Lamy v PRW Security Doors & Screens Pty Ltd
[2024] NSWPIC 596
•23 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lamy v PRW Security Doors & Screens Pty Ltd [2024] NSWPIC 596 |
| APPLICANT: | Edmond Lamy |
| RESPONDENT: | PRW Security Doors & Screens Pty Ltd |
| MEMBER: | Anne Gracie |
| DATE OF DECISION: | 23 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 expenses; physiotherapy for accepted injuries to left shoulder and neck; consideration of applicant’s statement, medical reports, and other treatment records and claim correspondence; consideration of whether the physiotherapy treatment was reasonably necessary; Diab v NRMA Limited, and Rose v Health Commission (NSW) considered; Held – the claimed physiotherapy is reasonably necessary pursuant to section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. The physiotherapy proposed by Mr Ben Gildersleeve, physiotherapist in the Allied health recovery request number 19 dated 11 October 2023 for eight standard physiotherapy sessions and two case conferences is reasonably necessary medical treatment as a result of the injury the applicant sustained on 21 September 2020. The Commission orders: 1. The respondent is to pay for the costs of the physiotherapy proposed by Mr Ben Gildersleeve, physiotherapist in the Allied health recovery request number 19 dated |
STATEMENT OF REASONS
BACKGROUND
Edmond Lamy, the applicant is 69 years old. He was employed by P R W Security Doors and Screens Pty Ltd, the respondent. During the course of his employment, he sustained injury on 21 September 2020 while constructing fly screens. On that day he was holding a bin with his right hand and using his left hand to scoop out the contents. During this process he overextended his left arm which caused immediate pain in his left shoulder and neck.
The respondent has accepted liability for the left shoulder and cervical spine injury. The applicant has been paid weekly benefits of workers compensation up to retirement age and has received a lump sum settlement for 32% whole person impairment which was resolved by way of complying agreement on 24 January 2024. He continues to be eligible to receive payment for his reasonably necessary medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) having been assessed as a worker with the highest needs on the basis of his agreed level of whole person impairment (see s 32A of the 1987 Act). Of note, the respondent has paid for two surgical procedures that the applicant has undergone. On 5 May 2021, the applicant underwent a left rotator cuff and bicep repair performed by Dr Duckworth. On 12 January 2023, the applicant underwent a C4-5 C5-6 anterior cervical decompression and fusion performed by Dr Singh. The respondent accepted liability and paid for these two surgical procedures. The respondent has also paid for physiotherapy.
However, on 15 November 2023 the respondent issued a notice denying liability for the cost of further physiotherapy that had been recommended to him by his physiotherapist,
Mr Gildersleeve in the allied health recovery request 19 (AHRR) dated 11 October 2023 for eight standard physiotherapy sessions and two case conferences. The denial of liability by the respondent was pursuant to s 78 of the Workplace Injury Management and WorkersCompensation Act 1998 (the 1998 Act). The respondent then reviewed the decision made by this notice but maintained the denial of liability in a further dispute notice dated 18 June 2024.By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (Commission), the applicant requests an order that the respondent pay for the physiotherapy recommended by Mr Gildersleeve in accordance with s 60 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the issue that remains in dispute is whether the claimed eight physiotherapy sessions are reasonably necessary and as a result of the injuries the applicant sustained on 21 September 2020.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The parties appeared before the Commission for conciliation conference/arbitration at
1 Oxford Street Darlinghurst on 16 October 2024. The applicant was represented by
Mr Moffet of counsel instructed by Ms Limbaco, solicitor. The applicant, Mr Lamy was present. The respondent was represented by Mr Stanton of counsel, instructed by
Mr Dissanakake, solicitor. Ms Anita, from the insurer EML was also present.The matter had previously been listed for a preliminary conference on 27 August 2024. On that day, a notation was recorded that the respondent would only rely on the report from
Dr Andrew Leaver, consultant physiotherapist, dated 30 August 2023. The respondent confirmed that it would not rely on the report from Mr Young, consultant physiotherapist dated 23 December 2021 which is attached to the reply as it was in contravention of regulation 44 of Workers Compensation Regulation 2016. A direction was made that the respondent was to file and serve a list of payments by way of Application to Admit Late Documents (AALD).The matter was initially listed for conciliation/arbitration on 22 October 2024 however the applicant’s solicitor approached the Commission and advised that the applicant was to undergo surgery on that date and by consent, the date for the conciliation/arbitration was changed to 16 October 2024.
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:
(a) ARD and attached documents;
(b) Reply and attached documents except for the injury management consultant report prepared by Mr David Young physiotherapist, dated 23 December 2021. This report was withdrawn from the reply by the respondent during the preliminary conference in the dispute on 27 August 2024 as the respondent was in breach of cl 44 of the Workers Compensation Regulation 2016;
(c) AALD filed by the respondent on 9 October 2024, admitted by consent, and
(d) list of payments from EML as at 15 October 2024 emailed to me at the commencement of the arbitration and admitted by consent.
Oral evidence
There was no oral evidence called at the arbitration hearing. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties.
Applicant’s evidence
The applicant has provided a statement dated 29 July 2024 (page 1 of the ARD).
He provides a history of the injury that occurred on 21 September 2020 and his past medical treatment for the injury. The applicant notes he was having physiotherapy for his neck and his left shoulder before and after the surgery to his left shoulder which was on 5 May 2021. He also needed physiotherapy before and after the surgery to his neck which was on
12 January 2023. Following the surgery to his shoulder the applicant was diagnosed with Merkel cell carcinoma in May 2022 which led to a temporary cessation of his physiotherapy and rehabilitation programme whilst he underwent surgery and radiotherapy and immunotherapy for the Merkel cell carcinoma.The applicant states he returned to physiotherapy with Mr Gildersleeve on 28 March 2022 although according to Mr Gildersleeve’s clinical notes this should read 28 March 2023 and was advised by his physiotherapist that his condition had regressed to its initial state at the onset of his injury. The parties agreed this should read 28 March 2023.
The applicant states he was generally undergoing physiotherapy twice a week for a 30-minute session and was very compliant and rarely missed any appointments with the physiotherapist.
The applicant advises that the respondent arranged for an independent physiotherapy consultant Dr Andrew Leaver to discuss his case with his physiotherapist Mr Gildersleeve. The applicant confirms that Dr Leaver never assessed or consulted with him prior to preparing his report. Dr Leaver prepared a report dated 30 August 2023 which the respondent relied on to dispute liability for ongoing physiotherapy.
Mr Gildersleeve submitted a request for eight further sessions of physiotherapy on
11 October 2023 to the respondent and the respondent denied liability for this physiotherapy treatment on 15 November 2023 placing reliance on the report from Dr Leaver. I note here
Dr Leaver is not a medically qualified doctor but holds a Phd.The applicant then outlines his current symptoms and treatment. The applicant states he has limited range of motion in his neck and the strength in his left upper limb muscle groups is reduced. The applicant specifically states the following:
“32. Continuing physiotherapy is crucial for managing my symptoms and preventing further deterioration. Physiotherapy helps in maintaining and potentially improving my current condition, especially in managing pain and stiffness.
33. Without ongoing physiotherapy my symptoms could worsen, significantly affecting my ability to perform daily activities.
36. Ongoing physiotherapy is essential for managing my condition and maintaining my current level of function. Continuation of physiotherapy treatment would not only support my recovery but also improve my quality of life.
37. I rely a lot on pain relief medication such as Codeine and/or Paracetamol.
38. I am currently receiving some domestic assistance in the form of garden maintenance and bathroom cleaning.”
The applicant also relies on a report from his treating general practitioner Dr Lim dated
30 May 2024 (page 32 of the ARD). In that report Dr Lim notes physiotherapy as a reasonably necessary treatment to improve physical function. Dr Lim confirms that the applicant struggles with constant pain in his neck and left shoulder. Dr Lim opines that the physiotherapy treatment is reasonably necessary for the following reasons:“1. Appropriateness - it has alleviated the consequences of his neck and shoulder injuries. In particular he reports benefit in the setting of ongoing physiotherapy.
2. Alternative treatment - there is none.
3. Cost - As per guidelines
4. Effectiveness - he reports a deterioration of his symptoms after physiotherapy has been ceased. I have re-examined him today, and he has limited range in his neck and shoulder.
5. Acceptable - it has been recommended by his treating surgeons. It is the mainstay of therapy following a spinal fusion and shoulder arthroscopy.”
Dr Lim then comments on the opinion provided by Dr Leaver. Dr Lim notes that he was advised by the applicant that he was not examined by Dr Leaver and states the following:
“I do not place any weight on an expert who has not consulted my patient.
His report does not explain why he opines that it (the physiotherapy treatment) is not reasonably necessary. It merely identifies the number of sessions being the reason (for declining liability). I suppose that is all one can do when they have not examined my patient.”
The applicant also relies on two independent medical reports prepared by Dr Chien both dated 4 September 2023 (pages 56 and 59 of the ARD).
The reports were prepared one month before the AHRR request for physiotherapy dated
11 October 2024 was forwarded to the respondent by Mr Gildersleeve. In the report Dr Chien notes on cervical spine examination the applicant had global restriction of range and as for the left shoulder Dr Chien noted significant limitations in adduction, extension, external rotation and abduction. Dr Chien recommended that the applicant should continue with physiotherapy until his progress plateaus if it has not already. Dr Chien also suggested consideration of a manipulation or release of the left shoulder.Dr Chien noted that the applicant's left shoulder remained weak and stiff and also took a history that following the diagnosis of Merkel cell carcinoma the applicant’s physiotherapy and rehabilitation programme were placed on hold.
The applicant also relies on two reports prepared by Dr Khong dated 20 July 2022 and
6 April 2022 (page 81 and 85 of the ARD). These reports were prepared before the applicant underwent the surgical procedure to his neck. Dr Khong is a neurosurgeon and specifically addressed the need for the cervical discectomy and fusion. He confirms that, at that time, the applicant was continuing to have physiotherapy and was also taking Panadeine Forte and Gabapentin for pain. Dr Khong recommended the cervical discectomy and fusion and notes, at that time, analgesia, physiotherapy and steroid injections have been trialled and failed.The applicant also relies on a report prepared by his physiotherapist Mr Gildersleeve dated 15 February 2024 (page 39 of the ARD). The report provides a helpful history in relation to the physiotherapy treatment the applicant has received detailing periods of treatment and also periods following the two surgical procedures and treatment for the applicant’s Merkel cell carcinoma diagnosis that led to cessation of physiotherapy for a period of time. The history of treatment recorded by Mr Gildersleeve is as follows:
“The initial injury was stated to have occurred on the 20 September 2020.
Conservative management was initially undertaken through physiotherapy. Mr Lamy had surgery on the 06 May 2021 (Left shoulder surgery).
Treatment ceased until the 19 June 2021 whereby conservative management and shoulder surgery protocols were followed. During this stage it was suspected that Frozen shoulder had developed due to a slow progression of recovery - to my knowledge no formal diagnosis was given by a specialist.
On 08 March 2022 Mr Lamy was transferred from Physiotherapy to Exercise Physiology in order to help improve his strength and endurance as the limit of his ROM was believed to have been reached.
Mr Lamy completed 5 sessions of Exercise Physiology - when treatment was ceased again due to his personal health. (diagnosis of Merkel cell carcinoma)
Mr Lamy returned to Physiotherapy on the 13 September 2022. Again, conservative management was conducted, due to him having regressed to his initial ROM and levels of capacity that were found in the initial stages of treatment on 25 March 2021.
Further medical interventions for his health were then conducted from December 2022 - March 2023 and physiotherapy treatments ceased for a third time.
Mr Lamy returned to Physiotherapy on 28 March 2022 (sic) (agreed by the parties that this should read 2023) and again had shown signs of regression back to his initial state of capacity at the onset of injury.
During the three phases of treatment, conservative management was undertaken to gain as much shoulder ROM as possible. As the range increased the passive treatment was reduced and a weights/endurance programme was implemented. On occasions this did flare his shoulder, so regressions were made… Mr Lamy was a very compliant patient and very rarely missed any appointments apart from when he needed to take medical leave for his own health.”
The applicant also relies on several AHRR plans for physiotherapy prepared by
Mr Gildersleeve dated 3 August 2023 and 11 October 2023 (page 65 and page 50 of the ARD) and also clinical notes from Rouse Hill Physiotherapy (page 101 of the ARD)
Mr Gildersleeve is a physiotherapist who practises out of the Rouse Hill Physiotherapy practice.The AHRR plan dated 11 October 2023 is particularly helpful. In that plan Mr Gildersleeve confirms that there have been breaks in the applicant’s physiotherapy treatment due to other medical issues and notes that “Every time treatment has ceased Edmond has regressed to his pre treatment levels”.
The clinical notes from Rouse Hill Physiotherapy are also helpful. In particular, an entry on
7 September 2023 records a conversation between Mr Gildersleeve and the applicant in relation to the injury management consultation with Dr Leaver. In that note Mr Gildersleeve records that “we went through the report and I explained in detail what was and was not discussed. (I) explained that I said he deteriorates poorly when treatment is not provided - this was not in the report.” The clinical notes are also helpful as they provide detail of the treatment the applicant has received and the efficacy of that treatment.The applicant has also been under the care of Dr Freiberg consultant physician respiratory and sleep medicine. The applicant relies on reports from Dr Freiberg dated 27 February 2024 and 16 July 2024 (page 36 and 26 of the ARD). In the report dated 27 February 2024,
Dr Frieberg records that the applicant has severe insomnia due to pain and severe sleep disordered breathing all implicated as effects of his workplace injury.The applicant was examined on behalf of the respondent by Dr Woo, orthopaedic surgeon, who produced an independent medical report dated 2 November 2023 (page 41 of the ARD). Dr Woo examined the applicant on 31 October 2023, which is 20 days after Mr Gildersleeve submitted the AHRR plan to the respondent for approval. In the report Dr Woo took a history from the applicant that he had constant left shoulder pain and stiffness. Dr Woo also recorded reduction of flexion, extension, adduction, abduction, external rotation and internal rotation of the left shoulder. Dr Woo records that the applicant showed no signs of exaggeration, inconsistency or unreliability. Dr Woo states that the applicant does not require any further treatment however it must be acknowledged that Dr Woo was assessing the applicant for the purpose of whole person impairment and was not specifically addressing the reasonable necessity of physiotherapy.
The ARD also contains clinical notes from the PainMed clinic (page 339 of the ARD) The applicant consulted with Dr Ramachandran from that clinic. Dr Ramachandran is a pain management specialist. In his report of 13 October 2021 (page 343 of the ARD)
Dr Ramachandran notes the applicant had tried steroid injections, Panadeine Forte at times two tablets per day, four times a day and recommended a pain management programme for persisting pain. The pain management programme was put on hold due to the neck surgery.The applicant also relies on a report from Dr Sidorov, consultant forensic psychiatrist, qualified on behalf of the respondent dated 16 March 2022 (page 89 of the ARD). In that report Dr Sidorov provides a history that the applicant was kept awake by pain in his left shoulder and neck. Dr Sidorov records that the first eight sessions of physiotherapy following the accident were not particularly helpful. Dr Sidorov recorded the applicant’s limited range of motion of the left shoulder and his sleep was shocking. Dr Sidorov recorded that the applicant was having significant difficulty coping emotionally as he was in constant, unrelenting pain. Under the heading Summary and Opinion (page 93 of the ARD) Dr Sidorov records that:
“Based on Mr Lamy’s history, his presentation and review of the associated documents, he meets the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed mood as per DSM-5. This is based on a history of Mr Lamy sustaining a shoulder injury at his last workplace with the resulting development of pain and limitation in his range of motion. Subsequently due to Mr Lamy’s functional impairments and pain, he has been unable to work and partake his other usual activities and as a result he has developed significant depressive and anxiety symptoms including low mood, tearfulness and feelings of hopelessness as well as feeling nervous and worried about his future.”
Finally, the applicant relies on the clinical notes from the Rouse Hill Family Practice (page 450 of the ARD), the NSW Spine Specialists (page 430 of the ARD) and the Workers Doctors practice (page 368 of the ARD). The clinical notes all provide a history of the applicant experiencing pain and restriction of movement of his left shoulder and neck since the accident.
The applicant also relies on two reports from his neurosurgeon Dr Singh who performed the cervical spine surgery dated 12 January 2023 and 5 November 2021 (page 78 and 96 of the ARD) and clinical notes from Dr Duckworth, orthopaedic surgeon (page 405 of the ARD) in relation to the surgical procedure the applicant has undergone to his left shoulder. I will refer to these documents further if I was directed to them specifically during the parties submissions.
Respondent’s evidence
The respondent relies on the s 78 notice dated 15 November 2023 (page 13 of the ARD) and the s 287A notice dated 18 June 2024 (page 5 of the ARD) together with the independent medical consultant report from Dr Leaver dated 30 August 2023, several AHRR requests from physiotherapist Mr Gildersleeve and the clinical records from Rouse Hill Physiotherapy, PainMed, Workers Doctors, the Rouse Hill Family Practice and Workers Doctors.
The respondent relies primarily upon the report provided by Dr Leaver dated
30 August 2023. In that report Dr Leaver find that ongoing physiotherapy is not reasonably necessary. Dr Leaver has been asked by the respondent to comment on the AHRR request submitted by Mr Gildersleeve dated 12 July 2023. AHRR 17 is found in the reply (see page seven of the reply). The request put forward by Mr Gildersleeve is in a similar format to the AHRR 19 plan dated 11 October 2023 which is the subject of this dispute. Dr Leaver did not examine the applicant but spoke to Mr Gildersleeve and relied on the measurements of range of movement reported in AHRR 17.Mr Leaver noted that after discussion with Mr Gildersleeve they “agreed that by this stage things would have reached a ceiling and any further improvement will be modest and occur slowly with adherence to an exercise programme. It was agreed that Mr Lamy” had “received sufficient training in exercise to enable discharge from physiotherapy care”.
Applicant’s submissions
The applicant’s primary submission is that the physiotherapy proposed by Mr Gildersleeve in the AHRR plan 19 dated 11 October 2023 is reasonably necessary.
The applicant submits that the physiotherapy treatment the applicant has received in the past since the injury has not been fully explored or moderated due to breaks in the applicant’s treatment programmes resulting from the surgical procedures to his left shoulder and neck, his diagnosis of Merkel cell carcinoma and also his treatment for depression.
The applicant points out that there is no inconsistency in the applicant’s history that he has provided in his statement and to the medical practitioners involved in his care nor in respect of his complaints of ongoing restriction, pain and stiffness due to injury.
The applicant submits that the applicant was not reviewed by Dr Leaver and Dr Leaver prepared his report without the benefit of examining the applicant.
The applicant submits that Dr Leaver did not consider the neck injury or neck surgery nor obtain a history of complaints from the applicant.
The applicant addressed the conflicting evidence in relation to the range of movement the applicant was able to achieve with his left shoulder. Mr Gildersleeve had recorded mild restrictions in the applicant’s range of movement of the left shoulder however in the report prepared by Dr Chien (page 57 of the ARD) Dr Chien recorded significantly less range of movement at around the same time. The applicant submits I should accept the recorded range of movement as contained in the report from Dr Chien which is consistent with
Mr Gildersleeve’s comment that every time the applicant has ceased treatment he has regressed to his pre-treatment levels.The applicant submits that there is no doubt the applicant has sustained a serious injury to his neck and left shoulder and has been deemed a worker with the highest needs as a result of a significant level of permanent impairment.
The applicant submits that the respondent has not disputed the cost quoted for the physiotherapy by Mr Gildersleeve in AHRR 19.
The applicant submits that Mr Lammy has tried numerous alternatives including cortisone injections, pain management, surgery, exercise physiology, rest and strong pain medication. Despite this, the applicant continues with pain, loss of range of movement and strength in his left shoulder and neck.
The applicant concedes that there is no evidence before me to support the claim in respect of an additional 10 AHRR treatment programmes at a cost of $11,345.60. On the basis of this concession, I do not intend to make a finding in respect of this part of the applicant’s claim.
Respondent’s submissions
The respondent submits that I should accept the opinion expressed by Dr Leaver that the applicant no longer requires physiotherapy and that physiotherapy is no longer reasonably necessary.
The respondent submits that I have no evidence before me to support the claim in respect of an additional 10 AHRR treatment programmes as claimed by the applicant. In light of the concession made by the applicant during submissions I confirm that I do not intend to make a finding in respect of this part of the applicant's claim.
The respondent submits that the applicant has already undertaken 186 physiotherapy treatments and his recovery has plateaued. The respondent points out that the applicant’s neck has been fused so further improvement in neck movement is not available to the applicant.
The respondent submits that when considering the authorities it is necessary to not only consider if the treatment will alleviate the applicant’s symptoms but also consider the cost of the proposed treatment, alternative treatments available and effectiveness.
The respondent submits that there is no specific report before me advising when physiotherapy is reasonably necessary however upon close examination of the reports and clinical notes relied upon in this matter the following observations can be made which the respondent submits support the cessation of physiotherapy.
Dr Chien in his report dated 4 September 2023, states that physiotherapy should continue until the applicant’s condition has plateaued. The respondent submits that the applicant’s condition has plateaued and therefore further physiotherapy is not reasonably necessary.
The respondent submits that the report of Dr Leaver, based on his discussion with the applicant’s treating physiotherapist Mr Gildersleeve, also confirms that the applicant's condition has plateaued and any further improvement would be modest. On the basis of this the respondent submits that Dr Leaver has provided a rational opinion as to why the respondent should no longer support ongoing physiotherapy treatment.
The respondents submits that although Dr Leaver did not examine the applicant, he relied on the measurements recorded by the applicant’s treating physiotherapist in AHRR plan 17 and was aware of his capacity with regard to his activities of daily living. Dr Leaver also had an independent physiotherapy consultation (IPC) with the applicant’s treating physiotherapist on
30 August 2023. Dr Leaver confirms that on the basis of his discussion with Mr Gildersleeve the applicant had reached a plateau in relation to his treatment.The respondent then took me to the report of Mr Gildersleeve dated 15 February 2024 (page 39 of the ARD). Mr Gildersleeve records the IPC he had with Dr Leaver on 30 August 2023 and notes it was concluded that Mr Lamy had most likely reached the ceiling level of his range and strength and hence physiotherapy had most likely reached its conclusion. The respondent submits that if Mr Gildersleeve had disagreed with this proposition, he would have said so in his report dated 15 February 2024. The respondent submits that the comments recorded by Mr Gildersleeve in his report dated 15 February 2024 about his discussions with Dr Leaver is an accurate description of the joint conclusion that the two physiotherapists had come to.
The respondent submits that the report from the applicant’s treating general practitioner
Dr Lim does not address when it is appropriate for physiotherapy to cease. Furthermore,
Dr Lim does not consider alternative treatments but merely states that there is no alternative treatments available.The final submission made by the respondent is that it is not reasonably necessary that physiotherapy for the applicant just continues on indefinitely. The respondent submits that the evidence does not support this and on balance I would conclude that further physiotherapy at this point was not reasonably necessary.
The respondent noted that if there was a deterioration in the applicant's condition, further physiotherapy may be appropriate however this would be not just based on a clinical note indicating that the applicant’s condition had deteriorated but rather it would need to be particularised and more information would need to be provided to the respondent in relation to what has caused the deterioration in the applicant's condition and what was the deterioration in the applicant's condition. This submission was in in response to the last clinical note entry in the applicant’s clinical notes from Workers Health, at a consultation with Dr Mo on 19 August 2024 where Dr Mo has recorded “chronic injury, worse since cessation of physiotherapy” (page 61 of the AALD).
FINDINGS AND REASONS
Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that-
(a) any medical or related treatment (other than domestic assistance) be given,
or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines “medical or related treatment” as including:
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist;
(b) therapeutic treatment given by direction of a medical practitioner;
(c) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles;
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment;
(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity;
(g) domestic assistance services;
(h) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(i) treatment or other thing prescribed by the regulations as medical or related treatment.
The question that I have been asked to determine is whether or not the physiotherapy proposed by Mr Gildersleeve in the AHRR number 19 dated 11 October 2023 for eight standard physiotherapy sessions and two case conferences is reasonably necessary treatment pursuant to s 60 of the 1987 Act. I note that there appeared to be some confusion as to which AHRR plan had been declined by the respondent. In this respect I note the s 78 Notice dated 15 November 2023 specifically refers to declining liability for the AHRR plan
19 (page 15 of the ARD). Unfortunately, the list of payments provided by the respondent does not include the dates of the physiotherapy treatment that the applicant underwent prior to the respondent’s decision to deny liability for physiotherapy. I am unable to confirm with any certainty, if the physiotherapy treatments that Mr Gildersleeve had recommended in AHRR plans 17 and 18 (page seven of the reply and page 61 of the ARD) which post-date the report from Dr Leaver dated 30 August 2023 have been paid for by the respondent. I note in this respect according to the clinical notes from Mr Gildersleeve, the applicant underwent a further seven physiotherapy treatments after Dr Leaver had discussed the applicant’s need for physiotherapy treatment with Mr Gildersleeve. In any event those treatments do not form part of the claim before me.The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that 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 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 Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at 154). 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 claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Doctor Bodel and Dr Meakin were both wrong to apply that test.
87. Giles J added (at [49] in O'Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919 which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett
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 (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”.
I accept the statement evidence of the applicant that he has had ongoing pain and symptoms since 21 September 2020 which still significantly impact his lifestyle and activities of daily living. I also accept the applicant’s evidence that there have been breaks in his physiotherapy treatment programme as a result of the surgery to his left shoulder and the surgery to his neck and the diagnosis and treatment for the Merkel cell carcinoma and treatment for his accepted psychological condition arising out of the injuries he sustained on 21 September 2020.
He has been under the care of Mr Gildersleeve, physiotherapist, since 25 March 2021. I am of the opinion that Mr Gildersleeve is in the best position to recommend treatment, unless there is reliable evidence to question his treatment recommendations.
Mr Gildersleeve’s opinion is that the applicant requires ongoing physiotherapy and in particular the eight sessions he has recommended in AHRR 19. Mr Gildersleeve notes in his report of 15 February 2024 that when the applicant’s physiotherapy treatment was ceased due to other issues, the applicant’s condition regressed, at times, back to his initial state of capacity at the onset of his injury.
Mr Gildersleeve’s opinion is supported by the report from Dr Chien dated 4 September 2024. I do not accept the respondent’s submission that Dr Chien has opined that the applicant’s condition has plateaued and therefore further physiotherapy is no longer required. Dr Chien has recorded global restriction of movement in the neck and left shoulder. Whilst Dr Chien acknowledges that the range of motion in the left shoulder is unlikely to improve, he does suggest that further surgical intervention may improve this. Dr Chien also notes that the neck will continue to deteriorate involving more segments of the cervical spine. The respondent did not address this aspect of Dr Chien’s report. In light of these comments, I accept the applicant’s submission that his condition has not plateaued and therefore further physiotherapy is reasonably necessary. Dr Chien specifically states that physiotherapy should continue until a plateau in the applicant’s condition has been achieved.
In further support of the applicant’s assertion that the injuries to his neck and left shoulder have not plateaued and that further physiotherapy treatment is reasonably necessary, I note the report of Dr Lim dated 30 May 2024. In that report, Dr Lim records significant restrictions in the range of movement of the applicant’s left shoulder and neck. Dr Lim also records the applicant suffers from chronic pain as a result of the injuries to his left shoulder and neck and has specifically recommended physiotherapy to improve physical function. In this respect,
Dr Lim notes that the applicant has difficulty with household chores and struggles with constant pain in his neck and left shoulder. Dr Lim believes the physiotherapy treatment is appropriate and effective. Dr Lim notes that there is a deterioration of his symptoms after physiotherapy has been ceased. Dr Lim also notes that physiotherapy has been recommended by the applicant’s treating surgeons. In relation to the respondent submission that Dr Lim has not considered any alternative treatment it should be noted that the applicant has undergone surgery to his left shoulder and surgery to his neck. The applicant has also tried exercise physiology and rest. The applicant has also been prescribed painkilling medication and has been referred for pain management with Dr Ramachandran. Despite this, the applicant continues with significant ongoing pain and restriction of movement of his neck and left shoulder. He has developed depression for which he is receiving psychological treatment.
Dr Lim has also commented on the opinion provided by Dr Leaver. I agree with the comments made by Dr Lim in relation to the report from Dr Leaver. I place little weight on the opinion expressed by Dr Leaver who did not examine or consult with the applicant but rather based his report on selected information provided to him from the applicant’s treating physiotherapist, Mr Gildersleeve. I also agree with Dr Lim's opinion that Dr Leaver does not explain why he opines that physiotherapy is not reasonably necessary.
I find further support for my decision to place little weight on the opinion expressed by
Dr Leaver in the clinical notes from Mr Gildersleeve. In an attendance on 7 September 2023 Mr Gildersleeve discusses the IPC that he had with Dr Leaver with the applicant.
Mr Gildersleeve notes that he went through the report from Dr Leaver and explained to the applicant in detail what was and was not discussed. Mr Gildersleeve confirmed with the applicant that he had advised Dr Leaver that the applicant's condition deteriorates poorly when treatment is not provided (page 110 of the ARD).I also accept the applicant’s submission that it is unlikely that Mr Gildersleeve would have produced a further AHRR request if he believed the applicant's condition had plateaued and that he no longer required physiotherapy.
I also disagree with the respondent’s submission that Mr Gildersleeve had the opportunity of highlighting the areas of Dr Leaver’s report that did not accord with his recollection of the IPC in his report of 15 February 2024. In his report of 15 February 2024 Mr Gildersleeve confirms that on each occasion physiotherapy was stopped the applicant’s condition regressed, at times back to his initial state of capacity he experienced at the time of his injury.
Mr Gildersleeve also points out that during phases of treatment on occasions his left shoulder was aggravated which resulted in further regression. The report from
Mr Gildersleeve must be read in conjunction with the medical reports from the applicant’s treating general practitioner Dr Lim and the orthopaedic surgeon qualified by the applicant in this matter Dr Chien. Dr Lim and Dr Sheehan both record restricted range of movement of the left shoulder and the neck and the report from Dr Lim notes the following symptomatology as at 30 May 2024: “neck pain radiating down L shoulder, weakness in L arm, numbness in L hand, pins and needles in L hand, stressed, depressed, anxious, trouble sleeping, low motivation, trouble concentrating…constant neck and shoulder pain.”This report from the applicant’s treating doctor supports my finding that the applicant’s condition has not plateaued and he still requires physiotherapy treatment to alleviate his symptoms.
Much was made by the respondent about the range of movement figures recorded in the clinical notes and AHRR plans from Mr Gildersleeve. Whilst these measurements are relevant, the clinical notes also record complaints of pain, loss of strength and regression following periods when the applicant was not receiving physiotherapy. Mr Gildersleeve has recorded in the AHRR plan 19 dated 11 October 2023, the subject of this application, that when the applicant had breaks in his physiotherapy treatment his condition regressed to his pre-treatment levels. In this respect at the applicant's first visit with Mr Gildersleeve
he recorded the following range of motion of the applicant's left shoulder: adduction 80°, external rotation 80° with a catch at 70°, internal rotation 45°, forward flexion 90° and rotation 1/3. In the circumstances I find that the movements recorded in AHRR 19 which are as follows: adduction 170°, external rotation 70°, internal rotation 70°, forward flexion 170°, and rotation 3/4 somewhat unreliable and prefer the figures in relation to range of movement recorded by Dr Chien in his report of 4 September 2023 and also the range of movement figures recorded by Dr Lim in his report dated 30 May 2024. On 30 May 2024,
Dr Lim recorded the following range of movement: Cervical spine: flexion - half range, extension - quarter range, rotation to left - half range, rotation to right - three quarter range. In relation to the left shoulder: flexion 120° external rotation - half range. On 4 September 2023, Dr Chien recorded the following range of movement: Cervical spine – global restriction of range. In relation to the left shoulder - flexion was to 90° with extension of 40°, abduction was 80° and adduction was 30°, external rotation at 80° of abduction was 40° and internal rotation was 10. This report was prepared one month before the AHRR plan 19 was prepared by Mr Gildersleeve.I also note the figures for range of movement recorded by Mr Gildersleeve in AHRR 17, 18 and 19 are all the same and for this reason I place little weight on the range of movement figures contained in the AHRR plans from Mr Gildersleeve.
I do however accept the consistent comments recorded by Mr Gildersleeve in his AHRR plans and his substantive report dated 15 February 2024 that following breaks in physiotherapy, the applicant's condition deteriorates.
I agree with the respondent’s submission that in a case involving physiotherapy more weight should be placed on the opinions expressed by the physiotherapists. However, in the absence of a consultation and an examination performed on the applicant by Dr Leaver together with the clinical note from Mr Gildersleeve explaining to the applicant that Dr Leaver has not recorded everything that was discussed during the injury management consultation, I am not prepared to give the report from Dr Leaver much, if any, weight.
In all the circumstances, I do not find reliable evidence to question the treatment recommendations for the applicant made by Mr Gildersleeve. I find that Mr Gildersleeve's opinion is consistent with the opinions expressed by Dr Chien and Dr Lim who are the applicant’s treating doctors.
Having considered the whole of the evidence presented, I am comfortably satisfied that the applicant has discharged his onus of proving, on the balance of probabilities, that the physiotherapy treatment plan recommended by Mr Gildersleeve is reasonably necessary treatment for his ongoing neck and left shoulder pain.
In considering the matters referred to in Rose and Diab I find:
(a) The physiotherapy proposed by Mr Gildersleeve is appropriate treatment for the applicant’s neck and left shoulder. The recommendation is supported by Dr Chien and Dr Lim.
(b) In relation to the alternative treatment available to the applicant, no other alternative treatment has been suggested. I do however take note that the applicant has already undergone significant alternative treatment including painkilling medication, rest, exercise physiology, surgical procedures and cortisone injections. He has also come under the care of a pain management specialist. In his statement the applicant confirms that without further physiotherapy his condition deteriorates.
(c) The cost of the proposed physiotherapy is not in dispute.
(d) In relation to the potential effectiveness of the physiotherapy I accept the argument put forward by the applicant that due to breaks in his physiotherapy treatment since the injury was sustained the applicant and his physiotherapist have been unable to properly monitor the potential effectiveness of physiotherapy. Mr Gildersleeve confirms that as a result of the breaks in the applicant’s physiotherapy treatment his condition has deteriorated and as a result the actual potential effectiveness of physiotherapy treatment has but not been properly explored. The responded in their submissions noted that if there was a deterioration in the applicant's condition further physiotherapy may be appropriate. In this regard I note the most recent evidence before me in relation to the applicant’s condition are the clinical notes from Workers Doctors and an attendance by the applicant with general practitioner Dr Mo on 19 August 2024. On that day Dr Mo notes “chronic injury - worse since cessation of physiotherapy”.
Summary
Considering the whole of the medical evidence presented, I find that the physiotherapy proposed for the applicant by Mr Gildersleeve as referred to in the AHRR plan number 19 dated 11 October 2023 is reasonably necessary medical treatment as a result of the injury to the applicant on 21 September 2020.
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and the respondent will be ordered to pay for the cost of eight standard physiotherapy consultations and two case conference as proposed for the applicant by Mr Gildersleeve in his AHRR plan 19 dated 11 October 2023.
0