Kovacs v HammondCare
[2022] NSWPIC 394
•20 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kovacs v HammondCare [2022] NSWPIC 394 |
| APPLICANT: | Jazmine Kovacs |
| RESPONDENT: | HammondCare |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Respondent argues surgery should only be undertaken after multidisciplinary pain management program is carried out; Held – the proposed surgery is reasonably necessary as a result of the injury at issue; it is not necessary for proposed treatment to be the only reasonably necessary option available; Diab v NRMA Limited cited with approval; the proposed surgery will have the effect of remedying the defect in the applicant’s lumbar spine, as opposed to the pain management program; even the respondent’s Independent Medical Examination stated the surgery would be appropriate after the pain management program had been trialled; as such, there is no issue as toe the efficacy of the proposed treatment, which is plainly a well-recognised and long-established treatment modality for injuries of the kin suffered by the applicant; Rose v Health Commission (NSW) and Diab v NRMA Limited applied; respondent ordered to pay the costs of and incidental to the proposed surgery. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent on 12 November 2018. 2. As a result of the injury referred to in (1) above, the applicant requires lumbar fusion surgery as recommended by Dr Singh. 3. The surgery proposed by Dr Singh is reasonably necessary as a result of the injury referred to in (1) above. 4. The respondent is to pay the costs of and incidental to the surgery proposed by Dr Singh in his quotes dated 13 October 2021. |
STATEMENT OF REASONS
BACKGROUND
On 12 November 2018, Jazmine Kovacs (the applicant) suffered a serious injury to her lumbar spine in the course of her employment with Hammond Care (the respondent).
The fact of the applicant’s injury is not in dispute, nor is there any issue that her ongoing lumbar spine symptoms are caused by it.
The applicant brings these proceedings seeking payment by the respondent of the costs of and incidental to proposed 360-degree lumbar fusion surgery as set out in the quotes of Dr Bhisham Singh, treating spinal surgeon, dated 13 October 2021.
The respondent denies liability for the costs of and associated with the proposed surgery, on the grounds that it is not reasonably necessary.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the proposed surgery is reasonably necessary.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 12 July 2022. 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.
At the hearing, the applicant was represented by Mr Horan of counsel instructed by Mr Morson, solicitor. The respondent was represented by Mr Beran of counsel, instructed by Ms Turnbull, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the proposed surgery is reasonably necessary
As noted, there is no issue that the applicant suffered injury to the lumbar spine, or that her ongoing symptoms are caused by that injury. Treating surgeon Dr Singh has recommended the applicant undergo a two-stage surgical process, namely an anterior lumbar spine fusion followed by a posterior decompression, fixation and fusion.
The applicant is only 31 years old. The question for determination is whether the procedures proposed by Dr Singh are reasonably necessary. The respondent relies, in part, on the applicant’s age as a reason for denying liability.
The respondent’s stated position, consistent with its Dispute Notice, is the applicant should not undergo the proposed surgery until such time as she has undertaken a multidisciplinary pain management plan. At the hearing, Mr Beran submitted the Commission would not find favour in the surgery until such time as the pain management plan had been put into effect and found unsatisfactory.
The applicant has the onus of proving the surgery proposed by Dr Singh is reasonably necessary. The standard test adopted in determining whether medical treatment is reasonably necessary as a result of a work injury is that originally stated by Burke CCJ in Rose v Health Commission (NSW) [1986] 2 NSWCCR 2 (Rose), where his Honour said:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of the injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes exercising prudence, sound judgement and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In this matter, there is no question that the applicant’s symptoms are caused by her work injury. Causation is not in issue. The only question is whether the treatment is reasonably necessary. In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted the Court of Appeal had considered the meaning of “reasonably necessary” in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52, albeit in the context of home renovations rather than medical treatment. The Court noted that the trial Judge had sought guidance from Burke J’s decision in Rose. Gove JA referred to the dictionary definition of “necessary” as being “indispensable, requisite, need for, that cannot be done without” and “that cannot be dispensed with”. His Honour noted that the use of the word “reasonably” in conjunction with “necessary” is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. His Honour stated:
“In order to contemplate such modification it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of the worker’s home, having regard to the nature of the worker’s capacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
In Diab, Roche DP noted the effect of the decision in Clampett and commented as follows:
“85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words. Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity.
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 reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claim is one of those treatments.” (Emphasis added.)
In my view, the emphasised paragraph above goes some way to obviating the respondent’s submission that the applicant should try the multidisciplinary pain management programme before undertaking surgery, and that as a result, the surgery is not reasonably necessary. The above passage in Diab makes it clear that more than one form of treatment might be reasonably necessary at a given time.
In order to determine what is reasonably necessary, the Commission has long followed Roche DP’s adoption of the Rose as set out at [88] in Diab. In that paragraph, the Deputy President said:
“In the context of Section 60, the relevant matters, according to the criteria of reasonableness, include but are not necessarily limited to, the matters noted by Burke CCJ at .5 in Rose, 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.”
Roche DP made it clear with respect to point (d) that it should be noted the effectiveness of treatment is relevant to the question of reasonable necessity but is certainly not determinative. Evidence may show that the same or a similar outcome could be achieved by a different treatment, but at a much lower cost. Similarly, keeping in mind all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean the treatment was not reasonably necessary.
The basis for the respondent’s denial of liability is found in the report of its independent medical examiner (IME) Dr Siu dated 4 January 2022. The history obtained by Dr Siu and the complaints of pain are consistent with those provided to the other medical experts in this case. After undertaking an examination of the applicant, Dr Siu provided the following summary and assessment:
“Ms Kovacs has been suffering from non-remitting lower back pain since the index workplace injury three years ago. Although there was associated leg pain, the clinical features are not suggestive of sciatic pain and the dominant complaint is axial low back pain. The imaging findings suggest that she has sustained an L5/S1 disc injury from work, leading to recurrent flare-ups of spinal pain.”
When specifically asked whether the proposed fusion surgery was appropriate for the applicant, Dr Siu said:
“The mainstay of treatment for axial back pain is non-operative, comprising primarily activity modification and physiotherapy. Failing these first line measures, the next phase of management would be chronic pain management through a chronic pain service. This will generally entail a multimodal approach including a consideration for percutaneous target treatment through a pain specialist to improve on the overall pain status.
Surgery in the form of a spinal fusion is generally considered a very last resort due to insufficient evidence to determine the benefits of lumbar fusion compared to more intensive rehabilitation programmes for low back pain, including discogenic back pain. Another main caveat of a spinal fusion is adjacent segment disease. Specifically, given Ms Kovacs’ young age, the likelihood that she would develop symptomatic disease at L4-5 in the future would be very high following an L5-S1 fusion. As such, I would recommend further pain management through a chronic pain service prior to considering surgery.”
Later, Dr Siu appropriately conceded:
"An L5/S1 spinal fusion would be reasonable should she fail to respond to an exhaustive course of nonoperative treatment as detailed in my Response…”
Mr Beran noted, and I accept, that the applicant’s general practitioner, Dr Lim, who provides support for the proposed surgery, had not actually consulted the applicant in person and instead had undertaken only telehealth appointments. Mr Beran urged the Commission to accordingly place less weight on the views of Dr Lim, a submission which would otherwise gain some favour but for the fact Dr Lim’s findings and conclusions are broadly supported by both treating surgeon Dr Singh and the applicant’s IME Dr Khong, each of whom did consult with the applicant in person.
Mr Beran submitted that the benefits of the multidisciplinary pain management service would be an inpatient one where a multitude of treatments will be provided to the applicant in order to alleviate her symptomology. It is, he emphasised, non-invasive. Mr Beran also noted that, contrary to Dr Lim’s assertion in his report, multidisciplinary pain services do not involve the taking of opioid medication or medicinal cannabis, and to the contrary they are designed to avoid dependence on such substances. I accept that submission.
Nevertheless, as was noted by Roche DP in Diab, a proposed treatment does not need to be the only reasonably necessary one available. The question is ultimately, having regard to the various indicia set out in that decision, whether the applicant should have the treatment rather than it be forborne.
On balance, I am of the view the proposed surgical treatment is reasonably necessary. I find it is an appropriate course of treatment given, as is emphasised by the applicant’s treating surgeon and IME, it will repair the defect in the applicant’s back which causes her symptomology, rather than merely assist with the management of her symptoms. There can be no question that the treatment is readily available and is potentially effective, given spinal fusion surgery is a long-established and well-practised form of treatment for lumbar spine injury. Moreover, even Dr Siu indicated the surgery is a broadly appropriate treatment for the applicant’s condition, albeit one which he opined should take place after a pain management plan has been trialled.
Likewise, whilst the cost of the surgery is not cheap, it cannot be said to be excessive in the circumstances, particularly when one compares it with the costs of an extensive inpatient multidisciplinary pain programme. Whilst I acknowledge the risk of potential adjacent segment disease eventually flowing from the proposed surgery, there is no specific allegation of lack of effectiveness regarding it which has been raised by Dr Siu. Indeed, Dr Siu suggests that the surgery would be effective, however, he says it ought to be forborne until such time as the pain management therapy has been undertaken. As such, although Dr Siu would prefer a multidisciplinary pain management plan be attempted before the proposed surgery, he does not indicate that the surgery itself is inappropriate given the nature and extent of the applicant’s injury.
On balance, I prefer the views of Dr Khong and Dr Singh, together with those of Dr Lim to that of Dr Siu. All of the medical experts in this matter consider the proposed surgery would ultimately be appropriate for the applicant. However, as Mr Beran pointed out the test is what is the appropriate treatment now? In my view, the preponderance of the medical evidence supports a finding that the proposed surgery is appropriate at present.
In making this finding, I have had regard to the opinions of all of the medical experts, and am persuaded by the fact that the proposed surgery will remedy the defect in the applicant’s spine caused by the injury, rather than merely manage the symptoms of it.
As such, taking into account the indicia set out in Rose as applied in Diab, I am of the view that the surgery proposed by Dr Singh is reasonably necessary, and accordingly, the Commission will order the respondent to pay the costs of and incidental to it.
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