Jones v Kaleidoscope Constructions Australia Pty Ltd
[2024] NSWPIC 29
•24 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jones v Kaleidoscope Constructions Australia Pty Ltd [2024] NSWPIC 29 |
| APPLICANT: | Mikee (Richard) Jones |
| RESPONDENT: | Kaleidoscope Constructions Australia Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 24 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for a finding that the applicant worker suffered injuries to and/or conditions in his bilateral hips and lumbar spine as a result of the ‘nature and conditions’ of his employment with a deemed date of injury in October 2016, being the date on which the applicant first suffered incapacity as a result of injury in accordance with section 16; the applicant asserted that a frank injury in January 2015, undisputed by the respondent and resulting in the same injuries and conditions, should be regarded as part of the nature and conditions claim; the applicant also claimed the cost of past and future weight loss surgery claimed to result from a significant weight gain as a result of the conceded injuries and conditions; discussion of the concept of ‘nature and conditions’ claims as referred to in Topliss v Coles Group Ltd t/as Coles Logistics, Mirkovic v Davids Holdings Pty Ltd, and Raulston v Toll Pty Ltd; examination of the evidence of the treating medical practitioners and evidence of the independent medical examiners engaged by the parties in respect of causation of injuries/conditions; Held – determination that the Commission declines to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016; determination that the past weight loss surgery was reasonably necessary as a result of the January 2015 injury, and the respondent ordered to pay for the costs of and incidental to that surgery; finding that the further weight loss surgery, in the form of circumferential lipectomy, is reasonably necessary as a result of the January 2015 injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. The Commission declines to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016 2. The laparoscopic sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022 was reasonably necessary as a result of injury on 15 January 2015. 3. The respondent is to pay for the costs of and incidental to that surgery pursuant to s 60 of the Workers Compensation Act 1987. 4. The circumferential lipectomy surgery proposed by Dr Hunt is reasonably necessary as a result of injury on 15 January 2015. |
STATEMENT OF REASONS
BACKGROUND
Mikee (formerly Richard) Jones (the applicant/Mr Jones) was employed as a builder by Kaleidoscope Constructions Australia Pty Ltd (the respondent), a company of which he was a director, from at least about 2013.
In the Application to Resolve a Dispute (ARD) commencing the current proceedings the applicant claims weekly benefits from 27 February 2022 and medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of the following injuries described in the ARD:
“Date of Injury:
-1 January 2015 injury (pleaded as a frank injury); AND
-25 October 2016 (deemed- pleaded as a nature and conditions injury inclusive of upper extremities only); AND/OR in the alternative
-25 October 2016 (deemed- pleaded as a nature and conditions injury BUT inclusive of both upper and lower extremity conditions)
January 2015:
The Applicants work as a builder with the respondent was generally very physical in nature, involving repetitive use of the upper extremities, bending, squatting, lifting, carrying and pushing. From the commencement of the Applicant's employment with the Respondent, he would have incidents where he falls off a scaffold or ladder or other trip hazards on site, but generally, keeps working without complaint. He managed his aches and pains relating to his lower back and bilateral hips by complaining to his chiropractor Dr Richards, and receiving, intermittent treatment.
In the month of January 2015, the Applicant was working on a scaffold when he fell onto a pile of dirt from about 3m. He ended up landing on his bottom. This caused the Applicant to complain of hip and lower back pain to his chiropractor and receive treatment in January 2015.
25 October 2016 (deemed):
Due to the nature and conditions of the Applicants employment, involving the repetitive and forceful use of his upper extremities he developed the gradual onset of pain in his elbows, wrists, and shoulders.
On or about 25 October 2016, the Applicant was laying a timber floor for two days with a Secret Nailing gun. This involves striking the gun with a mallet for each staple to go through the tongue of the timber board at every 450mm centres. He experienced significant pain in his right elbow.
25 October 2016, is the first date of incapacity and as as [sic] such it is pleaded as the correct date of injury as per s16 of the 1987 Act.
The Applicants last day at work was 17 March 2017.
Nature and condition of employment from 1 August 2013 to 17 Match 2017, and/or frank incident of a fall at work on or about 1 January 2015 (deemed):
1.Right hip
2.Left hip (consequential aggravation)
3.Lumbar spine (consequential aggravation due to altered gait)
4.Left knee (consequential aggravation due to altered gait)
5.Right knee (consequential aggravation to right knee following left knee condition developing
6.Excessive weight gain causing need for bariatric surgery and scarring from bariatric surgery complication (drainage post sepsis)
Nature and conditions of employment – 25 October 2016 (Deemed):
1.Right elbow
2.Left elbow- Ulnar neuropathy. Which brought about dysesthesia/paraesthesia in the ring finger and little finger on the right hand.(due to the nature and conditions of employment and/or consequential to the right elbow surgery due to over use of left arm and/or consequential to use of crutches)
3.Right wrist (aggravation consequential to crutches)
4.Right thumb
5.Consequential left wrist (aggravation consequential to crutches)
6.Consequential left shoulder due to overuse of left arm post right arm injuries
7.Right shoulder (nature and conditions and/or consequential due to the right elbow altered biomechanics increasing mechanical stressors on right shoulder)
8.Primary and Secondary psychological (AGGRAVATION)
a.PTSD – Dr Cantali states that he has symptoms including recurrent, involuntary distressing memories of the traumatic events that caused e traumas connected with their treatments and operations.”
The applicant’s past medical history includes:
(a) in about 1986, bicuspid valve endocarditis, and
(b) in about 1999, receipt of a Carbomedes Mechanical AVR (which I understand to be an artificial heart valve).
The applicant ceased work in March 2017, prior to right elbow surgery.
The applicant has undergone extensive surgical and non-surgical treatment and investigation since 2015, a brief summary of which is as follows:
(a) intermittent chiropractic treatment from Dr Andrew Richards;
(b) surgery on the right elbow by Dr Strokon on 9 March 2017, as a result of which the applicant claims that he had to use his left upper limb as his primary limb;
(c) right carpal tunnel release by Dr Strokon on 16 August 2016;
(d) left carpal tunnel release by Dr Strokon on 20 September 2018;
(e) right hip replacement by Dr Strokon on 6 June 2019;
(f) revision right hip surgery by Dr Strokon in mid-2020;
(g) full left hip replacement by Dr Lyons on 23 June 2021;
(h) admission to Prince Alfred Hospital for reduction following dislocation of left hip one week post-surgery, and subsequent admission to Mater Hospital for treatment;
(i) laparoscopic sleeve gastrectomy by Dr Taylor on 5 October 2022, and
(j) admission to hospital on 3 November 2022 for treatment of sepsis caused by stomach wound infection which affected the left shoulder. The applicant underwent a washout and partial synovectomy of the left shoulder for possible septic arthritis.
The insurers of the respondent for the periods relevant to the applicant’s claims are GIO General Limited (GIO), on risk from 1 July 2013 to 1 July 2015, and EML Insurance (Australia) Ltd (EML), on risk from 15 May 2016 to 15 May 2017.
On 1 November 2022 EML issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the consequential condition of weight gain, associated bariatric surgery and all weight loss related treatment.[1] The date of injury stated in that notice was 1 January 2015, described as “falling off scaffolding.” The notice referred to a report of Dr Taylor dated 16 August 2022 in which the doctor noted that the applicant would like to proceed with the sleeve gastrectomy surgery discussed with the applicant to address his increased body mass.[2]
[1] Reply p 52, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] Reply p 60.
On 14 March 2023 Dr Hunt, plastic and reconstructive surgeon, provided to the applicant a quotation for the cost of, inter alia, circumferential lipectomy surgery to address excess of redundant skin and fat as a direct consequence of significant weight loss.[3]
[3] ARD p 173.
On 6 July 2023 the solicitor for the applicant forwarded a letters of claim addressed to GIO and EML containing claims for:
(a) the cost of the sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022;
(b) the cost of the circumferential lipectomy surgery proposed by Dr Hunt in his quotation dated 14 March 2023, and
(c) weekly benefits from 27 February 2022, with reference to the notice to the applicant issued by GIO dated 23 November 2021 advising of the cessation of weekly payments by it, effective from 27 February 2022, after a total of 260 weeks payment of such benefits.[4]
[4] ARD p 58 and Reply p 62.
On 20 July 2023 EML issued to the applicant a notice under s 78 of the 1998 Act, with reference to injury on 15 January 2015, confirming a denial of liability for the cost of the laparoscopic sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022, originally denied in the s 78 notice dated 1 November 2022, referred to above at [7].[5] In that notice of 20 July 2023, EML additionally relied on s 60(2A) of the 1987 Act as a reason for the denial of liability, noting that the applicant did not seek from the insurer approval for the surgery before it was performed.
[5] ARD p 67.
In a second s 78 notice issued by EML on 20 July 2023 liability for the lower body lift proposed by Dr Hunt was denied.[6]
[6] ARD p 62.
In respect of weekly benefits paid to the applicant since 27 February 2022, EML issued to the applicant a notice under s 78 of the 1998 Act dated 2 March 2022 for the injury stated to have occurred on 15 January 2015.[7] This notice referred to a decision by EML under s 43(1)(d) of the 1987 Act to review the applicant’s pre-injury average weekly earnings (PIAWE) in relation to the January 2015 injury. EML calculated these earnings at $940, and referred to a concurrent arrangement which EML previously had with GIO under which GIO was responsible for 75% and EML 25% of ongoing weekly payments, and that the concurrent arrangement was later changed to a 50/50 split once Mr Jones underwent surgery on the EML claim and his capacity was downgraded. The effect of this s 78 notice was that EML made a decision to reduce the applicant’s weekly payments to $752 (80% of $940) from 1 July 2022. This reduction is confirmed by the list of payments in evidence.[8] The applicant continues to receive weekly payments having regard to this determination by EML of PIAWE.
[7] Reply p 11.
[8] Application to Admit Late Documents lodged 11 January 2024 p 36 (AALD dated 11 January 2024) p 36.
The applicant disputes the determination by EML that his PIAWE are $940.
In the second s 78 notice issued by EML on 20 July 2023 referred to at [11] above, EML accepted the following injuries/consequential conditions resulting from injury on 15 January 2015:
(a) right hip
(b) right knee;
(c) left hip (consequential)
(d) lumbar spine (consequential), and
(e) left shoulder(consequential),
but disputed the following:
(f) bilateral wrists;
(g) bilateral elbows;
(h) thoracic spine;
(i) eczma/dermatitis;
(j) lower limb vascular condition;
(k) cervical spine, and
(l) any nature and conditions injury (emphasis added).
The applicant’s claims were the subject of conciliation prior to the arbitration hearing on 15 January 2024. It was agreed between the parties that, before addressing the applicant’s claim for an increase in weekly benefits from 27 February 2022, there should first be a determination of Mr Jones’ claim that he suffered injuries to/conditions in his bilateral hips and lumbar spine as a result of the ‘nature and conditions’ of his employment with a deemed date of injury of 25 October 2016. It was also agreed that there should be a determination of liability for of the cost of the laparoscopic sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022, and the circumferential lipectomy surgery proposed by Dr Hunt in his surgery quotation dated 14 March 2023.
Subject to the determination of the ‘nature and conditions’ claim and any assessment of permanent impairment as a result of injuries to/conditions in the applicant’s bilateral hips and lumbar spine, or other body parts, the parties note that the applicant may then approach the Commission if necessary in the absence of agreement between them as to the applicant’s entitlement to weekly benefits from 27 February 2022, having regard to s 39 of the 1987 Act (cessation of weekly payments after five years).
By way of further background, the Commission notes that in the evidence before it there are differing dates nominated for the injury sustained by the applicant in January 2015. In the ARD it is pleaded as 15 January 2015, a date that appears in some of the s 78 notices hereinbefore referred to.
The date 1 January 2015 appears on a s 78 notice dated 1 November 2022, referred to above at [7], and a further such notice dated 11 April 2023.[9]
[9] Reply p 51.
In his statutory declaration dated 7 July 2022 Mr Jones says at [38] thereof that:
“I have at no stage nominated 1 Jan 2015 as the definitive date of the initial injury. I was pressed many times about the exact date and I cannot say with 100% certainty what that date was. I note that I January, is a Public Holiday and it is accepted that residential building sites do not operate on those Public Holidays, and mine company certainly did not.” [sic][10]
[10] ARD p 9.
In an email in evidence dated 21 August 2018 at 4:50:52 PM apparently sent by Mr Jones as managing director of the respondent, to the respondent at an email address noted thereon, it is said:
“To Whom it May Concern.
The accident when I fell off a scaffold onto the ground from a height of 2m was 20/01/2015. This ruptured my back issues that I took the rest of that day off and the next day until I could see Andrew Richards Chiropractor on 22/01/2015 and 29/01/2015. This sorted the issue out however since then I gave been attending regularly because my back and especially my right hip and knee are far worse as a result of this.” [sic][11]
[11] AALD dated 11 January 2024 p 129.
It is not in dispute that that applicant had a fall as described in January 2015, and nothing turns on the precise date thereof. The date 15 January 2015 pleaded in the ARD has been adopted by the parties.
ISSUES FOR DETERMINATION
The parties therefore agree that the following issues should be determined in the current proceedings:
(a) did the applicant suffer injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016?
(b) Was the laparoscopic sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022 reasonably necessary as a result of injury on 15 January 2015?
(c) Is circumferential lipectomy surgery proposed by Dr Hunt reasonably necessary as a result of injury on 15 January 2015?
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.
The parties attended a conciliation/arbitration hearing on 15 January 2024 conducted via audio conference. Mr Morgan of counsel appeared for the applicant briefed by Mr Taouk. The applicant attended on the same telephone connection with Mr Taouk. Mr Stockley of counsel appeared for the respondent briefed by a solicitor for the respondent whose attendance was excused.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD dated 11 January 2024 and attached documents.
Disputed evidence
The respondent submits that the applicant relies on the reports of two general surgeons who independently medically examined the applicant in support of his case, namely:
(a) Dr Conrad, whose reports are dated 5 February 2020 (principal report), 5 February 2020 (supplementary report #1), 5 February 2020 (supplementary report #2), 13 October 2020 (clarification report), 16 February 2022 (principal report), 16 February 2022 (impairment assessment), and 20 December 2022,[12] and
(b) Dr Berry whose report is dated 27 March 2023,[13]
and that therefore he is in breach of regulation 44 of the Workers Compensation Regulation 2016, restrictions on the number of medical reports that can be admitted.
[12] ARD pp 83, 87, 91, 102, 104, 109, and 113.
[13] ARD p 129.
Regulation 44 provides that:
“(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause—
forensic medical report, in relation to a claim or dispute—
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
The applicant submits that he is not in breach of the regulation, as in respect of the reports of Dr Conrad, while the report dated 20 December 2022 contains reference to the bariatric surgery in October 2022 following which he lost 35 kg,[14] neither that report or any previous reports address the reasonable necessity of that surgery as a result of injury as required by s 60 of the 1987 Act. The report of Dr Berry does address that issue (see [12] and [13] on pp 7-8 of the report),[15] and that this is therefore a report “that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute” as defined in regulation 4(a).
[14] ARD p 115.
[15] ARD pp 135-136.
I accept that submission of the applicant. Dr Berry’s report is relied upon by the applicant in part to address the reasonable necessity of the bariatric surgery undergone by Mr Jones, and the admission of such report, together with the reports of Dr Conrad, does not place the applicant in breach of regulation 44.
Oral evidence
There was no application to cross-examine the applicant or adduce oral evidence.
SUBMISSIONS
The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary they are as follows.
Applicant
The applicant submits that the injuries and conditions he has suffered in the course of his employment as a self-employed builder over many years have been accepted by the respondent’s insurer as a result of the incident on 15 January 2012, and that these are separate from the pathology in his bilateral upper extremities culminating in the onset of his initial incapacity in October 2016. The applicant submits that there is no dispute as to the heavy nature of the work in which he engaged in course of his employment by the respondent, and that a fair reading of the medical and statement evidence leads to the conclusion that the date of injury of 25 October 2016 is an appropriate allocation of the date of injury in respect of all listed body parts.
The applicant notes that his statement dated 7 July 2022 (in the form of a statutory declaration) does not address the causation of the various injuries and conditions on which he relies, but rather sets out the treatment thereof.[16] The evidence in the supplementary statement dated 22 September 2023 is of assistance in determining causation of the injuries and conditions relied upon.[17]
[16] ARD p 7.
[17] ARD p 26.
The applicant notes from [2] and [3] of the supplementary statement that he suffers from a significant cardiac condition that id relevant to the reason for the weight loss surgery in October 2022 and the proposed further surgery to address the circumferential excess of redundant skin as a result of the earlier surgery.
From [9]-[15] the applicant refers to the heavy physical nature of his work as a builder, the fall in the month of January 2015 and subsequent attendance on the chiropractor, Dr Richards, and his interaction with the case manager of EML in respect of allocation of a precise date of injury.
The applicant then refers to the fact that he continued to work until two days before the first surgery undertaken by Dr Strokon in March 2017, the approximately 40kg weight gain as a consequence if his inability to exercise after his right hip “…failed in August 2018”, the development of gastro symptoms and irritable bowel symptoms, and the risk of developing cardiovascular problems.
The applicant then refers to his upper limb symptoms, in particular the use of his non-dominant left upper limb as his primary limb because of the significant pain in his right arm after the surgery thereon in March 2017.
There is a concession on behalf of the applicant that, notwithstanding that the rules of evidence do not apply in proceedings in the Commission, much of the evidence from [20] onwards in the supplementary statement is of the nature of opinion evidence in respect of matters that should be addresses by medical experts. From [25] onwards the applicant refers to treatment he received and the development of symptoms in his various body parts.
The applicant notes that the respondent concedes injuries to/conditions in the back and both hips only and notes the development of symptoms in the upper limbs with a claimed date of injury some 18 months later.
The applicant submits that the only evidence of the fall in which he was involved in January 2015 is his concession of such a fall, but that this was one of any number of such falls sustained over the period of his employment, for which he sought chiropractic treatment from time to time. This fall, according to the applicant, was of no greater significance than any other incidents during the course of his work.
The applicant relies on the opinion of Dr Conrad in respect of the submission that the deemed date of injury should is 25 October 2016, noting the opinion expressed by the doctor in his principal report dated 16 February 2022 that:
“Mr Jones was employed by his own company, Kaleidoscope Constructions, working as a self-employed builder. Due to the accidents and conditions of work, his injuries have been as described to his right elbow, left shoulder, both hips, right initially and left hip due to irregular gait, an injury to his back and the development of a bilateral carpal tunnel, for which he has had surgery, but has had a recurrence and more surgery is planned. He has also developed pain and stiffness, left knee.”
This submission is made notwithstanding the history recorded earlier in that report that the applicant while working for his own company had previously injured his right hip in about 2015 which became painful in 2019, and that he had a right hip replacement from which he continued to have pain and stiffness in the hip. The applicant also notes that Dr Conrad, in his earlier principal report dated 5 February 2020, expressed the opinion that there had been a “…separate accident in 2015,…” when Mr Jones “…developed an injury to the right hip for which he has apparently had a right hip replacement.”
The applicant notes that Dr Conrad, in his later report dated 20 December 2022 given following an independent medical examination on that day and after the bariatric surgery in October 2022, repeats his opinion on causation of the applicant’s injuries and conditions, and assesses that Mr Jones has sustained 43% whole person impairment (WPI) as a result of injuries to and conditions in the right and left upper extremities, the right and left hips, and the lumbar spine, namely that:
“Whole person impairment relates directly to the accidents and conditions of work at Kaleidoscope Constructions, which can be said to be a substantial contributing factor to his Whole Person Impairment.”[18]
[18] ARD p 118.
The applicant refers to the report of Dr Williams, neurologist, dated 21 March 2023 following an independent medical examination of the applicant on 14 March 2023.[19] This report does not deal with causation of injury to/conditions in the lumbar spine or hips, but addresses injury to and conditions in the upper extremities, not relevant to matters in dispute for determination in the current proceedings.
[19] ARD p 120.
In respect of the claim for the cost of bariatric surgery, the applicant relies on the opinion of Dr Berry in his report dated 27 March 2023 in which the doctor accepts the instruction from Mr Jones that he gained weight as a result of the inability to exercise, and that given that he has an artificial (heart) valve, it was most reasonable that Dr Taylor performed a sleeve gastrectomy to reduce weight to lessen the risk to the applicant’s cardiac wellbeing.
The applicant also relies on the opinion of Dr Williams in his supplementary report dated 21 June 2023[20] that Mr Jones had an obesity of sufficient severity to warrant bariatric surgery.
[20] ARD p 138.
Turning to the respondent’s case, the applicant observes that it relies on the opinions of two orthopaedic surgeons, Dr Rimmer and Dr Machart, who are of the same discipline and that therefore the admission of which could breach regulation 44 of the Workers Compensation Regulation 44. The applicant did not however submit that the respondent should make an election as to which report should be admitted into evidence.
In any event, the applicant submits that Dr Rimmer in preparation of his report dated 1 July 2020[21] did not have access to any radiological investigations of the applicant’s right and left upper limb or cervical spine conditions which he was asked to assess as a result of injury claimed to have occurred as a result of “…pain in his right elbow as a result of using a large mallet on 25/10/2016.” The applicant submits that because of the lack of radiological investigation, and the fact that Dr Rimmer was simply reliant on the convoluted history provided by Mr Jones, the doctor was simply guessing in expressing his opinion and diagnosis of the applicant’s condition. His opinion was of no assistance.
[21] Reply p 64.
The applicant refers to the report of Dr Machart dated 6 September 2022.[22] The applicant notes that the opinion of the doctor is a “balanced decision”, which includes an opinion that the right hip and lumbar spine were injured at the time of the fall (in January 2015), although Dr Machart said he “could not come to the conclusion that the left hip is anything other than constitutional osteoarthritis.”
[22] AALD dated 11 January 2024 p 4.
The applicant observes that Dr Machart is equivocal in respect of the causation of the lumbar spine symptoms, stating:
“My assessment is that if there was injury to the lumbar spine then, then the symptoms would have been evident then and consistently. The narrative indicates that the symptoms developed due to abnormal weight transfer. The latter is the more likely, on background of pre-existing spondylosis which developed gradually and over the years, dating back to 2004.”
The applicant notes that Dr Machart “did not see nature and conditions of employment contributing as injury”, nor did he classify any of the applicant’s conditions as a disease of gradual process or aggravation of a disease of gradual process.
Notwithstanding this opinion, the applicant submits that it is inevitable that there should be an acceptance that the heavy work in which he was engaged with the respondent caused injury to the lumbar spine, and injury to or conditions in both hips, and also both upper extremities although these body parts are not relevant to what must be decided in the current proceedings, deemed to have occurred on 25 October 2016.
The applicant submits that the reports of the treating medical practitioners in evidence do not assist in the determination of causation of the injuries or conditions upon which he relies to support his case. Rather, reliance is to be placed upon the specialist medical practitioners who have independently medically examined him.
In respect of the treatment for weight gain, carried out by Dr Taylor and proposed by Dr Hunt, the applicant submits that the respondent has put on no evidence to put in issue the reasonable necessity for such surgery, and that there should be a finding in his favour in respect of these claims pursuant to s 60 of the 1987 Act.
The applicant submits that the respondent cannot rely on the defence under s 60(2A) of the 1987 Act to the claim for the cost of the sleeve laparoscopic surgery carried out by Dr Taylor on 5 October 2022, stated in the first s 78 notice dated 20 July 2023 and referred to above at [10]. This is because the insurer, EML, did not determine the claim for the cost of such surgery within the 21 day time limit provided for in s 279 of the 1998 Act. This is evident from an examination of the s 78 notice dated 1 November 2022, which notes receipt of a report from Dr Taylor dated 16 August 2022 (addressed to Dr Sanders) in which the decision of the applicant to proceed with the surgery is recorded,[23] and the failure to determine the claim within 21 days after receipt of that report. The applicant submits that, as is evident from the first page of the s 78 notice dated 1 November 2022, the decision not to approve the surgery was not dealt with until 11 October 2022. The applicant submits that, as the claim was not dealt with within the 21 day time frame, there is a deemed denial of liability for the cost of the surgery.
[23] Reply p 60.
The applicant submits that there is no report tendered by the respondent addressing the reasonable necessity for this surgery, and relies on the well-known matters discussed at
[88]-[89] in Diab v NRMA Insurance Ltd[24] as to the reasonable necessity for surgery, having regard to the injuries, the onset of weight gain by the applicant, his pre-existing medical condition and the need to keep his weight under control by way of weight reduction because of the heart condition from which he suffers, his overall arthropathy and to avoid the early onset of diabetes.[24] [2014] NSWWCCPD 72 (Diab).
The applicant finally submits that, to the extent that it is relevant, in accordance with what is shown on the SIRA (State Insurance Regulation Authority) website Dr Conrad is identified as being a lower and upper limb and spine specialist, whereas Dr Berry is identified as having a speciality in gastrointestinal issues.
Respondent
The respondent questions the need for the applicant’s submission referred to in [57] above on the assumption that it is made with reference to regulation 44 of the Workers Compensation Regulation 2016, noting that the reports of Dr Conrad and Dr Berry had been admitted into evidence. In respect of the admission of the reports of both Dr Rimmer and Dr Machart, the respondent submits that Dr Rimmer’s report is not relevant as it does not deal with the causation of injury to the applicant’s back and hip, whereas the report of Dr Machart does.
Counsel for the respondent submits that he was unable to find reference in the clinical material in evidence to the weight gain by the applicant following injury, and the Commission is therefore reliant on the applicant’s evidence in this regard. However, it is conceded that although the applicant’s evidence is in some respects unreliable, it may be difficult to reject the applicant’s evidence as to weight gain following injury. The respondent would not argue that a weight gain of 40kg was inconsistent the injuries and conditions in the right hip, the back and left hip.
The respondent notes that a date of injury in 2015 has been identified and the claim in respect of this injury was lodged on 10 August 2018 in accordance with the s 78 notice dated 1 November 2022 in which the injury is described as “falling off scaffolding”. The respondent notes the report of Dr Strokon to Dr Sanders dated 10 October 2018 following carpal tunnel surgery on the left wrist on 20 September 2018, in which there is mention that Mr Jones had been having problems with his right hip over the previous three years or so after apparently suffering a fall at a work site in early 2015.[25] The respondent notes from subsequent reports from Dr Strokon that he treated Mr Jones for the injury sustained to the right hip in 2015.
[25] ARD p 1,046.
The respondent submits that Dr Conrad had no insight whatsoever as to the applicant’s pre-existing condition, apart from noting in the principal report dated 5 February 2020 the previous right hip injury in about 2015 which became very painful in 2019. In the opinion expressed in that report, Dr Conrad says that the fall in 2015 was a separate accident as a result of which the applicant developed an injury to the right hip and for which he apparently had a right hip replacement operation.
Dr Conrad, in his supplementary report #2 dated 5 February 2020 assesses 16% WPI as a result of injury to the right hip in 2015. The respondent submits that this assessment is consistent with a frank injury to the right hip in 2015.
The respondent notes that in the principal report dated 16 February 2022 Dr Conrad again refers under “HISTORY” to the right hip injury in 2015 which became painful in 2019, and then in his” OPINION” at the end of the report “elides” to the opinion that due to the accidents and conditions of the applicant’s work as a self-employed builder in his own company, he suffered the injuries to and conditions in all of the body parts listed therein, including the back and both hips. The 41% WPI in respect of such injuries and conditions is given by Dr Conrad in the impairment assessment report dated 16 February 2022.
The respondent submits that the finding by Dr Conrad that the injuries and conditions in the back and hips as a result of the “accidents and conditions” of his work “crept in” to the reports, without a specific finding of a (deemed) date of injury in 2016.
The respondent also notes that Dr Conrad, in making his assessment of WPI, has made no allowance for a deduction for pre-existing injury or condition pursuant to s 323 of the 1998 Act. This is notwithstanding the noting by both him and Dr Strokon of a frank injury in 2015 to the right hip and back.
The respondent refers to the reports from the treating practitioners, Dr Lyons, report dated 14 April 2021,[26] and Dr Damodaran, report dated 28 April 2021.[27] The respondent acknowledges that the histories recorded by treating practitioners are not always of assistance in determining causation of injury, but nevertheless notes the histories recorded by Dr Lyons and Dr Damodaran of the fall off the scaffold in 2015 causing problems with the back and hips.
[26] AALD dated 11 January 2024 p 170.
[27] AALD dated 11 January 2024 p 172.
In respect of the applicant’s submission on the defence raised by the respondent under s 60(2A) of the 1987 Act to the claim for the cost of the October 2022 weight loss surgery, the respondent notes that if the chronology submitted by the applicant is correct, it makes no submission thereon.
The respondent notes that there is reference in the applicant’s supplementary statement dated 22 September 2022 to the applicant’s “previous statement dated 9 October 2020”, which is not in evidence. This, according to the respondent, demonstrates a deficiency in the factual accounts provided by the applicant. The respondent notes that as there are no falls described in the applicant’s evidence similar to the fall of 15 January 2015, greater reliance can be placed upon the history of the 2015 fall described by Dr Lyons and Dr Damodaran.
The respondent refers to [40] of the applicant’s statutory declaration dated 7 July 2022,[28] noting that Mr Jones lodged his claim with EML in August 2018, consistent with what is noted in [60] above. However, the respondent submits that the applicant does not give any real insight into the circumstances of the hip injury. He does not, in the declaration or anywhere else, or in the medical histories, report a gradual deterioration of symptoms in the hip associated with the work that he was performing.
[28] ARD p 9.
The respondent submits that the reports of Dr Conrad are unhelpful in the determination of the applicant’s claim for injury sustained as a result of the nature and conditions of his employment, and that Dr Marchart’s opinion should therefore be accepted. Dr Machart finds that the applicant suffered from pre-existing spondylosis in the lumbar spine which developed gradually over the years, dating back to 2004, not related to his work.
The respondent submits that the applicant has not discharged the onus on him to show that the hip and back injuries/conditions suffered are as a result of the nature and conditions of his employment, with a deemed date of injury of 25 October 2016.
The respondent submits that the Commission should resolve the current proceedings by declining to make such a finding. The respondent observes that such a finding would not mean that ultimately the applicant could not maintain his claim for weekly benefits beyond the s 39 period (that is, beyond the 260 weeks), depending on what the ultimate determination of what his lump sums might be, but that is not a matter before the Commission in the current proceedings.
Applicant in response
The applicant agrees with this last observation of the respondent, namely, that in the event that the applicant does not succeed in convincing the Commission that he suffered the hip and back injuries/conditions as a result of the nature and conditions of his employment, he is not prevented from maintaining his claim for weekly benefits beyond the s 39 period.
The applicant submits that in respect of the histories of injury in 2015 recorded by Dr Lyons and Dr Damodaran, a deeper analysis of all of the evidence is required. The applicant submits that an injured worker has no knowledge of the concept of injury in terms of the definition thereof in the workers compensation legislation, and that when the lay evidence of Mr Jones is considered along with that of, in particular Dr Conrad, the causation of the injuries to/conditions in the applicant’s lumbar spine and hips becomes clear.
The applicant submits that the terms of any determination made by the Commission in the event that it accepts his submissions should be simply that, in or about 25 October 2016 (deemed pursuant to s 16 of the 1987 Act) the applicant suffered injury to or condition in his lumbar spine and bilateral hips.
The respondent replies to this determination suggested by the applicant with the submission that if the applicant is relying on s 16 to fix a deemed date of injury, the applicant’s employment must be found to be the main contributing factor to injury in accordance with s 4(b)(ii) of the 1987 Act. It notes the specific finding of Dr Machart of a pre-existing condition in the lumbar spine. The applicant, whilst agreeing with the necessity of a finding of main contributing factor to injury if Dr Machart’s opinion is accepted, notes that Dr Conrad does not make any deduction from his assessment of WPI pursuant to s 323 of the 1998 Act for previous injury or pre-existing condition.
FINDINGS AND REASONS
Nature and conditions claim
The term ‘nature and conditions of employment’ has been the subject of frequent comment, both in the former Compensation Court of New South Wales and the Workers Compensation Commission.
Deputy President Roche in Topliss v Coles Group Ltd t/as Coles Logistics[29] said at [65]:
“The general reference by the parties and the Arbitrator to a ‘nature and conditions’ injury was misleading and unhelpful. The phrase ‘nature and conditions’ is not a term used in the NSW workers compensation legislation. In Mirkovic v Davids Holdings Pty Ltd(1995) NSWCCR 656 Neilson CCJ said (at 667):
‘The phrase “nature and conditions of employment” is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as “quaint”. My colleague Burke J has frequently referred to it as a “meaningless concept”. It is used in this place [the Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16.’”
[29] [2009] NSWWCCPD 70.
In Raulston v Toll Pty Ltd[30] Deputy President Roche said at [60] with reference to the facts in that case:
“The future conduct of the case is a matter for Mr Raulston and his solicitor. However, I recommend that Mr Raulston retain experienced counsel at the next hearing and that the pleadings be amended to indicate whether Mr Raulston alleges that he received a personal injury under s 4(a) of the 1987 Act or whether he relies on the disease provisions under either s 4(b)(i) or s 4(b)(ii). The reference to ‘nature and conditions’ should be deleted and the exact cause of injury pleaded. If Mr Raulston wishes to rely on the incidents on 30 October 2006 and 23 March 2007, they should be properly pleaded. The expression ‘nature and conditions’ does not encompass injuries of the kind described as having occurred on 30 October 2006 and 23 March 2007.”
[30] [2011] NSWWCCPD 25.
The pleadings in the ARD respect of injury are set out in [2] above. At the hearing, the applicant presented his case on the basis that the fall from the scaffold on 15 January 2015 was part of the ‘nature and conditions’ of his employment resulting in injury to the right hip and lumbar spine, or condition in the lumbar spine consequent upon the right hip injury, and condition in the left hip consequent upon the injury to the right hip on 15 January 2015. These injuries and conditions are accepted by the respondent as resulting from the frank injury of 15 January 2015.[31]
[31] Section 78 notice dated 31 July 2023, ARD p 71.
The applicant submits that the date of injury should be deemed to have occurred on 25 October 2018 in accordance with s 16 of the 1987 Act, being the date when the applicant first became incapacitated. The applicant says at [3] in his statutory declaration dated 7 July 2022 that he first experienced pain in relation to his injuries by repetitive use of a hard rubber mallet, “Used for Secret Nailing a Timber Floor” in October 2016. He consulted his general practitioner, Dr Sanders, who referred Mr Jones to Dr Strokon, who administered a cortisone injection into the right elbow on 9 December 2016. Further treatment to the elbow was administered.
Mr Jones apparently did continue to work in some capacity until just before the date of his right elbow surgery in March 2017 carried out by Dr Strokon. He has not worked since that time.
The applicant gives evidence in his supplementary statement dated 22 September 2023 as to the heavy physical nature of his work as a builder employed by the respondent. This is not disputed. Apart from this lay evidence, the applicant relies on the opinions expressed by Dr Conrad in his reports to support his claim that the nature and conditions of that employment caused the injuries and conditions in his hips and lumbar spine.
The clinical notes of Dr Strokon are in evidence, which include reports of the doctor from 7 May 2001 to 17 December 2018.[32] It appears from these reports that Dr Strokon treated Mr Jones for his right hip problem from 10 October 2018 until 17 December 2018. The fall at the worksite early in 2015 is recorded in the report dated 10 October 2018. In the report dated 19 October 2018 Dr Strokon reviews the right hip and confirms that both clinically and radiologically Mr Jones has early osteoarthritis in the right hip joint, with symptoms being relatively minor and not requiring intervention. Favourable response to the chiropractic management is also recorded. On 1 November 2018 Dr Strokon notes more trouble with the right hip in the previous couple of weeks.
[32] ARD pp 1,033-1,050.
In the second of two reports dated 17 December 2018 Dr Strokon notes an arthrogram of the right hip joint and injection of steroids into the joint. Dr Strokon says that the degenerative changes in the hip joint were by then quite symptomatic, and the consideration of hip replacement in the near future was mentioned. The first hip replacement surgery was carried out by Dr Strokon on 6 June 2019, with revision of such surgery in mid-June 2020.
On 14 April 2021 Dr Lyons reported to Dr Sanders on the increasing problems being experienced by Mr Jones with the left hip. The injury to the right hip in 2015 is recorded. Dr Lyons operated to replace the left hip on 23 June 2021.
Dr Damodaran saw the applicant in respect of severe back pain on 27 April 2021, noting the 2015 work-related accident when he fell off a scaffold and landed on his back. The right sided total hip replacement in 2019 was recorded, as was cancellation of the anticipated left total hip replacement surgery. Dr Damodaran recorded in his history that the uneven gait pattern in the applicant’s bilateral hips had led to his back pain. Dr Damodaran expressed the opinion that:
“Richard has discogenic back pain most likely from the L4-5 and L5-S1 disc levels. The abnormal gait pattern has led to an exacerbation and aggravation of underlying degenerative disorder.”
Dr Damodaran said that based on the imaging, surgical intervention was not recommended at that stage.
I accept the submissions from both the applicant and respondent that caution should be exercised when considering the reports of treating practitioners when causation of an injury needs to be determined. Apart from recording the history of the 2015 fall from scaffold injury, neither Dr Lyons or Dr Damodaran comment on causation of injury to the right hip or back. No other history of the cause of these injuries is recorded. These reports need to be considered along with the reports of Dr Strokon, the applicant’s evidence, and the opinions of Dr Conrad and Dr Machart as to causation.
I accept the respondent’s submission that Dr Conrad in his reports moves from a position of assessing injuries/conditions resulting from the fall of January 2015 to a position of finding the deemed date of injury of 25 October 2016 responsible for the injuries to and conditions in the applicant’s lumbar spine and bilateral hips.
In his principal report dated 5 February 2020 Dr Conrad expresses the opinion that as a result of heavy use of a mallet on or about 25 or 26 October 2016 the applicant developed epicondylitis of the right elbow for which he eventually needed an ulnar nerve transposition by Dr Strokon. Dr Conrad deals with the condition in the left shoulder consequent upon the right elbow injury. In the supplementary report #1 dated 5 February 2020, Dr Conrad assesses WPI as a result of this accident on or about 25 October 2016 at 14% WPI in respect of the right upper limb and left shoulder.
In his supplementary report #2 dated 5 February 2020 Dr Conrad gives an assessment of 16% WPI as a result of the accident “of 2015 resulting in a right hip replacement”.
The clarification report dated 13 October 2020 sets out a revised assessment of WPI of 15% to include 1% WPI under the table for the evaluation of minor skin impairment (TEMSKI) classification for scarring as a result of surgery to the right elbow.
In the principal report dated 16 February 2022 Dr Conrad:
(a) refers to the injury to the right hip in about 2015 which became painful in 2019 and the right hip replacement;
(b) refers to the right elbow problems experienced by Mr Jones and the consequent left shoulder problems for which he was being treated by Dr Strokon, and
(c) notes that following the interview he had with Mr Jones on 5 February 2020 Mr Jones’ right hip deteriorated and he had right hip replacement revision surgery in about May or June 2020, and the consequent left hip problems for which he underwent left hip replacement surgery by Dr Lyons on 28 June 2021.
In that report Dr Conrad opines that:
“Due to the accidents and conditions of work, his injuries have been as described to his right elbow, left shoulder, both hips, right initially and left hip due to irregular gait, an injury to his back and the development of a bilateral carpal tunnel, for which he has had surgery, but has had a recurrence and more surgery is planned. He has also developed pain and stiffness, left knee.”
In the impairment assessment report dated 16 February 2022 Dr Conrad gives an assessment of 41% WPI in respect of the right upper limb (elbow), left shoulder, right hip, left hip, lumbar spine and left knee. He says that:
“There is no evidence of pre-existing degenerative disease or other accidents, therefore this 41% WPI relates directly to the accidents and conditions of work at Kaleidoscope Constructions, which can be said to be a substantial contributing factor to his Whole Person Impairment.”
In the report dated 20 December 2022 Dr Conrad notes his previous reports and summarises the history previously provided by Mr Jones. He notes that since last seen his condition had deteriorated significantly, with continuing pain in both arms and the fact that he had undergone bariatric surgery in October with a subsequent weight loss of 35kg. In the opinion of Dr Conrad, the applicant suffered injuries to right elbow, both shoulders, both hips, back injury and bilateral carpal tunnel for which he has had surgery including the recent one on the left side. The degree of WPI assessed as a result of those injuries is 43%, which Dr Conrad says relates directly to the accidents and conditions of work at Kaleidoscope Constructions which can be said to be a substantial contributing to his WPI.
The finding by Dr Conrad that the injuries sustained by or conditions suffered by the applicant in the bilateral hips and lumbar spine is made without any further exploration of or reference to the applicant’s duties in employment with the respondent, apart from the simple reference to the fact that Mr Jones was working as a self-employed builder, and that the injuries were due to the “accidents and conditions of work”. It is also relevant that Dr Conrad first saw Mr Jones on 5 February 2020, approximately three years after he ceased work for the respondent.
Dr Conrad does not in his reports record any history of any pre-existing condition in, or investigation of, relevantly, the applicant’s lumbar spine or bilateral hips. This is in contrast with what is recorded by Dr Machart, discussed hereunder.
The respondent relies on the report of Dr Machart dated 6 September 2022 in respect of the causation of injuries and conditions suffered by Mr Jones. Dr Machart records an uncontroversial history of the applicant’s employment, the injury to the right forearm in October 2016, surgery on the right elbow in March 2017, and injury to the right hip when the applicant fell approximately four metres and landed on sand. The doctor notes that Mr Jones was a self-employed hands-on type builder who continued work until 12 March 2017. Dr Machart also records the treatment for bilateral carpal tunnel syndrome by Dr Strokon, by way of endoscopic release. Dr Machart provides a comprehensive summary of the radiological investigations, treatment provided by the treating practitioners, and surgery undertaken.
Dr Machart diagnoses a “Plethora of pathology” and “Difficulties distinguishing what caused what.” He says that given the information before him, it appears that there were symptoms in the lumbar spine, hips, and pelvis since 2004. This observation is consistent with the applicant’s evidence at [6]-[7] of his supplementary statement dated 22 September 2023 where Mr Jones says that on 13 August 2004 he underwent an MRI to his cervical spine, thoracic spine and lumbar spine, and that on or around 17 April 2011 he underwent an MRI to his hip, cervical spine, and lumbar spine.
Dr Machart expresses the opinion that the right hip and lumbar spine were injured at the time of the fall. He says that he could not come to the conclusion that the left hip is anything other than constitutional arthritis. Notwithstanding this conclusion, the respondent has accepted liability for the left hip condition.
In respect of the lumbar spine, Dr Machart’s assessment is that if there was injury to the lumbar spine then the symptoms would have been evident then and consistently. He says that the narrative indicates that the symptoms developed due to abnormal weight transfer. He says that this is more likely, on a background of pre-existing spondylosis which developed gradually over the years, dating back to 2004.
Dr Machart says that the aggravation of the pre-existing conditions in the lumbar spine and bilateral hip osteoarthritis is permanent.
Dr Machart provides an assessment of WPI of various body parts, which is not relevant for the purpose of the current proceedings. He did not see the nature and conditions of employment as contributing to injury, or that any of the applicant’s conditions could be classified as a disease of gradual process or aggravation of a disease of gradual process.
The applicant pleads and presents his case in respect of injuries to and conditions in the lumbar spine and bilateral hips due to the nature and conditions of employment from 1 August 2013 to 17 March 2017, when he ceased work. He first became incapacitated for some work on or about 25 October 2016. However the reason Mr Jones ceased work at that time was because of an injury to his right elbow caused by repetitive use of a hard rubber mallet in October 2016. It was not because of any symptoms in the back or hips.
Mr Jones says that he attended on the chiropractor, Dr Richards, after two or three days from the injury of 15 January 2015, and later in the statement that he never took a day off work until two days prior to Dr Strokon’s surgery in March 2017. This was apparently notwithstanding the right elbow injury in October 2016.
In his supplementary statement dated 22 September 2023 the applicant refers to his previous statement dated 9 October 2020. This is not in evidence. At [9] and [10] of the supplementary statement Mr Jones refers to “paragraph 15 and onwards of my previous statement”, and in relation to the onset of symptoms in 2015, “the trauma incident detailed in my previous statement at paragraph 29,….” The lack of the previous statement does not assist in determining what may have occurred in the applicant’s workplaces between January 2015 and October 2016 in respect of the sequelae of the injuries suffered in January 2015. Apart from a description of the general heavy physical nature of the applicant’s work for the respondent, which is not put in issue by the respondent, there is no other evidence that that applicant complained of problems in carrying out his work due to conditions in his lumbar spine or bilateral hips apart from aches and pains from the general wear and tear for which he received intermittent treatment from the chiropractor.
It is not disputed that the applicant suffered injury to or conditions in his lumbar spine and bilateral hips as a result of the fall of 15 January 2015.
However, having regard to the lay and medical evidence that I have summarised, and in particular to my comments in respect the change in the findings of Dr Conrad as to the causation of injuries and conditions in the lumbar spine and bilateral hips, I find that the applicant has not discharged the onus of proof on him to demonstrate that he suffered injury to or conditions in his lumbar spine and bilateral hips on deemed date of injury of 25 October 2016.
Cost of surgery
Notwithstanding the reservations expressed by the respondent as to the reliability of the aspects of the applicant’s evidence, I accept that he suffered a significant weight gain following injury to his back and hips, and the surgery to both left and right hips. This restricted his ability to exercise, and I accept that the applicant would not have gained weight if he was not injured. I also accept that the applicant had a pre-existing cardiac condition, for which an artificial valve had been inserted, and that in accordance with the opinion of Dr Berry, the applicant’s cardiac wellbeing would have been at risk if steps had not been taken to reduce his weight.
In accordance with the matters listed by Deputy President Roche at [88] in Diab, 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,
I find that the laparoscopic sleeve gastroscopy surgery performed by Dr Taylor on 5 October 2022 was reasonably necessary as a result of injury on 15 January 2015.
In respect of the surgery proposed by Dr Hunt, the question of the reasonable necessity for that surgery is not quite so clear. Dr Hunt has given a quote dated 14 March 2023 for the cost of extensive plastic surgery, namely, “Lower Body Lift+ Facelift+ Platysmaplasty + Rhinoplasty”. The applicant seeks a finding only in respect of the:
“Circumferential lipectomy, as an independent procedure, to correct circumferential excess of redundant skin and fat that is a direct consequence of significant weight loss, with or without a radical abdominoplasty.”
Dr Hunt has not provided a report, and there is no other medical specialist who addresses this issue.
The applicant says at [128] of his supplementary statement dated 22 September 2022 that:
“Due to the significant weight loss, I have a lot of excess skin around my stomach. This causes me mobility issues as it gets in the way, but it is also something I am very conscious of as it does not look good. Dr Jeremy Hunt has recommended a tummy tuck. The fat removed will then be used to fill the indentation in my right buttock caused by tow [sic] botched hip surgeries, which I fully intend on undertaking upon the insurer’s approval. I hope that his [sic] will help me in improving my physical and psychological health.”
Disregarding the applicant’s comment about the two botched hip surgeries, and having regard to my finding that the surgery performed by Dr Taylor was reasonably necessary as a result of injury on 15 January 2015, I think the surgery proposed by Dr Hunt is reasonably necessary as a result of that injury. It is essentially an adjunct to the laparoscopic sleeve gastroscopy surgery.
Section 60(2A) of the 1987 Act defence
Section 60(2A) of the 1987 Act relevantly provides:
“(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if—
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval),…”
The respondent notes that if the chronology submitted by the applicant in respect of this defence to the claim for the cost of surgery carried out by Dr Taylor on 5 October 2022 is correct, it makes no submission thereon. The chronology is provided by the applicant in [55] above. The respondent makes no other submission as to the correctness or otherwise of the chronology.
The only issue that I perceive with the chronology is that it is not clear from a reading of the s 78 notice dated 1 November 2022 when the report from Dr Taylor dated 16 August 2022 was received by EML. I cannot find in the evidence a letter serving a copy of the report, and it does not appear from the report itself that it was copied to EML. Dr Taylor does not refer in the report to any approval being sought from the insurer to the surgery proposed therein. It appears from the s 78 notice that the decision to dispute liability for the consequential weight gain, associated bariatric surgery and all weight loss related treatment was made on 11 October 2022, to take effect on 1 November 2022. The surgery had by those two dates been performed on 5 October 2022.
There may be an inference that the report of Dr Taylor and request for approval for the cost of surgery was submitted to the insurer shortly after preparation of the report on 16 August 2022, although there is little to support such an inference. However the respondent, which is relying on the defence, has not pointed to any inaccuracy in the chronology outlined by the applicant.
In any event, the finding that the surgery carried out by Dr Taylor was reasonably necessary as a result of injury does not prevent the Commission ordering the payment of reasonably necessary treatment or service in circumstances where that treatment has been provided without the prior approval of the insurer.[33]
[33] See State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 at [130].
The defence raised by the respondent under s 60(2A) of the 1987 Act does not prevent on order for the payment by the respondent of the cost of the surgery performed by Dr Taylor on 5 October 2022.
SUMMARY
The Commission declines to find that the applicant suffered injury to and/or condition in his left and right hips and lumbar spine as a result of injury deemed to have occurred on or about 25 October 2016.
The laparoscopic sleeve gastrectomy surgery performed by Dr Taylor on 5 October 2022 was reasonably necessary as a result of injury on 15 January 2015.
The respondent is to pay for the costs of and incidental to that surgery pursuant to s 60 of the 1987 Act.
The circumferential lipectomy surgery proposed by Dr Hunt is reasonably necessary as a result of injury on 15 January 2015.
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