Jermyn v Bathurst RSL Club Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jermyn v Bathurst RSL Club Ltd [2021] NSWPIC 502
APPLICANT:	Paige Jermyn
RESPONDENT:	Bathurst RSL Club Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	7 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Neck injury in 2010; whether surgery recommended in 2021 was reasonably necessary as a result of the injury; adequacy of section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notice; Cannon v The Healthy Snack People discussed; reasonably necessary; Diab v NRMA Limited discussed; Held – award for the applicant for section 60 expenses.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant’s s 60 expenses of and incidental to C4-7 anterior cervical decompression and fusion surgery proposed by Dr N Hartin.

STATEMENT OF REASONS

BACKGROUND

Paige Jermyn was employed as a bar steward at Bathurst RSL Club (the Club) while studying in Bathurst. In December 2010 she slipped on ice behind the bar, landing on her left shoulder. She began to experience pain in her left shoulder and neck and underwent scans at Bathurst Base Hospital.
Ms Jermyn completed her Bachelor of Education degree and worked at various schools. In 2015 she received her first permanent posting to Cobar. She is able to perform her duties but suffers constant pain.
Dr Nathan Hartin, spinal surgeon, has recommended C4-7 anterior cervical decompression and fusion and Ms Jermyn seeks to undergo that surgery. Though the Club accepts that Ms Jermyn suffered an injury to her left shoulder and cervical spine, it denies that the surgery is reasonably necessary as a result of that injury.

PROCEDURE BEFORE THE COMMISSION

The matter was fixed for telephone conference on 21 October 2021. Mr Morgan of counsel and Mr Tancred, solicitor, appeared for Ms Jermyn and Mr Bennett of GIO appeared for the Club.
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 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 had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties agreed to the determination of the matter without a conciliation conference and arbitration hearing, subject to a timetable for written submissions. The parties filed submissions in accordance with that timetable.

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.

Ms Jermyn described the injury in her statement. She felt immediate excruciating pain, reported the incident and went home where she took pain killing medication. About a week later, the pain became so severe that she went to Bathurst Base Hospital and underwent scans.
Appointed to Cobar High School in 2015, Ms Jermyn is a behavioural teacher. She can generally avoid using her non-dominant left arm though notices difficulties using a smart board or chalkboard and when lifting. She said she is in constant pain which has worsened and she has pins and needles into her left hand. She has taken significant painkilling medication including Endone, Tramadol and Lyrica.
Dr J Corbett-Jones in Bathurst referred Ms Jermyn to Dr Hartin whom she saw for the first time in September 2020. Dr Hartin recommended a cervical fusion but noted that Ms Jermyn was young for that surgery and recommended an injection which Ms Jermyn said did not result in improvement. Dr Hartin then recommended surgery.

Medical evidence

The notes from Loxley House Family Practice in Bathurst, where Dr Corbett-Jones practises, show that Ms Jermyn saw a doctor on 16 December 2010 with a history of left upper shoulder area pain as a result of slipping on ice and falling on the left side of her body. A workers compensation claim was accepted on 17 December 2010. Ms Jermyn was referred to physiotherapy and by 22 December the physiotherapist had recommended an x-ray and ultrasound of the shoulder. On 30 December 2010 the physiotherapist said that the pain appeared to be referred from the neck.
Dr Cho Soe referred Ms Jermyn for a CT scan which was undertaken on 6 January 2011. The history was “work related injury, presenting with L shoulder tip and left lateral referred pain.” The radiologist noted generalised narrowing of the disc space at C5/6 with some left posterolateral disc bulging or herniation, significantly indenting the C6 nerve root on the left.
On 14 February 2011, Ms Jermyn underwent a CT guided left C5/6 foraminal block.
Ms Jermyn saw Dr V Casikar on 28 March 2011. The report is addressed to the Club’s insurer but the general practitioner’s note shows that she was referred by Dr Cho Soe. He said that her shoulder pain had resolved but she still suffered pins and needles on and off on the left side which did not correspond to any dermatome. He noted that the CT scan report suggested a C6 nerve root compression on the left side but he did not see the scan. In the absence of neurological findings, Dr Casikar was not sure if treatment was required but he arranged an MRI scan.
The general practitioner’s notes for 5 April 2011 say that Ms Jermyn did not want to undergo the MRI because “she is now OK and no pins and needles.”
The notes show that Ms Jermyn saw a doctor on 8 June 2012 with a recurrence of left arm and shoulder pain and a diagnosis of C5/6 nerve root irritation was made. She sought a steroid injection into her neck. At that time she was working as a teacher and at the Club. On 26 June, Ms Jermyn told the general practitioner that she wished to close her workers compensation claim. Ms Jermyn continued to see doctors at the practice spasmodically until 2020.
On 4 May 2020 a psychiatrist whom she saw because of other issues noted that she used Endone, Tramadol, Panadeine Forte and Lyrica as required. The psychiatrist noted that she suffered chronic pain from a shoulder injury. Her general practitioner’s note shows other mental health treatment in mid 2020.
Dr Karalasingham of Cobar referred Ms Jermyn for a CT scan on 3 September 2020. the results were copied to Dr Corbett-Jones in Bathurst.
Dr Hartin reported to Dr Corbett-Jones on 6 October 2020. He said that he had a teleconference with Ms Jermyn regarding her neck and radicular symptoms which related to a work injury in 2009 while working as a bartender. He said that nerve irritation was identified at the time and she had frequent exacerbations. Ms Jermyn described pain radiating from her neck into her left shoulder with paraesthesia to her fingers. He noted that an MRI scan demonstrated degenerative changes through the mid-cervical levels which were more advanced than would be expected at Ms Jermyn’s age and resulted in significant neuroforaminal stenosis extending bilaterally between C4 and C7, more on the left than the right. At that telephone conference, Dr Hartin discussed possible treatment. He said:
“In the absence of a well-defined radiculopathy the value of surgical intervention is unclear. Paige has significant neuroforaminal stenosis bilaterally between C4 and C7. Achieving adequate decompression through all these levels would be a significant surgery. The most reliable decompression would be achieved through a 3 level anterior cervical decompression and fusion. Fusion assists adequate neuroforaminal decompression by restoring neuroforaminal height with an interbody device. It would be best to avoid such surgery at 38 years of age, as any such surgery would tend to produce adjacent segment degeneration and the need for extension of the fusion over time. Ultimately, should Paige be free of significant neurologic impairment, it might be best to persevere with an expectant course. Paige appears inclined to persevere for the time being.”
On 17 March 2021, Dr Hartin reviewed Ms Jermyn in person. He said that her pain radiated into the left periscapular region with concurrent C7 dermatomal paraesthesia. He said that Ms Jermyn had suffered persistent and recurrent symptoms over some years and was keen to seek a resolution. He confirmed that release of the affected nerve roots would require anterior cervical discectomy and fusion from C4 to C7. Dr Hartin said that Ms Jermyn found her symptoms intolerable and wished to proceed with surgery.
On 16 April 2021, Dr Corbett-Jones provided a certificate stating that Ms Jermyn had no current work capacity as a result of an injury on “11/12/21”. He said that the injury was related to work because Ms Jermyn had slipped and landed on her left shoulder and hurt her cervical spine and in the section seeking detail of pre-existing factors said “claim initiated back in 2010.” Dr Corbett-Jones said that Ms Jermyn had no current capacity from 16 April to 1 July 2021. The clinical notes reveal that he prescribed Endone, among other drugs.
The notes of Loxley House Family Practice contain a report dated 7 July 2021 for a CT guided left C6 perineural injection.
On 28 July 2021, Dr Hartin sent a quote to the Club’s insurer for the surgery.
Dr Corbett-Jones wrote to Mr Tancred on 16 September 2021. He said:
“On 16 December 2010 Paige came to see a doctor who was working here at the time, Dr Cho Sae. Paige stated that she had slipped over ice and fallen at work, working as a bar attendant. She had landed on the left side of her body. She had bruising of the left knee, leg pain and left shoulder region. A Workcover form was initiated and she was referred on to a physiotherapist, Jane Stephens.
She was reviewed again on 22 December stating that she still had a painful shoulder and She then was organised to get an x-ray ultrasound of that. After being reviewed by the physiotherapist, Jane Stephens, it sounded like her pain was actually being referred from her neck and she was then advised to have a CT of the cervical spine to have a look.
This cervical spine scan was undertaken in January 2011 and it showed that at the C56 [sic] level there was generalized narrowing of the discs base, with some left posterior lateral disc bulge or herniation, which was significantly indenting the C5 root on the left.
It can then be surmised that in fact this disc protrusion at C5/6 was related to the accident she had at work.
She was working as a bar attendant and slipped on ice, landing on her left side of the body injuring her neck at the time. She had no preexisting evidence of any other neck injury or disc bulge prior to this accident which occurred at work. Therefore, I believe that work was a significant and the major contributor to her cervical spine injury.
During the year of 2011 she continued to see Dr Cho Sae in regards to this injury. She was assessed by Dr Casiker in regards to this. He is a neurosurgeon and made a comment about the CT scan report confirming the C6 nerve root compression on the left side but at that stage he could not find any neurological findings and therefore wasn't convinced there was a need for further treatment. He did think it was worth getting an MRI examination to evaluate things further. However when Paige returned to see Dr Cho Sae she stated that she no longer had any trouble with the neck, the symptoms had resolved. She elected not to get the MRI and therefore she graded back to normal duties and Workcover final certificate was issued May, 2011.”
Dr Corbett-Jones saw Ms Jermyn in April 2021. Until that consultation he was not aware of the injury though said that Ms Jermyn had mentioned it over preceding years. He noted that Ms Jermyn had been referred to Dr Hartin by another general practitioner. He clarified that there was a typographical error in his certificate dated April 2021 and that there was no new injury. Similarly he said that the reference to 2009 in Dr Hartin’s report was a misunderstanding, having contacted Ms Jermyn to confirm that the date of 11 December 2010 was correct

Correspondence with the insurer

In September 2020, the Club’s insurer told Ms Jermyn’s solicitor, Mr Tancred that it was unable to reopen the claim because Ms Jermyn’s medical entitlement ceased in 2013. In further correspondence, the insurer said that the last certificate held was for pre-injury duties and relied on s 59A of the Workers Compensation Act 1987 (1987 Act).
In May 2021, the insurer asked Ms Jermyn to complete a recurrence claim form. Mr Tancred pointed out that there had been no recurrence caused by her current employment.
The Club’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 25 May 2021. As with many dispute notices, the summary of the decision was comprised of a number of generic statements, some of which have no relevance to the claim. It denied that surgery was reasonably necessary as a result of the injury.
The notice said that Dr Corbett-Jones had nominated the date of injury as 11 December 2021 “implying that a new injury has occurred.” The insurer noted that Dr Hartin had said that Ms Jermyn’s problems dated back to 2009, which was earlier than the date of injury of 11 December 2010. For those reasons, the insurer said that the alleged recurrence did not relate to the original injury. It also said that it would seek information from treating practitioners and review its decision.
No review was undertaken.

SUBMISSIONS

Mr Morgan noted that, at the telephone conference, Mr Bennett of the Club’s insurer indicated that there was no issue with respect to injury and that the only issue was that the evidence did not support the need for the surgery proposed by Dr Hartin. Mr Morgan summarised the medical evidence and said that the persistence of symptomatology in itself would be an indicator of the need for surgery which was recommended in October 2020 and confirmed by Dr Hartin on 17 March 2021.
Mr Morgan referred to the decisions of Burke CCJ in Rose v Health Commission (NSW)[1] (Rose) and Roche DP in Diab v NRMA Limited[2] (Diab). He said all of the medical opinion points to the failure of conservative measures to date, a considered and cautious approach by the treating surgeon and the fact that the treatment proposed is likely to be effective. He said that Dr Corbett-Jones and Dr Hartin have weighed the benefit against the risk and recommended the procedure.
[1] [1986] NSWCC 2; 2 NSWCCR 32.
[2] [2014] NSWWCCPD 72.

Ms Compton prepared submissions on behalf of the Club. She said that the issues in dispute were whether the surgery was “reasonable and necessary”, whether it was the result of the work related condition and whether there was an entitlement to surgery under s 59A of the 1987 Act.
Ms Compton set out a chronology of the claim for surgery, commencing with the letter dating 22 September 2020. She set out the summary of the s 78 notice and said that the reasons for denying the claim are clearly articulated. She said that Ms Jermyn had not obtained a further report from Dr Hartin to correct the issues with respect to the date in the report.
With respect to the application of s 59A, Ms Compton said that Ms Jermyn last received weekly compensation in respect of the injury in 2011 so that pursuant to s 59A and the amending legislation her entitlement to medical treatment ceased on 31 December 2013. She conceded that further surgery may enliven the entitlement but there had been no certificate with respect to incapacity since about June 2021. The Club said there were no complaints of any “issues” between 2012 and September 2020. Ms Compton said that I would not be persuaded to accept Dr Corbett-Jones’ opinion with respect to the need for surgery when he had not explained the sudden deterioration in her condition when there had been no complaints in the intervening period.
Ms Compton set out the report of the initial CT scan and extracts from Dr Corbett-Jones’ report dated 16 September 2021. She repeated that there was no contemporaneous complaint in the period between being certified fit for full duties and April 2021. She set out the report of the CT scan in 2020 and Dr Karalasingham’s referral to Dr Hartin again noting the lack of evidence about deterioration. Ms Compton said that Dr Hartin did not say that the condition was work-related.
Ms Compton said it was clear from the reports of the scans that there was new pathology but Dr Hartin did not explain the causation of the pathology. The issue of causation was “exacerbated” by the lack of contemporaneous complaints and Ms Compton said that I would not accept Ms Jermyn’s evidence about her pain over many years. She summarised the general practitioners’ records to argue that there were no complaints after 2018. She noted the intercurrent psychiatric history.

Ms Compton set out Dr Hartin’s reports at length to say that he had not provided an opinion that would satisfy me that the considerations articulated in Diab had been satisfied. Ms Compton said that Ms Jermyn was required to establish an actual persuasion or comfortable satisfaction of the existence of the facts, referring to Nguyen v Cosmopolitan Homes[3] (Nguyen).
[3] [2008] NSWCA 246.

Ms Compton concluded by stating that there is no dispute that Ms Jermyn suffered an injury to her left shoulder and “cervical C5/6” in 2011 but she had not established that the current presentation was related to that injury.
Mr Morgan did not seek to make submissions in reply.

FINDINGS AND REASONS

Balance of probabilities

The standard of proof on the balance of probabilities which applies in the Commission was described by the Court of Appeal in Nguyen McDougall J, with whom the other members of the Court agreed, said[4]:
[4] At [55].

“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”

Ms Compton said that the evidence must provide actual persuasion or comfortable satisfaction of a fact. Those concepts are not the same and comfortable satisfaction is a higher standard than the balance of probabilities.
In Drca v KAB Seating Systems Pty Ltd, Roche DP said:[5]

“A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”

[5] [2015] NSWWCCPD 10 at [104] – [106]. See also Elsamad v Belmadar Pty Ltd [2019] NSWWCCPD 22 and Estate of Clarke v State of New South Wales [ 2019] NSWWCCPD 29.

I am required to be satisfied of relevant facts on the balance of probabilities.

Section 78 notice

When an insurer disputes a claim it has a responsibility to set out the reasons for it decision in a notice under s 78 of the 1998 Act. Section 79(2) of the 1998 Act provides that the notice “must contain a concise and readily understandable statement of the reasons for the insurer’s decision and of the issues related to the decision.”
In Cannon v The Healthy Snack People Pty Ltd[6] Roche DP said (in the context of the former s 74):
“Some confusion arose in the present case because of the unsatisfactory nature of the insurer’s section 74 notice. It is not sufficient compliance with section 74 to say, as the insurer said in its notice dated 11 March 2008 (as an alternative defence), that there was a dispute as to ‘whether any psychological injury that you suffer from is due to reasonable action taken or proposed to be taken by The Healthy Snack People Pty Ltd pursuant to section 11A’. What is necessary is clear and precise statement of the reason the insurer disputes liability and the issues relevant to the decision to dispute liability. If an insurer relies on a defence under section 11A it must identify the factual basis on which it intends to rely as grounding that defence. That is, it must indicate, in clear and plain language, exactly which action or actions it alleges were the whole or predominant cause of the psychological injury and the issues relevant to the decision. That was never done in this matter, though the respondent’s representative indicated at the arbitration that he relied upon reasonable action with respect to ‘discipline’ (T6.16). That was unsatisfactory. Insurers are again reminded that they have a statutory duty to fully and properly comply with the terms of section 74 (see Department of Corrective Services v Bryce [2008] NSWWCCPD 116 at [3] and Brown v Maranatha Lodge Incorporated [2008] NSWWCCPD 113 at [4]). It is not sufficient to merely refer to particular sections of the legislation.”
[6] [2009] NSWWCCPD 32.
In Gibson v Royal Life Saving Society of Australia[7] Roche DP said:

“The practice of denying every conceivable issue regardless of its relevance to the claim at hand does not comply with section 74 of the Workplace InjuryManagement and Workers Compensation Act 1998 (‘the 1998 Act’) and must stop.”
[7] [2009] NSWWCCPD 137 at [6].

The s 78 notice issued by the Club’s insurer on 25 May 2021 falls short of those requirements. The claim made was for the costs of surgery only in the context of a claim accepted in 2010. The insurer denied that Ms Jermyn’s injury was covered by workers compensation and it denied that employment was a substantial contributing factor to the injury. Liability for the injury in 2010 is not disputed.
The insurer denied liability for weekly compensation but Ms Jermyn did not make that claim. It also denied that medical treatment was reasonably necessary as a result of an injury.
The reasons given were that Dr Corbett-Jones had provided a certificate dated 16 April 2021 stating that Ms Jermyn had no current work capacity from 16 April to 1 July 2021. The insurer noted that the date of injury was said to be “11/12/2021 which seems to be a ‘typo’ which indicates a different date of injury to the one in which you have already suffered implying that a new injury has occurred.” The insurer also noted that Dr Hartin said that Ms Jermyn’s problems dated back to 2009 which was before the injury on 11 December 2010. The insurer offered to review the recurrence claim on receipt of clinical records but there is no evidence that it did.
The reasons given in the notice were disingenuous. It was clear that the date in Dr Corbett-Jones’ certificate was an error because the date he used was eight months in the future as at the date of the certificate. A careful reading of Dr Hartin’s report showed that the date of 2009 was an approximate date and that the description of the injury was the same as the injury for which liability was accepted. Any confusion around dates could have been resolved by contacting each of the doctors and did not warrant a rejection of the claim, particularly when the foreshadowed review did not occur.
There are no particulars of the allegation that the proposed treatment was not reasonably necessary.

That raises the question of what matters the insurer can rely on because s 289A of the 1998 Act provides that the Commission can only determine matters previously notified as disputed. The Club’s insurer did not make an application under s 289A(4) to rely other issues.
Ms Compton identified three issues at the commencement of her submissions. The first was whether the surgery was “reasonable and necessary” – the test used in Motor Accidents legislation. As Roche DP said in Diab:[8]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
[8] At [86].
The second issue identified was whether the surgery was a result of the work-related condition. This issue arises only from a very beneficial reading of the s 78 notice.
The third is the operation of s 59A of the 1987 Act. Ms Compton did not develop that submission and conceded that surgery may retrigger an entitlement to weekly compensation. Part of a letter dated 28 September 2020 appears in the reply but the issue was not raised in the later s 78 notice. I will not further consider that issue.

Reasonably necessary medical treatment

In Diab, Roche DP said:
“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.’”
Roche DP said:
“… ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113] (Moorebank). [9]
[9] At [85].
...
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[10] (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.
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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[11]
[10] Referring to Rose v Health Commission NSW [1986] NSWCC 2; (1986) NSWCCR 32.
[11] At [88]-[90].
The Club’s insurer did not qualify an independent medical examiner and relied only on a report from Dr Casikar, whom Ms Jermyn saw for treatment in 2011. He referred Ms Jermyn for an MRI scan which she did not undertake. His report is of little assistance in determining the reasonable necessity of surgery in 2021, other than to confirm that Ms Jermyn had symptoms of nerve root involvement.
The Club accepted that Ms Jermyn suffered an injury to her left shoulder and neck in 2010. She underwent treatment, including an injection. The history of that treatment appears in the notes from the Loxley House Family Practice and in Dr Corbett-Jones’ report which summarises them.
In 2012, Ms Jermyn underwent some further treatment and her claim was closed by the Club’s insurer on provision of a certificate stating that she was fit for pre-injury duties. The fact that she was able to perform her duties at that time is not determinative of this claim. The intercurrent conditions she has suffered are not relevant to the question of the reasonable necessity of surgery.
Ms Jermyn said in her statement that she has had constant pain for years, that she has taken medication and that she has been able to favour her left arm in the performance of most of her duties.
Dr Corbett-Jones said that Ms Jermyn had mentioned her neck to him over the years preceding his consultation on 16 April 2021. He also noted that she had moved around in the period before her appointment as a teacher in Cobar, and there are no records of attendance at his practice between March 2014 and December 2018. That is confirmed by Ms Jermyn’s statement that she worked in schools in Ulladulla before she moved to Cobar.
Dr Corbett-Jones made enquires to confirm that Ms Jermyn had no previous or subsequent injury to her neck. Having carefully considered the notes from his practice, he said that her employment was the “significant and major” contributor to her cervical spine injury.

The general practitioners’ notes were not prepared for medico-legal purposes and should be read in light of the comments by Basten JA in Mason v Demasi[12]. His Honour said:
[12] [2009] NSWCA 227 at [2].

“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:

(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”

Ms Jermyn has seen Dr Karalasingham in Cobar who said in a referral to Dr Hartin that she had had ongoing neck pain which has failed to resolve.

Her consumption of medication is confirmed in her history to a psychiatrist for an unrelated condition.
Dr Hartin’s report is addressed to Dr Corbett-Jones but Ms Jermyn was referred to him by Dr Karalasingham. That referral did not pinpoint the date of injury, stating that Ms Jermyn had a neck injury “in her twenties.” In October 2020 Dr Hartin recorded that Ms Jermyn fell while working as a bartender with a description of what is clearly the injury which is the subject of these proceedings. That is sufficient explanation for the imprecise reference to 2009.
Dr Hartin obtained a history of frequent exacerbations and treatment. He said that the MRI scan demonstrated advanced degenerative changes, more significant than would be expected in someone of Ms Jermyn’s age. He discussed the possibility of surgery which he considered best avoided at that stage.
In March 2021, Dr Hartin was able to examine Ms Jermyn and confirmed that surgery was appropriate, noting that Ms Jermyn considered her symptoms intolerable. Importantly, his report conveys the impression that he is satisfied that Ms Jermyn’s neck pain is a result of the original injury.
Ms Compton said that I would not be satisfied that the considerations articulated in Diab were satisfied. I do not agree. Dr Hartin adopted, as Mr Morgan submitted, a considered and cautious approach before recommending surgery. His first consultation was by telehealth, he noted that Ms Jermyn had attempted most forms of conservative treatment. He discussed the possibility of surgery but noted that it was a significant surgery. He said that it should be deferred if Ms Jermyn did not have significant neurologic impairment.
Five months later, Dr Hartin saw Ms Jermyn in person and noted that she had neurological symptoms and said that the aim of surgery was the relief of her radicular symptoms. He considered that it would be effective.
There is no evidence to the contrary. I am satisfied that the surgery proposed by Dr Hartin is reasonably necessary medical treatment as a result of the injury on 11 December 2010.
I order the Club to pay Ms Jermyn’s s 60 expenses of and incidental to C4-7 anterior cervical decompression and fusion proposed by Dr N Hartin.

[2021] NSWPIC 502

7 December 2021