MacFarlane and TNT Australia Pty Ltd (Compensation)
[2021] AATA 2239
•12 July 2021
MacFarlane and TNT Australia Pty Ltd (Compensation) [2021] AATA 2239 (12 July 2021)
Division:GENERAL DIVISION
File Number: 2015/6532
Re:Malcolm MacFarlane
APPLICANT
AndTNT Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 July 2021
Place:Brisbane
I affirm the reviewable decision of the respondent dated 2 November 2015.
...........................[SGD].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery – aggravation of pre‑existing degeneration within lumbar spine – whether medical treatment obtained in relation to injury – whether treatment reasonable is reasonable in the circumstances – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)CASES
Capital Territory Health Commission v Cavanagh [1978] FCA 5
Comcare Australia v Rope (2004) 135 FCR 443; [2004] FCA 540
Jorgensen and Commonwealth, Re (1990) 23 ALD 321Lock and Comcare (Compensation), Re (2018) 163 ALD 361
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 July 2021
INTRODUCTION
This is an application for review of a decision of the respondent dated 2 November 2015.
On 14 January 2009, Mr Malcolm MacFarlane (“the applicant”) suffered an injury to his back when he was lifting a 40-kilogram carton into the back of a truck (“the 2009 back injury”).
The applicant suffered the 2009 back injury in the course of his employment as a delivery driver with TNT Australia Pty Ltd (“the respondent”). The injury was an aggravation of a “lower back strain” suffered by the applicant in the course of his employment with the respondent on 11 July 2008. On 3 April 2009, the respondent quite properly accepted liability to pay compensation for the 2009 back injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
The applicant seeks surgical treatment for the 2009 back injury, namely a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery (“the proposed surgery”). I have to decide whether the respondent is liable to pay for the cost of such surgical treatment pursuant to section 16 of the Act. I must determine whether the surgical treatment that the applicant is seeking is (a) to be obtained in relation to the injury, and (b) reasonable for him to obtain in the circumstances. Further, if I determine that the respondent has such a liability, I must consider whether the amount of compensation for the surgical treatment is appropriate to that treatment.
CLAIM HISTORY
On 27 January 2009, the applicant lodged a claim for workers’ compensation for a “BACK INJURY (LOWER)”, being the 2009 back injury.[1] On 15 April 2011, the applicant also lodged a claim for compensation in respect of a psychiatric condition as a sequela of the 2009 back injury.[2]
[1] Exhibit A, T-Documents for 2015/6532, T5.
[2] Exhibit A, T-Documents for 2017/4566, T4.
The applicant received compensation for medical treatment or incapacity for work until 7 December 2010. The payment of compensation ceased because the respondent made a determination on that date that the applicant “ceased to suffer from the effects of the compensable injury on 7th December 2010” and that there was no longer any present liability for the respondent to pay compensation under sections 16 and 19 of the Act in respect of the 2009 back injury.
On 17 January 2011, the respondent affirmed its decision of 7 December 2010.
On 9 July 2012, following an application to this Tribunal, the decision of the respondent dated 17 January 2011 was set aside and substituted by consent of the parties pursuant to section 34D of the AAT Act with a decision that:[3]
(a)Pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), the respondent is liable to pay compensation to the applicant for incapacity resulting from ‘aggravation of pre-existing degeneration with lumbar spine’, date of injury 14 January 2009, from 8 December 2010 to the present in accordance with medical certification.
(b)From 1 May 2012, the applicant will undertake a rehabilitation program and return to work plan.
(c)Pursuant to section 16 of the SRC Act, the applicant is entitled to receive compensation for the cost of medical treatment obtained in relation to the Injury from 8 December 2010 upon provision of accounts/receipts.
(d)Pursuant to sections 24 and 27 of the SRC Act, the applicant is entitled to receive compensation for a 10% whole person impairment resulting from the Injury, in the total amount of $30,000.00.
[3] Exhibit P.
The respondent subsequently issued four reviewable decisions in respect of the applicant’s claims as follows:
(a)On 2 November 2015, that the applicant was not entitled to compensation under section 16 of the Act for the proposed surgery in respect of the 2009 back injury.
(b)On 12 July 2017, that the respondent was, since 12 May 2017, not liable to pay compensation under sections 16 and 19 of the Act in respect of the 2009 back injury.
(c)On 17 July 2017, that the respondent was, since 24 May 2017, not liable to pay compensation under sections 16 and 19 of the Act in respect of the applicant’s psychiatric condition.
(d)On 7 September 2017, that the applicant was not entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Act in respect of the psychiatric injury.
The applicant made an application to this Tribunal for the review of the above four reviewable decisions. On 21 September 2020, I issued the following decisions:
(a)I set aside the decision under review dated 12 July 2017 and substitute a decision that the applicant’s lumbar spine condition continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the 2009 back injury.
(b)I set aside the decision under review dated 17 July 2017 and substitute a decision that the applicant suffers from a Major Depressive Disorder condition which continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the Major Depressive Disorder condition.
(c)I affirm the decision under review dated 7 September 2017, being a decision that the respondent was not liable to pay compensation to the applicant for permanent impairment under section 24 of the Act in respect of the applicant’s psychiatric condition.
In respect of the respondent’s reviewable decision on 2 November 2015, that the applicant was not entitled to compensation under section 16 of the Act for the proposed surgery, I remitted the decision to the respondent under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) for reconsideration within 60 days.
At paragraph 308 of my reasons for decision dated 21 September 2020, I set out the following conclusion regarding the proposed surgery:
While I am minded to decide that the proposed surgery is reasonable, I have decided to remit the application no. 6532 of 2015 to the respondent for reconsideration under section 42D of the AAT Act. An up-to-date estimate of medical costs needs to be provided to the respondent for a number of reasons. Dr McEntee indicated that it would be necessary for him to make a final assessment including imaging and other tests before deciding whether surgery is warranted. The estimates of costs that were provided by the applicant do not include post-operative expenses. There is a need for the applicant to undertake any necessary physiotherapy treatment prior to and after undergoing surgery and the costs thereof need to be disclosed; these costs must be addressed in the decision. There is also the chance that by exhausting physiotherapy as a non-surgical treatment option, the applicant’s condition may improve so much that he no longer needs to undergo the proposed surgery; I note the expert opinions before the Tribunal vary as to the likely benefit, if any, from undergoing physiotherapy treatment. There is also a need to consider the impact, if any, of the COVID‑19 pandemic on the cost of any proposed medical treatment and the applicant’s ability to undertake that treatment. I would hope that the respondent would act as expeditiously as possible to ensure that the applicant receives the reasonable medical treatment to which he is entitled. There has in the past been some unfortunate process delays in responding to requests for medical treatment. The application is therefore remitted to the respondent under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) to reconsider its decision within 60 days. I would sincerely hope that a decision could be made earlier.
The respondent issued its reconsideration decision on 5 November 2020 (“the reconsideration decision”) in which it affirmed the reviewable decision dated 2 November 2015, denying liability for the proposed surgery. Given the respondent affirmed the reviewable decision, the proceeding is resumed pursuant to section 42D(8) of the AAT Act.
MEDICAL HISTORY
In my reasons for decision dated 21 September 2020, I described in detail the applicant’s treatment history and the medical opinions of the treating doctors. It is necessary to restate those facts which concern the 2009 back injury and the proposed surgery.
After seeking treatment from Dr George Bertsos, General Practitioner, on 19 January 2009, the applicant was referred by the respondent to Dr Peter Boys, Orthopaedic Surgeon, for an independent medical examination. That independent medical examination took place on 4 March 2009 and Dr Boys gave his report on that same day.
Dr Boys opined that the applicant’s lifting activity at the time of the 2009 back injury had caused an aggravation of an existing degenerative condition being, “narrowing of the L5/S1 disc space and associated facet joint arthrosis” and “degeneration at the L4/5 level within the lumbar spine”.[4] Dr Boys expected the aggravation to resolve over a period of “some 3 to 4 months” and was “likely to be temporary”. Dr Boys did, however, qualify this, remarking, “The persistence of symptoms thereafter however may indicate the presence of specific impairment related to described injury.”
[4] Exhibit A, T-Documents for 2015/6532, T7, p. 35.
On 20 May 2009, Dr George Ioannou treated the applicant for the 2009 back injury by administering facet block injections in the applicant’s spine.[5]
[5] Exhibit A, T-Documents for 2015/6532, T10.
Dr Cleaver’s proposal for surgery
On 2 July 2009, Dr Neil Cleaver, Orthopaedic Surgeon (spine), reported that the facet block injections “did nothing to relieve [the applicant’s] symptoms.” Dr Cleaver requested that the respondent approve the applicant to undergo surgery in the form of an “InMotion disc replacement at L4-5 and an anterior lumbar interbody fusion at L5-S1”.[6] On 14 September 2009 Dr Cleaver provided further information[7] to the respondent upon its request.[8]
On 7 October 2009, the respondent engaged Dr Boys for a supplementary report addressing the proposed surgery.
[6] Exhibit A, T-Documents for 2015/6532, T11.
[7] Exhibit A, T-Documents for 2015/6532, T13.
[8] Exhibit A, T-Documents for 2015/6532, T12.
On 9 October 2009, Dr Boys provided a supplementary report[9] in which he gave the following opinions: the proposed surgery is not reasonably required in relation to the 2009 back injury; L4-5 lumbar disc replacement surgery and associated anterior lumbar interbody fusion at L5-S1 does not constitute acceptable treatment for the condition; and “Ongoing total incapacity for employment would be the most probable outcome following the types of procedures advised.”
[9] Exhibit A, T-Documents for 2015/6532, T15.
Reports of Dr Cleaver
On 28 October 2009, Dr Cleaver issued a further report in which he reiterated his support for the proposed surgery and expressed concerns that the respondent had consulted a general orthopaedic surgeon and not a spinal surgery sub-specialist orthopaedic surgeon.[10] Dr Cleaver requested approval for an injection of epidural steroids.
[10] Exhibit A, T-Documents for 2015/6532, T18.
On 1 December 2009, the applicant underwent a procedure “for an injection of epidural steroids to the L4-5 interspace.” The procedure was not a success; further complications arose because of the injection. In his letter dated 18 December 2009, Dr Cleaver reported that:
The procedure was complicated by a puncture to the dura, giving an aspiration of cerebrospinal fluid [CSF]. The treatment for this complication was to withdraw the needle to make sure that no intrathecal injection took place, to change the angle by a couple of millimetres and to perform the procedure. This went ahead without complication.
The next day, [the applicant] presented to the Emergency Department of Allamanda Private Hospital with a severe headache, and this would have been because of the CSF leak. A CSF leak normally resolves with 24 hours of simple bed rest. However, with [the applicant], it didn’t and he required significant analgesia. Because of this failure to respond to conservative management, it was deemed necessary to perform a blood patch … this appeared not to work in [the applicant’s] case as he had 3 or 4 days in hospital in considerable discomfort and neck stiffness…
[The applicant] was given a presumptive diagnosis of arachnoiditis, which is an idiosyncratic reaction to a preservative in the steroid which causes considerable pain and the treatment for that is controversial, but I decided it was judicious to commence a course of Dexamethasone steroid treatment.
[The applicant] made a tremendous recovery on the first day of having Dexamethasone treatment. However, on day 2, he relapsed and was symptomatic once again. It was thus considered judicious, after consultation with a neurosurgeon, to obtain an MRI scan of his brain.[11] It was indicated to me that an MRI scan of the brain, in the presence of a continued CSF leak, shows findings that can explain these symptoms… [the applicant] had increased uptake in the dura of the brain indicative of continued CSF leak.
Therefore on 10 December 2009, he went back to theatre to have a repeat blood patch. This provided [the applicant] with one day’s relief and then his headache returned. I asked Dr Simon Broadly, neurologist, to review [the applicant] and he commenced the patient on caffeine. That had a dramatic effect and resolved the headache and [the applicant] was discharged from hospital on 15 December 2009.
[The applicant] represented to Accident & Emergency at Allamanda Hospital on 16 December 2009 and was admitted under my care in relation to intractable back pain. [The applicant] has had a very complicated admission to hospital with pain that is not able to be controlled with conservative measures. Every attempt to discharge him from hospital has failed, he has either not made it past the door or come back into hospital 2 days later with severe pain.[12]
[11] See exhibit A, T-Documents for 2015/6532, T21.
[12] Exhibit A, T-Documents for 2015/6532, T22.
Dr Cleaver requested that the applicant undergo the proposed surgery the following day, 19 December 2009. The surgery did not take place 19 December 2009.
Report of Dr Day
On 29 December 2009, the respondent wrote to Associate Professor Dr Greg Day to request a report in relation to the applicant’s injuries and the proposed surgery.[13] In its letter to Dr Day, the respondent remarked that:
Dr Cleaver further has requested he perform L4-5 & L5-S1 al anterior lumbar interbody fusion as per his report 18th December 2009, [the respondent] has advised this procedure was also not approved however this was based on the lack of opportunity for review prior to approval and the fact that Dr Cleaver was due to commence leave 1 day post surgery and our concern for ongoing care of the patient due to his initial reactions and complications from the injections.
[13] Exhibit A, T-Documents for 2015/6532, T23.
Prior to his examination with Dr Day on 11 January 2010, the applicant was diagnosed with deep venous thrombosis (“DVT”). The respondent provided to Dr Day a medical certificate and comments from the applicant’s rehabilitation provider regarding his stay in hospital and the applicant’s recent DVT.[14] The rehabilitation provider’s comments reported that the applicant was still suffering some effects of DVT and his back was a “bit sore this morning but no big drama”. The respondent requested that Dr Day give his opinion on whether the applicant’s DVT was directly related to the 2009 back injury.
[14] Exhibit A, T-Documents for 2015/6532, T24.
On 15 January 2010, Dr Day gave his report.[15] Dr Day reported that the applicant had been prescribed OxyContin following the complications with the steroid injection procedure. Dr Day reported that the applicant stated the following: that his condition had worsened in the week before the assessment; that his DVT had caused a swelling in his right leg; and that he had daily headaches. Dr Day opined that the applicant had no present capacity to work and that that would be the case “in the near to medium future”. Dr Day diagnosed the applicant with:
(a)Aggravation of pre-existing lumbar spondylosis;
(b)Blood within the CSF in the lumbar spine with a recent increase in symptoms; and
(c)Right sided deep venous thrombosis.
[15] Exhibit A, T-Documents for 2015/6532, T26.
As to the proposed surgery, Dr Day remarked that there is generally a slight risk of DVT, and in the context of the applicant’s history of DVT, the surgery carries a significant risk of causing further DVT. Dr Day opined that “there is an absolute contraindication to performing anterior lumbar surgery as [the applicant] was only recently diagnosed with deep venous thrombosis and requires Warfarin”. Dr Day observed that:
It is recommended by the manufacturers of lumbar disc replacements that all patients have 6 months of rehabilitation and still have significant symptoms after that period, before surgery is contemplated.
Dr Day considered that the applicant’s iatrogenic conditions of blood in the CSF and DVT were related to treatment and opined that, “The cause of the DVT is probably due to prolonged recumbency following the epidural steroid injection on 1 December 2009”. Dr Day further remarked that it was no longer possible to state whether aggravation continues because the dominant features of the applicant’s condition relate to the complications on 1 December 2009.
Dr Day remarked that the applicant had reported that:
…he was involved in a motorbike accident on 2 May 1988. The accident was work related but he has not claimed under Worker's Compensation. He stated that he was wearing a helmet and was knocked out. He suffered a fracture of the right foot, a laceration to the left knee, a fractured nose and chipped teeth.
Dr Day deferred his opinion on whether the applicant suffered from arachnoiditis until a further MRI could be undertaken after a further six months due to the presence of blood in the applicant’s subdural or subarachnoid space.
Further investigations
On 29 January 2010, Dr Cleaver wrote to the respondent to report that the applicant had been readmitted to hospital with severe lower back pain.[16]
[16] Exhibit A, T-Documents for 2015/6532, T27.
On 21 May 2010, an MRI was undertaken of the applicant’s lumbar spine.[17] It was reported that minor degenerative changes were noted at the L4/5 disc and in the lower lumbar facet joints and “No focal changes are seen to suggest arachnoiditis or an extra-dural collection”.
[17] Exhibit A, T-Documents for 2015/6532, T28.
On 24 June 2010, Dr Paul Licina, Orthopaedic Surgeon, gave a report to Dr Kevin Chiu, General Practitioner, in which he remarked that the applicant had “had a bad time” with rehabilitation and exhibited “a number of positive signs of abnormal illness behaviour”.[18] Dr Licina opined that “The degermation at L4-5 is relatively minor and I am not convinced that fixing this will get rid of all his problems”.
[18] Exhibit A, T-Documents for 2015/6532, T29.
On 26 July 2010, Dr John Sing, Specialist Vascular Surgeon, wrote to Dr Chiu to report that the applicant complained of “burning from his back down into his left foot on walking”.[19] Dr Sing suggested that the applicant see Dr Cleaver again as he suspected it was a spinal problem, or alternatively, disuse atrophy. Dr Sing recommended the applicant continue to take Folic acid to maintain his homocysteine levels.
[19] Exhibit A, T-Documents for 2015/6532, T30.
On 16 August 2010, Dr Neil Cochrane, Consultant Neurosurgeon and Spinal Surgeon, gave a report to Dr Chiu.[20] In his report, Dr Cochrane remarked that he:
… would offer [the applicant] a percutaneous minimally invasive transforaminal lumber [sic] fusion at L4/5. This can be done from the back. I don’t believe he needs surgery at any other level of the lumbar spine at the stage. This would alleviate the fact-based pain syndrome and disc-based pain at L4/5…
[20] Exhibit A, T-Documents for 2015/6532, T31.
On 23 August 2010, Dr John Cameron, Neurologist, performed muscle sampling on the applicant’s right lower limb.[21] Dr Cameron commented that “The EMG study of the right lower limb was normal, suggesting no evidence of motor root disturbance over an L4/5/S1 distribution”. Dr Cameron also conducted nerve conduction studies on the applicant, the results of which he commented were “normal”.[22]
[21] Exhibit A, T-Documents for 2015/6532, T32.
[22] Exhibit A, T-Documents for 2015/6532, T33.
On 25 August 2010, the respondent requested that Dr Licina, Dr Cameron and Dr Cleaver provide further reports as to the applicant’s condition and treatment.[23]
[23] Exhibit A, T-Documents for 2015/6532, T34-T36.
Report of Dr Cameron
On 30 August 2010, Dr Cameron gave his report.[24] Dr Cameron, in providing a history of the applicant’s condition, remarked that on review examination in July 2010 he:
… could not find any evidence of neurological disturbance in [the applicant’s] lower limbs, particularly to suggest nerve root or spinal cord disturbance. I suspected then that there were a number of psychological issues persisting, complicating [the applicant’s] recovery… I can find no evidence of any structural problem on his MRI study to account for his ongoing symptoms.
[24] Exhibit A, T-Documents for 2015/6532, T37.
Dr Cameron recommended the applicant undergo a “gradual condition exercise programme with encouragement from a psychologist and occupational therapist. He needs to remain on Endep”. Dr Cameron opined that the applicant “has no surgically treatable condition in his lumbar spine”.
Further report of Dr Cleaver
On 7 September 2010, Dr Cleaver gave his further report.[25] Dr Cleaver reported the applicant’s diagnosis as “discogenic back pain secondary to degermation at the L3-4 and L4-5 discs, with radiculitis in the right leg”. As to the nerve conduction studies undertaken, Dr Cleaver opined that they are “essentially useless, as they did not include electromyographic studies, which are required for the diagnosis of radiculopathy. I reiterate my thoughts on the fact that nerve conduction studies with EMG’s are required”. Dr Cleaver opined that the effects of the 2009 back injury are ongoing and likely to be permanent. Dr Cleaver reported that he was not aware of any non-organic or psychosocial factors impeding the applicant’s recovery.
[25] Exhibit A, T-Documents for 2015/6532, T38.
Report of Dr Cochrane
On 8 September 2010, the respondent requested that Dr Cochrane provide a further report.[26]
[26] Exhibit A, T-Documents for 2015/6532, T39.
On 13 September 2010, Dr Cochrane gave his further report in two parts.[27] Dr Cochrane provided his diagnosis of the applicant’s condition as “degenerative disc disease and facet joint arthropathy at L4/5 level. This causes bilateral sciatica and low back pain”. Dr Cochrane reported that the applicant’s walking pattern was “consistent with the back and spinal pain, representing a limping or antalgic gait pattern”. Dr Cochrane opined that, while facet joint block injections would be unlikely to be curative, they could assist from a diagnostic perspective. Dr Cochrane concluded his report by stating that “it is my opinion that surgery as mentioned in the accompanying letter to [the applicant’s GP] (16 August 2010) is the appropriate treatment option at [this] stage”. Dr Cochrane opined that the effects of the 2009 back injury had not ceased and that he did not believe that any pre-existing condition of the applicant had overtaken the effects of the 2009 back injury. Dr Cochrane did not consider there to be any non-organic or psychosocial factors hindering the applicant’s recovery. Dr Cochrane requested approval to perform “L4/5 minimally invasive transforaminal lumbar interbody fusion” surgery.[28]
[27] Exhibit A, T-Documents for 2015/6532, T40-T41.
[28] Exhibit A, T-Documents for 2015/6532, T42.
Report of Dr Lucina
On 26 October 2010, Dr Licina gave his further report.[29] Dr Licina’s diagnosis of the applicant’s condition was “discogenic low back pain with a functional component”. Dr Licina remarked that the applicant had very little movement in his back and a number of signs of abnormal illness behaviour, and the imaging “showed only minor degeneration of the L4-5 disc but no real significant abnormality”. Dr Licina reported that he “could find no evidence that the incident of 14 January 2009 has significantly altered [the applicant’s] condition and therefore it would be reasonable to consider that it has ceased”. Dr Licina considered that the applicant’s current physical condition “would have occurred regardless of his incident of 14 January 2009”. Dr Licina did not feel that surgery had a role to play in the applicant’s treatment.
[29] Exhibit A, T-Documents for 2015/6532, T43.
Supplementary opinion of Dr Cameron
On 12 November 2010, the respondent sought a supplementary opinion from Dr Cameron in regard to whether the applicant’s condition involved pre-existing degenerative changes.[30] The respondent directed Dr Cameron’s attention to a number of previous medical reports from other specialists, including a report with respect to a previous claim, and also to the applicant’s 1988 motor vehicle accident for which he had not made a compensation claim.
[30] Exhibit A, T-Documents for 2015/6532, T44.
On 15 November 2010, Dr Cameron gave his supplementary opinion.[31] Dr Cameron did not consider that the applicant had disclosed a pre-existing condition that was relevant to the applicant’s current claim and remarked that, despite there having been a motor vehicle accident, there was no mention of back injury. Dr Cameron opined that the 2009 back injury had resolved and remarked that the applicant “has no residual neurological findings to suggest any ongoing disturbance related to his lumbar spine apart from his complaints of pain and abnormal illness behaviour”.
[31] Exhibit A, T-Documents for 2015/6532, T46.
Further report of Dr Cochrane
On 22 November 2010, in response to a request from the respondent on 12 November 2010, Dr Cochrane gave his further report.[32] In his report, Dr Cochrane concurred that the applicant’s claim was “based on an alleged injury which may have caused an exacerbation of a pre-existing condition but is one of a number of potentially relevant injuries”. Dr Cochrane remarked that it was “virtually impossible to accurately determine the degree of pre-existing symptoms given there is recorded history of potentially relevant injury but no volunteered information provided to me by [the applicant]”. Dr Cochrane further remarked:
… I do believe that there has been an injury or series of injuries affecting the L4/5 spinal interspace. There may be a factor of degeneration from a series of minor injures [sic] predating employment with [the respondent]. There has been concordant provocative discography to confirm disc failure. This condition is in distinction to a simple degenerate process which would not typically involve one spinal level only with normality at adjacent levels…
I believe this man still suffers significant pain yet can concede that the apparent disability may be exaggerated due to functional overlay. I note inconsistent signs and abnormal and exaggerated pain behaviour as documented by Dr Paul Licina. I cannot sensibly comment if the ongoing effects are due to a pre-existing degree of spinal pain or due to the apparent work-related exacerbation alleged by the [applicant].
[32] Exhibit A, T-Documents for 2015/6532, T47.
Report of Mr Singleton
The respondent referred the applicant to Mr Drew Singleton, who is a pain management physiotherapist.
On 3 December 2012, Mr Singleton gave his report to the respondent regarding the applicant’s referral to the “COR Pain Management Program and for Back Rehabilitation”.[33] Mr Singleton reported that the applicant said he had trialled physiotherapy and hydrotherapy without success. Mr Singleton conducted a physical examination and observed that the applicant had some limited range of motion in his lumbar spine flexion and extension, and with his lumbar spine lateral flexion to both sides. Mr Singleton reported “L4/5 Allodynia and Hyperalgesia. Some somatic influence L43/4 [sic] and L5/S1”. Mr Singleton also quoted an email from an exercise physiologist, Ms Donna McCook, which recounted an incident during an exercise component during the rehabilitation program undertaken by the applicant. While the applicant was attempting to adjust pillows on a physiotherapy table, the bar which is used to adjust the head of the plinth was moved and caused the head of the bed to drop suddenly by about five degrees. Ms McCook recounted that the applicant expressed that he experienced some discomfort and did not continue the exercise. Mr Singleton noted that, following that incident, the applicant did not complete the final day of the rehabilitation program.
[33] Exhibit A, T-Documents for 2015/6532, T52.
Mr Singleton, in his conclusion, observed that the applicant’s pain appeared “nociceptive, and directly related to his pathology associated with the long term lumbar spine pathology and associated complaint”. Mr Singleton also remarked that there appeared to be “severe psycho-social aspects” influencing the applicant’s experience of pain. Mr Singleton opined that the applicant’s physical condition “appears that of functional weakness… and a lack of effective ergonomic and self-management strategies” to improve his presentation. Mr Singleton recommended the applicant re-commence a supervised, functional exercise program for eight to twelve weeks with hydrotherapy and exercise.
Within the report of Mr Singleton is a section titled “Pain Specialist Review” containing a report from Dr Graham Rice, Pain Specialist, Consultant Psychiatrist and Anaesthetist.[34] Dr Rice remarked that the applicant described constant low back pain and that too much physical activity including walking, lifting and bending made his pain worse, while lying down reduced his pain. As to the applicant’s mood, Dr Rice remarked that the applicant said he was “not really depressed, but frustrated by what he cannot do and he cannot see a positive future”. Dr Rice also remarked that the applicant consults monthly with Mr Robert Hayes, Psychologist, and the applicant felt this was of some assistance. Dr Rice suggested a reduction in dose of the applicant’s opioid pain killers and an increase in his antidepressants.
[34] Exhibit A, T-Documents for 2015/6532, T52, pp. 162-163.
Report of Dr Edwards
On 2 July 2013, Dr Graeme Edwards, Specialist in Occupational and Environmental Medicine, provided a report to the respondent following an assessment of the applicant on 8 May 2013.[35] Dr Edwards reported that the applicant advised him that he considered the 3 December 2012 report by COR rehabilitation[36] “appalling” and the applicant suggested that his history and name had been confused with another examinee. Dr Edwards remarked that there was “significant evidence of a psychological disorder, or at least significant interpersonal conflict” at the time of the 2008 back injury. Dr Edwards observed that throughout the course of events in 2008 and 2009, the applicant’s history was “characterised by major biopsychosocial features that meant that he was hypersensitive and hyper-vigilant”. Dr Edwards opined this would have “profoundly influenced his presentation to attending practitioners”, along with his “interaction with work, his perceptions of “work”, and in particular, his perception of those individual’s [sic] in a position of authority concerning his safe deployment at work”. Dr Edwards recommended a forensic assessment of the contemporaneous medical records by an independent psychiatrist.
[35] Exhibit A, T-Documents for 2015/6532, T53.
[36] Exhibit A, T-Documents for 2015/6532, T52.
Dr Edwards’ diagnoses of the applicant’s conditions were:
(a)Adjustment Disorder with mixed anxiety and depressive features;
(b)Symptomatic lumbosacral spondylosis maximal at the L4/5 level, compounded by narcotic dependence, the epidural injection procedure, and DVT; and
(c)Dysfunctional sleep – uncharacterised.
As to symptomatic lumbosacral spondylosis, Dr Edwards considered the condition was “not at maximal medical improvement” in the context of the applicant’s narcotic dependence and other intervening medical and psychosocial problems. Dr Edwards considered that, had these intervening issues not arisen, the applicant’s 2008 and 2009 back injuries would have resolved or reach maximal medical improvement within three months of their injury dates. Dr Edwards concurred with a report given by Dr Cleaver dated 12 November 2010 in which Dr Cleaver was said to have opined that surgical options were contraindicated, however, this report was not before the Tribunal and is inconsistent with the reports of Dr Cleaver that are in evidence. While Dr Edwards opined that the impairment associated with the underlying degenerative pathology had been “changed” by the 2008 and 2009 back injuries and complications from treatment, Dr Edwards considered it impossible to quantify the price contribution of those events to the level of impairment. Dr Edwards remarked: “The underlying degenerative pathology is irreversible; and the psychological state will be intractable, unless there is a restructure of his cognitive beliefs”.
Management by Dr McEntee
On 29 August 2013, the applicant underwent a lumbar discogram and CT scan conducted by Dr Ioannou who had earlier, on 20 March 2009, administered facet block injections to the applicant.[37] These procedures were undertaken through a referral from Dr Lawrence McEntee, Orthopaedic Surgeon (Spine). Dr Ioannou reported that the injection of the applicant’s L3/4, L4/5 and L5/S1 discs had produced severe pain, eight to nine out of ten. The pain from the L3/4 injection was similar in character to the applicant’s usual pain, while the pain from the injections at the L4/5 and L5/S1 levels were an exact reproduction of the applicant’s usual pain.
[37] Exhibit A, T-Documents for 2015/6532, T54.
On 4 September 2013, Dr McEntee provided a letter to the respondent.[38] In his letter, Dr McEntee reported that the applicant “continues to have significant symptoms” and the discography undertaken by Dr Ioannou “confirms reproducible pain at L4-5 and L5-S1”. Dr McEntee requested approval for the proposed surgery, being an L4/5 total disc replacement and an L5/S1 anterior lumbar interbody fusion. Dr McEntee estimated the total cost of the surgery to be $11,072.70. It appears that the respondent did not provide a response to this request for approval to carry out the proposed surgery.[39]
[38] Exhibit A, T-Documents for 2015/6532, T55.
[39] Exhibit A, T-Documents for 2015/6532, T59; Exhibit A, T-Documents for 2017/4565, T7, p. 40.
Report of Dr Coyne
On 22 October 2014, Dr Terry Coyne, Neurosurgeon, gave his report at the request of the respondent.[40] Dr Coyne reported that the applicant said that his worst persisting symptom following the 2009 back injury was “burning pain radiating down the back of his right leg to his foot” and that his pain disturbs his sleep. Dr Coyne opined that the applicant’s history and documentation indicated that:
… in late 2008 [the applicant] had a significant pain condition related to his lumbar spine, for which adverse psychosocial factors were significant. It is conceivable that the subject incident of 15.01.09 resulted in an exacerbation (temporary worsening) of [the applicant’s] lumbar spine condition which had continued to a significant level to the time of the subject incident. It is conceivable that the subject incident may have resulted in an aggravation (permanent worsening) of [the applicant’s] pre-existing condition. The history of the subject incident of January 2009 as described by [the applicant] is consistent with resulting in either an exacerbation or an aggravation of a pre-existing condition. However, even in the event that the subject incident resulted in an ongoing aggravation of symptoms, [the applicant’s] history and documentation suggest that the majority of his symptoms likely relate to his condition prior to the subject incident, and at most the subject incident has made a relatively minor contribution to his ongoing condition.
[40] Exhibit A, T-Documents for 2015/6532, T57.
Dr Coyne considered it difficult to suggest specific further medical or surgical therapy. Dr Coyne recommended that the applicant continue with analgesic medication and muscle strengthening exercises and that management of adverse psychosocial factors was important in the overall management of the applicant’s persisting pain condition. Dr Coyne suggested that the applicant undergo treatment at a multidisciplinary chronic pain clinic. As to surgery, Dr Coyne remarked:
The role of surgery for chronic lumbar spine symptoms for which no objective neurological compromise has been demonstrated radiologically can be controversial, and different neurosurgeons and orthopaedic spinal surgeons can hold different opinions in this regard. However it would not be my opinion that [the applicant] would likely benefit from lumbar spine surgery at this point in time. The long period of symptoms, [the applicant’s] high level of disability, his significant associated psychological condition, and his long term requirement for maintenance oral narcotics all mitigate against a successful outcome from lumbar spine surgery. The literature suggests that lumbar fusion surgery (and by extrapolation lumbar disc replacement surgery) in a WorkCover context in the absence of neurological compromise has a significantly worse outcome than non-surgical therapy.
Dr McEntee’s proposal for surgery
On 3 September 2015, Dr McEntee wrote a letter to the Respondent.[41] The letter enclosed a further request for a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion and an estimate for the cost of the proposed surgery dated 27 August 2015, with a new figure in the amount of $8,800.50.[42] Dr McEntee remarked:
Imaging shows disc desiccation L4-5 and LS-S1 and subsequent discography confirmed exact reproduction of his lower back pain at both those levels. In regards to his ongoing sciatica the EMG testing shows bilateral L5 radiculopathies. It is now some 2 years since I requested surgery and I have not yet had a reply from you; therefore, I am re-requesting surgery today and would appreciate a response this time as a matter of courtesy.
[41] Exhibit A, T-Documents for 2015/6532, T59.
[42] Exhibit A, T-Documents for 2015/6532, T58.
RESUMPTION OF PROCEEDING
On 5 November 2020, the respondent issued its reconsideration decision.[43] The reconsideration decision affirms the decision that the respondent is not liable to pay compensation under Section 16 of the Act in respect of the proposed surgery. In the covering letter to its decision, the respondent invited the applicant:
to submit a claim for compensation under Section 16 of the SRC Act in respect of a ‘consistent, uninterrupted period of physiotherapy’ over the next twelve months. At the end of this period, [the respondent] will consider any new claim for compensation for the proposed surgery supported by updated medical evidence regarding whether the proposed surgery is treatment in respect of the accepted condition and which it is reasonable for you to obtain in the circumstances.
[43] Exhibit Y.
In its reasons for decision, the respondent stated that “the evidence supports a conclusion that the applicant should undergo rehabilitation by way of a ‘consistent and uninterrupted period of physiotherapy’ for up to 12 months.” The respondent invited the applicant:
to submit a claim for compensation under Section 16 for ongoing physiotherapy on the basis that [the respondent] considers it is reasonable having regard to the Tribunal’s decision [of 21 September 2020].
On 18 December 2020, following the respondent’s reconsideration decision, the applicant filed with this Tribunal a letter from Dr Laurence McEntee dated 15 December 2020.[44] In that letter, Dr McEntee addressed questions which were put to him in a letter of instructions provided by the applicant’s solicitors. The questions and answers are as follows:
1. Whether you consider it appropriate for [the applicant] to undergo pre-operative physiotherapy.
It would be appropriate for him to have a preoperative physiotherapy program. He has had ongoing symptoms for over 10 years now and subsequently will be physically deconditioned and so preoperative physiotherapy is certainly recommended.
2. The number of preoperative physiotherapy consultations you recommend.
I would recommend a program over approximately a 3 month period with 2 physio consultations a week, i.e. approximately 24 consultations.
[44] Exhibit Z.
On 21 January 2021, the Tribunal convened a directions hearing by telephone. The parties advised the Tribunal that no further evidence of witnesses need be taken in this resumed proceeding. The parties made oral submissions as to how the Tribunal should decide the application.
The applicant acknowledged Dr McEntee’s recommendation that the applicant undergo “a [pre-operative physiotherapy] program over approximately a 3 month period” and conceded that “the outcome of that physiotherapy would need to be known before embarking on deciding whether surgery is necessary.”[45] The applicant submitted that the application should “be held in abeyance until the completion of the physiotherapy and a report received from Dr McEntee as to whether after the physiotherapy surgery is required or not.”
[45] Transcript 21 January 2021, p. 3, lines 41-43.
The respondent submitted that the Tribunal had still not been furnished with up-to-date evidence of what the proposed surgery would cost. The respondent further highlighted the inconsistency between Dr McEntee’s recommendation in his 15 December 2020 report that three months of physiotherapy is sufficient and Dr McEntee’s evidence before the Tribunal that 6-12 months of rehabilitation would be reasonable.[46] However, in my view the inconsistency may be explained by the fact that the physical condition of the applicant may have deteriorated after Dr McEntee reported in 2012. I am mindful that Dr McEntee is an experienced surgeon. I have also noted that Mr Singleton has reported on the “functional weakness” of the physical condition of the applicant.
[46] Transcript 1 November 2018, p. 135.
The respondent submitted that the Tribunal should to affirm the decision under review and that it would still be open to the applicant to lodge a fresh claim for the proposed surgery after undertaking an appropriate period of physiotherapy.
On 29 January 2021, the Tribunal convened a further directions hearing by telephone. At that directions hearing, the applicant conceded that it is not reasonable for the applicant to undergo the proposed surgery prior to an appropriate period of physiotherapy. The respondent reiterated its submission that the reconsideration decision should be affirmed and that it is open to the applicant to make a fresh claim under section 16 of the Act after undergoing physiotherapy.
The parties consented to the application being decided on the papers, subject to the Tribunal giving the parties a further opportunity to provide further submission in the event that the Tribunal is minded to set aside the reviewable decision.
SECTION 16 OF THE ACT
The application for review of the respondent’s decision concerns a question of whether the respondent is liable to pay compensation in respect of the cost of the proposed surgery pursuant to section 16 of the Act.
Section 16(1) of the Act relevantly provides in respect of compensation for medical expenses that:
Where an employee suffers an injury, Comcare[47] is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to the medical treatment.
[47] Section 4(10A) of the Act provides:
For the purposes of the application of this Act in relation to an employee employed by a licensed corporation … a reference in this Act … to Comcare is, unless the contrary intention appears, a reference to that corporation.
The respondent in this matter is a licensed corporation for the purposes of the Act; therefore, references to “Comcare” in the Act are taken to be references to the respondent.
The respondent accepts that the proposed surgery is “medical treatment” for the purposes of section 16 of the Act.[48]
[48] Respondent’s Written Outline of Submissions dated 21 February 2019, [66].
CONSIDERATION
For the application to succeed, I must be satisfied of the following:
(a)That the proposed surgery is medical treatment obtained in relation to the 2009 back injury;
(b)That the proposed surgery is medical treatment that is reasonable for the applicant to obtain in the circumstances; and
(c)That the cost of the proposed surgery is appropriate to that medical treatment.
The respondent submits that the proposed surgery is not reasonable for the applicant to obtain in the circumstances.
In Re Jorgensen and Commonwealth,[49] Gray J addressed what constitutes reasonableness in section 16 of the Act. His Honour stated:
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
[49] (1990) 23 ALD 321, [12].
In Comcare Australia v Rope,[50] Stone J confirmed that “the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the tribunal was required to engage in a costs/benefit analysis. His Honour observed that medical treatment is more likely to be considered reasonable where:
·its benefits are substantial and its cost is low;
·it is effective, ie achieves measurable benefits;
·it is active and promotes self-management of the compensable condition;
·it is consistent with the principles in the Framework; and
·it is of limited duration.
[50] (2004) 135 FCR 443; [2004] FCA 540.
In Lock and Comcare,[51] Deputy President Boyle observed that in considering whether proposed surgery is reasonable in the circumstances, it is obviously relevant to consider what are the alternatives to the proposed surgery.
[51] (2018) 163 ALD 361.
CONCLUSION
I consider that Dr McEntee has been prudent in recommending that the applicant undergo physiotherapy for up to 12 months before the applicant can again be reviewed for surgery. As Gray J observed in Re Jorgensen and Commonwealth, “reasonableness involves objectivity.” I am mindful that Dr McEntee is an experienced surgeon and I give some weight to his recommendation. In these circumstances I rely on the considered opinion of Dr McEntee and find that is not reasonable for the proposed surgery to be undertaken at this time. Once the recommended physiotherapy treatment is completed, it would be then appropriate for there to be consideration of whether or not further medical treatment is warranted. In my opinion it would be premature for the applicant to have the proposed surgery.
I also consider that Ms Slack has quite properly raised issues of procedural fairness because the respondent has not been provided with an up-to-date estimate of the cost of the surgery. The respondent has not been given a fair opportunity of verifying the cost of proposed medical treatment. In my opinion it is not possible for an order to be made under section 16(1) of the Act unless the cost of medical expenses is known. This is because a determination that is issued under section 16(1) of the Act requires the specification of “compensation of such amount as Comcare determines is appropriate for the medical treatment”. Legislation such as this Act is “remedial”[52] and it would not be necessary for an exact cost of the treatment to be provided, but in this case no up-to-date estimate has been provided.
[52] Capital Territory Health Commission v Cavanagh [1978] FCA 5 per Nimmo J.
DECISION
I affirm the decision under review.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.....................[SGD]............................................
Associate
Dated: 12 July 2021
Dates of hearing: 30 October 2018
31 October 2018
1 November 2018
2 November 2018Date final submissions received: 29 January 2021 Counsel for the Applicant: Mr Mark Seymour Solicitors for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Ms Kate Slack Solicitors for the Respondent: Sparke Helmore Lawyers
0
2
0