Koteski v Lipa Pharmaceuticals Limited
[2021] NSWPIC 63
•7 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Koteski v Lipa Pharmaceuticals Limited [2021] NSWPIC 63 |
| APPLICANT: | Sasko Koteski |
| RESPONDENT: | Lipa Pharmaceuticals Limited |
| MEMBER: | Ms Kerry Haddock |
| DATE OF DECISION: | 7 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for the cost of proposed L1/2 lumbar laminectomy and associated treatment; dispute as to the reasonable necessity of the proposed treatment, including whether there is evidence of nerve impingement and compression; medical opinion that the applicant is pain-focused and demonstrated pain behaviour, which was not found by the treating specialist; Diab v NRMA Ltd [2014] NSWWCCPD 72 and Rose vHealth Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 considered; Held- the proposed treatment is reasonably necessary medical treatment as a result of the injury; award for the applicant. |
| DETERMINATIONS MADE: | 1. That there is an award for the applicant, pursuant to section 60 of the Workers Compensation Act 1987, for the cost of the proposed surgery, that is L1/2 lumbar laminectomy and discectomy; and associated treatment. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Sasko Koteski (Mr Koteski) claims to have sustained injury to his lower back, right shoulder and C6/7 disc prolapse, while employed by the respondent, Lipa Pharmaceuticals Limited (Lipa).
The applicant’s injuries are claimed to have occurred due to the nature and conditions of his employment up to 27 August 2015; and subsequently until 15 September 2015; and/or frank injury on 27 August 2015.
Liability for the injuries has been accepted and weekly benefits and medical expense have been paid.
The applicant made a claim for the cost of L1/2 lumbar laminectomy and discectomy, proposed by Associate Professor Mark Sheridan, neurosurgeon, on or about 26 May 2016.
The respondent’s workers’ compensation insurer, AAI Limited trading as GIO (GIO), issued the applicant with a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 8 March 2018. GIO disputed liability for treatment of the applicant’s cervical spine and lumbar spine, including the proposed lumbar surgery, on the basis that it was not reasonably necessary as a result of an injury, pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
By letter dated 30 August 2019, the applicant made a further claim for the cost of L1/2 lumbar laminectomy and discectomy, proposed by A/Prof Sheridan.
GIO issued a further notice pursuant to section 78 of the 1998 Act on 25 February 2020. It disputed liability for L1/2 lumbar laminectomy and discectomy, on the basis that it was not reasonably necessary as a result of an injury, pursuant to section 60 of the 1987 Act.
GIO issued a further notice, pursuant to section 78 of the 1998 Act, on or about 9 April 2020 (the date of the notice is unclear). It again disputed liability for L1/2 lumbar laminectomy and discectomy, on the basis that it was not reasonably necessary as a result of an injury, pursuant to section 60 of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 15 December 2020. He claimed weekly benefits from 3 July 2019 ongoing, pursuant to section 38 of the 1987 Act; and $34,000, pursuant to section 60 of the Act, in respect of the cost of L1/2 lumbar laminectomy and discectomy, and associated costs.
The respondent lodged its Reply on 18 January 2021.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) The reasonable necessity of the proposed surgical and medical treatment as a result of the injury.
PROCEDURE BEFORE THE COMMISSION
At the telephone conference held on 27 January 2021, the applicant discontinued the claim for weekly benefits.
The matter was listed for conciliation/arbitration hearing on 15 March 2021. Mr Bill Carney of counsel, instructed by Mr Bart Adams, appeared for the applicant, who was present. Mr Damien Toohey of counsel, instructed by Ms Christie Blake, appeared for the respondent. Ms Laura Jones of GIO also attended.
The applicant amended the Application to delete the claim for the cost of psychological counselling.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(b) The Application and attached documents, and
(c) Reply and attached documents.
Oral evidence
There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Sasko Koteski
The applicant’s first statement is dated 23 September 2015. Parts of the statement are concerned with a claim for psychological injury and are not relevant to this claim.
Mr Koteski stated that he was employed by Lipa as a group leader. He had a previous back injury in 2006 and was off work for about two to three weeks, after which he resumed his normal duties. He still had back pain, but it was manageable.
The applicant has had ongoing back pain since 2006, but “put up with it and managed it as best I could”. The production management team and HR were aware of the injury.
On 14 August 2015 the applicant was told that he was to be moved to coating as an operator. He commenced that work on 17 August 2015. His statement provides details of the work that it is unnecessary to repeat.
By the end of his first day working in coatings, the applicant felt significant pain in his back, such that he had not felt for years. He presented for work the next day and by mid-morning was experiencing significant pain. He reported this and was provided with assistance, but still had to perform the duties of an operator.
For the rest of the week, the applicant continued to have significant pain to his back, right leg and right shoulder. He continued to work the following week, but the pain in his back was constant and he experienced it on arrival at work each day.
The applicant did not attend work on 31 August 2015, as both his back pain and anxiety had reached the point where he did not believe he could perform his normal duties.
Mr Koteski consulted Dr Raji, who recommended that he provide a WorkCover medical certificate, but he “did not want to go down the Workers Compensation pathway”, as he was loyal to Lipa and knew it frowned upon the workers’ compensation system. He was therefore provided with a normal certificate for one day off work.
The applicant returned to work on 1 September 2015. He still had significant back pain. He performed his normal duties and managed his pain as best he could.
From the week commencing 7 September 2015, the applicant started to experience panic attacks in conjunction with constant back pain. He again consulted Dr Raji on 9 September 2015 and was issued with a WorkCover medical certificate. He had not since returned to work.
The applicant had changed doctors and was consulting Dr Kuzmanovski, as he speaks Macedonian.
The applicant stated that he continued to suffer from significant back pain. He needed to rest if he was on his feet for more than 30 minutes. He was limited in what he could do at home, finding even washing up and vacuuming difficult. He had physical weakness, aches and soreness. He also had symptoms that are more likely to be due to his psychological condition than his physical injury.
On 7 June 2020, the applicant made a further statement that is substantially the same as the first.
MEDICAL EVIDENCE
Associate Professor Mark Sheridan – Neurosurgeon
A/Prof Sheridan reported to Dr Kuzmanovski first on 16 November 2015.
He recorded a history that the applicant was injured in August, when he had a change of role and had to start doing quite heavy physical work. He had a fairly rapid onset of lower back and leg pain that was not settling. He had had a previous back problem, but it was not causing any restrictions or disability at the time of the recent injury.
A/Prof Sheridan reported that the applicant’s MRI scan showed a large L1/2 disc protrusion causing nerve compression, entirely consistent with his injury and symptoms. He needed to try conservative treatment. This treatment would consist of ongoing physiotherapy; exercise-based rehabilitation; analgesia and co-analgesia. The applicant should also see a pain management specialist for consideration of injections and other pain management treatment.
A/Prof Sheridan opined that if the applicant’s leg pain did not settle or got worse, there was a chance he might need to consider surgery in the future.
On 1 February 2016, A/Prof Sheridan reported that the applicant’s leg and back pains were persisting. He had had some hydrotherapy, but this had stopped. He was managing his pain with analgesia and remained very restricted with his day to day activities. There was a chance he may need to consider surgery.
The applicant’s other concern was increasing neck, right arm and shoulder pain. He had had a shoulder injection, but A/Prof Sheridan believed his symptoms sounded more like a cervical radiculopathy “now”. He had organised an MRI of the applicant’s neck.
A/Prof Sheridan recommended that the applicant continue with hydrotherapy. He remained unfit for work.
On 26 May 2016, A/Prof Sheridan reported that the applicant had had MRI of his neck and injection of his lower back. The MRI showed slight disc bulging at C6/7, without significant nerve or spinal cord compression, “and there is certainly nothing here that needs surgery”.
The injection of his lower back gave the applicant some short-term relief, but it lasted only a couple of days. His back and leg pain were still very limiting. He had trouble walking any distance and sitting for any period and remained unfit for work.
A/Prof Sheridan opined that, given the failure of conservative treatment and his persistent disability, Mr Koteski was a candidate for an L1/2 lumbar laminectomy and discectomy for his large L1/2 disc protrusion. He would still be left with some persisting back pain, which could be disabling, and could still require further operations.
On 26 August 2017, A/Prof Sheridan reported that he had not seen the applicant since May 2016. He had asked for pre-approval for surgery but had seen no correspondence from the insurer.
The applicant’s pain was persisting. He had slightly worsening right leg pain and had started developing pain in his left leg. His neck and right arm pain were significantly worse. He had been trying to manage the pain with conservative treatment but was still not working. He did not find any analgesia helpful. He had trouble walking, sitting or standing for any period of time and trouble lifting or carrying anything.
The applicant had a new MRI scan. His lumbar spine showed a persisting disc protrusion at L1/2, with nerve compression, entirely consistent with his leg symptoms. He remained a good candidate for surgery and was keen to proceed.
A/Prof Sheridan was again to request approval for the surgery. He had sent a copy of his report to the applicant’s solicitors to see if “WIRO can get involved”, as he had found it “quite helpful and quite pro-patient”.
A/Prof Sheridan also noted that the MRI scan of the applicant’s neck showed a worsening disc protrusion at C6/7, with right sided C7 nerve root compression in the exit foramen, entirely consistent with his arm symptoms. He “may well need” to have neck surgery if his arm did not settle.
On 29 January 2020, A/Prof Sheridan reported that it was “a couple of years” since he had seen the applicant.
The applicant’s back and leg pain were getting worse and his fresh MRI showed he still had a large L1/2 disc protrusion with lumbar stenosis and nerve compression, entirely consistent with his back and leg symptoms. His leg pain limited his walking to no more than 10 minutes. He could not sit or stand for long and his sleep was disturbed. He was increasingly limited with his physical chores and other day to day activities. He had lost his job and insurance had stopped paying for any allied health treatment. He was managing his pain with Endone, Palexia and Lyrica.
A/Prof Sheridan opined that the applicant remained a good candidate for surgery and was quite keen to proceed, as he found no other treatment had been helpful. He would benefit from a physiotherapy supervised exercise and rehabilitation program for six months after the surgery. His requirement for surgery remained solely as a result of his original work injury.
On 27 October 2020, A/Prof Sheridan wrote to the applicant’s solicitor. He advised that, while the MRI said “no foraminal stenosis”, on his viewing of the films he believed there was nerve impingement and compression, consistent with the symptoms.
A/Prof Sheridan reported to the applicant’s solicitor on 11 December 2020.
He confirmed that Mr Koteski had a large L1/2 disc protrusion with lumbar stenosis and quite significant nerve compression, consistent with his back and leg symptoms. He was awaiting approval for surgery.
A/Prof Sheridan reported that the pain was very limiting for the applicant. The disc remained a problem for him. While he may not [sic] have no exit foraminal narrowing, he clearly had compression of the nerves in the mid-line of the canal. He still needed surgery.
Dr Robert Drummond – Orthopaedic Surgeon
Dr Drummond was qualified by the respondent’s former insurer, CGU Workers Compensation (NSW) Limited (CGU), and reported on 15 December 2015.
Dr Drummond had been requested to assess liability for the applicant’s claim for injury to his right shoulder. Therefore, much of his report is not relevant to the dispute. However, he did opine that voluntary exaggeration, conscious guarding and restriction of movement and abnormal pain behaviour were all present. He nonetheless accepted that the applicant had an injury to his right shoulder that was related to his employment and for which he required treatment.
Dr Robin Mitchell – Occupational Physician
Dr Mitchell was also qualified by CGU and reported on 20 April 2016.
Dr Mitchell recorded a history of the development of lower back and right shoulder pain on 17 August 2015. In September 2015, the applicant complained of depressed mood and anxiety and was referred for treatment. He had stopped work in mid-September 2015.
The applicant had experienced low back pain from a work-related incident 10 years before. He was off work for about two weeks but had no treatment. His condition had resolved until about three years before, when increasing low back pain caused him to take one or two days off work now and then.
Dr Mitchell noted that the applicant had undergone physiotherapy, hydrotherapy, two injections, counselling (under his claim for psychological injury) and took eight Panadeine Forte tablets a day.
Mr Koteski told Dr Mitchell that he could manage to sit for 30 minutes; stand for 20 minutes; walk for 20 minutes; lift up to 2 kg; and drive for up to 30 minutes before his symptoms increased.
Dr Mitchell recorded that, on physical examination, the applicant demonstrated a degree of inconsistency, due to obvious voluntary self-restraint or guarding restricting his movements.
Dr Mitchell’s diagnosis of the applicant’s lumbar spine was that he reported low back pain with radiation down the right leg, with radiological investigations indicating long-standing degenerative changes, but no clear evidence of nerve impingement. He also had right shoulder pain and reduced movement, with investigations indicating a degree of bicipital tendinitis; and neck pain associated with long-standing mild degenerative changes in his cervical spine.
Dr Mitchell opined that the applicant had capacity for at least light physical and administrative employment. In the absence of the ability of Dr Kuzmanovski to differentiate his various symptoms, it may be worthwhile considering a psychiatric independent medical examination to ascertain the applicant’s fitness for work from a psychological perspective.
Associate Professor Paul Miniter – Orthopaedic Surgeon
Associate Professor Miniter was also qualified by CGU and reported first on 21 July 2017.
A/Prof Miniter recorded a history of the injury to the applicant’s back in 2006 that is similar to that recorded by Dr Mitchell.
The applicant told A/Prof Miniter that he did not have a specific injury but on 17 August 2015 had pain that was unable to be managed. He saw his general practitioner after stopping work and had not returned to work.
A/Prof Miniter recorded that the applicant’s initial complaint was of back pain, but he also developed neck pain with radiation into the interscapular region. He complained of unspecified discomfort in the right buttock and the lateral aspect of the right thigh.
A/Prof Miniter had seen the MRI scan done on 29 October 2015. It demonstrated a longstanding disc prolapse that seemed to involve the L1/2 level. It was mainly in the central portion and slightly to the left. An extruded fragment was reported descending behind the central portion of the L1 vertebra. The theca was compressed anteriorly but there was no definite evidence of nerve root compression. There were also degenerative changes at other levels; and left sided L4/5 disc protrusion. No encroachment was noted on the left-sided L5 nerve root.
The applicant’s treatment consisted of hydrotherapy once a week. He did not engage in exercise or physical therapy. He took from four to six Panadeine Forte a day. A/Prof Miniter noted that he had had an injection at L1/2, which according to A/Prof Sheridan had given him some relief. The applicant, when asked about this, said he had absolutely no relief.
The applicant complained of back pain, neck pain, right-sided inter-thoracic pain, right leg pain and altered sensation that effectively involved the entire lower limb. He said he could not walk more than 100 metres. He did not have nocturnal pain.
A/Prof Miniter reported that the applicant’s examination was “replete with non-physical signs”. He had a markedly restricted range of cervical and lumbar spinal movement to direct evaluation, but when observed otherwise, moved freely. There were a number of inconsistencies in his presentation.
A/Prof Miniter opined that the applicant’s physical signs did not add up to the investigations. He was a pain-focused man who “has a poor surgical outcome” [sic]. He should be investigated by MRI scan. As the scan taken in 2015 did not convincingly demonstrate neurological compression, and as these neurological features did not seem to specifically relate to the applicant’s physical presentation or history, further information was needed before a definitive explanation could be made.
A/Prof Miniter believed the applicant’s diagnosis was unclear. There had not been a specific injury, and while there was pathology at L1/2, he was not convinced it was associated with the applicant’s presentation. The lack of improvement since he stopped work was concerning and his motivation was limited. A/Prof Miniter did not believe lumbar laminectomy was indicated but recommended an up to date MRI.
A/Prof Miniter opined that Mr Koteski’s pain-focused behaviour and general poor physical levels, combined with diabetes, hypertension and hypercholesterolaemia, made him a particularly poor surgical candidate.
On 19 February 2018, A/Prof Miniter reported that the applicant’s only identifiable pathology was L1/2 disc protrusion. This did not obviously cause impingement on the L1 nerve root but did cause compression on the thecal sac. He was “at a loss” to associate the lesion with the leg pain that was said to be an ongoing problem.
A/Prof Miniter repeated that the applicant was pain-focused and a poor surgical candidate, “whether this was regarded as a genuine case or otherwise.” The lack of a specific injury and persistence of symptoms, regardless of the applicant’s working capacity, caused A/Prof Miniter to have significant doubts as to the insurer’s responsibility. He did not believe this was a workers’ compensation matter “at this juncture”.
A/Prof Miniter opined that neither the pathology in the applicant’s lumbar spine nor that in his cervical spine was related to the employment injury on 17 August 2015. He did not believe the proposed surgery was reasonably necessary, irrespective of whether this was a workplace injury.
On 12 March 2020, A/Prof Miniter again reported, having re-examined the applicant on 2 March 2020.
A/Prof Miniter had “delved more thoroughly” into the history of the applicant’s back problem on 30 January 2006. The applicant said his back pain had gradually resolved, although it did not completely disappear over a year or more. Between 2006 and 2015 he did not have any significant issues and “completely recovered”.
The history of the injury in 2015 was somewhat confusing but consistent with the previous history. The applicant said he did not have an acute injury. Since the onset of pain in 2015, he had not returned to work.
A/Prof Miniter again raised the question as to how the L1/2 disc prolapse that was causing central cord compression and no neurological compression to a root lesion could be responsible for the applicant’s leg pain. He noted Dr Keller’s report, which is discussed below, and that Dr Keller’s evaluation by way of physical examination was similar.
The applicant had again been seen by A/Prof Sheridan, who still felt the L1/2 disc prolapse was responsible for his clinical presentation. A/Prof Miniter did not believe the prolapse had changed in its amplitude. There was still no evidence of neurological compression on any of the scans, other than by gentle indentation of the anterior portion of the lumbar spine.
A/Prof Miniter opined that he could not “associate” the applicant’s presentation, physical signs and investigations. The latest MRI of the lumbar spine was dated 17 January 2020. The disc extrusion at L1/2 had been discussed previously. A/Prof Miniter could not determine any exit foraminal stenosis at that level. At L4/5, there was no evidence of neural compression, despite the MRI findings in 2015 suggesting a left-sided lateral disc protrusion at that level.
The applicant’s diagnosis was difficult to determine. He had degenerative change in the cervical and lumbar regions, but no frank evidence of nerve compression on clinical examination. His physical condition was poor, but in A/Prof Miniter’s opinion it was unrelated to his employment. He assessed 0% WPI.
Dr Peter Conrad - Surgeon
Dr Conrad was qualified by the applicant and reported on 21 November 2018.
He recorded a consistent history of the injury and the applicant’s treatment. The applicant advised him that he would go ahead with the surgery if it was approved.
The applicant complained of ongoing pain in his neck, right shoulder and back. The back pain radiated down his right leg. “All of this” was worse when he was standing, sitting, bending or lifting.
The applicant continued to see Dr Kuzmanovski and took tablets for pain. He had not had physiotherapy and no longer had hydrotherapy. He had had ongoing psychological counselling.
Dr Conrad recorded no previous accidents, neck pain, shoulder pain or back pain, for which the applicant would have seen doctors.
Dr Conrad opined that the applicant was involved in a work accident on 27 August 2015. As a result, he had sustained a disc protrusion at C6/7, as described in MRI scans, and a disc protrusion at L1/2, as shown on MRI scans. He agreed with A/Prof Sheridan that Mr Koteski needed lumbar laminectomy and discectomy.
Dr Conrad assessed the applicant as having 16% whole person impairment.
On 10 December 2019, Dr Conrad commented on a WorkCover Certificate of Capacity (COC) issued by Dr Kuzmanovski, dated 18 October 2019. The COC recorded a diagnosis of work-related injury/disease, being low back pain with radiculopathy, right shoulder pain, C6/7 disc prolapse, with likely impingement of the right C7 nerve root. The “patient stated date of injury” was 27 August 2015.
Dr Conrad reviewed the COC and reported that it did not alter the opinion he had expressed in his report dated 21 November 2018.
On 10 March 2020, Dr Conrad commented on documents provided by the applicant’s solicitor. He referred to “a large number of pages relating to Dr Kuzmanovski’s clinical notes”.
The notes confirmed that the applicant regularly attended Dr Kuzmanovski and was treated with medication; physiotherapy; hydrotherapy; facet joint injection; and L1/2 CT-guided cortisone injections. He had also had a vocational assessment.
Dr Conrad was provided with A/Prof Miniter’s reports. He was critical of the opinions expressed. Unlike A/Prof Miniter, he had observed no abnormal behaviour when he examined Mr Koteski. He disagreed that the applicant was heavily pain-focused. His belief accorded with that of A/Prof Sheridan that the applicant had genuine pathology in his back and neck, causing pain.
Dr Conrad agreed with A/Prof Sheridan that, due to the applicant’s back pain and the failure of conservative treatment and persisting disability, he should have L1/2 lumbar laminectomy and discectomy for his large L1/2 disc protrusion.
Dr Andrew Keller – Occupational Physician
Dr Keller reported on 7 February 2019.
Dr Keller noted that the date of the injury was given as 14 August 2015. He recorded a history that the applicant had had lower back pain in about 2005-2006 but made no claim, had no treatment and took no time off work. In July 2015, the applicant was moved to the coating department and noticed an increase in lower back pain. From 14 August 2015, he could no longer cope with work and made a WorkCover claim.
Dr Keller recorded a history of the applicant’s investigations and treatment. He had been diagnosed with depression and anxiety from 2015; and saw a psychiatrist once every six months and a psychologist once a week. He had also been diagnosed with diabetes and high cholesterol and had surgery for a benign lung tumour in 2018.
The applicant complained of constant pain, affecting all of the right arm and all of the right leg. He rated the pain as up to 8/10. It was associated with numbness in the right leg and foot, particularly if he stood or walked for an extended period.
On examination, Dr Keller recorded inconsistent restriction of motion in the cervical spine, lumbar spine and right shoulder. There was reported altered sensation in the right upper limb and the right lower limb, which was not explained by the investigation reports. The applicant presented as generally unfit, elderly and overweight.
Dr Keller diagnosed work-related exacerbation of pre-existing degenerative changes in the cervical and lumbar spines, which in his opinion had long ceased. The main complaints restricting the applicant from work were his weight, lack of fitness and age-related degenerative changes.
SUBMISSIONS
The parties’ submissions have been recorded, so I will refer to them only briefly.
Applicant
The applicant refers to his own evidence of severe back pain over a number of years. A/Prof Sheridan has reported significant back pain from the beginning. He saw the applicant soon after he left work, when he had back pain and significant leg pain, which was not settling.
A/Prof Sheridan first recommended conservative treatment, which the applicant submits is to be expected. Nine months or so after the injury, he reported that the applicant had had an injection to his lower back, which gave only short-term relief. The applicant had failed conservative treatment, was aware of the risks of surgery, and was keen to proceed.
The applicant submits that Dr Kuzmanovski’s clinical records show that he had ongoing treatment. He had a fresh MRI, which was consistent with the previous MRI. The insurer had stopped paying for allied health treatment. He was still a good candidate for surgery.
The applicant submits that A/Prof Sheridan reported that on his viewing of the MRI, there was nerve impingement and compression, consistent with his symptoms. He expanded on this in his report dated 11 December 2020. The applicant had persistent symptoms in 2017 and 2020.
The applicant refers to Dr Conrad’s evidence. Although the history of a work accident on 27 August 2015 is not the history given to A/Prof Sheridan, Dr Conrad agrees with him. Dr Conrad disagrees with A/Prof Miniter that the applicant was pain-focused. There is no credible argument for A/Prof Miniter to disagree with A/Prof Sheridan.
The applicant submits that the fact there was no encroachment seen on the MRI of 29 October 2015 was important from his point of view. The applicant told A/Prof Miniter that he had no relief from an injection. A/Prof Sheridan had noted only two days’ relief, but A/Prof Miniter saw the applicant months later. One purpose of the injection is to pinpoint the area of pain.
The applicant submits that A/Prof Miniter has disregarded the history of the treating surgeon. He recommended an updated MRI, which was done, but did not change A/Prof Sheridan’s opinion. In his last report, A/Prof Miniter is talking about a finding regarding injury, versus the necessity for surgery. His report does not help much, as he does not refer to the surgery.
Dr Keller referred to the MRI as showing no nerve root compression. The applicant submits that this weighed heavily on him, but he is an occupational physician. He did not comment on the surgery.
The applicant submits that A/Professor Sheridan has dealt with the fact that there was no nerve root compression. A/Prof Miniter also relied on the fact that there was no improvement from the injection, but the applicant submits I would accept what A/Prof Sheridan said about that.
The applicant relies on the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab).
In reply to the respondent, the applicant submits that one needs to read all of A/Prof Sheridan’s evidence and the evidence as a whole. Dasreef Pty Limited vHawchar [2011] HCA 21 (Dasreef) has little application here. A/Prof Sheridan exercised his professional judgment in coming to his opinion.
Respondent
The respondent submits that it is difficult to see which of the applicant’s complaints relate to his back and which to his psychological condition, as his statements are the same, although the second was signed on 9 June 2020.
The respondent submits that A/Prof Sheridan initially recommended conservative treatment. He did not really engage further, apart from examining the applicant. Dr Mitchell found no clear evidence of nerve impingement after an extensive examination. Dr Keller found inconsistencies on examination and no evidence of wasting. The respondent submits that examination can reveal a lot but has not been discussed by A/Prof Sheridan.
The respondent further submits that A/Prof Miniter found no definite nerve root compression and inconsistencies on examination. MRI can be reliable in what it reveals. A/Prof Sheridan relied on what the applicant said. In 2015 he suggested conservative treatment.
The applicant had a further MRI on 17 January 2020. A/Prof Sheridan reported on 29 January 2020 that the applicant’s leg and back pain was getting worse and there was nerve compression. This had been his opinion all along. The respondent submits there was no evidence of objective physical examination. The only need for surgery is to compress the nerve roots, but if there is no stenosis, there is no necessity for surgery.
The respondent submits that A/Prof Sheridan was asked to comment on the MRI but in his report dated 27 October 2020 did not really do so. His report is an ipse dixit. He did not re-examine the applicant to provide his most recent report.
The respondent relies on the decision of his Honour Judge Burke in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose), and the five general principles he stated in that case. It submits that the applicant’s case is not advanced by the opinion of A/Prof Sheridan, which is not supported by evidence.
The respondent submits that Dr Conrad did not engage with the MRI but agreed with A/Prof Sheridan, and I would not attach too much weight to his evidence.
The respondent also relies on the decision of the High Court in Dasreef, regarding the admissibility of expert evidence. It submits that the requirement could have been met by A/Prof Sheridan making a simple statement of what he saw on the scan. He said it matched his opinion but did not say why.
The respondent finally submits that the applicant has not discharged his onus; and there should be an award in its favour.
SUMMARY
The issue to be determined is the reasonable necessity of the proposed medical treatment, that is L1/2 lumbar laminectomy and discectomy and associated treatment, as a result of the injury
The applicant relies on the decision of Roche DP in Diab.
Roche DP said in Diab [at 86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP cited with approval the decision of Judge Burke of the Compensation Court in Rose, and said:
“ [88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose…namely: 7 (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. 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.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon BleuCookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealthof Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.
The applicant in this matter sustained injury to his lumbar spine in August 2015, that is, over 5.5 years ago. His own evidence is not of particular assistance, as he has not provided a great deal of detail about his symptoms. However, the medical practitioners who have examined him have taken histories of the effects of the injury.
A/Prof Sheridan has treated the applicant since November 2015. In my view, he is in the best position to give evidence about the effects of the injury. He has recorded ongoing symptoms of lower back and leg pain that were very limiting. The applicant had trouble walking, sitting or standing for any period of time. A/Prof Sheridan initially recommended conservative treatment.
When A/Prof Sheridan reviewed the applicant in May 2016, he noted that an injection of the lower back had provided only short-term relief. The applicant’s back and leg pain were still very limiting. As conservative treatment had failed, and the applicant’s disability persisted, A/Prof Sheridan recommended that he undergo surgery.
By the time A/Prof Sheridan examined the applicant in January 2020, “a couple of years” after he was last seen, his back and leg pain were getting worse. He was limited to walking for no more than 10 minutes; he could not sit or stand for long; and his sleep was disturbed. He was increasingly limited in his physical chores and daily activities and was limiting his pain with medication.
A/Prof Sheridan has continued to recommend that the applicant undergo L1/2 lumbar laminectomy and discectomy. Dr Conrad agrees with his opinion.
The respondent relies mainly on the evidence of A/Prof Miniter. I have found his evidence somewhat contradictory.
A/Prof Miniter accepted that the applicant had pathology at L1/2 but was not convinced it was associated with his presentation. He later opined that neither the pathology in the applicant’s lumbar spine nor that in his cervical spine was related to the employment injury on 17 August 2015.
A/Prof Miniter appears to have based this opinion on the lack of a specific injury and the persistence of symptoms, regardless of the applicant’s working capacity, so that he did not believe this was a workers’ compensation matter “at this juncture” (that is, in February 2018). That appears to overlook that the injury is claimed to have occurred as a result of the nature and conditions of employment; and the applicant’s symptoms increased after his duties changed. The persistence of symptoms, even though the applicant was not working, is hardly surprising, given that the L1/2 disc had been damaged.
A/Prof Miniter also placed weight on the fact that, on MRI, he could not determine any exit foraminal stenosis at L1/2. He therefore questioned how the disc prolapse could be responsible for the applicant’s leg pain.
A/Prof Sheridan has addressed this issue in his report dated 27 October 2020. While the MRI was reported as showing no foraminal stenosis, he had viewed the films and he believed there was nerve impingement and compression, which was consistent with the applicant’s symptoms. On 11 December 2020, he reiterated that while the applicant may not have had exit foraminal narrowing, he clearly had compression of the nerves in the mid-line of the canal and he still needed surgery.
Some of the doctors who have examined the applicant, that is Dr Drummond, Dr Mitchell, A/Prof Miniter and Dr Keller, opined that he was pain-focused and/or there were inconsistencies on examination. Neither A/Prof Sheridan nor Dr Conrad expressed this opinion. Dr Conrad found no abnormal pain behaviour on examination. If it were the case that the applicant was pain-focused, it may not be unusual, given that he has been suffering the effects of the injury for many years. Dr Drummond, despite finding abnormal pain behaviour, accepted that the applicant did have an injury to his right shoulder.
Roche DP in Diab referred to the “useful heads for consideration” applied by Burke J in Rose. When they are applied to this matter, it is accepted by the treating specialist and Dr Conrad that the proposed surgery is appropriate for the applicant’s condition. A/Prof Miniter disagreed, but A/Prof Sheridan has responded to his concerns; and I accept his evidence.
There is alternative treatment available, but the applicant has had physiotherapy; hydrotherapy; CT-guided cortisone injection at L1/2; facet joint injection; and medication. He has also had counselling for his psychological condition. None of the treatments has been effective.
The cost of the surgery and associated treatment is estimated at $34,000. It has not been suggested that the cost is excessive, or that there is alternative treatment that may be more cost-effective. Both A/Prof Sheridan and Dr Conrad have opined that the surgery has the potential to be effective. A/Prof Miniter believed the applicant was a poor surgical candidate, but A/Prof Sheridan opined that he was a good candidate. I prefer his opinion, both because he has treated the applicant over a long period and has satisfactorily explained the reasons for the conclusion he has reached, and because, as I have noted, I have found A/Prof Miniter’s evidence contradictory.
Both A/Prof Sheridan and Dr Conrad accept that the proposed treatment is appropriate and likely to be effective. I accept A/Prof Sheridan’s opinion, for the reasons given. Dr Conrad agreed with A/Prof Sheridan and has adequately explained his reasons for recommending the surgery.
I have determined that the proposed treatment is reasonably necessary as a result of the injury.
There will be an award for the applicant, pursuant to section 60 of the 1987 Act, for the cost of the proposed surgery, that is L1/2 lumbar laminectomy and discectomy; and associated treatment.
Kerry Haddock
MEMBER
7 April 2021
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