King v SA Van Grootel Pty Ltd
[2023] NSWPIC 622
•21 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | King v SA Van Grootel Pty Ltd [2023] NSWPIC 622 |
| APPLICANT: | Raymond King |
| RESPONDENT: | SA Van Grootel Pty Limited |
| MEMBER: | Marshal Douglas |
| DATE OF DECISION: | 21 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether the provision of dietetics sessions is reasonably necessary treatment as a result of an injury to the applicant’s lumbar spine; Held – that the treatment is reasonably necessary as a result of the injury. |
| DETERMINATIONS MADE: | The Commission determines that as a result of the injury the applicant suffered on 19 June 2019 it is reasonably necessary that the following treatment be given: (a) 12 x 30 minutes telehealth dietetics sessions; (b) two hours report writing, and (c) one hour case conference/resource development. |
STATEMENT OF REASONS
BACKGROUND
These proceedings were commenced by Raymond King lodging with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (the Application) dated 4 September 2023. By that application he seeks that the Commission determine a claim he made against his former employer, namely SA Van Grootel Pty Limited (the respondent), for it to pay the cost of treatment that his dietitian, namely Trent Stevens, has recommended for him. Mr King contends that it is reasonably necessary that the treatment Mr Stevens has recommended be given as a result of an undisputed injury he suffered to his lumbar spine on 19 June 2019 while working for the respondent. The respondent contends to the contrary.
PROCEDURE BEFORE THE COMMISSION
A preliminary conference was held with the parties on 6 October 2023 during which I used my best endeavours to bring the parties to a settlement of the dispute. That did not achieve that result. It was established on that occasion that the likely cost of the treatment that Mr Steven recommended Mr King would be of the order of $1,400, inclusive of GST. Given the modest cost of that treatment compared to the cost involved holding a further conference to conduct a further conciliation and, if that were unsuccessful, an arbitration, the parties agreed that no further conference should be scheduled and that I direct them to make written submissions with respect to the issue in dispute. That was done.
ISSUE FOR DETERMINATION
The only issue in dispute is whether the treatment Mr Stevens recommended for Mr King is reasonably necessary as a result of the injury Mr King suffered on 19 June 2019. That treatment is set out in a letter Mr King wrote on 28 August 2023 addressed “To Whom This May Concern” and consists of:
(a) 12 x 30 minutes telehealth dietetics session;
(b) two hours report writing, and
(c) one hour case conference/resource development.
The respondent has raised no issue that that treatment falls within the definition of sedical or related treatment” provided in s 59 of the Workers Compensation Act 1987.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) the Reply and attached document,
FINDINGS AND REASONS
The incident in which Mr King suffered injury on 19 June 2019 resulted in a fracture of the inferior end plate of his L5 vertebrae.
In earlier proceedings in the Commission, the Commission ordered, with the consent of the parties, that the respondent pay Mr King $28,245 in compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 12% whole person impairment (WPI) resulting from his injury. The Commission also made notations reflecting an agreement between the parties that the respondent would voluntarily pay worker compensations to Mr King and compensation for expenses that Mr King had incurred in the period to 14 July 2021 for treatment of his injury.
In a statement Mr King signed on 24 July 2023 he said that before suffering his injury he had maintained a fit and healthy lifestyle. He said he enjoyed swimming, bush walking and bike riding. He said that his employment with the respondent involved him doing manual labouring. He said that subsequent to his injury he has been unable to walk up an incline or down a decline, has been unable to perform basic exercises and has been unable to live an active lifestyle. He attributed an increase in his weight following his injury to this. He noted that his weight was 96.5kg. He also said that he had previously been able to maintain a healthy weight due to his previous active lifestyle. As subsequent discussion will reveal that latter statement cannot be accepted.
Mr King’s general practitioner (GP) referred him to an exercise physiologist, Hamish Gorman. He initially assessed Mr King on 27 September 2022. In an undated letter Mr Gorman wrote to Mr King’s GP Mr Gorman said that Mr King had reported gaining 40kg of weight and losing significant fitness since his injury. Mr Gorman expressed his view that Mr King would be helped with managing his weight and improving his fitness and functional capacity and reducing risk of exacerbation of other conditions if Mr King were to see a dietitian.
In a subsequent report Mr Gorman wrote to Mr King’s GP on 1 February 2023, Mr Gorman noted that he had based what he said in his earlier letter about Mr King gaining 40kg of weight since his injury, on what Mr King had reported to him. Mr Gorman said that he had subsequently been given a copy of Mr King’s medical history which revealed that Mr King’s weight gain between September 2020 and to December 2022 was as follows:
23/09/2020 94kg;
24/03/2022 94kg;
29/04/2022 96kg;
24/08/2022 95kg, and
02/12/2022 96kg.
Mr Gorman did not specify within his letter of 1 February 2023 who had provided him with Mr King’s medical history. Mr Gorman again repeated his view that Mr King would be helped with managing his weight and his fitness and functional capacity were he to consult a dietician.
On 30 January 2023 Mr King’s GP wrote a letter addressed “to whom it may concern” certifying that Mr King had been gradually gaining weight since his injury and is unable to do any strenuous exercise and manage his weight. Mr King’s GP expressed his belief that Mr King would benefit from seeing a dietician.
The respondent’s insurer had earlier organised for Mr King to be examined by orthopaedic surgeon Dr Lloyd Hughes on 22 June 2021. It seems that the purpose of that consultation, and the report Dr Hughes produced on 30 June 2021 following it, was for the purpose the claim that Mr King litigated in the earlier proceedings in the Commission. Dr Hughes in that report advised the insurer that from his examination of Mr King he found weighed 89kg. It is to be observed that finding conflicts with the medical history Mr Gorman had been provided which recorded Mr King’s weight being 94kg on 23 September 2020 and on 24 March 2022.
Dr Hughes also noted in his report that Mr King was complaining of symptoms of persistent lower back pain. He noted Mr King complained this was worse with activity. Dr Hughes also recorded Mr Hughes complained of tingling in his toes and occasional pain in the back of his legs. Dr Hughes recorded that Mr King denied any prior history of back pain but he observed that Mr King had provided a history at Bateman’s Bay Hospital of having a major back problem 20 years ago.
In November 2021 Mr King suffered a stroke. He was subsequently admitted to the Calvery Hospital for a period of four days. Mr King suffered a further stroke, possibly two, around 31 July 2022 which resulted in his admission to the Moruya Hospital for a period of four days.
Mr King was examined on 12 October 2022 by neurologist Dr Dudley O’Sullivan, at the request of the insurer. Dr O’Sullivan provided the insurer with the report on that date. It would seem from Dr O’Sullivan’s report that Mr King had contended that his strokes were related to his injury to his lumbar spine and the purpose of Dr O’Sullivan’s examination of Mr King was to establish the veracity of that. Dr O’Sullivan advised that with respect to Mr King’s neurological presentation, he diagnosed Mr King had a “right cerebellar hemisphere infarct secondary to a right vertebral arteries stenosis”. Dr O’Sullivan said that Mr King’s work was not a substantial contributing factor to his recurrent strokes. Dr O’Sullivan explained that Mr King’s strokes were due to cerebrovascular disease on the background of hypertension and borderline diabetes mellitus. Dr O’Sullivan said that Mr King’s neurological symptoms were not the result of his spinal injury. Dr O’Sullivan expressed the view that Mr King’s “work incapacity” is attributable not only to Mr King’s back pathology, that caused Mr King problems with chronic back pain, but also Mr King’s poor memory due to his neurological condition.
On 10 October 2022 Mr King was examined by surgeon Dr Kim Edwards, again at the request of the insurer. In a report of that date to the insurer Dr Edwards noted that the insurer had advised him in its referral letter that Mr King’s weight on 10 July 2019 was 87.2kg. Dr Edward observed that Dr Hughes had recorded Mr King weighed 89kg on 30 June 2021. Dr Edwards recorded that Mr King had complained of experiencing constant back pain and that Mr King found it difficult to walk up and down inclines and required a walking stick to do that. Dr Edwards also recorded Mr King reported being active in fishing, swimming, climbing, skin diving and building before his injury and never being overweight. Dr Edwards recorded that Mr King was now limited to walking 200 metres. Dr Edwards recorded that Mr King thought that he had put on 5 to 6kg of weight in the six months preceding his consultation. Dr Edwards recorded that Mr King had suffered three strokes in the last 12 months.
Dr Edwards advised that he considered a weight gain of 2kg in the two years between 10 July 2019 and 30 June 2021 was not necessarily unusual. Dr Edwards stated that it was possible that Mr King gained weight because of relative inactivity related to “lumbar discitis”.
Dr Edwards noted that Mr King had thought that he had put on 18kg of weight since his injury and Dr Edwards said that “if he has put on 18 kg in the last 12 months it would be sensible for him to be concerned, and take active steps to lose weight”. Dr Edwards said that if Mr King had gained 18kg in weight in the 12 months proceeding his consultation with Mr King that he is not convinced that that weight gain could be attributed to discitis and lack of exercise. Dr Edwards said that Mr King’s three strokes in the 12 months preceding his consultation may also be a contributing factor to Mr King’s weight gain.
Mr King was examined by consultant general surgeon Dr John McKee on 24 April 2023 at the request of Mr King’s solicitors. Dr McKee provided Mr King’s solicitors with a report relating to that consultation on 1 May 2023.
The history Dr McKee obtained from Mr King included that he had enjoyed good health and had been fit and active and had never been overweight before his injury to his lumbar spine. Dr McKee recorded that between 10 July 2019, on which date Mr King was admitted to hospital in the Australian Capital Territory, and 24 April 2023 Mr King’s weight ranged from 87.2kg to 95.2kg.
Dr McKee recorded that Mr King complained of currently experiencing symptoms of constant low lumbar pain, intermittent mild bilateral lower limb pain, a sensation of numbness between his left first and second toes, and constant numbness in his left knee and lower left limb and pins and needles along the soles of both his feet.
Dr McKee examined Mr King and found that he was 171cm in height and weighed 95.2kg. Dr McKee described Mr King’s weight gain from 87.2kg to 95.2kg at the time he examined Mr King to be “a significant amount of weight”.
Dr McKee opined that Mr King currently has no capacity for work. Dr McKee advised that a desirable weight for Mr King would be between 62.1kg and 67kg. Dr McKee indicated that this weight range for Mr King was accordance with Table 1 at page 237 of Chapter 10 of AMA5. That reference would seem to be error and the correct reference is Table 6-1 at page 120 of AMA5.
Dr McKee noted that Mr King had been consulting an exercise physiologist and that, notwithstanding this, Mr King’s weight had persisted. Dr McKee expressed the view that treatment in the form of Mr King’s availing himself of a dietitian to assist with his weight control “is reasonably necessary as a result of his accepted work related injury”. Dr McKee said that Mr King “having been so fit and active in the past, and now having an excessive weight gain problem, advice and reviews by dietitian is a very positive move to regaining his pre-accident fitness”. Dr McKee said that Mr King “seeing a dietitian could help Mr King manage his weight, thus improving his fitness and functional capacity and undoubtedly it would reduce the risk of further exacerbation of other health conditions”.
SUBMISSIONS
Mr King’s submissions were prepared by his council, the Mr McManamey. Mr McManamey submitted, in substance, that the treatment being proposed for Mr King is a normally accepted treatment modality and no alternate treatment is suggested. Mr McManamey further submitted that it is irrelevant what the cause of Mr King’s weight gain is because a reduction in weight will alleviate the effects of Mr King’s lumbar spine injury and, consequently, treatment is reasonably necessary treatment.
The respondent’s submissions were prepared by its solicitor, Mr Lee. In substance they were that Mr King had put on 8kg of weight since his injury, with his weight having increased from 87.2kg to 95.2kg. Mr Lee submitted that of that weight gain, 5kg occurred subsequent to Mr King suffering strokes after June 2021. Mr Lee submitted that the strokes Mr King suffered are unrelated to his employment with the respondent and that they resulted in a significant adjustment in Mr King’s lifestyle and that they are the real cause of his weight gain. Mr Lee submitted that there is no guarantee that the treatment Mr King seeks will result in a weight loss because it is ultimately a matter for Mr King as to what he eats and how much he exercises.
CONSIDERATION
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab’s case) Deputy President Roche reviewed the several authorities relevant to the issue of whether treatment is reasonably necessary as a result of an injury. Deputy Roche observed that the principles that have often been applied in determining whether treatment is reasonably necessary as a result of any injury are those formulated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR32 (Rose's case). In Rose's case Burke CCJ held that if the purpose and potential effect of treatment is to alleviate the consequence of an injury then the necessity for the treatment will result from the injury. Burke CCJ identified the following factors as being relevant for consideration when determining whether treatment is reasonably necessary as a result of an injury:
· the appropriateness of the particular treatment;
· the availability of alternative treatment and its potential effectiveness;
· the cost of the treatment;
· the actual potential effectiveness of the treatment, and
· the acceptance by medical experts that the treatment has been appropriate and likely to be effective.
Mr King was overweight at the time he suffered the injury to his lumbar spine by the order of approximately 20kg. His weight was then 87.9kg whereas his desirable weight was in the range of 62.1 to 67kg. Since Mr King suffered his injury he has put on a further 7.3kg in weight.
Noting that Dr Hughes measured Mr King’s weight at 89kg on 30 June 2021. The bulk of Mr King’s weight gain subsequent to his injury in all likelihood occurred after he suffered a series of strokes from the end of July 2021. It is to be noted that Mr Gorman in his letter to Mr King’s GP on 1 February 2023 advised that Mr King’s weight was recorded in his medical history as being 94kg on 23 September 2020 and also 94kg on 24 March 2022. Mr Gorman however did not specify the provenance of the “copy of Mr King’s medical history” that had been provided to him. The medical history on which Mr Gorman relied suggests that the bulk of the weight that Mr King put on after his injury occurred before he suffered strokes. However, bearing in mind what Dr Hughes established Mr King’s weight to be when he examined Mr King on 22 June 2021, and absent Mr Gorman specifying the source of the medical history on which he relied to establish Mr King’s weight, Mr Gorman’s advice regarding Mr King’s weight is less reliable than Dr Hughes’s measure of Mr King’s weight and consequently Dr Hughes’ evidence on this point is to be preferred.
Dr McKee’s opinion that Mr King’s weight gain related predominately to Mr King’s immobility and inability to exercise following his injury and that a minor proportion of Mr King’s excessive weight was secondary to Mr King’s strokes and cerebrovascular activities was based on his acceptance of Mr Gorman’s report that Mr King had a 12kg weight increase between 23 September 2020 and 2 December 2022. As just said, Mr Gorman’s report on the progression of Mr King’s weight gain is unreliable. Given that, I do not accept Dr McKee’s opinion that Mr King’s weight gain was predominately the consequence of his inability and immobility due to his injury and that a minor proportion of his weight gain was secondary to Mr King’s strokes and cerebrovascular accidents.
Based on the evidence before me, it is my view that in all likelihood Mr King had only gained 2kg in weight in the period between his suffering his injury and his suffering a series of strokes. In all likelihood, he then gained a further 7kg following his strokes.
Dr McKee’s opinion that the bulk of Mr King’s weight gain subsequent to his injury occurred in the period between Mr King suffering injury and Mr King suffering his first stroke, his opinion that Mr King’s strokes played only a minor role in his weight gain can also not be accepted.
Nevertheless, I am satisfied that Mr King’s injury and his consequent restricted mobility, which inhibited his ability to exercise and engage in activity, was a factor in his gaining 8kg of weight in the approximate four year period after the injury. Dr Edwards also identified that as a cause by saying “it is possible that he may gain weight because of his relative inactivity related to his lumbar discitis”.
Irrespective of that, as Mr McManamey submitted on behalf of Mr King, whatever the cause of Mr King’s weight gain subsequent to his injury, the treatment that Mr Stevens has proposed would alleviate or abate the consequences of Mr King’s injury. Dr McKee expressed the view that advice and reviews by a dietitian would be a positive move to Mr King regaining pre-accident fitness. Dr McKee’s view is that a dietitian would help Mr King manage his weight and thereby improve his fitness and functional capacity, which had reduced due to his injury. Mr King consistently provided a history to the several clinicians he consulted and also said in his statement said that he has had the continuous pain in his back and a lack of functionality in his legs and back following his injury such that he is unable to do activity he previously did such as swimming, bushwalking and bike riding and manual labour, and I accept this evidence. A dietitian providing therapy to Mr King by assisting Mr King manage his weight would have the consequence of assisting Mr King restore fitness and functional capacity that has deteriorated due to his injury. That therapy thereby would alleviate or abate a consequence of his injury and hence it is therefore reasonably necessary that it be given to him, irrespective of the fact that Mr King’s weight gain may be a consequence of factors other than his injury.[1]
[1] Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR32 at 42.
Mr Gorman also expressed it was his opinion that Mr King, by consulting a dietitian, would be able to manage his weight and thereby improve his fitness and functional capacity. Dr Edwards expressed a similar view in his report of 10 October 2022 being that Mr King would obtain some benefit from consulting a dietitian regarding his diet.
Given the evidence of Dr McKee and Mr Gorman relating to the benefit that Mr King would obtain by seeing a dietitian, in terms of Mr King managing his weight and thereby improving his fitness and functional capacity, and bearing in mind Dr Edwards’ opinion that Mr King would obtain a benefit from consulting a dietitian, I am satisfied that any treatment that Mr Stevens has recommended for Mr King is appropriate treatment. The evidence does not indicate the availability of any other alternative treatment.
The evidence in my view indicates that potentially the treatment Mr Stevens has recommended may be effective.
The respondent’s submission to the effect that the provision of the services of a dietician to Mr King is not treatment that is reasonably necessary because there is no guarantee it will be successful is beside the point. It is not necessary that the treatment be assured of an outcome, only that there is a likelihood that it may alleviate or abate the deleterious effects of Mr King’s injury. As indicated, I am satisfied on the evidence that there is a likelihood that the therapy Mr Stevens has proposed for Mr King will, in all likelihood, have the potential to assist Mr King in managing his weight and thereby alleviating some of the deleterious effects of his injury, specifically his diminished activity and fitness that he suffers due to the pain he has from his injury.
The cost of the treatment is $1,440 which is particularly modest.
Noting Dr McKee, Dr Edwards, Mr Gorman and Mr Steven have all indicated that the therapy a dietitian can provide will be of assistance to Mr King, the therapy that is being recommended is necessarily accepted by medical experts as appropriate and likely to be effective.
Accordingly, I find that the therapy that Mr Stevens has recommended, being 12 x 30 minutes telehealth dietetics session, two hours of report writing and one hour case conference or resource development is reasonably necessary as a result of Mr King’s injury.
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