Laphos v All-Scale Tree & Garden Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Laphos v All-Scale Tree & Garden Services Pty Ltd [2024] NSWPIC 438
APPLICANT:	Chris Laphos
RESPONDENT:	All-Scale Tree & Garden Services Pty Ltd
MEMBER:	Anne Gracie
DATE OF DECISION:	14 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for compensation for medical or related treatment; whether work-related injuries to the applicant’s thoracic spine and lumbar spine had ceased; whether medical treatment recommended reasonably necessary as a result of an injury; Rose v Health Commission (NSW), Murphy V Allity Management Services Pty Limited, Kooragang Cement PtyLtd v Bates, Taxis Combined Services (Victoria) Pty Ltd vSchokman, Sutherland Shire Council v Baltica General Insurance Co Ltd, Diab v NRMA Limited and Mason v Demasi considered; Held – applicant entitled to compensation; medical treatment recommended is reasonably necessary as a result of the continuing effects of the injuries the applicant sustained during the course of his employment; respondent to pay the costs of the medical or related treatment.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery proposed for the applicant by Associate Professor Ghahreman (T9/10 posterior fusion) and the costs associated with that surgery and the lumbar facet joint injections and nerve injections as referred to in the surgical fee estimates dated 26 March 2024 are reasonably necessary medical treatments as a result of the injuries the applicant sustained during the course of his employment with the respondent on 31 August 2020. The Commission orders: 2. The respondent is to pay the costs of and incidental to the surgery proposed for the applicant by Associate Professor Ghahreman (T9/10 posterior fusion) and the costs associated with that surgery and the lumbar facet joint injections and nerve injections as referred to in the surgical fee estimates dated 26 March 2024 pursuant to s 60 of the Workers Compensation Act1987 and in accordance with the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Chris Laphos, is 52 years of age. The applicant was employed by the respondent as an arborist/tree surgeon in the capacity of employee and director.
The applicant sustained injuries during the course of his employment with the respondent on 31 August 2020. The injuries the applicant sustained to his lumbar spine and thoracic spine are not in dispute. The other injuries pleaded in the Application to Resolve A Dispute (ARD) to the cervical spine (neck) and depression, PTSD, pain syndrome, major depression disorder, anxiety and depression are not before me for the purpose of this application.
According to the applicant’s statement (page 19 of the ARD):
“33. On Monday 31 August 2020, I started work at the site around 8:00 AM. When I started work, I felt physically fit, I had not been doing any hard work on the weekend, just relaxing. I cut down one of the trees using a chainsaw and ropes to lower the tree limbs and any large branches.
34. At about 10:00 AM, I climbed the second tree, I cut one or two tree limbs using the chainsaw. My ladder for access when necessary (sic). I was wearing a harness connecting me to the tree for safety, as I was about to cut another tree limb the main trunk of the tree gave way below me. As the trunk fell, it pulled me backwards towards a steel fence behind me.
36. As I fell, I went back onto the steel fence behind me. The top steel railing of the fence struck the middle of my back. The whole tree fell on me, striking my chest and hitting my neck. The steel railing bent with the force of my fall. I was in extreme pain, and I think I was in shock for a few minutes.
37. A uniting caretaker at the site, Al Vermaak, and Alex carried me to the side of the building. I laid on the ground on my back for about 20 minutes, I was in a lot of pain.”
The applicant states that he attended his usual general practitioner at the Carlingford Court Medical Centre on the same day having been driven there by his wife. His usual general practitioner, Dr Anandakumar was not there so he saw another doctor in the practice,
Dr Chang.
The applicant’s statement then details the medical treatment he has received since the accident in respect of the injuries to his lumbar spine and thoracic spine including referral for X-rays, referral for CT scans, prescription of pain killing medication, referral to a physiotherapist, ultrasound guided steroid injection to L4/5 and the left facet of L5/S1 and referral to specialists by his treating general practitioner, Dr Anandakumar.
The applicant lodged his claim for workers compensation on 29 August 2023.
Frustrated with his failure to improve, the applicant went to see another general practitioner, Dr Kuzmanovski, on 20 September 2023. Dr Kuzmanovski referred the applicant for an MRI scan of his low back, mid back and neck. The applicant was also referred to an orthopaedic surgeon, Dr Rosenberg, a pain specialist Dr Weiss and a neurosurgeon Dr Khong. Dr Khong organised C6/7 perineural injections and a bone scan of the spine and a repeat MRI of the lumbar spine. The applicant also underwent a CT guided left C6/7 nerve root injection and an MRI scan of the lumbar spine as well as a whole-body scan in relation to his ongoing spinal pain from the injury.
At a consultation with Dr Khong on 26 February 2024, Dr Khong discussed surgery for the thoracic back pain in the form of a T9/10 pedicle screw fixation. Dr Khong also discussed steroid injections, analgesia and physiotherapy.
On 11 March 2024 the applicant saw Mr Sergides, neurosurgeon, on referral from
Dr Cvetkovski. Dr Cvetkovski is in the same practice as Dr Kuzmanovski. Dr Sergides recommended conservative treatment but also advised the applicant that T9/10 fusion surgery was reasonable.
On 26 March 2024, the applicant saw Associate Professor Ghahreman, neurosurgeon, on referral from Dr Cvetkovski. Associate Professor Ghahreman recommended a right periradicular injection and facet joint injection at L5 and surgery in the form of a fusion for the thoracic spine.
Associate Professor Ghahreman forwarded surgical fees estimates to the workers compensation insurer on 26 March 2024
On 21 February 2024 the workers compensation insurer issued a notice pursuant s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The s 78 did not dispute that the applicant sustained an injury at work on 31 August 2020 however the insurer did dispute that the applicant was entitled to ongoing compensation on the grounds that the applicant’s current incapacity and symptoms were not the result of the workplace injury that occurred on 31 August 2020 which included “a non-displaced fracture of the T9 spinal processus (sic). Fractured 10th rib. Mechanical derangement of the Cervical Thoracic and Lumbar Spine” (page four of the ARD).
On 22 April 2024, following an application for review made by the applicant on 8 April 2024, the insurer confirmed its decision to deny liability for the thoracic spine injury for weekly compensation and medical or related treatment on the basis that the applicant’s ongoing problems with his thoracic spine were due to age related changes and as such, the respondent maintained that the applicant no longer suffered from any ongoing incapacity referable to the injury on 31 August 2020. The respondent did not address liability in relation to the cervical spine or lumbar spine in this s 78 notice.
On 9 May 2024, the insurer issued a further section 78 notice denying liability in respect of the lumbar spine and the cervical spine. Liability was declined by the insurer on the basis of a report from Dr Wallace who opined that the applicant’s current spinal condition was not a result of the workplace injury.
The respondent denied liability in respect of the surgery proposed by
Associate Professor Ghahreman for the thoracic spine and the lumbar facet joint injections and nerve injections also recommended by Associate Professor Ghahreman.
In light of the denial of liability, the applicant has commenced these proceedings.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) The reasonable necessity of the proposed lumbar facet joint injections and nerve injections and the T9/10 posterior fusion and associated costs recommended by Associate Professor Ghahreman in his surgical fee estimates dated
26 March 2024 (pages 78 and 80 of the ARD), and
(b) Whether the proposed treatment is as a result of injuries the applicant sustained on 31 August 2020.

Matters not previously notified

At the commencement of the arbitration proceedings, the applicant made an application to amend the ARD at page six under the heading “Injury Description” to include the nature and conditions of the applicant’s work with the respondent and also rely on the disease provisions of s 4(b) Workers Compensation Act 1987 (1987 Act) in respect of an aggravation, acceleration, exacerbation and/or deterioration of a disease process in the applicant’s lumbar spine and thoracic spine. After hearing submissions from both parties, I rejected this application for the reasons recorded in the transcript. Primarily, the applicant did not raise these proposed amendments to the ARD at the preliminary conference and furthermore the respondent would have been prejudiced had I permitted the amendments sought by the applicant.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing before me on 17 July 2024.
Mr Boris Necovski, counsel instructed by Mr Martin Bell, solicitor, appeared for the applicant, Mr Chris Laphos, who was present with his support person Mr Bashir.
Ms Lyn Goodman, counsel instructed by Ms A Harvey, solicitor, appeared for the respondent. Ms Emma Sarhene attended on behalf of EML.
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) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents with the exception of the reports from Dr A Nair dated 23 September 2023, 20 October 2023 and 15 February 2024 which were not relied on and withdrawn by the respondent at the commencement of the arbitration hearing as they were in breach of Regulation 44 of the Workers Compensation Regulation 2016.

Oral evidence

No oral evidence was called at the arbitration. 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 relies on a detailed statement dated 10 May 2024 (page 19 of the ARD), a letter from the applicant to the insurer dated 8 April 2024 seeking a review of the s 78 notice (page 7 of the ARD), numerous radiology reports (pages 38 to 62 of the ARD), numerous treating doctors reports (pages 67 to 84 of the ARD) and clinical notes from Tan Hands Physio (page 63 of the ARD).

Respondent’s evidence

The respondent relies on the applicant’s claim form (page 1 of the reply), the s 78 notices and review notice issued by the insurer annexed to the ARD and the reply, the clinical notes produced by Carlingford Court Medical Centre (page 18 of the reply), treating doctor’s reports from Dr Rosenberg dated 11 October 2023 (page 14 of the reply) and Mr Sergides dated 11 March 2024 (page 16 of the reply), a file review report from Dr Wallace dated
15 January 2023 (page 70 of the reply) and a supplementary report from Dr Wallace dated 26 April 2024 (page 76 of the reply).

Applicant’s submissions

The applicant referred to the applicant’s statement and described the mechanism of injury.
The applicant submitted that the injuries are consistent with the fall.
The applicant summarised the radiology reports and the treating doctor’s reports. In particular, the applicant took me to the MRI scan dated 3 October 2023 which confirmed disc protrusions of the thoracic spine and lumbar spine. (page 51 of the ARD). The applicant took me to the reports of Dr Khong and Associate Professor Ghahreman and Mr Sergidis and confirmed the reports support the reasonable necessity of the treatment proposed by Associate Professor Ghahreman.
The applicant then referred to the clinical notes from the Carlingford Court Medical Centre. The applicant noted that the first entry on 31 August 2020 referrable to the fall recorded mid-low back pain following a fall from one to two metres in height. The applicant identified an internal inconsistency in the report from Dr Rosenberg. Dr Rosenberg formed the opinion that the applicant’s symptoms are now predominantly age related, however. Dr Rosenberg also acknowledged that the accident was significant, and the applicant had not had proper treatment. The applicant confirmed that Dr Wallace did not examine the applicant. The applicant did not particularly address the opinion expressed by Dr Wallace but noted that
Dr Wallace is not a spinal specialist, and his report was prepared on the review of documents that were not specifically identified in his reports.

Respondent’s submissions

The respondent confirms that the injuries to the thoracic and lumbar spine are not in dispute.
The respondent submits that the applicant has recovered from the effects of the injuries based on the reports from Dr Wallace and Dr Wallace’s assessment of the applicant’s clinical notes from the Carlingford Court Medical Centre.
The respondent submits that I would not be satisfied that the need for the surgery arises out of the injuries sustained in August 2020.
The respondents submits that there is a significant gap in the medical treatment afforded to the applicant between 2021 and 2023.
The respondent notes that there is no report or certificate from the applicant’s current treating general practitioner, Dr Kuzmanovski or from Dr Anandakumar from the Carlingford Court Medical Centre.
The respondent submits that the treating specialist reports relied on by the applicant are based on assumptions that are not borne out by the contemporaneous clinical notes in regard to a continuity of symptoms.
The respondent submits that the applicant has only had four physiotherapy treatments. This is incorrect. The applicant had five physiotherapy treatments. Following the first two physiotherapy sessions on 22 September 2020 and 29 September 2020, the Carlingford Court Medical Centre clinical notes record on 30 September 2020 (page 24 of the reply), that the applicant was experiencing improvement with lower back pain with physiotherapy however at that time the applicant did not continue physiotherapy treatment. A further entry in the clinical notes on 29 October 2020 (page 28 of the reply) is inconsistent with this history of improvement with physiotherapy. The clinical note on 29 October 2020 records that the applicant had no improvement with physiotherapy. The respondent points out that the applicant had not had any further physiotherapy between 30 September 2020 and 29 October 2020.The respondent notes there was a break in physiotherapy with one further session in February 2021 and two further treatments on 22 June 2021 and 29 June 2021. The respondent submits that the history of physiotherapy treatment post-accident provided to the treating medical specialists in relation to physiotherapy was therefore unreliable.
The respondent concedes that the radiology demonstrates a fracture to the thoracic spinous process at T9/T10.
The respondent points out that the applicant also complained of other issues when he saw his family doctor at the Carlingford Court Medical Centre in addition to reporting ongoing problems with his thoracic and lumbar spine. The respondent did not take this submission any further and I fail to see the relevance of this submission.
The respondent relies on the reports from Dr Wallace. The respondent submits that
Dr Wallace reviewed “all the material” and came to the conclusion that the applicant's condition had resolved (page 71 of the reply). Dr Wallace opines that the applicant's condition had resolved by February 2021. Dr Wallace based his opinion on his interpretation of the Carlingford Court Medical Centre clinical notes.
The respondent relies on the opinion expressed by Dr Rosenberg in his report dated
11 October 2023 (page 14 of the reply). Dr Rosenberg examined the radiology and concluded that there were age related changes present but no obvious nerve compression. Dr Rosenberg opines that the fracture of the 10^th rib and fracture of the T9 spinous process did not require any further treatment and were of “no concern”.
The respondent submits that the report from Mr Sergides dated 11 March 2024 recommends conservative treatment (page 16 of the reply).
The respondent submits that Dr Khong’s report dated 26 February 2024, which records “severe pain for over 3 years” is not borne out by the Carlingford Court Medical Practice clinical notes (page 70 of the ARD).
The respondent submits that the report from Associate Professor Ghahreman dated
26 March 2024 (page 75 of the ARD), recommends discectomy and fusion of the applicant’s cervical spine, lumbar peri radicular injections and facet joint injections for the lumbar spine, lumbo/ sacral fusion and then thoracic spine fusion. The respondent points out that the application before me is only in respect of the injections to the lumbar spine and the thoracic fusion surgery. The respondent notes that the report from Associate Professor Ghahreman’s does not support or comment on the applicant’s intention to undergo his treatment in a different order than the order recommended by Associate Professor Ghahreman.
The respondent submits that I would not be satisfied that, on the basis of Dr Wallace’s reports, who has considered the Carlingford Court Medical Centre’s clinical notes and also the reports of Dr Rosenberg and Mr Sergides and taking into consideration the large gap in the clinical notes where there is no medical treatment being sought by the applicant for his injuries that I would not be satisfied that the treatment claimed by the applicant is reasonably necessary and/or reasonably necessary as a result of the injury.

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) place 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 prosthesis, a registered physiotherapist, a chiropractor, an osteopathic, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(d) 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,
(f1) domestic assistance services,
(g) 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
(h) treatment or other thing prescribed by the regulations as medical or related treatment.”

The first question is therefore to determine whether the thoracic spine surgery and the lumbar spine injections proposed by Associate Professor Ghahreman are reasonably necessary treatment.
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. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA 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 determinate. 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”.
When considering the evidence and submissions in this matter, I note the following. I accept the applicant’s statement and his letter to the insurer seeking a review of their decision. Despite the respondent’s submission that there was an absence of medical attendances in relation to his injuries between 23 July 2021 and 13 February 2023, which I do not agree with, I accept the applicant’s statement and reports to the medical practitioners involved in his care that he continues with ongoing pain in his low back and thoracic spine.
In relation to the appropriateness of the proposed treatment, the applicant has provided three medical opinions from his treating doctors supporting the treatment.
In his report dated 26 February 2024 Dr Khong, neurosurgeon, states “For the treatment of his … thoracic back pain, surgery is reasonable” (page 70 of the ARD).
In his report dated 26 March 2024, Associate Professor Ghahreman, neurosurgeon, states
“He also has had significant discovertebral inflammation at T9-10 causing ongoing constant thoracic pain. Failed conservative management has lead (sic) him seeking surgical treatment for this. Surgery in the form of fusion may assist with his pain.
Furthermore, his lower back pain and right sided lower limb pain is arising from segmental injury to his lower back, specifically clinically, I believe there is evidence of an annular tear at the foramen at L5/S1 which is causing some right L5 radiculitis and right lower back and lower limb pain. Failing a right L5 periradicular injection and facet injection/radiofrequency, surgery in the form of an anterior lumbosacral fusion at L5/S1 will be reasonable and appropriate. I suggest that we proceed now with the treatment of the cervical spine first, followed by RF and injections in the lumbar region and then dependent on recovery can address the thoracic segmental pain” (page 76 of the ARD).
In relation to the respondent’s submission that I have no evidence before me to support the applicant’s claim to have the lumbar spine injections first and then proceed with the thoracic spine surgery, contrary to the medical timetable outlined by Associate Professor Ghahreman, I accept the applicant’s submission that this is a decision for the applicant as to the treatment options that have been offered to him. In the applicant’s statement he has consistently complained of severe pain in his thoracic spine and lumbar spine. When he went to see
Dr Kuzmanovski on 20 September 2023 after losing confidence in the advice he was receiving from Dr Anandakumar, he advised Dr Kuzmanovski that he had ongoing pain in his low spine, middle back and, to some extent his neck as a result of the fall (see paragraph 87 of the applicant’s statement on page 32 of the ARD). It is apparent from the applicant’s statement that his lower back and his thoracic spine were giving him the most symptoms in terms of pain.
In his report of 11 March 2024, Mr Sergides, neurosurgeon, states
“Chris presents with pain in his neck and thoracic and lumbar regions… He has seen Dr Kong (sic) neurosurgeon…A T9/10 posterior lateral fusion has also been offered and I think this is reasonable”. It should be noted that Mr Sergides recommended conservative treatment but did not discount the medical advice the applicant had received from Dr Khong but warned him of the risks involved with surgery.
When addressing the criteria of reasonableness as set out in Rose, the medical evidence referred to above confirms the appropriateness of the recommended treatment. In relation to the possibility of alternative treatment and its potential effectiveness I have considered the applicant’s statement and the medical evidence from the applicant’s treating doctors. The evidence confirms that the applicant has undergone numerous forms of alternative treatment that have not provided any ongoing relief for his thoracic spine and lumbar spine pain.
In relation to the cost of the procedures, Associate Professor Ghahreman has provided surgical fee estimates in relation to the cost of the injections and the thoracic fusion surgery. The surgical fee estimates confirm that the outlined fee structure is in accordance with the NSW Workcover Authority (as it then was) gazetted rates (page 79 of the ARD). In any event the respondent did not take issue with the surgical fees estimates.
The respondent relies on the reports from Dr Wallace. Dr Wallace did not consult with or examine the applicant. His first report dated 15 January 2024, is referred to as an ‘AGILE file review’. I have not been advised what an AGILE file review is. Dr Wallace states he ‘reviewed the documents in the file’ however he does not list the documents he had been provided with to enable him to prepare his AGILE file review. He states the applicant suffered injuries to his left 10^th rib and thoraco-lumbar spine as a result of a fall at work on
31 August 2020. He does not record that the applicant fell between two to four metres from a tree whilst performing duties as a tree removalist. He does not record that the applicant was wearing a safety harness which pulled him backwards towards a steel fence which was behind him. Dr Wallace does not record that the top steel railing of the fence struck the middle of the applicant’s back and the whole tree fell on him striking his chest and neck.
Dr Wallace does not record that the steel railing bent with the force of the fall. Dr Wallace does not record that the applicant lay on his back for 20 minutes after the fall.
The report from Dr Wallace appears to be based on the clinical notes from the applicant’s general practitioner, Dr Anandakumar from the Carlingford Court Medical Centre. It is not clear however if Dr Wallace was provided with a complete copy of the clinical notes.
Dr Wallace is of the opinion that the applicant’s injuries would have resolved within six months of the accident (page 71 of the reply). He bases this opinion on his assessment of the clinical notes from Dr Anandakumar. He states:
“I note that Mr Laphos was complaining of thoraco-lumbar spinal symptoms to his Local Medical Officer, Dr Anandakumar at Carlingford on 23 July 2021, some 10 months post-injury. He subsequently did not mention any further thoraco-lumbar spinal symptoms to his Local Medical Officer until February 2023, some 19 months later despite being reviewed by his Local Medical Officer on multiple occasions in the interim”.
His report attempts to convey to the reader that the applicant only commenced to experience thoracic back pain ten months after the injury.
This statement is clearly incorrect. Dr Wallace has failed to acknowledge the numerous references in the clinical notes to thoracic spinal pain and lumbar pain between the date of the accident and February 2023.In particular, the first entry on the date of the injury which reads
“31/08/2020 mid-low back pain after fall from 1.5-2 m height today… fell onto bar of fence-impact to left thoracic area…. Tender L lower thoracic, upper lumbar area… reason for visit: Fall Back pain, thoracic”
Dr Wallace also fails to record the numerous references to thoracic pain and lumbar spine pain after 31 August 2020. A close review of the clinical notes support complaints of pain and/ or prescription of pain killing medication on the following dates: 23 July 2021, (page 37 of the reply), 26 October 2021 (page 40 of the reply), 6 July 2022 (page 43 of the Reply), 26 October 2022 (page 29 of the reply) and 30 November 2022 (page 50 of the reply). The clinical notes support the issue of prescription medicine for pain relief including but not limited to, Panamax 500mg, Tramadol 50mg, Advil 200mg, Targin 5mg, Panadeine Forte 500mg Tramal,50mg, Osteomol 665, Mobic 15 mg and paracetamol 665mg-6 tablets per day. Dr Wallace does not record that the applicant had been referred to physiotherapy on three occasions in September 2020 and February 2021 and June 2021(page 63 of the ARD) and had undergone CT- guided facet joint injections into the L5/S1 facet joints for persistent lower back pain on 29 October 2020 and 2 November 2020 (pages 55 and 56 of the ARD).
I note the respondent’s submission that the applicant has only had four physiotherapy sessions. This submission is incorrect. The applicant has undergone five physiotherapy treatments. which is confirmed in the clinical notes from TanHands Physio (page 63 of the ARD). I agree with the applicant’s submission that the applicant’s statement confirms that the applicant found physiotherapy to be extremely uncomfortable and he could not tolerate the pain (page 27 of the ARD). This is supported by the clinical notes from TanHands that records after the first visit “T7+T8 really stuck at paraspinals/vertebrae…lots of guarding + spasm”. The clinical notes also record after the last visit in June 2021 that the applicant was “pain sensitive++ and apprehensive…worried about bone/vertebrae still being fractured…tense in lower back”. I accept the applicant’s submission that despite an entry in the Carlingford Court Medical Centre clinical notes on 30 September 2020 noting that the applicant had experienced some improvement in his pain following a physiotherapy session, improvement is not resolution and the applicant’s condition is variable.
Dr Wallace does not specifically address the medical expenses that are the subject of this claim, which are the T9/10 spinal fusion and the lumbar spine injections. In response to a question about hydrotherapy and pain management, Dr Wallace states, “Mr Laphos does not require any further treatment or medical review for any work-related condition at his spine” (page 71 of the reply).
Furthermore, in his supplementary report dated 26 April 2024 (page 76 of the ARD), Dr Wallace describes the injury the applicant sustained to his thoracic spine as a strain. This is clearly the wrong diagnosis. Dr Wallace has failed to identify the fracture to the thoracic spinous process at T9/T10.
I find the reports from Dr Wallace unreliable and of no assistance to me in determining this claim. I reject the opinion expressed by Dr Wallace.
The respondent also relies on a report from Dr Rosenberg dated 11 October 2023. The applicant was referred to see Dr Rosenberg by Dr Kuzmanovski. According to the applicant’s statement, he had become frustrated by Dr Anandakumar’s reluctance to properly investigate his complaints of pain and decided to see another general practitioner who had been recommended by a friend (page 32 of the ARD).
Dr Rosenberg takes a detailed history from the applicant. He notes that the thoracic spine is tender and the lumbar spine is stiff. He notes, post injury, the applicant returned to work and worked up until August 2023, albeit at a reduced capacity confirmed at paragraph 76 of the applicant’s statement (page 31 of the ARD).
Dr Rosenberg comments on the radiology and opines that “most of the findings are age-related” however he qualifies this opinion by stating “there is no doubt he had a significant trauma to his body as a result of the accident. He neglected it and has had no specific treatment”. Dr Rosenberg goes on to recommend physiotherapy, hydrotherapy and pain management.
The report from Dr Rosenberg is equivocal. He acknowledges that the accident was significant, and the applicant has not had proper treatment. It should be noted that the applicant has tried physiotherapy with little success. I note Dr Khong records in his report dated 28 November 2023 that the applicant “tried physiotherapy twice but this made his pain worse” (page 67 of the ARD). The applicant was also referred to a pain specialist Dr Weiss in October 2023 by Dr Kuzmanovski however I do not have the benefit of a report from
Dr Weiss before me. Dr Rosenberg does not specifically comment on the proposed surgery for the thoracic spine nor the injections for the lumbar spine but does recommend alternative treatment in the form of physiotherapy, that the applicant had tried, hydrotherapy and pain management. Dr Rosenberg also confirms that the applicant provided him with a history of pain and symptoms in the lumbar spine and thoracic spine for three and a half years.
Dr Rosenberg also noted that the previous lumbar spine facet injection provided some relief.
In all of the circumstances, I do not find reliable evidence to question the treatment recommendations for the applicant made by Associate Professor Ghahramen. I find that Associate Professor Ghahreman's opinion is consistent with the opinions expressed by
Mr Sergides and Dr Khong and I prefer those opinions to the opinions expressed by
Dr Wallace and Dr Rosenberg. Furthermore, Dr Khong has recorded in his report dated
28 November 2023, that the left L5/S1 facet joint injection that was carried out on
2 November 2020 provided some relief (page 67 of the ARD)
The respondent’s case is largely based on the applicant’s clinical notes from the Carlingford Court Medical Centre and Dr Wallace’s assessment of those clinical notes. The respondent submits that there is a gap in the clinical notes between July 2021 and February 2023, some 19 months, where there are no recorded complaints of lumbar or thoracic pain. Based on this, Dr Wallace opines that the applicant’s injuries have resolved and any symptoms that he is now experiencing are due to age related changes. Dr Wallace did not examine or consult with the applicant. He did not have the benefit of asking the applicant about his symptoms and pain levels during this period. The clinical notes demonstrate the continued prescription of pain killing medication during the 19-month period. Read in conjunction with the applicant’s statement it is apparent that the applicant was losing confidence in the treatment he was receiving from Dr Anandakumar. In light of this I do not consider the gap in the reporting of symptoms by the applicant to Dr Anandakumar significant nor fatal to the applicant’s claim for the medical treatment he is seeking in this claim. Upon my reading of the clinical notes, the gap in treatment for his injuries that the respondent relies on is only for a period of approximately eight months between the 26 October 2021 when the applicant was prescribed Osteomol and paracetamol, two tablets, three times a day and on
5 July 2022 when the applicant’s prescription for Osteomol and paracetamol was confirmed by Dr Anandakumar. There is no evidence before me that the pain killing medication was prescribed for any other condition.
I also note the caution that should be exercised when considering inconsistencies between a party’s evidence and medical histories in clinical notes as discussed by Basten JA in the case of Mason v Demasi [2009] NSWCA 227.
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 proposed thoracic surgery and lumbar injections are reasonably necessary treatment for his long-standing thoracic pain and lumbar pain.
It is now necessary to consider whether there is a material contribution between the injuries to the applicant on 31 August 2020 and the treatment proposed by Associate Professor Ghahreman.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Roche DP, stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of the injury (see Taxis CombinedServices (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] to [55]. That is, she has to establish that the injury materially contributed to the need for the surgery.”
The injuries the applicant sustained to his lumbar spine and thoracic spine are not in dispute. I have rejected the opinions expressed by Dr Wallace and Dr Rosenburg that the pain and symptoms that the applicant continues to experience are due to age related changes. In rejecting those opinions, I have no difficulty in finding a material contribution between the injuries the applicant sustained to his thoracic spine and lumbar spine on
31 August 2020 and the thoracic surgery and lumbar injections proposed by Associate Professor Ghahreman.

SUMMMARY

Considering the whole of the medical evidence presented I find the surgery proposed for the applicant by Associate Professor Ghahreman (T9/10 posterior fusion and the costs associated with that surgery and the lumbar facet joint injections and nerve injections as referred to in the surgical fee estimates dated 26 March 2024 are reasonably necessary medical treatments as a result of the injuries the applicant sustained during the course of his employment with the respondent on 31 August 2020.
The respondent is to pay the costs of and incidental to the surgery proposed for the applicant by Associate Professor Ghahreman (T9/10 posterior fusion and the costs associated with that surgery and the lumbar facet joint injections and nerve injections as referred to in the surgical fee estimates dated 26 March 2024 pursuant to s 60 of the 1987 Act and in accordance with the workers compensation gazetted rates.

[2024] NSWPIC 438

14 August 2024