Juklen v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Juklen v Blacktown City Council [2023] NSWPIC 138
APPLICANT:	Besima Juklen
RESPONDENT:	Blacktown City Council
Member:	John Wynyard
DATE OF DECISION:	3 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for a declaration that proposed surgery reasonably necessary; whether earlier C5/6 fusion had failed; whether treating surgeon misinterpreted radiology showing artefact at surgery site; whether medico-legal expert for respondent correct in finding that applicant’s florid presentation made the artefact of little relevance; whether catastrophizing by applicant relevant; Held – Member ordered general opinion from Medical Assessor that confirmed that the artefact indicated non-union; observations about the persuasive weight of such an opinion and refusal of respondent to accept that opinion and embark on a defence which incorporated much of the over 1000 pages of evidence; claim by respondent that intensive pain management was a potentially effective alternative treatment dismissed; claim that the proposed surgery had no potential for improvement rejected; Diab v NRMA Ltd considered and applied; claimant’s view that many of her symptoms had been caused by the failure of the surgery vindicated; intensive pain management held no potential until the non-union had been addressed; potential effectiveness significant of recommended surgery; declaration and orders made.
determinations made:	The Commission finds: 1. The proposed surgery by Dr Hsu for a C5/6 posterior cervical decompression and fusion is reasonably necessary. The Commission orders: 2. The respondent will pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

Besima Juklen, the applicant, brings an action against Blacktown City Council, the respondent, for a declaration that proposed surgery by way of a C5/6 posterior cervical decompression and fusion is reasonably necessary, and associated orders.
Two dispute notices were issued and the Application to Resolve a Dispute and Reply were duly lodged.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard by video conference on 10 February 2023. The applicant was represented by Mr Tom Grimes of counsel instructed by Mr Chris Lehmann of Messrs Gerard Malouf & Partners. The respondent was represented by Mr Tony Baker of counsel instructed by Ms Haman Kaur from Messrs Sparke Helmore.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents filed by the applicant on 4 October 2022;
(c)    further Application to Admit Late Documents filed by the applicant containing a further report from Dr Hsu;
(d)    Reply and attached documents, and
(e)    Medical Assessment Certificate assessing General Medical Dispute dated
16 December 2022.

Oral evidence

No application was made in regard to oral evidence.

FINDINGS AND REASONS

As will be seen, the dispute concerned the opposing opinions of medical specialists as to the cause of Ms Juklen’s symptoms. The treating surgeon, Dr James Van Gelder considered that Ms Juklen’s continuing symptoms were not caused by the non-union of a fusion procedure he had performed at C5/6 on 8 May 2019. He was supported by the opinion of Dr Vanessa Perotti, a neurosurgeon retained for the respondent. Dr Perotti conceded that an artefact found on bone scans could be indicative, but supported the view that Ms Juklen’s symptoms were so wide-spread and non-anatomical that the surgery recommended by Dr Brian Hsu would not be effective.
Dr Hsu, after viewing the relevant imaging, recommended a revision by way of a further C5/6 posterior cervical decompression and fusion.
In view of the technical nature of the dispute, at teleconference on 13 October 2022 I made the following direction:
“I remit this matter to the President for referral to a Medical Assessor for a general opinion pursuant to s 321 of the 1998 Act as to whether the further surgery proposed by Dr Brian Hsu is reasonably necessary.”
It is not my practice to seek such opinions, as they are non-binding in any event. In the present case the Medical Assessor found that the proposed surgery was reasonably necessary, but the respondent did not accept that opinion.

Applicant statement

Ms Juklen made a statement dated 2 September 2022. She advised that on
14 December 2010 she commenced employment with the respondent as casual child care aide. She was required to “assist children with clothing, cleaning, and eating, lifting and carrying children, organising activities and supervising”.
She said she had a prior back injury in 2000, and some neck pain on or around 2011 which was treated with painkillers and conservative management.
She said at [9] that prior to the subject incident “and the incident on or around 2000” she was generally in good health and did not suffer any lower back pain or neck pain “that would trouble me”.
She suffered her injury when on 18 October 2018 she knocked her left knee against a bench as she was trying to stop a baby climbing up a bookshelf. She said:[1]
“. ….. As I headed over to the baby, I knocked my knee on a bench that was in the room and fell cross onto the bench. I lost consciousness briefly and when I woke up, I felt an immediate onset of pain to the entire left side of my body, my lower back, both sides of my neck, my wrists and my left knee.”
[1] ARD page 2 [11].
Ms Juklen attended her general practitioner (GP) and underwent conservative treatment, which did not alleviate any of her symptoms.
She said that the pain in her neck was becoming increasingly severe every day, and it became unbearable. She said she had other problems from the lower back but her main focus was on her neck “as small head movements would trigger pain and I [would] have ongoing numbness and tingling in my fingers”.
She was referred to see Dr Mohammed Dowla for nerve conduction studies and she was referred to neurosurgeon Associate Professor James Van Gelder.
She came to surgery with Dr Van Gelder on 6 May 2019.   She said:[2]
“17    ….. Following this procedure, I managed to control and alleviate throbbing in my neck and head with pain killers. I noticed the pain however did not ease and only   seemed to worsen.
18.    On or around 4 weeks following my surgery I developed an infection in my cervical spine wound. During this, I began to develop severe and sharp neck pain, throbbing and ongoing headaches, dizziness and I began to struggle to swallow everyday food. I also began to experience pain in the right side of my face and right arm, hand and wrist pain.”
[2] ARD page 3.
Ms Juklen was referred to see a physiotherapist, whose treatment did not assist her. She continued to consult Dr Van Gelder, who advised her that there was no surgical issue concerning her neck.
Ms Juklen was suspicious of that advice, as her symptoms were ongoing and worsening. She saw Dr Brian Hsu, neurosurgeon, in January 2020 and was advised that her pain was likely due to C5/6 non-union that investigations had revealed.
In February 2020 Dr Hsu again confirmed his advice that the interbody fusion done with
Dr Van Gelder was not complete and was potentially the reason why her symptoms had not ceased.
She underwent a bone scan of her cervical spine and was advised after Dr Hsu had seen the scan to undergo revision of the cervical fusion.
She said that during this time her main focus was on the cervical spine “and a fear that my condition may only worsen over time”. ([26]).
Ms Juklen also stated that she was having problems with her lower back and suffered from radiation in her legs and toes. She said she was referred to pain specialists in the meantime to alleviate some of her symptoms “but they felt as though they could not assist and reported I needed to undergo surgery”.
Ms Juklen said the pain had affected all aspects of her life. She had trouble sleeping, walking or standing for prolonged periods. Was unable to enjoy any recreational activities. She said:[3]
“28. …... I feel persistent pain in my neck which radiates to my arms and fingers, ongoing pain from my back which persists and radiates to my heels preventing me from placing any pressure on my feet. My symptoms are constantly intensified on a daily basis due to occurrences that are simply out of my control, such as coughing, sitting, standing, walking or sneezing.”
[3] ARD page 4.
She stated that she had recently consulted with Dr Hsu following some recent scans and had been advised that she still required the proposed surgery.

Dispute notices

On 5 June 2020 the respondent issued a s 78 notice, stating that it needed further information. On 9 July 2020 a further notice advised that the respondent was declining liability after receipt of advice from its medico-legal specialist Dr Vanessa Perotti. It said that it had not received any response to detailed requests to Dr Van Gelder.
The s 78 said:[4]
“It was Dr Perotti’s medical opinion that a High intensity Pain Management program would be of more assistance to you for you to assist with the management of your chronic pain. Council have previously approved this Pain Management program for you and continue to agree with the approval of a High Intensity Pain Management Program.”

Dr Montana Ducic, Blacktown Family Medical Centre
[4] ARD page 11.

Ms Juklen suffered an injury to her right shoulder which Dr Ducic noted in the first entry of her notes, 22 August 2011. This received intensive treatment which included an MRI scan of the neck on 1 October 2011 which demonstrated a small C5/C6 disc osteophyte complex. An opinion from a specialist, Dr Adler, noted on 2 December 2011 that Ms Juklen’s symptoms were more related to the cervical spine injury than the shoulder problem. She came to epidural blocks in the cervical spine in March 2012, 4 May 2012 and 30 May 2012. On
30 July 2012 Dr Ducic noted that decompressive surgery in the cervical spine had been suggested by Dr Owler. By January 2013 Ms Juklen was consulting Dr Ducic for unrelated problems (although many concerned the lumbosacral spine), with Dr Ducic reporting on
13 March 2013 that Dr Owler advised against cervical spine surgery.[5] From that time until the subject injury on 18 October 2018 the entries in Dr Ducic’s clinical notes were unrelated to
Ms Juklen’s cervical spine problems.

Dr Mohammed Dowla
[5] Dr Ducic’s clinical notes relevantly begin at ARD page 145.

Dr Dowla, consultant in neurology and clinical neurophysiology, had been consulted by
Dr Ducic since 3 December 2018. The clinical records had amongst them several reports from Dr Dowla.
On 12 February 2020 Dr Dowla reported to Dr Ducic as follows:[6]
“Following the surgery, she developed a new type of pain, sensitivity on the r right side of the face, right side of the neck, right arm and right leg.
…
There is no evidence of focal or generalized neuropathy.
MRI cervical spine 22.1.2020 showed anterior fusion C5/6. No complication. There is foraminal stenosis at C 6/7,…”
[6] ARD page 967.
On 22 January 2021 Dr Dowla reported to Dr Ducic.[7] He said:
“Bone scan 18/12/2020 showed high uptake at C5/6 with non - union.”
[7] ARD page 951.
In a further report of 1 August 2022 Dr Dowla reported that a spinal injection administered earlier did not improve the symptomatology.[8] He examined the investigations before him and said:
“… MRI cervical spine 8/7/2022 showed intact surgical hardware at C5-C6
Xray cervical spine (flexion/extension) 12.1.2022 showed mild retrolisthesis of C3 on C4 and C4 on C5 of l-2 mm suggesting unsuccessful fusion
Opinion
I suggested her to continue Physiotherapy and take Tramadol 50 mg bd, Panadol osteo 2 tab bd. I suspect strong psychophysiological component in her pain but additionally unsuccessful fusion that may require anterior cervical fusion with bone graft. I will review her in three months.”

Dr Ruhaida Daud
[8] ARD page 22.

Dr Ruhaida Daud was a neurologist who appeared to be a locum for Dr Dowla when he reported to Dr Ducic on 9 July 2019.[9] He took a consistent history of the onset of Ms Juklen’s neck pain. On 20 August 2019 he reported quite florid symptoms in the right side of her body. He agreed that the appropriate diagnosis was of a “pain syndrome”.[10] On 15 November 2019 he reported to Dr Ducic that a CT scan of the neck dated 23 September 2019 showed fusion but no “collection”. He recorded that on examination there was tenderness over the surgical site. He had no further role in Ms Juklen’s management. He did not see the bone scans.

Dr Jordana Jovanova,
[9] ARD page 975.
[10] ARD page 977.

Dr Jordana, consultant psychiatrist and psychotherapist, saw Ms Junklen on 23 August 2019 but not again until 7 February 2022 on referral from Dr Ducic. She reported on
[11] ARD page 22.
7 February 2022.[11]
Dr Jovanova spoke Ms Juklen’s first language, Serbo-Croatian.
Dr Jovanova took a history that in May 2019 Ms Juklen underwent “neck surgery”. Dr Jovanova said:[12]
“She reported that after that surgery her symptoms have significantly
worsened, and her pain become more severe. Additionally, Mrs Juklen reported that the surgeon was dismissive of her symptoms. She told me that in 2019 she saw a pain specialist and was diagnosed with Chronic Pain. Mrs Jukien informed me that in January 2020 she saw another neurosurgeon Dr Hsu, and over the last two years Dr Hsu had reportedly offered her surgery for her cervical and lumbar issues, but the insurance company, reportedly, never approved that surgery.”
[12] ARD page 23.
Dr Jovanova summarised her opinion, saying:[13]
“In essence Mrs Juklen is a 60y old woman that presented with worsening pain and with progressively worsening impairment in functioning since her work accident in 2018.
Additionally, she reported that her pain has significantly worsened after her first surgical intervention in 2019. Furthermore, Mrs Juklen reported that over the last month her facial pain and paraesthesia have deteriorated, she has difficulty to swallow food, and she has significant, unintentional weight loss of over 4kg. This all happens to a woman who described herself pre-injury as a very fit, active and independent woman and who now requires extensive help from her family. Pertinently, Mrs Juklen has clearly denied any symptoms of pervasive depression and she denied any psychotic symptoms. This happens to a woman with no past history of psychiatric illness, no history of substance abuse and with no family history of psychiatric conditions. She expressed determination to continue her treatment with doctors and with the insurance company.”

Dr Brian Hsu
[13] ARD page 24.

A number of reports were lodged from Dr Brian Hsu. On 15 January 2020 he reported to
[14] ARD page 31.
Dr Ducic that Ms Juklen’s symptoms were likely related to the C5/6 non-union “as seen on the previous CT scan and bone scan”.[14]
Dr Hsu wrote a further report on the same date of 15 January 2020. The copy lodged did not indicate to whom that report was addressed, but Dr Hsu said:[15]
“I had a long discussion today with Mrs Juklen regarding the radiographic findings and also the clinical findings . Mrs Juklen's neck pain and upper limb symptoms are likely related to the non union at the C5-6 level, as seen on the previous imaging. I have arranged for her to undergo an updated CT scan of the cervical spine to further assess the fusion mass. I have also arranged for her to undergo an MRI scan of the cervical spine to further delineate the pathology. I plan to review her after the investigations to discuss her treatment options.”
[15] ARD page 33.
On 13 February 2020 Dr Hsu reported to Dr Ducic, again repeating that the CT scan demonstrated that the interbody fusion did not appear to be complete. He said:[16]
“… This could be the explanation for some of her ongoing symptoms in the cervical spine. The adjacent segment also demonstrate a moderate disc bulge.”
[16] ARD page 34.
On 21 April 2021 Dr Hsu wrote a report for Ms Juklen’s prior solicitors. He advised that he had examined Ms Juklen on 15 January 2020, 11 February 2020, 13 March 2020, 21 May 2020, 14 December 2020 and 4 January 2021.
Dr Hsu was asked for his findings on physical examination on the last occasion he saw her. He said:[17]
“The latest bone scan done on 18 December 2020 continues to show significant uptake at the CS/6 level. This is the previous fusion level which appears to not have completely united. The neck and arm pain and right sided headaches are still quite significant relating to the non-union at C5/6.”
[17] ARD page 19.
He said further:
“The CT scan demonstrated that the interbody fusion did not appear to be complete and this explained some of her ongoing symptoms in the cervical spine. The bone scan confirms that the fusion surgery performed previously suggested that there is a non union.”
He explained the need for a posterior cervical fusion, saying:
“The standard treatment for non union following Anterior Cervical Decompression and Fusion would be a Posterior Spinal Fusion at those levels and the posterior instrumentation at the level is likely to resolve or significantly improve her symptoms at that level.”
On 21 April 2021 Dr Hsu wrote to the applicant’s solicitors in answer to some further queries. He said:[18]
“The latest bone scan done on 18 December 2020 continues to show significant uptake at the CS/6 level. This is the previous fusion level which appears to not have completely united. The neck and arm pain and right sided headaches are still quite significant relating to the non-union at CS/6…..
The CT scan demonstrated that the interbody fusion did not appear to be complete and this explained some of her ongoing symptoms in the cervical spine. The bone scan confirms that the fusion surgery performed previously suggested that there is a non union….
The standard treatment for non union following Anterior Cervical Decompression and
Fusion would be a Posterior Spinal Fusion at those levels and the posterior
instrumentation at the level is likely to resolve or significantly improve her symptoms at
that level.”
[18] ARD page 19.
Dr Hsu provided a further report on 1 September 2022.[19] This report noted that Ms Juklen’s most recent imaging confirmed the C5/5 non-union and that she would require surgical intervention in the near future.
[19] ALD dated 4 October 2022.
He also advised that further pain management guidance should be given.
On 6 October 2022 Dr Hsu further reported[20] after she had undergone a further cervical X-ray. Dr Hsu said:
“The xray confirms that there is a non-union at the previous surgical level and there is a lucency around the C5/6 fixation. She will require surgical revision with a posterior decompression and fusion.”

Dr James Van Gelder
[20] Further ALD.

Dr Van Gelder’s reports were scattered throughout the ARD, as the footnotes will show.
Dr Van Gelder reported firstly on 21 December 2018 to Dr Ducic, the applicant’s GP. He took a consistent history of the incident on 18 October 2018, and noted complaints of stiffness and pain in the neck radiating to the arm, shoulder and forearm in addition to complaints about radiating back pain, left sided check pain and a feeling that the neck pain radiated into her throat which gave her difficulty swallowing.

Dr Van Gelder noted that the applicant was very apprehensive and distressed.[21]
[21] ARD page 875.
Dr Van Gelder’s opinion was:
“From a neurosurgical point of view, Mrs Juklen does have an emerging pattern of C5-6 cervical radicular symptoms consistent with her radiology and more concerning on the right side. She is unlikely to have a sustained meaningful benefit from injections. Surgical treatment to decompress the involved nerve roots may be a good option if she has persistent and unmanageable radicular symptoms.”
On 28 February 2019 Dr Van Gelder again reported to Dr Ducic.[22] Dr Van Gelder said that
[22] ARD page 730
Ms Juklen “had a more clear history of cervical radicular symptoms” and indicated that she requested surgical treatment.
Dr Van Gelder said:
“Mrs Juklen and I discussed how she will continue to require multidisciplinary treatments to address her other injuries and psychosocial risk factors. Mrs Juklen acknowledged this, but had some concerns about the distance she was having to travel from Blacktown.”
On 4 June 2019 Dr Van Gelder again reported to Dr Ducic.[23] He noted it was then two weeks after the C5/6 anterior cervical discectomy and fusion that he had carried out. He said that
Ms Juklen was very pleased with the improvement in her symptoms. He said:
“Ms Juklen was previously suffering from cervical radicular symptoms involving both arms and worse on the right side with functional impairment in the right hand. She had peripheral numbness in the C6 distribution. MRI scans preoperatively had shown CS-6 disc bulging osteophytes causing bilateral neural foraminal stenosis impacting the C6 nerves. MRI scan also showed an incidental TS syrinx.”
[23] ARD page 874.
On 14 June 2019 however Dr Van Gelder again reported to Dr Ducic.[24] It was now five weeks since the surgery and Dr Van Gelder noted complaints of swelling in Ms Juklen’s throat around the area of the cervical wound. He noted that Ms Juklen was on antibiotics but found no inflammation or signs of infection. He said that Ms Juklen appeared depressed and pessimistic and she complained of back pain, hip pain where she had had the bone graft, and general neck and shoulder ache. He said:
“Mrs Juklen does not require any neurological investigations or treatment for cervical spine….”
[24] ARD page 873.
In his next report of 1 July 2019, again addressed to Dr Ducic, Dr Van Gelder advised that
[25] ARD page 712.
Ms Juklen was complaining of “multiple symptoms” including burning around the back of the neck, swelling around the throat which had not improved after two courses of antibiotics.[25] She described occipital headaches and was taking Endone at night. She felt a squeezing around her throat and also experienced an itching in that area and at times had difficulty swallowing. There were complaints recorded of symptoms in the left shoulder, left arm and left leg as well as in the right arm, back and right leg.
She had been referred back to her pain specialist, Dr Van Gelder, but could not be seen for two months. She was referred to pain management at Westmead Hospital and Dr Van Gelder recorded “they asked lots of questions and then advised that she could not be accepted until 6 months after her surgery”. She was also referred to a Back to Life Program.
Dr Van Gelder reported that Ms Juklen had a “highly inconsistent examination”. He said that when observed she could clearly move her neck and use her arms normally but when examined she had limited neck movement. She had difficulty elevating her shoulder beyond 90º and she recoiled on light touch of skin and back of the neck around her shoulders and back.
Dr Van Gelder could not reliably estimate muscle group strength accordingly. He then noted also that sensory changes were complained of in the right arm, but that they did not follow a neurological distribution.
Dr Van Gelder thought that Ms Juklen had “signs of anxiety abnormal pain behaviour and central sensitisation”. He recommended multidisciplinary pain medicine approaches.
On 26 November 2019 Dr Ducic referred Ms Juklen for an urgent review by Dr Van Gelder following a recent MRI scan.[26] Dr Van Gelder noted complaints of headaches, facial numbness, squeezing around the throat, pain and restriction of shoulder movements, and numbness all down the right arm. He described her symptoms as “widespread”.
[26] ARD page 883. The MRI scan concerned I assume was that of 14 November 2019 at ARD page 292.
Dr Van Gelder then recited the history of Ms Juklen’s management. He noted the complaints of swelling around the throat following surgery, and that Ms Juklen had been prescribed antibiotics because “a tag of the subacute particular absorbable suture had presented on the wound”. Dr Van Gelder noted that the complaints of burning pain were in a non-dermatomal distribution in her face down her arms and into her thumbs. He said there was a “highly inconsistent and uninterpretable physical examination”. He found guarding and apprehension and numerous signs of pain behaviour on examination with non-anatomical numbness involving the whole of the right arm.
Dr Van Gelder noted Ms Juklen’s concern that the MRI scan had shown a serious abnormality. Dr Van Gelder said that at C5/6 there were no reevant signs which was consistent with previous post-operative MRI and CAT scans. He said that it was “not really possible” that she had a recurrent disc herniation. Dr Van Gelder notice that “the gradient echo MRI scan images did show artefact concerned with her screws both on the left and right side, which could have been misinterpreted as a recurrent disc herniation by the radiologist”. Dr Van Gelder advised Ms Juklen that he could not identify any problems with the imaging. He did say:[27]
“… If [Ms Juklen] is having excessive neck pain, it is hard to eliminate the possibility of a failed fusion and micro-motion…
Ms Juklen has had a recent bone scan showing increased uptake where she has had fusion, which would be expected. There are no signs of abnormal uptake or infection.”
[27] ARD page 884.
Dr Van Gelder then said:
“I asked Mrs Juklen whether she was interested in having a revision of the operation if she was convinced that there was no problem. I explained that this would be on the basis of her symptoms and giving her the benefit of the doubt, I have not found any objective out abnormalities on her radiological studies. I could not give her any reassurance that this would be helpful unless she had clear evidence of failure of her fusion, which is unusual in the cervical spine.”
In his next report of 14 February 2020 Dr Van Gelder, again reporting to Dr Ducic, reported that Ms Juklen had MRI scans taken post-operatively in August and November 2019, and January 2020 of the cervical spine. He said:[28]
“…These show artefact at the C5/6 level. They do not show any signs of deformity or instability or nerve compression…….There is some artefact on some of the MRI scan images at C5/6 that could be misinterpreted as a recurrent or residual disc herniation. Therefore, currently there are no indications for neurosurgical treatment…. and for the time being, further imaging is unlikely to be rewarding.”
[28] ARD page 881.
Dr Van Gelder thought that Ms Juklen was unlikely to benefit from injections or blocks in the cervical spine.
Dr Van Gelder said:[29]
“Ms Juklen has signs of severe pain with inconsistent physical signs, fear and avoidance, catastrophisation and central sensitisation. She will not improve with treatments directed at her somatic symptoms without taking into account her pain condition….”
[29] ARD page 881.
On 22 July 2020 Dr Van Gelder reported again.[30] He said:
“Dr Hsu’s recommendation for surgery depends on the diagnosis of unsuccessful bony fusion at C5-6.
On 14/05/20 Ms Juklen had a bone scan. Please read the report of the bone scan.
Dr Donnelly has reported on the scan. There were no signs of complications or loosening of the fusion.”

MRI scan 14 November 2019
[30] ARD page 528.

This scan caused Ms Juklen to consult Dr Van Gelder on19 November 2019 out of her concern that it showed a serious abnormality. The radiologist, Dr Z Sherif, said:[31]
“Findings: Previous anterior lumbar intervertebral fusion demonstrated at C5/C6, no acute complication. Unfortunately, there is marked metallic blooming artefact seen at this level, not well seen. There appears to be some left paracentral disc protrusion causing narrowing of the neural fora men and possibly contacting irritation of the anterior right aspect of the cord at this level.
…
CONCLUSION:
1. Anterior fusion demonstrated at C5/C6, at this location, there is significant metallic blooming limiting visualisation, however, there is the impression of possible compression on the right side anteriorly of the anterior cord causing significant foraminal narrowing with the potential for right C6 nerve root compression
….”

Bone scans
[31] ARD page 293.

Dr Patrick Donnelly reported to Westmead Hospital on 8 November 2019 on the results of a whole body bone scan with SPECT/CT he had taken.[32] He said:
“….
There is increased uptake at the surgical site of C5/6 discovertebral junction which is consistent with ongoing remodelling from recent surgery five months previously.
……
Opinion
1. No evidence for facet joint arthritis in the spine; satisfactory appearance to the C5/6 fusion site and no stress reaaction above or below this site
….”
[32] ARD page 659.
Dr Hsu obtained a bone scan and CT SPECT on 19 February 2020 from Dr Bill Mouratidis, who reported:[33]
“On delayed static and SPECT imaging; there is moderate intense uptake seen at the fusion site at C5/6.
Tracer uptake in the remainder of the cervical spine appears normal. There is no evidence of active facet joint arthritis.
COMMENT:
The study demonstrates moderate uptake at the fusion site at C5/6. There is no increased vascularity in this area. The scan appearances may be secondary to post operative reactive changes but underlying complication or failure of the fusion site is not excluded.”
[33] ARD page 620.
Dr Donnelly’s further report to Dr Hsu of 14 May 2020 recorded:[34]
“In the delayed planar and SPECT/CT images, there is mild to moderately increased uptake in the C5/6 junction, more prominent in the inferior aspects of C5 and no significant reaction adjacent to the fixating screws in the circumferential pattern i.e.I do not think there is loosening of the fixating screws. No stress reaction above or below the fusion site. Normal appearance to the facet joints of the cervical spine. When directly compared to the previous study of February 2020, there has been no significant change. When compared to the previous study SPECT/CT there has been no significant change.
Opinion:
Stable serial bone scan of cervical spine with ongoing change in the C5/6 junction mostly involving the inferior and plate aspect of C5 which I think is acceptable and consistent with ongoing remodelling.”

Dr Vanessa Perotti
[34] ARD page 596.

The respondent sought medico-legal advice from Dr Vanessa Perotti. Dr Perotti provided two reports dated 6 July 2020 and 24 June 2021 respectively.[35] In her initial report, Dr Perotti described Ms Juklen’s early life when she emigrated from Bosnia to Italy in about 1992, and from thence to Australia. She noted that Ms Juklen obtained a Diploma of Child Care Service and described her duties when working for the respondent.
[35] Reply pages 16 and 23.
Dr Perotti obtained an accurate history of the subject injury, noting that the MRI ordered by
Dr Van Gelder showed a large C5/6 cervical disc osteophyte complex with moderate to severe foraminal stenosis. Dr Perotti noted Ms Junklen’s subsequent surgery. Dr Perotti took a consistent history that about four weeks after the surgery, Ms Juklen reported a minor infection in her neck wound and an onset at the same time of severe neck pain, headache, poor swallowing, dizziness, right-sided face pain and paraesthesia, right-sided arm, hand and wrist pain. She returned a number of times to Dr Van Gelder and a number of scans were ordered after which she was reassured there was no surgical problem.
Dr Perotti noted that Ms Juklen asked for a second opinion and saw Dr Brian Hsu sometime between February and March 2020 because the pain had not ceased.
Dr Perotti noted that on 21 May 2020 Dr Hsu advised that further surgery should help
Ms Juklen’s pain. Dr Perotti recorded the following complaints:
(a)    Ms Juklen could not swallow and was dizzy;
(b)    she had constant headaches;
(c)    she had stabbing pain at the occiput;
(d)    she had pain on the left paravertebral cervical muscles;
(e)    she described severe right-sided face numbness, and
(f)    she described right hand weakness and severe right shoulder pain.
Dr Perotti noted that Ms Junklen’s pain and numbness increased during the day and
Ms Juklen found in the afternoon that her face and tongue became numb. Her sleep was poor and she suffered radiating pain into her legs as well. Coughing caused severe pain in the back of her head which radiated to the right shoulder.
Dr Perotti noted that at the time of the July 2020 consultation, Ms Juklen was seeing a neurologist, Dr Dowla “for headaches”.
As to past medical history Dr Perotti reported that Ms Juklen described herself as healthy, the only medical issue being that she had elevated cholesterol. She also had inguinal hernia repair in 2012.
At examination Dr Perotti noted that the surgical scar had healed well and some mild tenderness at the right base of her neck, but no masses were discovered.
Ms Juklen was very “pain avoidant” so that Dr Perotti found it difficult to complete the neurological examination. It was difficult to assess muscle power in the upper arm or lower limbs due to Ms Juklen’s pain avoidant behaviour.
Dr Perotti had available the investigations. She compared a Spect/CT scan of 14 May 2020 with two earlier scans and said that there was a slight osteoblastic reaction in the inferior aspect of C5. The radiologist had noted “I think non-specific in nature”. Dr Perotti said that the degree of uptake around the screws and fixating device was unchanged, and the radiologist had said, “I think are not suggestive of loosening components”.[36]
[36] Reply page 19.
Dr Perotti also noted an MRI scan of 22 January 2020 which she said was unremarkable but then added “artefact around C5/C6 which is usual given the instrumentation is metal”. A CT scan of the same date Dr Perotti said was unremarkable, noting the radiologist’s comment - “fusion virtually complete”.
In her opinion Dr Perotti noted the history that at four weeks after surgery, Ms Juklen had developed an infection at the surgery site. Dr Perotti also noted the complaints of other symptoms at the same time.
Dr Perotti said:[37]
“…
On physical examination, Ms Juklen had disabling pain in multiple body regions. The pain and symptom pattern are non-dermatomal. The pain and symptoms are not consistent with any known spinal cord or spinal column pathology.
The imaging completed including multiple bone scans, CT of the cervical spine and MRI of the cervical spine do not demonstrate convincing non-union at the surgical site, nerve or spinal cord compression and/or instability. The proposed surgery of posterior cervical surgery would not relieve these symptoms or relieve Ms Juklen’s pain as described.”
[37] Reply page 20.
Later in her report Dr Perotti advised that the proposed surgery would not provide relief for
Ms Juklen. She explained that the symptoms described did not correlate with any known symptoms “usually described for patients with non-union of the cervical spine after an anterior cervical discectomy and fusion”.
Dr Perotti said that the symptoms and pain are also very widespread across multiple body regions and therefore surgery would not be of benefit.[38]
[38] Reply page 21.
Dr Perotti advised further in discussing the prognosis that there was “no structurally significant lesion causing the current symptoms and pain". She noted that Ms Juklen’s pain was severe and had been ongoing for less than six months. Her opinion was that there was no surgically correctable solution, and that Ms Juklen was unlikely to return to work. She said:[39]
“In order to recommend surgery, the history, physical examination and radiology must all be consistent in order to have the best outcome for the patient. (This is consistent with my training). I do not treat “scans”. At this stage I cannot make a recommendation for surgery given the symptoms described and the physical examination which is very similar to the physical examination in 2020.”

Report 24 June 2021
[39] Reply page 29.

Dr Perotti supplied a second report dated 24 June 2021.[40]
[40] Reply page 23.
Dr Perotti advised that since the last assessment in June 2020, Ms Juklen reported a number of symptoms:
(a)    she was unable to walk;
(b)    she has all over body pain;
(c)    she had back pain and leg pain since her injury but did not always discuss it, and
(d)    she has neck pain and right arm pain and paraesthesia around the region of her neck and across her face and ears.
Dr Perotti reported on the physical examination:[41]
“I observed unusual pain responses and behaviour during the physical examination but Ms Juklen was cooperative to the best of her ability. Overall, her affect was very restricted and she replied to most of my questions in monosyllables initially which was similar to her last assessment.
“No, I do not believe the physical findings and symptoms described are consistent with the incident and injury that initially occurred. Ms Juklen is demonstrating unusual pain behaviour. I acknowledge that there are changes in the bone scans of her cervical spine which may be indicative of non-union at the site of her anterior cervical discectomy and fusion however the history and physical examination is not consistent with the radiological findings. I have reviewed the documentation provided and also my initial assessment and previous documentation from other doctors and surgeons and there is no evidence that an acute lumbar spinal injury was sustained during the initial incident. Given Ms Juklen’s behaviour, her prognosis regardless of what treatment she receives is very poor.”[42]
[41] Reply page 27.
[42] Reply page 29.
Dr Perotti concluded:[43]
“I am concerned that Ms Juklen was very stressed during the IME assessment and it may be useful for Ms Juklen to have another IME or a physiotherapist to assess her to verify the physical examination findings….. Ms Juklen is quite fixated with surgery being the only solution and is quite rigid in this belief. She has exhausted most other options.”
[43] Reply page 30.
As to diagnosis, Dr Perotti said:[44]
“Following the work-related injury on 19 October 2018, Ms Juklen described onset of left hemibody pain and associated disability. Following spin al surgery on 8 May 2019.
Ms Juklen described the onset of right hemibody pain, associated headaches, difficulty swallowing and associated difficulty breathing. Left hemibody pain appears o have become less problematic
It is difficult in retrospect to provide a diagnosis of all injuries as a result of the incident on 19 October 2018. Ms Juklen described the onset of left hemibody pain and significant disability at this time. She stated she had difficulty mobilising and presented to her local medical officer for parenteral analgesia.”

The Medical Assessment Certificate
[44] Reply page 35.

This was supplied by Medical Assessor Todd Gothelf. The Medical Assessor noted the various opinions including that of Dr Daud that Ms Juklen most likely had a complex regional pain syndrome after the surgery. He considered the reports of Dr Hsu and Dr Perotti together with the reports of Dr Van Gelder and Dr Dowla and some pain specialist opinion. He noted the special investigations remitted to him at MAC pp 6 – 10 together with further investigations given to him at the consultation by the applicant, Ms Juklen. These included a SPECT CT scan of 18 December 2020 which demonstrate “remodeling changes C5/6 stress reaction facet arthritis”.

The Medical Assessor stated at page 11:
“The history is consistent with the physical examination findings and is consistent with the documentation provided. The diagnosis of injuries is consistent with the mechanism of injury and is consistent with the current status of the condition.
The purpose of the proposed treatment is to treat the injury that was caused by the work place injury and subsequent approved surgery. The previous surgery for an anterior C5/6 fusion resulted in persistent symptoms. Dr Hsu’s evaluation of the CT scan and bone scan supported that there was a persistent non-union at the fusion site. The purpose of the proposed surgery is to treat the non-union which was caused by the previous surgery.”
The Medical Assessor found that the treatment was appropriate, cost effective and had the potential to improve Ms Juklen’s symptoms and allow her an improved quality of life and function.
The Medical Assessor noted that alternative treatments including pain management and physiotherapy had not made any improvement. He further observed that the proposal for surgery to treat the non-union was acceptable practice.
The Medical Assessor then reviewed the reports of Dr Perotti.
The Medical Assessor noted that whilst Dr Perotti in her report of 6 July 2020 advised that the CT and MRI imaging did not demonstrate convincing evidence of a non-union at the surgical site, she later acknowledged that the bone scan was indicative of non-union at the fusion site in her later report of 24 June 2021.
The Medical Assessor said:[45]
“Dr Perotti comments on why surgery should not be recommended, and states: In order to recommend surgery, the history, physical examination and radiology must all be consistent in order to have the best outcome for the patient. (This is consistent with my training). I do not treat “scans”. At this stage I cannot make a recommendation for surgery given the symptoms described and the physical examination which is very similar to the physical examination in 2020.
While I accept this opinion regarding the effectiveness of surgical treatment, the opinion does not answer fully whether the treatment is “reasonably necessary” as it does not address the criteria outlined above. In my opinion, surgery is a reasonable option and the ultimate decision to proceed with surgery should be made between the patient and their treating surgeon after a discussion of the risk and benefits.”

SUBMISSIONS
Mr Baker
[45] MAC page 12.

Mr Baker spent some considerable time in submissions referring to contemporaneous material. He submitted that pain management had been shown to be an alternative and appropriate treatment. Accordingly the proposed surgery could not be found to be reasonably necessary, as it offended the dicta in Diab, as I understood him.
Mr Baker noted that the applicant’s symptoms were worsening, as was reported by Dr Perotti. Mr Baker conceded that the relevant bone scan probably did show vascularity, but he submitted that the whole of the evidence had to be considered. He said the scans showed nothing untoward and no controvertible lesion had been identified. He referred to Dr Perotti’s observation that Ms Juklen was exaggerating and catastrophising. Mr Baker referred to the investigations and the radiologist’s opinion as to the bone scan taken on 8 November 2019.
Mr Baker relied on the opinion of the treating surgeon Dr Van Gelder that there was no indication for further surgery when he continued to treat her following the fusion.
As to Dr Hsu’s opinion that there had been a non-union, Mr Baker relied on the opinion of the reporting radiologist Dr Donnelly that there had been a normal progression from May 2019 as would be expected. Each and every X-ray and CT scan showed movement in the cervical spine other than at C5/6, Mr Baker submitted. He said in answer to Dr Hsu’s suggestion that Dr Perotti had changed her opinion, that it had not changed “one iota”. Dr Hsu left out from his history the description of all the other symptoms that had been described by Dr Van Gelder and Dr Perotti, it was submitted. Dr Hsu had not taken account of all those symptoms and, Mr Baker said, did not give satisfactory reasons as to why he disagreed with Dr Van Gelder.
Mr Baker addressed the report of the Medical Assessor of 16 December 2022. Dr Van Gelder had seen the applicant 20 times and convinced himself that there was a solid fusion once the neck complaints arose, Mr Baker said, for the reasons Mr Baker had adumbrated. He noted that the recommendation for an epidural injection by the pain specialist had produced no result when recommended. Indeed the evidence showed that Ms Juklen refused to take up any of the intensive pain management options as she preferred to proceed on to some unfounded pathology that needed correction, as Dr Van Gelder had put it, Mr Baker said. Moreover, the Medical Assessor had completely ignored all the other symptoms about which Ms Juklen was complaining. These complaints were not all neurological, Mr Baker said.
What the Medical Assessor had done was to ignore all the symptoms the applicant was complaining of in favour deliberating on the artefact discovered in the imaging. The Medical Assessor did not explain adequately why he disagreed with Dr Van Gelder, restricting himself to a “one-liner”.
Mr Baker submitted that the diagnosis of the failed union was not sustainable on the balance of the evidence. The Medical Assessor referred to Dr Perotti’s reports and stated that
Dr Perotti had changed her opinion in June 2021 as the issue on bone scan may have demonstrated that, but, Mr Baker said, that was on a historical account of what existed in 2019 but it did not change her mind at all. Mr Baker referred to her opinion that Dr Perotti did not treat “scans”. Mr Baker submitted that Dr Perotti’s opinion did not change “one iota, other than the suggestion about non-union being thrown in”. She maintained that her examination of Ms Juklen demonstrated that there were non-anatomical features that were counter-suggestive to surgery.
Mr Baker submitted that the evidence showed that Ms Juklen had not attempted effective pain management and he referred to various reports that she had been unable to attend for a variety of reasons. He submitted that the General Certificate provided by the Medical Assessor could be distinguished because the Medical Assessor did not adequately consider the evidence regarding pain management and accepted the opinion of Dr Hsu without question.
Mr Baker submitted that on the opinions of the treating neurosurgeons, Drs Dowla, Doud and Van Gelder demonstrated that the proposed surgery could not be said to be reasonably necessary. The history of the numerous complaints in toto showed that the recommended surgery was not going to produce a reasonable outcome. Mr Baker submitted that neither
Dr Dowla nor Dr Doud had never recommended surgical treatment in all their reports. The reasonable alternative was of course the intensive pain management recommended by the pain specialists and ignored by the applicant. She was accordingly unable to say whether it was effective or not.

Mr Grimes

Mr Grimes submitted that there was an undisputed neck injury for which surgery in the form of spinal fusion was performed. There was no evidence of any intervening event to account for the immediate onset of her neck pain, he said.
In discussion, Mr Grimes said there were two problems with the respondent’s case. Firstly, its own IME had admitted that the bone scan did show pathology that was consistent with non-union, and secondly that Ms Juklen’s presentation had been found by the Medical Assessor to be consistent.
Mr Grimes submitted that Dr Hsu, Dr Perotti and the Medical Assessor all identified the same pathology, being the non-union of the original surgery as possibly being responsible for her continuing symptoms.

Mr Baker in reply

In response Mr Baker submitted that Dr Van Gelder was a neurosurgeon and not an orthopaedic surgeon.
Mr Baker conceded that Dr Perotti acknowledged a possible causal connection but Mr Baker submitted that her opinion was that even so, Ms Juklen’s presentation did not fit as the cause of her problems which were multifactorial, non-anatomic and so irreconcilable that she could not agree that surgery was a reasonable alternative. That view was in line with other treating doctors, Dr Dowla, Dr Daub and Dr Van Gelder. None of them accepted that Ms Juklen needed surgery, Mr Baker said. They all recommended intensive pain management.
Apart from the one bone scan, Mr Baker argued, there was no investigative confirmation in the form of X-rays and CT scans that there was any movement in the fusion site.
Mr Baker submitted in response to an enquiry as to whether there was any reason to disbelieve Ms Juklen’s account that there was indeed, because Ms Juklen had failed to advise the medical specialists that she had brought another claim against Transfield in 2012/2013 regarding her neck.
Mr Baker referred to reports by Dr Adler in 2011/12 and an MRI scan of 27 November 2011.[46]
[46] ARD pages 826, 813 and 828 respectively.
Mr Baker submitted that therefore there were some things about Ms Juklen’s being over-reactive and “maintaining history that she hadn’t told us but for the fact they turned up in those records” that would trouble the Commission.

DISCUSSION

As noted at the outset of these reasons, the technical nature of the dispute appeared to lend itself to a medical determination by an independent Medical Assessor, whose opinion by virtue of his independence would assist in a timely manner to resolve the essential issue. It is axiomatic that such a report would in the ordinary course of events be persuasive.
The respondent maintained however, with an analysis of over 1,000 pages of evidence, that the variety of symptoms complained of by Ms Juklen was indicative of a pain syndrome, and that accordingly referral to an intensive pain management course was an alternative treatment that had not been attempted, as Ms Juklen refused to participate owing, in part, to the distance she would have to travel to attend. Accordingly she could not satisfy the Diab test that potentially effective alternate treatment was available (indeed the insurer offered it in its dispute notice).
This treatment, the respondent argued, had been recommended by its experts, who also thought Ms Juklen was catastrophising. This created an unreliable and inconsistent presentation by Ms Juklen when she was examined by the experts. This in turn required the intervention of multidisciplined intensive pain management to best treat Ms Juklen’s condition. She could not satisfy the Diab test that the proposed surgery would actually or potentially be effective.
The respondent also suggested that Ms Juklen’s evidence was suspect in any event, as she had failed to advise of her injury and workers compensation claim in 2011-2012.

Diab v NRMA Ltd[47]
[47] [2014] NSWWCCPD 72 per Roche DP.

Diab is commonly recognised as the leading authority regarding the definition of the term “reasonably necessary”. Section 60(5) of the 1987 Act provides relevantly:
“(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service…”
In Diab, DP Roche from [76] considered the relevant authorities. From [88] he said:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

The pain syndrome

The respondent relied on the evidence of both Dr Van Gelder and Dr Perotti to establish that intensive pain management was the relevant treatment that was reasonably necessary.
Dr Van Gelder initially noted when she was first referred, that Ms Juklen was very apprehensive and distressed. Indeed on a self-administered pain measurement test, the Orebro Musculoskeletal Pain Questionnaire, she scored highly, which Dr Van Gelder interpreted as indicating a very poor prognosis. That observation was somewhat curious when he then identified the pathology that was causing her distress, and initially dismissed it as being not serious. However, in the next paragraph of his report of 21 December 2018 he then suggested that surgery would be a “good option”.
I regard Ms Juklen’s reported comment to Dr Van Gelder that she had concerns about the travel involved for her multidisciplinary treatments as demonstrating that her concern was primarily for her neck symptoms. She described them consistently to various practitioners as involving throat pain and problems with swallowing, facial pain and numbness to the right, and right sided numbness and tingling in the fingers of her right hand. It was not suggested that these symptoms were inconsistent – indeed Dr Van Gelder in his first report stated that
Ms Juklen’s symptoms were consistent with cervical radicular pain.
In any event, the surgery occurred on 6 May 2019, and although Dr Van Gelder noted an initial improvement in her symptoms after two weeks, he noted complaints of swelling in the throat around the area of the cervical wound after four weeks. Although he found no inflammation or signs of infection, he did not explain what was causing the swelling or even that it was present.
On 14 June 2019 Dr Van Gelder again noted complaints of swelling around the site of the surgery. Dr Ducic had noted on 8 June 2019 that there was swelling on the right anterior neck, and questioned whether there was a seroma.[48] Dr Van Gelder reported that Ms Juklen did not require any neurosurgical investigations or treatment for the cervical spine. He again referred to the Orebro questionnaire he had administered prior to surgery, and relied on it to state that “considerable multi-disciplinary treatment” was required.
[48] ARD page 103. A seroma is a common post-operative complication.
Dr Van Gelder’s further report of 1 July 2019 noted that Ms Juklen was suffering multiple symptoms. Some of these symptoms were named as those from which Ms Juklen had been complaining since the subject injury, that is to say, throat problems, cervical headaches, difficulty swallowing and other symptoms.
I conclude that by this stage Ms Juklen may have indeed been showing some signs of frustration and exaggeration. As I understood her evidence, within four weeks of the surgery she was suffering increased symptomatology of the same nature that she complained to
Dr Van Gelder about prior to the surgery. Dr Ducic confirmed that there was indeed swelling at the site of the surgery, which is some justification for Ms Juklen’s description of it as “infection”, and yet Dr Van Gelder was advising that there was “no surgical issue”.
Her confusion would not have been helped by Dr Van Gelder’s offer on 26 November 2019 to perform a revision of the operation “if she was convinced there was no problem”. Just what
Dr Van Gelder meant by that phrase is unclear, and perhaps he meant to say if Ms Juklen was convinced there was a problem. In any event in that same report Dr Van Gelder identified an artefact on the gradient echo MRI scans, which he observed could have been misinterpreted by the radiologist.
The MRI concerned I take to be that of 14 November 2019, as Ms Juklen had expressed her concern to Dr Van Gelder that it had shown a serious abnormality. Dr Van Gelder dismissed the radiologist’s opinion, advising that the artefact was simply caused by the operation screws on the left and right sides. However, the radiologist, Dr Z Sherif, was more precise than that, as his conclusion, which I have reproduced above, demonstrated. It acknowledged that there was significant metallic blooming (presumably caused by the hardware in situ) but Dr Sherif also noted twice that there also appeared to be some left paracentral disc protrusion at C5/6 that was possibly compressing the right side of the cord anteriorally at the C6 nerve root.
Dr Van Gelder in his further report of 14 February 2020 noted that the artefact had been confirmed in MRI scans of August and November 2019, and in January 2020. In this report
Dr Van Gelder firstly stated that the artefact did not show any signs of deformity, instability or nerve compression, but he then stated that the artefact images at C5/6 could be misinterpreted as recurrent or residual disc herniation.
I would observe that the detail of Dr Sherif’s observations might equally raise the question that it was Dr Van Gelder whose opinion was suspect. Certainly that view was held by Ms Juklen when she sought a second opinion, and in the end the weight of the evidence supported
Dr Sherif’s conclusion, as will be seen.
Dr Van Gelder did not explain what it was about the appearance of the artefact that suggested it was not a recurrent disc herniation. If it had been a recurrence, it would follow that it would have to be related to the surgery, as the artefact appeared at the surgery site. Moreover, his meaning was unclear when he stated that the artefact could be misinterpreted as a recurrent or residual disc herniation. He did not explain why such a view would constitute a ‘misinterpretation’. Neither did he explain why he thought in view of the presence of that artefact, that further imaging was unlikely to be rewarding.
I do not regard Ms Juklen’s evidence that she found Dr Van Gelder’s approach to be “strange” to be unreasonable in the face of the symptoms she was experiencing and what she described as the “infection” at the site of the wound. More importantly, I regard her decision to seek a second opinion as demonstrating a logical and undemonstrative approach to her condition.
The respondent retained Dr Vanessa Perotti to supply a medico-legal opinion, as indicated. There is no point in repeating her opinion in detail. Suffice it to say that the symptoms she recorded (Ms Juklen’s difficulties with her throat and swallowing, the presence of constant headaches, pain at the occiput and right-sided face numbness) were similar complaints to those for which the original surgery had been performed. Dr Perotti had difficulty in examining Ms Juklen, and it may well be that by this stage, 6 July 2020, that Ms Juklen was indeed somewhat overreactive and pain avoidant.
Dr Perotti maintained that the imaging, although revealing some pathology in the inferior aspect of C5, was irrelevant as it was non-specific and did not indicate that the components were loosening. I would observe that the issue was not whether components were loosening, but whether there had been non-union.
She referred to an MRI of 22 January 2020, which I presume is one of the three referred to by Dr Van Gelder. Dr Perotti observed that there was an artefact at C5/C6 which she dismissed as being due to the metal instrumentation. Dr Perotti at this stage thought there was no “convincing” evidence of a non-union and thus the proposed surgery would not have been effective.

I found Dr Perotti’s statement that “I do not treat ‘scans’” as being somewhat dismissive, with respect. She rejected any suggestion that the radiology showed any relevant problem with the cervical surgery in any event, and her finding of inconsistency between the examination and the radiology did not take into account that it is not unusual, even with the most uncomplicated cases, for injured workers become somewhat overreactive and inconsistent when being examined by a specialist that they know to be reporting to the insurer. Dr Perotti’s rejection of the suggestion that Ms Juklen’s symptoms were connected to the surgery of
6 May 2019 I found to be unpersuasive.
In her second report of 24 June 2021 Dr Perotti noted a further onset of symptoms which also included back and leg pain. On physical examination again Dr Perotti was not convinced that Ms Juklen was genuine, and based her opinion on what she described as Ms Juklen’s “behaviour”. She noted that Ms Juklen was “fixated” with surgery. Significantly in this report
Dr Perotti conceded that the bone scan appearances “may be indicative” of non-union.
Dr Perotti adhered to her earlier view however that the history and physical examination was not consistent with the radiological findings.
I reject Dr Perotti’s opinion (although her description of Ms Juklen’s being “fixated” with the surgery proved to have a sound basis). Dr Perotti’s opinion lacked the detail that a medico-legal report is meant to provide. Dr Perotti’s dismissal of Ms Juklen’s complaints were not balanced by any consideration of her previous work history or any engagement with the damage that the subject injury on 18 October 2018 had caused to her cervical spine, or the similarity of her complaints before and after the surgery of 6 May 2019. Although Ms Juklen may have had complaints about other parts of the body, the evidence shows that by far the most significant impact of her fall was on her neck. Dr Perotti’s concession that there was indeed pathology that was consistent with non-union was a matter that seriously undermined her conclusions.
The opinion by Dr Hsu of 15 January 2020 was that the radiographic findings and the clinical findings likely indicated non-union at C5/6. He referred to a “CT scan” dated November 2019, which may indeed have actually been the MRI scan which I have been discussing. He ordered further scans, and reported on 13 February 2020 that the CT scan demonstrated that the fusion was not complete and that there was a moderate disc bulge in the adjacent segment. He then ordered a bone scan which he reported on 18 March 2020 indicated a non-union. Dr Hsu reported on 21 April 2021 that another bone scan dated 18 December 2020 continued to show significant uptake at C5/6, and that the applicant’s neck, arm pain and right-sided headaches, which were still significant, related to the non-union.
Mr Baker made frequent references to the imaging, stating that the CT and MRI scans demonstrated that there had been no movement in the fused segments of the spine and that Dr Hsu’s opinion was based only on a bone scan, about which there was disagreement between the radiologists. As has been seen, the dispute as to whether non-union has occurred was raised not only by the bone scans but also by the three MRI scans referred to by Dr Van Gelder and perhaps the CT scan referred to by Dr Hsu. Whilst Mr Baker submitted that the imaging showed no movement at the fusion site (which is debateable in view of
Dr Sherif’s conclusion) the imaging on the X-ray of 12 January 2022 showed movement at the adjacent segments. In his report of 1 August 2022 Dr Dowla found that the X-ray showed firstly some retrolisthesis of C3 on C4 and of C4 on C5 which suggested unsuccessful fusion. Whilst Dr Dowla noted a strong psychophysiological component in Ms Juklen’s pain, he nonetheless stated that the unsuccessful fusion may require an anterior cervical fusion with bone graft. I accordingly reject Mr Baker’s submission.
I accept Dr Hsu’s opinion of 21 April 2021 that the CT and the bone scans he referred to indicated that there had been non-union. In view of the above matters I have considered I think it more likely that Dr Van Gelder himself has misinterpreted the presence of the artefact at C5/6, and that it was more likely than not radiological evidence of non-union following the fusion of 6 May 2019.
With regard to the submission that Ms Juklen was suffering from a pain syndrome, there were the reports from Dr David Anderson, spine physiotherapist, of 17 June 2019, and Dr Nathan Taylor, pain medicine specialist, of 14 August 2019. Dr Anderson reported complaints of severe burning pain extending bilaterally from the face to the palms of the hands (which he said were non-dermatomal) and Dr Taylor described an “uncomplicated” surgical procedure. Despite the uncomplicated surgery, Dr Taylor reported ongoing symptoms being complained of from the head into the shoulder and down the right arm. Dr Anderson and Dr Taylor thought that Ms Juklen might have a possible CRPS.[49]
[49] Dr Anderson's report at ARD 713; Dr Taylor's report at ARD page 681.
During submissions Mr Baker laid particular emphasis on the pain management experts, and based his case on the failure by Ms Juklen to pursue an alternative treatment which might have been more effective, that is to say intensive pain management.
I accept that Ms Juklen has been suffering considerable pain since the subject injury, but I do not accept that intensive pain management is a practical alternative. There is a direct link in the nature of her cervical pain to the subject injury of 18 October 2018. She was complaining of stiffness and pain in the neck. She complained of pain radiating to the right arm and shoulder and felt pain radiating into her throat. She experienced difficulty swallowing. Dr Van Gelder found that surgical treatment might be a good option, and he accordingly operated on 6 May 2019. After a short period many of those symptoms recurred, making a link between the surgery and the recurrence a possibility that was confirmed by the radiology discussed above. To simply refer the applicant to pain management with a pathological artefact present that is probably the cause of some, if not all of her symptoms, is no alternative at all.

Catastrophisation

Both Dr Van Gelder and Dr Perotti were of the view that Ms Juklen’s presentation was inconsistent and exaggerated. This caused them both to overlook the significance of the imaging which demonstrated non-union from the surgery on 6 May 2019.
It is no surprise that Ms Juklen became anxious and over-reactive in view of her fears that her symptoms had resulted from this cause. It may be that she was histrionic on examination, but the focus of this case is whether the proposed revision surgery is reasonably necessary. Regardless of whether Ms Juklen had a tendency to exaggerate or not, the cause of her continued cervical and radicular symptoms has been identified as a non-union of her surgical fusion.
It is remarkable that the insurer has rejected that cause and wishes to administer an alternative treatment that could not succeed whilst the non-union remains unrevised. Although such an approach might have been justifiable so long as the dispute as to the origin of the symptoms was unclear, it is difficult to accept that the continued denial was justified following the MAC which was sought for precisely this purpose.
The Medical Assessor did not agree with the conclusions reached by Dr Perotti or by Dr Van Gelder. Indeed he paid scant attention to their arguments once he had listed the special investigations. The Medical Assessor dismissed Dr Perotti’s opinion on the basis that she had in her second report acknowledged that the bone scan was indicative of non-union. He further referred to her opinion in her first report that the history, physical examination and radiology must all be consistent, and that she did not ‘treat scans’ as not answering fully whether the treatment proposed was reasonably necessary, as she had not addressed the Diab criteria. I have also noted my further reasons for rejecting that opinion.

Credit

Mr Baker referred me to the clinical notes of 2011-2013. It was submitted that I should find against Ms Juklen’s credit because she failed to tell her doctors that she had complained of neck pain in 2011 and 2013 (which seems to have been caused by the same C5/6 problem that has been the subject of her present difficulties).
I had difficulty in following the relevance of this submission. The issue in the present case concerned the presence of a radiographic artefact that I have now found indicated a failure of the fusion procedure of 6 May 2019. Ms Juklen’s credit is not germane to that dispute.
It is clear that Ms Junklen believed that the non-union was the cause of some of her symptoms, and that belief has been vindicated. Her presentation to her medical advisors after the proposed surgery will determine whether further treatment is required and, if her florid symptoms persist, such treatment may well involve pain management.
However, it may not. Ms Juklen’s persistence was recognised by the psychiatrist,
Dr Jovanova, who recorded that Ms Juklen had not had any pain problems immediately prior to her injury. Dr Jovanova described Ms Juklen as “a woman with no past history of psychiatric illness, no history of substance abuse and with no family history of psychiatric conditions”. Dr Jovanova also noted that Ms Juklen saw herself as a “very fit, active and independent woman…”
I am satisfied that Ms Juklen’s evidence may be accepted, inasmuch as her credit is relevant to the issue in any event.
I have little hesitation in finding the proposed surgery to be reasonably necessary. Whilst alternative treatment is clearly available, I am not satisfied that it would have any potential effectiveness until the non-union is attended to. The potential effectiveness of the recommended surgery on the other hand is significant, as it would attend to the principal source of the symptoms caused by the non-union. There may well be continuing symptoms which need management, but they cannot be properly identified until the results of the recommended surgery are known.
Accordingly, I find that the proposed surgery by Dr Hsu for a C5/6 posterior cervical decompression and fusion is reasonably necessary. I order that the respondent pay the costs of and incidental to the proposed surgery.

ARD page 979.

[2023] NSWPIC 138

3 April 2023