Iacovazzo v State of New South Wales (NSW Health Pathology)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Iacovazzo v State of New South Wales (NSW Health Pathology) [2024] NSWPIC 650
APPLICANT:	Suzana Iacovazzo
RESPONDENT:	State of New South Wales (NSW Health Pathology)
MEMBER:	Diana Benk
DATE OF DECISION:	26 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether the applicant suffered consequential conditions of alcohol abuse disorder, temporomandibular joint dysfunction and bruxism as a result of an accepted psychological condition; whether the need for pharmacological interventions, splints and Botox injections are reasonably necessary; Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Ltd discussed and applied; Held – the applicant has suffered a consequential condition of alcohol abuse disorder, bruxism and temporomandibular joint dysfunction resulting from her accepted workplace psychological injury; treatment proposed is reasonably necessary and the conditions materially contributed to be the need for treatment; respondent to pay for pharmacological and dental treatment as proposed by the applicant’s providers pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant developed major depression arising out of workplace injury on 24 February 2023 (deemed) 2. The applicant has developed an alcohol abuse disorder, bruxism and temporomandibular joint dysfunction consequential to the injury on 24 February 2023. 3. The respondent to pay the applicant’s reasonable medical and related treatment expenses associated with the consequential conditions of bruxism and temporomandibular joint dysfunction pursuant to s 60 of the Workers Compensation Act 1987 as recorded in the treatment plan of Dr Argyrou dated 21 February 2024. 4. The respondent to pay the applicant’s pharmacological costs and related expenses associated with the consequential condition of alcohol abuse disorder as per the treatment plan of Dr Khoo and Dr Khan.

STATEMENT OF REASONS

BACKGROUND

The respondent, State of New South Wales (NSW Health Pathology) accepts Suzana Iacovazzo (the applicant) developed a major depressive disorder as a result of her employment as a senior laboratory technician. It however disputes liability for treatment required to manage claimed consequential conditions of alcohol use disorder and bruxism/ temporomandibular joint dysfunction (TMJ) because it claims the conditions and treatment did not ‘result from’ her psychological injury and/or further such conditions were not ‘injuries’ with reference to the Workers Compensation Act (1987) (the 1987 Act). Internal review was unsuccessful, prompting the filing of the Application to Resolve a Dispute (ARD) to the Personal Injury Commission (the Commission).
The matter underwent the usual case management pathway and ultimately met with conciliation impasse. Counsel confirmed the issues for determination are whether the above conditions are consequential to the accepted psychological injury and whether the claimed treatment is ‘reasonably necessary’ with reference to the 1987 Act.
The applicant was represented by Mr Hickey of counsel instructed by Ms Azer. The respondent was represented by Mr Davis of counsel instructed by Mr Gilmour.
At the outset, the applicant opposed the respondents Application to Admit Late Documents (AALD) which annexed the report of Dr Paul Nichols, dental surgeon dated 27 September 2024. This document was not before me as it had been administratively rejected by the Registry of the Commission as it was not filed within the required timeframe, but it was forecasted at the preliminary conference. The applicant was served with the document within the required timeframe and responded with a supplementary statement. After hearing submissions, I determined the document was to be admitted in the interests of procedural fairness and natural justice. I found no justification for the applicant to gain a forensic advantage by rigidly enforcing the time limits in this case scenario,[1] particularly in circumstances were I was not satisfied that prejudice would ensue as the applicant had responded to the additional evidence. I directed the respondent file an AALD attaching the report no later than close of business on the day of arbitration. It did so.
[1] Garrad v Email Furniture Pty Ltd (1993) 32NSWLR 662.
During the course of decision making, I considered the oral submissions along with the documentary evidence consisting of the ARD, Reply, AALD filed by the applicant on 30 October 2024 and by the respondent on 5 November 2024. No oral evidence was called.

EVIDENCE

Applicant’s evidence

In her statement dated 24 July 2024, the applicant recounts her difficult employment circumstances and the impact on her health and family. As regards her use of alcohol she declared (unedited)
“I have also been consuming alcohol excessively and I have been receiving regular counselling from Dr Khoo for this. Prior to the subject injury, I did not consume any alcohol. Since the subject injury I have a current pattern of consuming 6 or more standard drinks daily. Consuming alcohol numbs all of the anguish and intrusive thoughts of what happened to me at work. It has been a coping mechanism for me. I have followed my doctor’s advice and guidance with the medications prescribed to me for treatment of my psychological symptoms and alcohol use disorder”[2].
[2] Paragraph 14 – Folio 40 of the ARD.
As regards dental symptoms, the applicant declared (unedited)
“I have developed bruxism and temporomandibular joint dysfunction, which are conditions I have never previously experienced. My symptoms initially developed in around November 2022 in the context of workplace stressors. I attended on my usual family dentist, Dr Constantinou, who recommended an occlusal splint at the time…. In around November 2023 I noticed that I was grinding my teeth more excessively and my jaw was painful. I was also experiencing headaches from grinding excessively. I spoke to my general practitioner, Dr Eugene Khoo, about this and he recommended I speak to a dentist to consider an occlusal splint and Botox to weaken the muscles. I consulted dentist, Dr Marios Argyrou as I understood that Dr Argyrou was a WorkCover doctor and had previously dealt with insurers.
Dr Marios Argyrou recommended a splint and botox to weaken my jaw muscles. I incurred the costs of the splint directly and use the splint at nighttime. I have benefited from the splint as it has reduced my jaw pain and improved my quality of sleep. It has also assisted in preventing any further damage to my teeth. I also wish to receive botox treatment which I have been advised will reduce my teeth grinding during the day and on a long term basis with maintenance.”[3]
[3] Paragraphs 12 and 13 – Folio 39 of the ARD.
Dr Khan, consultant psychiatrist has provided multiple reports. Relevantly in his latest report dated 9 May 2024[4] he associated the chronic increase in alcohol abuse to symptoms associated with anxiety and depression, with urges to abuse alcohol when triggered by memories of workplace stressors. He confirmed that her history was devoid of substance or behavioural addiction prior to her workplace injury.
[4] Folio 66 of the ARD.
Dr Khan diagnosed major depressive disorder and alcohol use disorder referencing the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnostic criteria. He concluded employment was the main contributing factor as there was “no doubt”[5] the accepted workplace psychological injury materially contributed to the alcohol use disorder; an opinion he confidently asserts given his speciality in addiction medicine. Prognosis was reported as guarded as she “continues to suffer from pervasive symptoms of depression and anxiety, which perpetuate problematic alcohol use and have a profoundly negative impact on her social, occupational and other important areas of functioning”.
[5] Folio 70 of the ARD.
Dr Khan agreed with the opinion of the treating dentist that there was a clear connection between the workplace psychiatric injury and the development of bruxism and TMJ due to the demonstrated levels of emotional distress coupled with debilitating symptoms of anxiety and agitation.
As regards treatment, Dr Khan was unrestrained in his opinion reporting failure to provide treatments would be negligent,[6] specifically reporting:
(a)    the vitamin thiamine is documented to be the first line medication option to prevent Wernicke’s encephalopathy, a severe complication of alcohol withdrawal and there are no other alternatives;
(b)    Naltrexone is a first line medication option and medical literature verifies this prevents the craving of alcohol, is cost effective and has high efficacy;
(c)    Quetiapine is supported in low doses for its anti-anxiety and sedative effects and is routinely prescribed in cases where there is a primary mood disorder and comorbid addictive disorder, is non addictive in comparison to other mood stabilising anti-psychotic medications, and
(d)    as regards the dental treatment, whilst supportive, Dr Khan appropriately defers comment to the treating dentist but submitted his clinical experience confirmed Botox and occlusal splints as commonly prescribed treatment modalities for TMJ and bruxism associated/aggravated by psychological stress.
[6] Folio 72 of the ARD.
Dr Khan commented that the opinion obtained by the respondent, relevantly Alyssa Fusillo, pharmacist, was of little relevance as she is not a medical specialist and not appropriately qualified to comment on the clinical indications for the prescription of medications for psychological disorders. Further, he was critical she exceeded her brief and skill set by commenting on matters outside of the side effects of medications and any possible drug-drug interactions.[7]
[7] Folio 73 of the ARD.
The clinical records and reports[8] of treating dentist, Dr Marios Argyrou were reviewed. He diagnosed bruxism and TMJ dysfunction following a dental examination. As regards causation, it was concluded that “stress” is a well-documented factor for the above diagnoses. He considered the teeth grinding and jaw clenching (findings of bruxism) evident on his examination were more likely than not the result of documented and established increased muscle tension associated with her anxiety and depression.
[8] Folios 74-82.
As regards treatment it was reported Botox injections are reasonably necessary treatment, well suited in reducing the hypertrophy of the masseter muscle and are effective for TMJ and bruxism. This is because relaxation of muscles induced by Botox is documented to alleviate pain due to a decrease of clenching and grinding. Muscle relaxant medication was an alternative although with unpredictable and slower results. The injections were quoted at $500 per treatment.
An occlusal splint at a cost of $800 was recommended in conjunction with Botox. The aim of this treatment was to arrest dental wear and bruxism, as splints are clinically effective in redistributing the forces exerted during clenching and grinding, thereby reducing strain on the TMJ muscles. As regards history, Dr Argyrou records unrelated restorations on various teeth but confirmed the restored teeth were unaffected by bruxism, such phenomena demonstrated only on teeth 33-43 and 13-23.
Clinical notes[9] of the treating general practitioner, Dr Eugene Khoo confirm the diagnosis of major depression, its genesis, ongoing fluctuating symptoms, the physical and mental impacts of the disorder on the applicant and her immediate family and responses to treatment.
[9] Folios 83-199.
The use of “alcohol to numb the mind is recorded” following the diagnosis of major depression. A diagnosis of alcohol abuse disorder was made. Management by way of counselling, abstinence, medication and constant care/supervision by the applicant’s husband, including the introduction of financial restrictions to curb the spend on alcohol are recorded at multiple consultations.
Jaw and dental pain are regularly reported following the onset of the major depression with nightmares and repeated awakening with jaw and dental pain. A dental referral was made.
Overall, the 116 pages of clinical notes demonstrate a consistent history of presentation, injury and symptoms. Scrutiny of the notes confirms no other factors contributing to the original diagnosis of major depression, subsequent alcohol abuse and dental discomfort. Regular crisis plans and welfare checks are recorded with a note that her husband left the workforce to become her full time carer.

Respondent’s evidence

In response to the claims for pharmaceuticals associated with the diagnoses of major depressive disorder and alcohol abuse disorder, Alyssa Fusillo, pharmacist, undertook a pharmacy review. In her report dated 28 February 2024,[10] a review of the global medication regime was undertaken but in relation to the treatment the subject of this claim it was reported:
(a)    preventative thiamine supplementation is “reasonably necessary” treatment in cases of alcohol dependence to limit development of peripheral neuropathy and Wernicke encephalopathy. No alternatives were identified. The treatment falls within accepted medical practice;
(b)    Naltrexone is known to be effective in reducing alcohol cravings and is considered “reasonably necessary” treatment. Whilst there are alternatives, the medication is appropriate for the diagnosis but effectiveness is questionable if the primary condition of depression and general anxiety disorder are not optimised;
(c)    Quetiapine is known to be prescribed for insomnia and the prescription of 25mg did not follow best practice guidelines, although she did not discuss the effectiveness of this medication with Dr Khoo. Alternatives were available, although review with a psychiatrist was considered necessary to ensure an appropriate pharmacological regime.
[10] AALD filed by the applicant on 30 October 2024.
Dr Paul Nichols, dentist reported on 27 September 2024.[11] Examination confirmed TMJ and muscles of mastication were tender. There was an obvious click of the left TMJ. Signs of occlusal wear from bruxing were reported on a background of good dental hygiene. A diagnosis of bilateral TMJ dysfunction and bruxism was made.
[11] AALD filed by the respondent on 5 November 2024.
As regards causation, it was submitted there was no scientific evidence linking stress, anxiety, post-traumatic stress disorder or any other psychological condition to the cause of bruxing. Reliance was placed on a 2017 scientific study.[12] I note that the study was confined to two patients over a six week period (and was referred to as a “long term study”.) I find reference to the study to be wanting as the exact nature of the underlying psychological condition, comorbidities, age and general health of the two subjects are unknown. I find this study carries little weight in the circumstances of this case due to insufficient metadata.
[12] Long term variability of sleep bruxism and psychological stress in patients with jaw muscle pain: Report of two longitudinal clinical cases – K.Muzalev | C.M Visscher | M. Koutris | F. Lobezzo.
Dr Nichols considered medications taken for the management of the major depression may be responsible for the presence of xerostomia (dry mouth) and reported medical literature supports an increase in the effects of bruxism in patients with such a diagnosis. He postulated there may have been a pre-existing requirement for a splint as one had been suggested in 2014.
He reported splints and Botox are considered “reasonably necessary” treatment in the presence of bruxism and TMJ, but opted to defer final opinion on causation in the absence complete dental records, diagnostic quality X-rays and a specialist prosthodontist report to assess the relationship of the bruxism to any psychological symptoms.
The last page of his report[13] purports to be a summary of further scientific studies which concluded “some specific symptoms of anxiety disorders spectrum might be associated with probable sleep bruxism. There is no evidence that medications cause or exacerbate sleep bruxism”. I found this statement to contradict the conclusions of his main body report.
[13] Folio 19 of the AALD filed by the Respondent on 5 November 2024

Submissions

The mainstay of the applicant’s submissions were:
(a)    the respondent has no evidence to supports its denial of liability with regards to the alcohol use disorder or dental symptoms;
(b)    the respondent’s evidence (which is limited to that of a pharmacologist and not a psychiatrist) supports the use of thiamine and naltrexone as being reasonably necessary for a diagnosis of alcohol use disorder and that Quetiapine (Seroquel) is also accepted treatment by the medical profession;
(c)    Dr Nichols records the history of a previous suggestion of a splint/mouth guard for what he presumed to be bruxism, but the applicant recalls the guard was part and parcel of a tooth whitening process (undertaking prior to her wedding) and not for bruxism;
(d)    the evidence of both parties reveals to various degrees that the alcohol abuse disorder, TMJ, bruxism and the need for treatment “result from” the accepted condition of major depression and such conditions “materially contributed” to the need for treatment;
(e)    the respondent’s dental opinion is a complete misrepresentation of the scientific status quo and many of the statements are inconsistent, and
(f)    the respondent has no medical case to deny treatment arising from the alcohol abuse disorder and bruxism/TMJ.
The mainstay of the respondent’s submission were:
(a)    the respondent accepts the applicant has a major depressive disorder arising out of her workplace circumstances;
(b)    the pharmacologist records genuine observations and concerns in relation to treatment rendered;
(c)    Dr Khoo is noted to not have a provider number and his prescribing practices are possibly questionable (although nothing turns on this for the purposes of these proceedings);
(d)    the report of Dr Nichols does acknowledge the dental treatment proposed is generally appropriate but expressed doubts on the nexus to psychological injury.
In response the applicant submitted:
(a) the s 78 notice of the respondent did not raise any concerns regarding Dr Khoo’s qualification and the submission is a red herring as the respondent has funded his treatment.

FINDINGS AND REASONS

Application of the law, findings and reasons

In this case, there is no dispute the applicant developed a major depression arising out of employment deemed to have occurred on 24 February 2023. Liability for this diagnosis has been accepted and compensation paid. The key issue for determination here is whether the applicant developed consequential conditions of alcohol abuse disorder and bruxism/TMJ as a result of her accepted psychiatric condition and if so, whether the costs associated with treatment of these conditions are reasonably necessary.
The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):
(a)    the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[14] (Kumar);
(b)    each case must be determined on its own facts;
(c)    it is unnecessary for a worker alleging such a condition to establish that it is an “injury” (including “injury” based on the “disease” provisions) within the meaning of s 4 of the 1987 Act[15] (Moon);
(d)    to establish a condition, there is to be a “common sense evaluation” of the causal chain, determined on the basis of the evidence, including expert opinions[16] (Kooragang);
(e)    a finding of a consequential condition does not require the identification of pathology[17] (Kumar);
(f)    a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury, that is, it results from an employment injury[18] (Brennan);
(g)    reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(h)    there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(i)    the absence of treatment is not fatal to the applicant’s claim of a consequential condition[19] (Baker), and
(j)    a consequential condition/s may be multifactorial in nature, but still result in liability being found against an employer where it is demonstrated that the subject injury “materially contributed”;[20] to the claimed consequential condition/s (Murphy) and (Moon).
[14] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[15] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[16] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[17] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[18] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan (NSWWCCPD 23)
[19] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
[20] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

I have carefully considered the evidence. I find that the applicant has been consistent in her representations regarding the genesis of the alcohol abuse disorder. To the extent that they overlap, her representations are entirely consistent with the contemporaneous notes of her general medical practitioner and the history recorded by the various qualified doctors.
The applicant carries the onus of establishing on the balance of probabilities that the alcohol abuse disorder resulted from the psychiatric disorder suffered as a result of her workplace injury. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say I must be satisfied to a sense of actual persuasion or affirmative satisfaction that such claims have been made out (Nguyen).[21] It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the condition is related to employment.
[21] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Dr Khoo and Dr Khan, (who specialises in addictive medicine), diagnosed alcohol abuse disorder ‘resulting from’ the major depressive disorder. The clinical notes of Dr Khoo reinforce the applicant resorted to alcohol to numb her symptoms particularly as her medication regime had failed to provide her with the relief that she was expecting. The notes between 2023 and 2024 confirm struggles with the management of the disorder and recommend Naltrexone and Thiamine to retard cravings and prevent vitamin deficiency. Quetiapine was prescribed to reduce anxiety, hence moderate the need to “numb” symptoms by resorting to alcohol, a pharmacological regime supported by Dr Khan and in large part, Ms Fusillo.
Review of the documents confirms there have been no gaps in the reporting of complaints. I am also satisfied there is no other established cause, pre existing conditions or psychosocial factors nominated for the alcohol abuse disorder apart from the major depression, for which liability has been accepted. Importantly, I cannot ignore the respondent has no evidence to refute such findings. Its s 78 notice disputed liability on the basis of s 4 of the 1987 Act, claiming there was insufficient evidence to confirm the condition arose out of employment as required. The decision failed to consider whether the condition was consequential to the major depressive disorder.
I have also undertaken a common sense evaluation. In doing so, I had regard to the chronology, medical evidence, factual statements and acknowledged there was no cogent argument advanced by the respondent to disrupt, question or cause me to cast doubt on the common sense causal case theory advanced by the applicant or my own assessment of ‘commonsense’. Further, an objective and logical analysis of the chronology, medical evidence and factual statements reinforce the chain of causation between the original diagnosis and development of the alcohol abuse disorder, thereby verifying my commonsense assessment is not based on theory or speculation.
Overall, for the reasons above, I find the applicant has established on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction that she has developed the consequential condition of alcohol abuse disorder as a result of her accepted major depression injury on 24 February 2023 (deemed).
As regards the claimed conditions of bruxism and TMJ dysfunction, both dentists in this matter have confirmed the diagnosis on clinical findings. I accept there are no radiological findings (a criticism made by Dr Nichols) however, bruxism affects the dental surface and so the utility of an x-ray is negligible, except to show perhaps the extent of overall deterioration. Likewise TMJ is a muscular disorder, making x-ray likely redundant. Dr Argyrou explained the established stress and anxiety culminating in muscle tension resulted in grinding and clenching of the teeth. He carefully recorded the dental history and noted restorations on various teeth but was clear to point out that teeth with noted restorations were unaffected by bruxism, such phenomena demonstrated only on teeth 33-43 and 13-23, thereby confirming no previous significant history of the disorder.
Likewise Dr Khan has reported his clinical experience reveals individuals with psychiatric conditions are more prone to bruxism. I find this opinion is outside of his field of expertise and I have placed more weight on the reports of the dental practitioners.
I find that the report of Dr Nichols was not persuasive. This is because:
(a)    there were several inconsistencies in the report and several non-specific and irrelevant assumptions made (discussed above);
(b)    whilst he suggested that no scientific evidence exists to support bruxism arising from psychological issues, the scientific evidence referred to was limited to a case study of two subjects over a six week period, the metadata in the case study is generalised and non-specific and appear to be at odds with the applicant’s circumstances;
(c)    his findings focus on sleep bruxism but the applicant has complained of day time clenching due to high levels of constant anxiety, a matter that he has overlooked;
(d)    whilst diagnosing xerostomia and opining the applicant’s medication regime likely contributed to the diagnosis, he fails to consider the impact of this diagnosis in the overall development/aggravation of bruxism, despite acknowledging patients with xerostomia are at increased risk of bruxism, and
(e)    Dr Nichols was concerned the applicant had been prescribed a splint several years ago which he postulated may have been for bruxism. The submissions of the applicant were that whilst a historical invoicing code may represent such treatment, the actual treatment related to teeth whitening and not bruxism.
Overall, I find that the applicant has established on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction that she suffers the consequential condition of bruxism and TMJ dysfunction as a result from the psychiatric diagnosis of major depression. This is on the basis of consistent reporting of symptoms initially to the general practitioner and then the dentists involved in her management. I find there have been no gaps in the reporting of complaints and no previous treatment for TMJ and the bruxism. Dr Argyrou has explained the nexus between anxiety and increased muscle tension contributing to TMJ and bruxism. I am also satisfied that there is no other established cause for the condition apart from the major depression and its treatment, for which liability has been accepted.
I also undertook a commonsense evaluation. This involved scrutiny of the chronology, medical evidence and factual statements, and review of the respondent’s medical case (which I found to be unconvincing). I find no grounds that disrupt or displace the commonsense case theory advanced by the applicant or my own interpretation of commonsense. Further, my objective and logical analysis of the chronology, medical evidence and factual statements only reinforce the chain of causation between the original diagnosis and the development of TMJ and bruxism and again provide reassurance that my commonsense assessment is not theoretical or speculative. I find the applicant has suffered a consequential condition of TMJ dysfunction and bruxism resulting from her accepted major depression injury on 24 February 2023 (deemed).
I next must determine whether the treatment claimed in the ARD is reasonably necessary. This included the provision of medications of Naltrexone, Quetiapine, Thiamine relating to the alcohol abuse disorder and the provision of a splint and Botox injections for the TMJ dysfunction and bruxism.
Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
The authorities on the interpretation ‘reasonably necessary’ are overwhelming although three key principles stand out (but by no means are they exhaustive) relevantly;
(a)    firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is “reasonably necessary” (Nguyen);[22]
[22] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
(b)    secondly, whether treatment is “reasonably necessary”[23] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:
[23] Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233 at [39].
(a)“is it better that the worker have the treatment or not?” (in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment (Diab),[24] and
[24] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.
(b)the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(c)    thirdly, the need for treatment must be “the result of an injury”. The authorities establish assessment requires:
(i)a common sense evaluation of the causal chain the treatment is reasonably necessary “as a result of the injury” (Kooragang);[25]
(ii)the expression “results of”, is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury “materially contributed” to that need (Murphy),[26] and
(iii)the worker establish:
“the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them”
and that “a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question.) (Schokman.)[27]
[25] See Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.
[26] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
[27] Per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).
Despite being told that a dispute exists, I found there were more similarities than differences in the competing medical opinions. The respondent’s medical evidence was limited to the opinion of a pharmacologist, Ms Fusillo who did not examine the applicant. She concluded Thiamine and Naltrexone were appropriate medications in the management of alcohol abuse disorder, but was dismissive of Quetiapine as being reasonably necessary at the dose prescribed. Dr Khan and Dr Khoo support the use of Quetiapine for management of anxiety which have direct flow on effects on the urge to resort to alcohol. Ms Fusillo seemed to exercise a cautious opinion and whilst not suggesting that the treatment was not mainstream, suggested psychiatric review. This appeared to be the only point of difference in the qualified medical evidence relating to the alcohol abuse disorder.
Dr Nichol overall considered that splinting and Botox are reasonably necessary treatments to treat bruxism and TMJ, but refrained from a definitive opinion on the respondent’s liability in the absence of further information and sought to rely on various case and scientific studies which I have already indicated are not analogous to the applicant’s circumstances and so carry little weight in my view.
I have already found that the applicant has consequential conditions of alcohol abuse disorder, bruxism and TMJ. I further find, on the evidence before me that the injury and conditions materially contributed to the need for the provision of the above medications, a dental splint and Botox injections. Overall, the evidence confirms there are few alternatives as efficient both in terms of time and cost and there is little disparity between the competing qualified opinions. I further find that in the absence of any alternative treatment or evidence by the respondent to dispute the treatment on medical grounds, that it meets the definition of ‘reasonably necessary’ summarised above.
For the reasons above, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the treatment with reference to the common sense test of causation (Kooragang) and the treatments claimed are reasonably necessary (Rose) and (Diab).

SUMMARY

Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 650

26 November 2024