Irivine v AHC Care Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Irivine v AHC Care Services Pty Ltd [2021] NSWPIC 442
APPLICANT:	Casey Irivine
RESPONDENT:	AHC Care Services Pty Ltd
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	01 November 2021
CATCHWORDS:	WORKERS COMPENSATION – Order relating to reasonable necessity for surgery; Held – the proposed surgery is reasonably necessary.
DETERMINATIONS MADE:	1. The proposed surgery is reasonably necessary.

STATEMENT OF REASONS

BACKGROUND

In July 2019 Casey Irivine (the applicant) was employed by AHC Care Services Pty Ltd (the respondent) as a caretaker.
Her duties included general housekeeping of a residential ward including making of beds, washing linen, vacuuming, and mopping and assisting in the kitchen, providing personal care to elderly residents and other cleaning duties.
The applicant describes her employment as involving repetitive bending and twisting.
In 2011, the applicant had suffered a fall and sustained a soft tissue injury to her back. The applicant describes her symptoms as having resolved.
The applicant had a further flare-up of her lumbar spine symptomatology in May 2018 and had two days off work and received conservative treatment. No claim for workers compensation was made for the injury.
On 6 January 2020 the applicant was working at a client’s house and went out to the verandah when she felt extreme pain in her back and numbness and weakness in her legs. Her symptomatology was so significant that she could not walk, and she rang her manager and then went home for the day.
The applicant sustained an injury to her spine, which is undisputed. The applicant has undergone an MRI of her spine on 15 January 2020 which disclosed degenerative changes at L5/S1 with neural compromise of the right S1 nerve.
The applicant has also taken medication such as Lyrica however this did not sit well with her and it gave her head spins. She has also undergone physiotherapy which she felt did not give her any relief.
The applicant was referred to Dr Singh in March 2020 from her general practitioner Dr Islam.
Dr Singh recommended facet joint injections of cortisone, but the applicant felt that she did not get any relief from this treatment and only made it worse.
On 18 August 2020 Dr Singh recommended that the applicant undergo a decompression and fusion at the L4/5 and L5/S1 levels.
The applicant has also seen Dr Mark Russo, pain specialist. He provides some support for the surgery.
The applicant has completed an 8-week program for spine rehabilitation at Kinetic Medicine.
Liability for the surgery has been declined and a claim was lodged with the Workers Compensation Commission.
When the matter was listed for telephone conference on 2 June 2021, the parties requested that the matter be referred by way of a general medical dispute to a medical assessor in relation to the proposed surgery as suggested by Dr Singh.
Dr Kuru prepared a report dated 9 July 2021 in response to the referral in which he opines that the surgery is not reasonably necessary.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the proposed surgery as recommended by Dr Bisham Sing reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act)?

PROCEDURE BEFORE THE COMMISSION

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;
(b)    Reply to the Application to Resolve a Dispute;
(c)    Late documents dated 11 June 2021, 9 September 2021, and 10 September 2021; and
(d)    Medical Assessment Certificate dated 9 July 2021.

FINDINGS AND REASONS

MEDICINE

I will now embark on an analysis of the medical material relied upon in these proceedings.

Dr Bisham Singh

In a report dated 13 May 2020[1] the applicant consults with Dr Singh (her treating neurosurgeon) and it is observed that the L4/5 injection gave her significant relief during the anaesthetic phase which was of diagnostic importance. The applicant was made aware that should she have ongoing pain in the lower back, the surgical option would be an L4 to S1 decompression and fusion. In the first instance, conservative treatment is recommended, and the applicant was quite motivated to do this however Dr Singh would review her in 4 weeks.
[1] Application page 27
Dr Singh has prepared a further report dated 16 July 2020 after reviewing the applicants progress.[2] In that report Dr Singh takes a history of ongoing back pain and a feeling of instability in the lumbar spine. He outlines that there are non-surgical options which would be to accept permanent functional restriction and persevere with physiotherapy, although this has only given the applicant short-term relief. The surgical option is to consider decompression and fusion of the lumbar spine from L4 to S1.
[2] Application page 25
Dr Singh says that posterior only surgery has the benefit of being a single operation and has success rates of around 90%.
Dr Singh has prepared a report dated 15 December 2020.[3] Dr Singh once again recommends that the proposed surgery takes place. Dr Singh understands the applicant has trialled conservative treatment, but it has not had any sustained relief and in the presence of pathology in the lumbar spine opines that surgical treatment is certainly appropriate. The potential effectiveness of it is described as decompressing the neurological elements and stabilising involving motion segments from the insertion of a prosthesis. Surgery was expected to improve the applicant’s pain and function and return her to the workplace.
[3] Application page 22
Dr Singh states that the proposed treatment is a well-accepted method of treatment for back pain and leg pain in the presence of collapsed disc height and disc bulge with neurological impingement.
Dr Singh has had the benefit of reading the report of the respondent’s independent expert Dr Powell, dated 29 October 2020, and disagrees with the conclusions drawn by him. He disagrees that non-operative treatment should be continued and states that in his hands, he expects to be able to restore the applicant’s disc height and provide stability with a staged L4 to S1 decompression and fusion and this was his preferred method of treatment. He holds an positive view so far as outcome is concerned, prospects of up to 95%.

Dr Bentivoglio

Dr Bentivoglio has prepared a report dated 19 February 2021 at the request of the applicant’s solicitor.[4] Dr Bentivoglio takes a history which is consistent with the applicant’s statement and understands that there is a suggestion of surgery as recommended by Dr Sing.
[4] Application page 13
Dr Bentivoglio diagnosed the applicant as having mechanical axial discogenic lower back pain with neuropathic pain in both legs but with no evidence of radiculopathy.
Dr Bentivoglio takes a history of the applicant’s treatment by way of pain medication, extensive physiotherapy, exercise physiology, attendance at pain clinics and cortisone injections, none of which had alleviated the applicant’s pain.
So far as the surgery is concerned Dr Bentivoglio opines that the proposed treatment is available and there would be a 60-70% chance of significant improvement in her symptoms and about a 30% chance of no improvement at all. This is on a background of a thorough trial of conservative treatment over the last 12 months which has not afforded the applicant any significant relief.
Dr Bentivoglio holds the opinion that the request for surgery by Dr Singh is reasonable to treat the applicant’s discogenic pain.

Dr Powell

Dr Powell has prepared a report dated 29 October 2020.[5] He took a history consistent with the applicant’s treatment and outlined the applicant’s current symptomatology at that time. That is, the applicant described a constant aching pain in the midline region of the lumbar spine which spreads bilaterally together with sharp exacerbations of pain. The previously noted radiating lower limb pain had resolved although the applicant did report intermittent pins and needles involving the anterior aspect of the thighs, more marked on the right side. The applicant was aware of stiffness and restriction in range of motion. Symptoms were aggravated by periods of prolonged sitting and standing.
[5] Reply page 16
Dr Powell also understood the applicant had received treatment for her lumbar symptomatology which included medication, physiotherapy, a basic home exercise program and an L4/5 epidural steroid in the past.
On examination, Dr Powell observed that the range of motion in the lumbosacral spine was restricted, however neurological examination of the lower limbs revealed normal tone and power.
Dr Powell agreed that there was evidence of degenerative lumbar disc disease. The applicant had undergone conservative treatment under the care of Dr Ragavan and Dr Singh which included the use of medications, physiotherapy, home-based exercises and L4 epidural steroid injection, however the applicant remained symptomatic with ongoing pain and restriction.
Dr Powell thought the applicant’s prognosis was guarded however it was difficult to reconcile her current presentation with the appearances of the MRI scan which only demonstrated minor degenerative disc disease involving L4/5 and L5/S1. He was concerned there was a psychosomatic component to the presentation.
Dr Powell was very cautious in recommending surgery at that time. He was not convinced that the applicant had maximised non-operative treatment and was in favour of a more active exercise program incorporating core strengthening and flexibility work. He was concerned there was a psychosomatic part to her presentation, and she would benefit from the involvement of a pain specialist. She had poor overall fitness and a reduction in her BMI would also prove beneficial.
Therefore, it was his opinion that conservative management should be maximised with a more aggressive exercise program. The applicant was not an ideal surgical candidate and as she did not demonstrate radicular signs, he was not convinced that she had instability in her lumbar spine.
In relation to the proposed surgery specifically, it was Dr Powell’s understanding that the clinical indications for staged multi-level anterior and posterior fusions are gross structural instability, significant neural compromise, and non-union following previous attempts at fusion. None of these situations applied in the applicant’s case.
Dr Powell has prepared a second report dated 3 September 2021.[6] Dr Powell has the benefit of the report of Dr Kuru and maintains his view that the proposed treatment is not reasonably necessary.
[6] Late documents page 2

Dr Rajen Ragavan

Dr Ragavan is a treating rehabilitation consultant who the applicant saw in June 2020.[7] On clinical review, in June 2020, Dr Ragavan thought the applicant was having a good response to a combination of Celebrex, Lyrica and Panadeine Forte.
[7] Reply page 13
On a further review dated 28 January 2021 Dr Ragavan understood the applicant had undergone physiotherapy sessions and felt that she had not improved. The applicant told Dr Ragavan that Dr Singh was recommending spinal fusion. Dr Ragavan suggested the applicant completes the current course of physiotherapy sessions and if she still has pain after then he would be happy to review her for a new clinical examination and certainly a new MRI to assess.

Dr Marc Russo

Dr Russo is the applicant’s pain specialist and has prepared a report dated 23 June 2021.[8]
[8] Late documents page 2
Dr Russo saw the applicant for review on 23 June 2021. He described the applicant as having predominantly discogenic lower back pain with a strong neuropathic pain component with associated allodynia over the back and pain present even if she was supine. He describes the applicant as having neuropathic lower back pain that is discogenic in nature with associated segmental instability.
Dr Russo recommends treatment continuing so far as pain medication and that she should see a local psychologist for cognitive behavioural input for pain and self-management.
So far as the proposed spinal fusion is concerned, he supports that as a treatment construct. If the applicant did not proceed with that specific surgery, he thinks that she should be evaluated as being suitable for spinal cord stimulation as an alternative or if the surgery was unsuccessful then the spinal cord stimulation should be considered as well.

Physiotherapy treatment

There is evidence contained in the reply of the applicant attending Kinetic Medicine which provides treatment to the applicant in the form of ongoing physiotherapy rehabilitation. A report has been prepared dated 12 May 2021 which indicates the applicant has attended 15 sessions so far and in addition an exercise physiology session.
The report indicates the applicant’s pain has fluctuated and the applicant has expressed her frustration on experiencing chronic disabling pain.
The objective measures are set out in a table which outlines the applicant’s initial progress and her status after 8 sessions. For instance, the initial measure of standing at first assessment was 5 to 10 minutes increasing in pain to 8-9/10, whereas after 8 sessions there was 20 minutes tolerance with pain increasing after 5-10 minutes. In respect of driving, the initial assessment was pain as soon as seated in the car getting worse after 10 minutes and the outcome after treatment was 20 minutes of tolerance with pain increasing after 5 to 10 minutes. So far as walking was concerned the initial assessment was of 5 to 10 minutes onset and increase in lower pain. After treatment, the applicant had an onset of between 1 to 2 minutes and kept going however stopped after 3 to 5 minutes. The sit to stand depth was 60 centimetres on initial assessment and then reduced to 55 centimetres after treatment.

Dr Rob Kuru

The matter was referred for a general medical dispute pursuant to Dr Rob Kuru who has produced a Medical Assessment Certificate dated 9 July 2021. Dr Kuru was asked to consider whether the proposed surgery was reasonably necessary.
Dr Kuru described the applicant as being significantly impaired given the imaging findings however she was cooperative through the assessment. Her diagnosed the applicant as having aggravated a pre-existing underlying degenerative disc disease in her lumbar spine in her injury at work and she continued to have significant back pain. Dr Kuru also had the benefit of the MRI scan of 15 January 2020 which he described as showing disc desiccation as L4/5 and L5/S1, with no significant central lateral recess or foraminal stenosis. The MRI scan of 23 April 2021 was the same as the previous study.
Dr Kuru thought that the applicant’s prognosis was that she was likely to be symptomatic in the longer term given that she had had her symptoms now for 18 months. Specifically, Dr Kuru opined that there was no interventional treatment which would reliably improve her pain.
In respect of the proposed surgery, Dr Kuru thought it was highly unlikely that the applicant would get any significant benefit from surgery given the findings on the MRI scans. He was of the view that the success rate quoted by Dr Singh being between 85-95% success rate was not consistent with published literature. Similarly, the 60-70% rate of significant improvement suggested by Dr Bentivoglio in his report dated 19 February 2021 was not substantiated by current literature. To Dr Kuru’s mind, the chance that such a procedure would lead to substantial clinical benefit would be in the region of 40% and the chance that such a procedure would result in substantial clinical improvement to allow the applicant to return to regular employment of any kind would be in the region of 20%.
It was on this basis that Dr Kuru did not think that the proposed L4 to S1 anterior lumbar interbody fusion was reasonably necessary.

The Legislation

Section 60 of the 1987 Act provides:

“60 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). “

Burke CCJ in Rose[9] considered what reasonably necessary treatment was. In the context of section 10 of the Workers Compensation Act 1926[10]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition on restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense an employer can only be liable for the cost of reasonable treatment.”
[9] Rose v Health Commission NSW (1986) 2 NSWCCR 32 (Rose).
[10] Par 42.
In Diab v NRMA Ltd[11] Deputy President Roche cited Rose with approval. He summarised the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose namely: (a) the appropriateness of the particular treatment; (b) the availability of alternative treatment, and its potential effectiveness;
[11] [2004] NSWCCPD 72 (Diab)
(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.”
Of some assistance in determining disputes such as the present one, Deputy President Roche helpfully stated:
“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.”
It is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for surgery. This was confirmed by Deputy President Roche in Murphy v Allity Management Services Pty Ltd[12], where he stated:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have “multiple causes”…… The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury.”
[12] [2015] NSWCCPD 49 (Murphy)

There appears to be two Diab considerations that the respondent relies upon to dispute that the surgery is reasonably necessary. The first reason is in relation to effectiveness and the second is in relation to the availability of alternative treatment. I will now deal with those in turn.
There is a wide range of opinion as to the likelihood of alleviating the applicant’s pain symptomatology through the proposed surgery. Dr Bentivoglio and Dr Singh both hold opinions that the surgery will significantly alleviate the applicant’s condition with success rates of between 60 to 95% together. Likewise, Dr Russo opines that it is an appropriate construct.
Dr Kuru is not as optimistic and holds an opinion that there is a 40% chance that there will be substantial clinical benefit.
Dr Powell (like Dr Ragavan) suggests the applicant should continue with conservative management and wasn’t convinced that she had maximised nonoperative treatment. He was in favour of an active exercise program incorporating core strengthening and flexibility work. Further he was concerned that the applicant did not demonstrate radicular signs and he wasn’t convinced that there was instability in her lumbar spine.
Dr Powell does however suggest that there should be further investigation by way of bone scan if surgery is to be embarked upon.
There is an obvious divergence of opinion in the experts retained in this claim. One difficulty I have in excepting Dr Powell’s opinion is that it conflicts with that of Dr Russo who suggests that the applicant does indeed have associated segmental instability after reviewing her MRI scan and observed on examination a strong neuropathic pain component.
On the other hand, Dr Singh, and Dr Bentivoglio both suggest that the surgery is entirely appropriate, reasonably necessary and have well-reasoned opinions.
The opinion of Dr Kuru is not conclusively presumed to be correct.[13] Dr Kuru however does suggest that there was a 40% chance of there being significant clinical benefit for the applicant and a lower chance of 20% being for return to work.
[13] Rohloff v Diacut Pty Ltd ( in Liquidation) [2005] NSWCCPD 17
Having looked at the evidence, and being fair to both parties, I believe a fair climate would be to assess the reasonable necessity of surgery on their chance of there being a 40% significant clinical benefit to the applicant. The question then becomes is a 40% chance high enough to find that it is reasonably necessary in the circumstances. Or on the other hand is a 40% chance too low and it should negate a finding that the surgery is reasonably necessary.
The applicant has provided evidence as to her symptomatology which has been accepted by many doctors as being intrusive and severe. The applicant in her statement refers to difficulty with walking, movement, sitting, climbing stairs, and performing domestic duties and self-care tasks.
The applicant told Dr Bentivoglio that her lower back pain rates as 4 to 8/10. She can drive a short distance only and her daughter performs most of the domestic duties. She describes the mechanical axial lower back pain as interfering with her life.
Dr Singh takes a history that the applicant’s back pain has worsened significantly since the index event and has she has been getting sharp pain down both legs.
The notes from the general practitioner contain significant history is of back pain such as on 12 October 2020 the applicant complained that she was unable to sit in one place or stand and vary to positions every few minutes. She was starting to get more depressed with chronic pain[14]. Then on 30 November 2020 the general practitioner reported that the applicant was not doing well and had persistent pain which was exacerbated by bending and other activities.[15]
[14] Application page 38
[15] Application age 39
Dr Powell also describes the applicant’s lower back symptoms as having developed in insidious fashion and describes her condition is chronic lower back pain[16]
[16] Reply page 21
The report from Kinetic medicine dated 12 May 2021 describes the applicant as experiencing chronic disabling pain.[17]
[17] Reply page 26
The effect of these histories, which all confirm that the applicant is experiencing debilitating pain, must be measured against the prospects of success. For this balancing exercise, as I have said, I will accept the prospects of success as assessed by Dr Kuru, that is of 40% significant clinical benefit.
When someone is in such significant pain, as I accept the applicant is in, I believe the prospects of significant clinical benefit being 40% is a reasonable chance and the surgery should take place. It has often been stated that surgery carries its own risks and there is never any total guarantee of success. To my mind, though Dr Kuru expresses some concern about the reasonable necessity of the surgery I’m not required to make a determination based on his opinion alone.
Given the prospects of a 40% chance of significant clinical benefit, I am persuaded that the surgery is reasonably necessary given the applicants pain.
The respondent’s second objection is that the applicant should continue to pursue alternative treatment. The respondent pointed to what it described as positive outcomes based on the report from Kinetic Medicine dated 12 May 2021. I have previously outlined the contents of that report which was prepared after the applicant had completed 15 sessions of physiotherapy rehabilitation and exercise physiology.
The report concluded that the applicant had shown some improvement in her functional capacity and experienced a reduction in right leg radiating pain symptoms and an increase in driving capacity as the applicant reported to be pushing through the pain. However, the report also indicates the applicant’s complaints of lower back pain, burning and tingling sensation on minimal activities was observed throughout the sessions.
The respondent sought to rely on this report to say that the applicant was having a positive outcome from the non-invasive treatment and that this treatment should be continued. They rely upon the opinion of the Exercise Physiologist Rojina Giri to say that the applicant should exhaust this treatment before undergoing the fusion surgery.
The report from Kinetic Medicine is dated 12 May 2021, which is before the opinion and examination of Dr Russo pain specialist who accepted the proposed surgery as a construct. So far as there is a conflict between what the exercise physiologist thinks is appropriate treatment and Dr Russo is concerned, I prefer the opinion of Dr Russo due to his education training and experience.
I am not persuaded by the submission made by the respondent that the outcomes reported in the Kinetic Medicine report support a finding that there has been significant improvement in the applicant’s condition from the treatment. After reviewing the outcomes reported they seem to my mind to still represent a woman who is profoundly disabled with insidious pain. The small increases in her capabilities cannot purport to represent to my mind, any significant improvement for the applicant.
I am therefore not persuaded that alternative treatment should be pursued at the expense or delay of the proposed surgery.
On balance, I have concluded that there is a reasonable chance of successful outcome from the proposed surgery, and it is better for the applicant to have the surgery than to forego it.
I therefore find that the surgery is reasonably necessary.
In making this finding, I am aware that the applicant does not need to present a perfect case but must present their case to persuade on the balance of probabilities. I understand the difficulties the respondent has had in accepting the reasonable necessity for the treatment however on balance I am persuaded that the treatment is reasonably necessary.

SUMMARY

The proposed surgery as recommended by Dr Singh is reasonably necessary.

[2021] NSWPIC 442

01 November 2021