legs. A further MRI scan was taken at this time.
· 19 December 2019: Mr Honarvar consulted with Neurosurgeon Dr Darweesh Al Khawaja. Mr Honarvar said that he could no longer sleep on his back due to the pain. He said:
“I felt my whole body was falling apart”.[6]
[6] Ibid page 5.
Mr Honarvar reported that Dr Al Khawaja advised that he should try “one more cortisone injection” into his lower back and if that did not help then spinal fusion would be required.
· 27 September 2019: Mr Honarvar underwent a cortisone injection into his right ankle, which did not give him any substantial or long term pain relief.
· 13 January 2020: Mr Honarvar underwent an MRI to his cervical spine.
· 30 January 2020: Mr Honarvar had a further consultation with Dr Al Khawaja regarding his neck symptoms:
“I was sleeping awkwardly due to my neck pain and I understood this had caused me to develop sleep apnea [sic]. I was barely getting two hours of sleep per night which left me with no energy during the day.”[7]
[7] Ibid page 5.
· Dr Al Khawaja recommended a facet and nerve block injections into the cervical spine.
· February 2020: Mr Honarvar saw Dr Martin who advised that Mr Honarvar should undergo a fusion to the right ankle after undergoing back and neck surgery.
· 26 February 2020: Dr Al Khawaja administered an epidural injection into
Mr Honarvar’s lower back, which Mr Honarvar said only relieved his pain for a few days “before my symptoms returned in full”.
· 9 April 2020: Mr Honarvar consulted with Dr Al Khawaja and advised that his back pain had not improved, and he was having increased difficulties sleeping. Mr Honarvar said that he was advised by Dr Al Khawaja that:
“…my only option left was to have surgery to my lower back”.
· 18 May 2020: Mr Honarvar had a further consultation with Dr Al Khawaja regarding his neck pain. He said:[8]
[8] ARD page 6 [37].
“My neck felt completely destroyed and I struggled to turn to the left, to look down or to reach overhead as this placed pressure on my neck area….”
Mr Honarvar was advised that he needed surgery.
· 17 June 2020: Mr Honarvar underwent a left C6/7 facet joint injection and nerve block which he did not find helpful.
· 1 July 2020: Mr Honarvar underwent a left C5/6 facet, saying:
“I had already had two injections to my neck but I felt the pain and stiffness kept becoming more severe”.
· 21 July 2020: Mr Honarvar said he continued to have lower back pain which radiated at times down both legs. Dr Al Khawaja sought approval for an L4/S1 anterior lumbar interbody fusion procedure on this date.
As at 23 October 2020, Mr Honarvar said that he continued with pain medication and that he continued to consult with Dr Rawof, Dr Al Khawaja, and Mr Amani. He saw Dr Way once every few months.
Mr Honarvar listed 24 different restrictions and disabilities that he was suffering. Amongst them was an assertion that he felt pain radiating from his lower back to both buttocks. He said:
“It feels like my body is on fire”.[9]
[9] Ibid page 7.
Mr Honarvar said that he had severe stiffness in his lower back which prevented him particularly from bending or twisting to the left side:[10]
“When I am in bed, I cannot remain in one position but I will have to get up to walk around to relieve the pain. I need to put pillows in between and under my legs to relieve the pressure on my back”.
[10] Ibid page 8.
Mr Honarvar said he had been suffering from depression, mood swings and anger bouts.
Mr Honarvar referred to the proposed surgery and said[11]:
“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”.
[11] Ibid page 8.
Mr Honarvar said:[12]
“I feel I have exhausted all other forms of conservative treatment and have no option but to undergo surgery.”
[12] ARD page 8.
Mr Honarvar 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.
Mr Honarvar 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.
He also said:[13]
“In addition, I also want to undergo the proposed treatment so that I can have neck surgery.”
[13] ARD page 9 [47].
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.
Statement 27 May 2021
In his second statement of 27 May 2021 Mr Honarvar reiterated that he had been seeing
Dr Nazha in late 2017 when he was taking two tablets of Endep 25mgs per day, two tablets of Lyrica 225mgs per day, and Voltaren tablets twice daily as well. By early 2018
Mr Honarvar said that Dr Nazha had him taking anxiety and depressing controlling medication as well, namely Amitriptyline 25mgs, one per night. He said[14]:“I started taking this medication because of the increased psychological impact that I was having because of my injuries, ongoing pains, restrictions and sleeping problems I was enduring.”
[14] ARD page 11.
Throughout 2018 Mr Honarvar said he was taking a “cocktail of different medication” which included:
· Valproate 500mg a day one tablet a day.
· Zyprexa 10mgs where I took one at night.
· Cymbalta taking one tablet per day.
Mr Honarvar was also taking Valium as he said that sleep was very difficult “due to my lower back pain”. He said that when he would go to bed he would immediately feel pains in his lower back and “numbing problems” in both of his legs, particularly the left. It was hard to fall asleep and once he did, he would wake up regularly because of the discomfort and pain.
Mr Honarvar explained that there was no improvement with pain management and thus he was referred to Dr Al Khawaja. He then repeated much of his earlier statement. He said that he still used Lyrica although he disliked it and it made him depressed but he could not control the pain without using it. He was also using Targin and had been trialling “pain killing patches” which he obtains over the counter.
Mr Honarvar said:[15]
“I never thought I would feel quite disabled as I currently am. I have had three surgical procedures to my right ankle and the problems there still persist. I have nagging problems and discomfort to my neck. This is in addition to the problems I am having to my back and the referring pains that I have to both of my legs. …..”
[15] ARD page 12 at [13].
Mr Honarvar repeated that his bed was most uncomfortable and caused him pain as soon as he lay on it. His current bed aggravated his symptoms and gave him problems sleeping during the night. He repeated that he was woken regularly due to discomfort and pain “to my lower back”.
Mr Honarvar said that he continued to see his psychologist whom he spoke to at least once a week.
In conclusion, Mr Honovar said:[16]
“I am not a doctor but I have seen a renowned neurosurgeon in Dr Al-Khawaja and it is his recommendation that I should have a fusion to my lumbar spine and an orthopaedic bed. It was not me who made that recommendation. What I want is to get better so I can move along with my life and return to work as I had been doing the whole of my adult life prior to my injury…..”
[16] ARD page 14.
Dr Al Khawaja
The applicant relied on nine reports from Dr Al Khawaja.
Dr Al Khawaja first assessed Mr Honarvar on 19 December 2019[17]. Dr Al Khawaja noted that there had been multiple surgeries to the ankle, and that during the course of his treatment
Mr Honavar developed lower back pain on the left side. Dr Al Khawaja noted that pain management had been trialled under Dr Nazha. He said:[18]“Mr Honarvar tried everything but he came to me today with pain more than 8/10. It is affecting his daily life and his sleep time.”
[17] ARD page 60.
[18] ARD page 60.
Dr Al Khawaja examined the MRI of Mr Honarvar’s lumbar spine (presumably that of 4 December 2019) which Dr Al Khawaja thought showed “significant injury”. He suggested that Mr Honarvar try an injection “one more time.”
On 30 January 2020 Dr Al Khawaja reported to Dr Rawof that the lower back injection had been approved. However, Mr Honarvar also mentioned on that date that he had a lot of neck pain after the injury but that the back and leg were the main concern. Investigations were then undertaken regarding the cervical spine including an MRI. Dr Al Khawaja suggested by way of management injections into the cervical spine and then sought approval to undertake that treatment.[19]
[19] ARD page 62.
On 9 April 2020 Dr Al Khawaja again reported to Dr Rawof advising that the injection to the lumbar spine had helped Mr Honarvar for just a few days, but that Mr Honarvar’s pain was back. Dr Al Khawaja noted a complaint about difficulty sleeping. Dr Al Khawaja said:[20]
“I told him the only option left in my hand is a surgical option”.
[20] ARD page 64.
Dr Al Khawaja then obtained approval from the insurer to administer facet nerve block injections into Mr Honarvar’s cervical spine. on 25 May 2020 Dr Al Khawaja reported to
Dr Rawof that the treatment had been approved and he said[21]:“I have asked [Mr Honarvar] to take it easy now and continue physiotherapy and I will review him after we finish the injections to his neck and we will go from there. I warned him that he may require surgery for his neck and his back”.
[21] ARD page 66.
On 21 July 2020 Dr Al Khawaja reported that the neck injections had given partial improvement but that Mr Honarvar was “still annoyed with the significant neck pain…”.
Dr Al Khawaja advised that Mr Honarvar’s main concern was then his lower back pain with radiation to legs “sometimes”. In discussing his recommendations, Dr Al Khawaja said:
“I recommend surgical intervention because he exhausted all the conservative treatment types….. I told him there is a good chance for this to help his condition although I cannot guarantee it”.[22]
[22] ARD page 68.
Dr Al Khawaja then discussed the risks involved in the proposed surgery.
On 30 September 2020 Dr Al Khawaja noted a complaint of radiating pain to the left side in the lower lumbar region and recommended that Mr Honarvar sleep on a firm mattress. He said:
“This will help maintain the lordosis at night time and could minimise night pains and early morning pains which he is suffering from.”
Dr Al Khawaja then wrote what appeared to be a medico-legal report dated 16 March 2021 which was addressed to the applicant’s solicitors but entitled “Dear QBE.”[23]
[23] ARD page 71.
Dr Al Khawaja repeated the history he had been given in the earlier reports to which I have referred. Dr Al Khawaja noted that on the date of the consultation of 30 January 2020 approval for the epidural block was given but at the same time Mr Honarvar was complaining about neck pain, although the lower back pain was a lot worse and more concerning to him. Dr Al Khawaja repeated that “the MRI of his lumbar spine showed significant injury at the L5/S1 disc with a bulge pushing the left l5 nerve root.”
Dr Al Khawaja noted that the fusion surgery for Mr Honarvar’s back had been declined. He said that he was not aware of any pre-existing injury or abnormality in the lumbar spine and he said that the proposed surgery was reasonably necessary because:
“…Mr Honarvar had tried all pain management types including pain killers, physiotherapy, injections, and nothing helps his condition. He is even getting worse. The MRI confirmed significant damage at the L5/S1 level.”
He noted that there was a “good chance” for the proposed surgery to help although he could not guarantee it.
When asked whether conservative treatment had been trialled and why the surgical treatment proposed was the best option compared to other forms of treatment, Dr Al Khawaja said “conservative treatment was trialled”[24].
[24] ARD page 76.
Dr Al Khawaja thought that “from the lumbar spine point of view” that Mr Honarvar might be able to resume work as a painter but that was not necessarily so in view of the multiple surgeries he had undergone and the multiple injuries he complained of regarding his leg. He said that without surgery Mr Honarvar would not be able to do any duties.
With regard to the recommendation for a mattress, he said that he has recommended a mattress “for his back injury mainly”.[25] He explained further:
“In my opinion, the orthopaedic mattress is necessary for the purpose of his recovery and controlling his pain before and after surgery. Because a firm mattress will control the lordosis of the lumbar spine and this can maintain the proper structure and curvature of the spine and can help with minimising his pain.”
[25] ARD page 77.
Dr Darwish
Dr Balsam Darwish, Neurosurgeon and Spinal Surgeon wrote a report dated 28 October 2020.[26]
[26] ARD Page 33.
Dr Darwish took a consistent history of the fall from the ladder, the subsequent injuries and treatment therefor. To Dr Darwish Mr Honarvar complained of lower back pain, more on the left side, and pain from his injured ankle. Dr Darwish noted that Mr Honarvar was taking “multiple medications”.
On examination Dr Darwish noted altered sensation over the medial aspect of the right leg in the distribution of the right L4/L5 dermatomes. He noted MRI scans of 17 November 2017 and 17 September 2020. He noted that the 2017 MRI showed “potential compression of the left L5 nerve root” however on reviewing the September 2020 MRI he said it showed a small disc bulge on the left side at L5/S1 but no significant nerve compression.
Dr Darwish diagnosed a mechanical discogenic pain and thought that the radiology demonstrated changes in the lumbar spine “most likely degenerative in nature aggravated by the fall on 7 July 2017.”[27]
[27] ARD page 36.
When asked to comment on whether the proposed surgery was reasonably necessary,
Dr Darwish said[28]:“I believe that the surgery is a reasonable option as Ali has failed to respond to all forms of conservative treatment. I explained to Ali that the surgery has at best 50% chance of improving his back pain and carries small risks of complications…”
[28] Ibid page 37.
When asked about Mr Honarvar’s future prognosis, Dr Darwish repeated that he thought there was at best a 50% chance of improvement and, Dr Darwish added, a small chance of making his symptoms worse.
Dr Carmody
As indicated by Mr Honarvar, he also saw Dr David Carmody, Orthopaedic Surgeon, for a second opinion regarding his right ankle injury. In discussing the question of surgery for the right ankle, Dr Carmody said in his report of 26 February 2019:[29]
“My first impression of Ali is that he is not a great candidate for an ankle replacement or ankle fusion. He is only young and I wonder if there is also some depression contributing to his pain which may compromise any result of major surgery.”
[29] ARD page 55.
Dr Carmody also said:[30]
“To me it is not a clear cut operation that Ali needs, but if he finds the symptoms are bad enough and he is looking at surgery, this would be the option and in that setting he may not have much to lose. I understand he has involvement from the Pain Clinic and I think this is a good idea. There is certainly no rush for any surgery, but if Ali feels it is bad enough and nothing else is working, then an arthroscope may be something that can help.”
[30] ARD page 55.
In his next report of 30 April 2019 Dr Carmody noted that Mr Honarvar was complaining of pain in multiple areas and Dr Carmody explained to Mr Honarvar that he did not think an arthroscope was going to fix all of those problems. Notwithstanding, Dr Carmody said there was an area that was worth exploring in the ankle and he said that he “tried to be realistic painting expectations for Ali from the surgery.” Dr Carmody considered that the ankle surgery would be reasonable, given that non-operative treatment had been exhausted.
On 28 June 2019 Dr Carmody reported that he had performed the surgery and noted:[31]
“I was pleasantly surprised at the state of the ankle joint. Moreover, there was a lot of scarring and synovitis, particularly anteromedially which I thought would account for a good deal of his trouble. This was all cleared away and the joint looked quite
good at the end.”[31] ARD page 58.
Dr Carmody then said:[32]
“Despite my optimism after looking inside and performing the arthroscopy, Ali has reported that he still has pain, perhaps worse than pre-operatively.”
[32] ARD page 58.
Dr Carmody confirmed on 23 August 2019 that there had been no improvement from surgery. Dr Carmody noted that Mr Honarvar was “doing all the right things” such as having physiotherapy and seeing a pain specialist. Dr Carmody confirmed his impression that the pathology in the ankle at the time had been addressed. He said:[33]
“Unfortunately I think Ali is likely to need now to manage the pain and find strategies to cope which is why it is good to have the Pain team involved.”
[33] ARD page 59.
Activities of Daily Living Assessment Report
The applicant also relied on a report from Recovre dated 17 November 2020, entitled as above.[34] The author was Ms Vicki Davey, Occupational Therapist. She noted in taking the history that Mr Honarvar complained of being in constant pain and that his “sleeping has become increasingly difficult due to his old small bed”.
[34] ARD page 78.
Under the heading of “Assessment Outcome and Strategy” Ms Davey noted:
“Mr Honarvar experiences mental health issues that he believes is contributed by lack of sleep, constant pain and lack of intimacy with his wife.
Mr Honarvar was noted to have a child's size bed with limited support and his wife is sleeping in another room as the bed is too small to accommodate both parties.
Mr Honarvar has researched alternative bed options to assist with decreasing his pain and allowing more support.”
Ms Davey said that Recovre had reviewed bed options and the bed chosen by Mr Honarvar from Harvey Norman, being a Tempur Elara, was recommended.
Ms Davey noted around the house multiple grab rails that had been arranged by
Mr Honarvar, and which Ms Davey thought were appropriate.Ms Davey noted that the bed currently being used by Mr Honarvar was 38 cm from the floor with a mattress inset in the base of an older inner spring type with reduced support. She said that the current bed was old and too small for Mr Honarvar. In giving her rationale for supporting the purchase of the equipment, Ms Davey said:[35]
“Mr Honarvar currently has a small, old single bed that is contributing to back pain and transfer issues. The recommended bed will reduce pain levels and ensure transfers are more manageable. With potential fusion occurring, an adjustable well supportive bed wilI enable Mr Honarvar to sleep more effectively by reducing some of his back pain. It is also noted that Mr Honarvar experiences high levels of-fatigue due to lack of sleep and is unable to sleep with his wife in his current bed. These are contributing to some of his mental health issues.”
[35] ARD page 83.
Ms Davey thought that Mr Honarvar was experiencing “mental health issues” and that the current sleeping arrangements were likely to be contributing to his mental health because of his inability to sleep with his wife and his lack of sleep.
The dispute notices
The insurer issued two s 78 notices and three s 287A notices. With regard to the claim for further surgery, the insurer relied on a report of Dr John Sheehy, Neurosurgeon, dated 8 September 2020. With regard to the claim for the cost of a mattress, the insurer relied on
ss 59 and 60 of the 1987 Act. It referred to Cooper v State Rail Authority (NSW)[36] and it submitted that it was likely that the applicant would have needed a mattress irrespective of his injury in any event.[36] [2001] 25 NSWCCR 25 (Cooper).
Dr Sheehy
As noted, the denial regarding the proposed surgery was based on a report obtained for the respondent from Dr John Sheehy on 8 September 2020. Dr Sheehy had available the reports of Dr Al Khawaja, the MRI scan of 4 December 2019.
Dr Sheehy took a consistent history of the injury, noting that Mr Honarvar had been treated by analgesics, radiofrequency ablation of the nerves of his back and an epidural injection. He noted that Mr Honarvar continues to be symptomatic. At the time of the consultation,
Mr Honarvar was taking Palexia in the morning and Tarin at night together with Lyrica.On examination, Dr Sheehy noted that Mr Honarvar was generally hyporeflexic. Dr Sheehy said[37]:
“An examination of the lumbar spine was impossible because of pain. He was unable to move either into extension or flexion.”
[37] Reply page 8
Dr Sheehy noted the MRI scan of 4 December 2019 and that it showed an L5/S1 disc protrusion compressing existing L5 nerve in the exit foramen. The later MRI scan commented on by Dr Darwish was not available, as it post-dated Dr Sheehy’s report.
Dr Sheehy surveyed the reports of Dr Al Khawaja. In answer to a query as to diagnosis
Dr Sheehy said:[38]“He has a soft tissue injury in the low back. MRI scan does demonstrate a tear in the L5/S1 disc space”.
[38] Reply page 5.
When asked about the recommended surgery, Dr Sheehy said:[39]
“Failure of conservative management is not an indication for anterior lumbar surgery. ….”
[39] Reply page 6.
Dr Sheehy repeated that view when asked about prognosis, saying that it was unlikely that Mr Honarvar would obtain significant improvement and associated functional gains.
Dr Sheehy recommended that the treatment continue on a conservative basis under the care of Dr Nazha.Dr Sheehy said that the prognosis for Mr Honarvar returning to suitable duties or pre-injury duties was poor. He noted that Mr Honarvar had been unemployed for three years.
SUBMISSIONS
Mr Hunt
Mr Hunt submitted that there is no issue with injury as injury to the back and neck had been admitted as well as that to the right ankle.
Mr Hunt submitted that Mr Honarvar’s claim was based on the fact that he had attempted many different modalities of treatment, none of them being successful. However, Mr Hunt noted that none of the medical professionals and health professionals who provided the various modalities of treatment had given any evidence. There was no evidence from any physiotherapists or pain management specialists and there was nothing from the general practitioner. No clinical notes had been lodged.
Mr Hunt referred to the reports of Dr Carmody. On 26 February 2019 Dr Carmody observed that Mr Honarvar was not “a great candidate” for surgery. This statement was applicable to the proposed back surgery Mr Hunt said, notwithstanding Dr Carmody was speaking in terms of a proposed ankle procedure.
Mr Hunt noted that on 23 August 2019 Dr Carmody’s impression of improvement had not been sustained, and that Mr Honarvar was still complaining of pain despite having regular physiotherapy. Mr Hunt referred to Dr Carmody’s view that pain management was going to be needed to manage Mr Honarvar’s pain and find strategies to cope with it.
Mr Hunt submitted that the reports of Dr Dave, who performed the initial ankle surgery and Dr Martin, who was concerned with the neck and hip were not helpful.
Mr Hunt submitted that I would not accept Dr Al Khawaja’s opinion that surgery was the best treatment option. Dr Al Khawaja on 9 April 2020 had said that the only option left “in my hand” was the surgical option. Mr Hunt submitted that Dr Al Khawaja did not assert that surgery was the only option remaining.
With reference to Dr Al Khawaja’s report of 21 July 2020, Mr Hunt submitted that suggestion of radiculopathy in the legs was mentioned for the first time. Mr Hunt submitted that whilst
Dr Al Khawaja recommended surgical intervention, he did not give any reasoned decision as to why the surgery would result in an improvement.Dr Al Khawaja simply said that surgical intervention was recommended because all other conservative treatment types had been exhausted. In his long report addressed to QBE but sent through his retaining solicitors, Dr Al Khawaja again did not explain how the proposed surgery would beneficially affect Mr Honarvar’s condition. Again, the rationale was that
Mr Honarvar had tried all other pain management types but continued to get worse. Mr Hunt asserted that when Dr Al Khawaja said that there was a good chance the surgery would help, his opinion was flawed because he gave no insight as to how it would assist or why, for that matter, Mr Honarvar’s condition would improve.Mr Hunt noted that whilst being examined by Dr Darwish, Mr Honarvar complained of a lot of back pain, more on the left side, but on examination had altered sensation on the medial aspect of the right leg in the distribution of the right L4/5 dermatones. The MRI scan showed an L5/S1 left foramenal disc protrusion with potential compression of the left L5 nerve. The complaints and sensations were, said Mr Hunt, a moveable feast.
Mr Hunt submitted that I would prefer the evidence of Dr Sheehy. It was significant that
Dr Sheehy could not examine Mr Honarvar’s lumbar spine because of Mr Honarvar’s pain. Mr Hunt submitted under these circumstances, where there is only Mr Honarvar’s version of events given in his statement, it is impossible to be satisfied that the surgery was reasonably necessary for the simple reason that the Commission had not been given access to the contemporaneous evidence of those who treated Mr Honarvar, but only the selected segments reproduced in his statement.Mr Hunt submitted that there were so many “red flags” raised in the evidence as to whether the proposed surgery was appropriate or effective that Mr Honarvar in the final analysis had not been able to meet his onus. Mr Hunt repeated that there were no clinical notes from the general practitioner, there was no report from the physiotherapist, there were no reports from Dr Nazha and there were no clinical notes from the general practitioner. Perhaps more importantly, it was suggested, there was no evidence from either the psychologist, Mr Amani or the psychiatrist Dr Way, as the fact that Mr Honarvar was under psychological care was both relevant and significant.
Mr Hunt endorsed the statement of Dr Sheehy that failure of conservative management was not an indicator for anterior lumbar surgery.
With regard to the claim for costs of the mattress, Mr Hunt submitted that I would not find it was a curative apparatus in these circumstances and the report from the Recovre activities of daily living person, Ms Davey, showed simply that the bed needed replacement because it was too small and too old and moreover, I would not be satisfied that the injury gave rise to the need for the bed.
Mr Malouf
Mr Malouf submitted that, taken to its extreme, Mr Hunt’s submission went to credit.
Mr Malouf said there was no need to focus on the conservative treatment that Mr Honarvar had undergone. It was unchallenged evidence in Mr Honarvar’s statement, and it was supported by the evidence of both Dr Al Khawaja and Dr Darwish that he had undergone these forms of treatment. He submitted that the MRIs taken at different times disclosed pathology which was described by Dr Al Khawaja as “significant” and that it involved compression of the left L5 nerve root. This was common ground with Dr Sheehy as well.Dr Al Khawaja’s series of reports showed that Mr Honarvar did exactly what he was told as far as treatment was concerned. He had injections, he went to the Pain Clinic, he had physiotherapy and he had hydrotherapy.
Dr Al Khawaja had assessed Mr Honarvar nine times since December 2019, Mr Malouf noted. There was no evidence of any other alternative treatment that should have been trialled, other than that which Mr Honarvar had tried and which had proven to be unsuccessful.
When asked as to why evidence from the various providers had not be tendered, Mr Malouf submitted that the evidence by the applicant sufficiently described his attempts to avail himself to further treatment, and that such further material was not relevant.
Mr Malouf submitted that Dr Sheehy did not define what he meant when he said that conservative care was an alternative treatment.
Mr Malouf submitted that Dr Sheehy found that in any event the prognosis was poor, whether Mr Honarvar had the surgical treatment or not. Mr Malouf said that the evidence established there was a chance that the proposed surgery might improve Mr Honarvar’s situation, which was all that was needed pursuant to Diab.
In relation to the claim for the bed and mattress, Mr Malouf submitted that it was a curative apparatus although it had been suggested that Mr Honarvar had experienced trouble with it before his injury. Mr Malouf referred to paragraph 10 of Mr Honarvar’s supplementary statement which said:[40]
“10. With no improvement following the injection to my lumbar spine and with constant pain, Dr Al Khawaja recommended that I obtain an orthopaedic bed for the support of my spine. Dr Al Khawaja formed the view that with an orthopaedic bed, this would benefit me both in relation to the problems I am having to my neck and to my lumbar spine.”
[40] ARD page 12.
DISCUSSION
In Diab v NRMA Ltd[41] DP Roche set out what is now the accepted criteria that needs to be considered in cases of this nature. At [76] the learned DP said:
“76. The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW)[1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
‘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] [2014] NSWWCCPD 72 (Diab).
DP Roche then considered existing authority, and distilled from it the following matters that were relevant, from paragraph [88]:
“88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Mr Honavar 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 applicant 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
Mr Honavar himself, and by the practitioners who supported him, of anything more than that alternative treatment was available. I was not assisted by Mr Honavar’s self-assessment as to its effectiveness.
I will discuss the other criteria regarding the application of s 60 (5) of the 1987 Act shortly, but it can be seen that evidence as to the potential effectiveness of the alternative treatment available is one of the factors that an applicant seeking a declaration under this section must satisfy.
In making these observations, I wish to make it clear that there can be no criticism of
Mr Honarvar that his beliefs in the seriousness of his symptoms are not genuinely held. However, 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.The evidence as to the effectiveness of the alternative treatment comes principally from
Mr Honarvar. 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.This assertion on its face raised a number of questions. Firstly, what was the medication, and why was it not effective? Secondly, when was it administered, and for what purpose? It must be remembered that the immediate concern of Mr Honarvar’s treating practitioners was not for his back condition, but rather the significant right ankle injury for which he underwent surgical treatment on 11 July 2017, 14 April 2018 and 21 June 2019. Thirdly, if the treatment was not effective, why did Mr Honarvar continue to receive it, and indeed accept the increased prescriptions that he described as a “cocktail of different medication” in his second statement? Fourthly, when did he cease obtaining treatment from Dr Nazha, if indeed he has ceased such treatment?
Similarly, I have only Mr Honarvar’s opinion as to why physiotherapy failed to assist him. He also appeared to be frustrated with the advice he got when he disagreed with the physiotherapist that the neck and back pain he was experiencing following the workplace incident was normal.
Again, this assertion raises more questions. Why did the applicant continue with physiotherapy for some years when he thought the exercises were making him worse? How long did the physiotherapy last for? Who referred Mr Honarvar for physiotherapy, and what were the terms of the referral? What was the physiotherapist’s opinion? Did he/she agree that this treatment was ineffective?
Similar questions arose as to the failure of the hydrotherapy treatment which Mr Honarvar trialled.
The reports from those treating practitioners that Mr Honarvar relied upon were also unhelpful in considering the criteria, as they too recommended the surgery on the basis that nothing else had worked.
Dr Al Khawaja stated that he recommended the surgery “because [Mr Honarvar] exhausted all conservative treatment types.” Dr Al Khawaja noted that Mr Honarvar had tried “all pain management types including painkillers, physiotherapy, injections, and nothing helps his condition.”
Dr Darwish was of the same view. He thought that surgery was reasonable “as [Mr Honarvar] has failed to respond to all forms of conservative treatment.”
Although referring to Mr Honarvar’s right ankle condition, Dr Carmody expressed reluctance to operate on a number of bases, but eventually proceeded as Mr Honarvar “has exhausted non-operative treatment.” It is of relevance to note that, to his surprise, Dr Carmody found and treated pathology in the ankle, which he thought had been accounting for the trouble. Nonetheless Mr Honarvar’s response was that he was “perhaps worse than pre-operatively.”
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 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 Mr Honarvar 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 Mr Honarvar from recovery is not the alternative treatment, but rather his mental state.
I cannot be satisfied accordingly that the criterion of the availability of alternative treatment has been properly addressed.
I am also not persuaded that the proposed surgery is appropriate. Dr Carmody expressed misgivings when he was contemplating surgery on the right ankle. He wondered whether
Mr Honarvar was not suffering some depression which both contributed to his pain and compromised any result of major surgery. This anticipation in the case of the ankle surgery proved to be accurate.
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
Mr Honarvar’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
Mr Honarvar’s symptoms.”
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.
Dr Darwish commented on the comparison between that scan and the earlier scan of 17 November 2007, saying that the 2007 scan showed “potential compression of the left L5 nerve root”. It follows that Dr Al Khawaja’s opinion that Mr Honarvar was suffering a significant injury to the lumbar spine is compromised by the fact that he was unaware of the later MRI scan which showed that the pathology in 2017 had altered by 2020 to the extent that Dr Darwish simply described the injury as an aggravation of degenerative changes. I am not satisfied therefore that the injury is now as significant Dr Al Khawaja assumed on the basis of the outdated MRI.
This impinges 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. In that regard the evidence of Dr Darwish was unconvincing. A prognosis that proposed outcome would give “at best” only 50% chance of success - and a small chance of making the symptoms worse -is not a ringing endorsement for the effectiveness of the treatment. Dr Al Khawaja, on being told on 9 April 2020 that the epidural injection had not succeeded told Mr Honarvar that his only option “in my hand” was a surgical option. That too I do not read as an endorsement of the potential effectiveness of the treatment. I also did not discount the possibility of other treatment being available, as Dr Al Khawaja is a neurosurgeon and, as I read his comment, his expertise after administering the epidural block, was limited to surgery. Dr Al Khawaja’s statement that there was a “good chance for this to help” needs to be read in the context of his disclaimer that “I cannot guarantee it.”
I am further unpersuaded that the proposed surgery was actually or potentially effective in view of the comments I have made regarding the possible relevance of Mr Honarvar’s mental state, which was also the subject of Dr Carmody’s first impression that Mr Honarvar’s condition might have been affected by some depression.
These 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. I also accept that failure of conservative management is not an indicator for anterior lumbar surgery. Dr Sheehy and Dr Carmody both spoke of pain management being the appropriate treatment, which opinions I accept as being more likely to alleviate Mr Honarvar’s condition than the proposed surgery.
The application for a declaration that the surgery proposed by Dr Al Khawaja is accordingly declined.
With regard to the claim of approximately $33,700 for an orthopaedic mattress and bed, I note the content of Ms Davey’s report for Recouvre - particularly that Mr Honarvar was sleeping in a child’s bed whilst his wife was sleeping in another room.
Section 59 of the 1987 Act provides for the inclusion of a number of services and items that may be included in the definition of “medical or related treatment.” It was common ground that the only construction of the claim would be that the bed was “curative apparatus” as defined in subparagraph (e):
“(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment.”
As I have found that the proposed surgery is not reasonably necessary the reasons advanced for the supply of the bed fall away in any event. Dr Al Khawaja recommended the bed for the purposes of recovery from the proposed surgery, but he did make a comment that a firm mattress would assist in minimising Mr Honarvar’s pain. That may be, but it does not impose on the respondent an obligation to supply one. 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. No explanation has been made as to the exorbitant cost of the proposed bed, and it is common sense that if Mr Honarvar has a bad back, then he should not be sleeping in a child’s bed.
There will accordingly be an award in favour of the respondent in respect of both s 60 claims.