Matabang v Vinidex Pty Ltd
[2022] NSWPIC 134
•29 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Matabang v Vinidex Pty Ltd [2022] NSWPIC 134 |
| APPLICANT: | Raul Matabang |
| RESPONDENT: | Vinidex Pty Ltd |
| MEMBER: | Jane Peacock |
| DATE OF DECISION: | 29 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Lumbar spine injury; disputed that the surgery sought in the form of decompression and fusion was reasonably necessary as a result of the injury; the respondent conceded that a decompression was reasonably necessary; Diab v NRMA referred to; evidence weighed in the balance; Held- satisfied, on the balance of probabilities, that the surgery sought in the form of a decompression and fusion was reasonably necessary as a result of the injury; award for the applicant. |
| DETERMINATIONS MADE: | Award for the applicant under section 60 of the Workers Compensation Act1987 in respect of the costs of and incidental to surgery in the form of L4-S1 anterior interbody lumbar fusion and decompression as proposed by Dr Hsu on production of accounts and/or receipts. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (Application) filed by the applicant, Mr Raul Mattabang (Mr Mattabang) seeks a determination that proposed surgical treatment in the form of L4-S1 anterior interbody lumbar fusion and decompression, as proposed by his treating surgeon Dr Hsu, is reasonably necessary as a result of injury to his lumbar spine at work on 14 January 2020.
The respondent is Vinidex Pty Ltd (Vinidex). Vinidex was insured for the purposes of workers compensation.
Vinidex denied liability for the proposed surgery.
ISSUES FOR DETERMINATION
There is no dispute that Mr Mattabang suffered an injury to his lower back at work on 14 January 2020.
He has been paid weekly compensation and treatment expenses in respect of that injury.
Mr Mattabang now seeks to have spinal surgery as recommended by his treating specialist Dr in the form of surgery proposed L4-S1 anterior interbody lumbar decompression and fusion. This is proposed by Dr Hsu to take place in two stages.
Vinidex disputes that the surgery proposed by Dr Hsu is reasonably necessary as a result of the injury on 4 January 2020 and disputes that the proposed surgery is reasonably necessary at all. Vinidex seeks that an award be made in its favour. Vinidex concedes that surgery is reasonably necessary as a result of the injury on 14 January 2020 because they accepted liability for decompression surgery. Vinidex disputes the more extensive surgery involving spinal fusion as proposed by Dr Hsu is reasonably necessary.
PROCEDURE BEFORE THE COMMISSION
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 Personal Injury Commission (Commission) having been admitted by consent and were considered in making this determination:
(a) The Application and attached documents.
(b) The Reply and attached documents.
Oral evidence
10.Mr Mattabang did not seek leave to adduce oral evidence.
11.Counsel for Vinidex sought leave to cross-examine Mr Mattabang which was opposed by his counsel. This application was recorded and reasons given orally. The application was declined.
FINDINGS AND REASONS
12.There is no dispute that Mr Mattabang suffered an injury to his lumbar spine at work on 14 January 2020.
13.Mr Mattabang now seeks to have the spinal surgery recommended by his treating specialist Dr Hsu.
14.Vinidex disputes that the proposed surgery is reasonably necessary as a result of the injury on 14 January 2020. Vinidex disputes that the proposed decompression and fusion is reasonably necessary surgery at all.
15.I must determine, on the balance of probabilities, whether the proposed surgery in the form of L4-S1 anterior interbody lumbar fusion and decompression as recommended by the treating surgeon Dr is reasonably necessary as a result of injury on 14 January 2020. This determination must be made on the evidence and in accordance with the law.
16.Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
17.Deputy President Roche in Diab v NRMA [2014] NSWWCCPD 72 (Diab) provided a useful summary of the authorities dealing with whether medical expenses are “reasonably necessary” as a result of injury as required under section 60 and set out the approach that is to be adopted.
18.Deputy President Roche in Diab said as follows:
“76. 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 32 (Rose) where his Honour said, at 48A—C:
‘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 judgment 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.’
77. The Commission has applied this test in several cases (see, for example, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).
78. In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.’
79. The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
80. The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81. Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82. His Honour added, at [23]–[24]:
‘23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary” there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.
24.The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of “necessary”.’
83. It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
84. In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word “necessary”’.
85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
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 determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
90. While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
19.As Deputy President Roche said in Diab each case will depend on its own facts.
20.Turning then to an examination of the evidence in this case.
21.Mr Mattabang gave evidence in a statement dated 4 June 2021.
22.Mr Mattabang gave evidence of the injury on 14 January 2020 when he fell some 1.5 metres and injured his lower back. It is not disputed that he suffered injury to his lower back and indeed that he needs surgery. Vinidex has agreed to pay for decompression surgery on the basis that it accepts that this form of surgery is reasonably necessary as a result of the injury on 14 January 2020.
23.Mr Mattabang gave evidence that he sought treatment after his injury on 14 January 2020. He was referred for a CT scan on 16 January 2020.
24.I note that the CT scan of 16 January 2020 showed the potential for neural compression, consistent with Mr Mattabang’s complaints of pain.
25.Mr Mattabang gave evidence that he “underwent physiotherapy and took various pain medication. I underwent a cortisone injection on 29 March 2020 and a subsequent injection in or about June/July 2020.
26.Mr Mattabang gave evidence that despite these conservative interventions his “lower back continued to give me significant pain and I continued to experience radicular symptoms to my legs with weakness and numbness as well as pins and needles. Right leg was much worse than my left leg.”
27.In view of his persistent symptoms unrelieved by conservative measures, Mr Mattabang was referred by his general practitioner (GP) Dr Hand for specialist review by Dr Brain Hsu and Dr Bisham Singh. Mr Mattabang gave evidence as follows:
“I was referred to see Dr Brain Hsu and Dr Bisham Singh, orthopaedic surgeons, in order to review my lower back pian.
Dr Hsu and Singh both told me I needed surgery as the discs in my lumbar spine were compressing the nerve roots in my back.
On 2 July 2020, Dr Hsu wrote to EML requesting approval for L4/S1 anterior lumbar fusion and L4/S1 decompression and fusion surgery. On 23 July 2020 EML disputed liability for this surgery.
The pain and symptoms in my lower back and legs have continued and both Doctors Hsu and Singh have told me I require the surgery that Dr Hsu recommended I undertake on 2 July 2020.
On 14 March 2021 Dr Singh completed a report which also confirmed I required this surgery that had been recommended previously.
As a result of my ongoing back and lower leg pain, I have decided to proceed with the surgery recommended by Dr Hsu and Dr Singh and wish to challenge the insurer’s decision to decline liability for this surgery.”
28.Counsel for Vinidex pointed out that the insurer hasn’t declined liability for surgery. The insurer has in fact agreed to pay for decompression surgery at the L4-S1 level. In other words, they accept that surgery is reasonably necessary. The dispute is whether the more extensive surgery proposed by Mr Mattabang’s treating surgeon is reasonably necessary.
29.Mr Mattabang went on to give evidence about his current symptoms as follows:
“My current symptoms include pain and discomfort in my lower back and legs with pain ranging from barely tolerable to severe at times. I have significant difficulties sleeping due to the pain in my lower back and lower back and lower legs and I now have significant difficulties performing activities of daily living. This includes walking (I struggle to walk any significant distance and would estimate my walking capacity as to no more than 50 metres). I cannot squat and driving is very uncomfortable. I estimate that I can only drive for about 30 minutes and experience significant pian as a result of doing so. I also get numbness and pins and needles in both of my legs with my right leg being significantly worse than my left leg. I experience sharp stabbing pains in my lower back as well as in my thighs and calves muscles.”
30.Mr Mattabang goes on to give evidence that he “has also suffered significant psychological affects as a result of my physical condition and injury and the impact it has had on my life”. He gives evidence about being in significant pain, the impact on his mood, difficulty sleeping, difficulty getting comfortable, and that he cannot do what he could before around the house and with his hobbies such as fishing. He says this has made him frequently feel frustrated, irritable, angry and depressed.
31.Mr Mattabang gave evidence that he takes medication for his persistent pain as follows:
“I currently take Palexia (an opioid pain reliever), Duloxetine (which is an antidepressant, although I have recently stopped this as it has caused nausea and other side effects) Naprosyn (an anti-inflammatory) and Panadol.”
32.He gives evidence that prior to the injury on 14 January 2020, he had “not suffered a previous injury to my lower back , nor have I suffered injuries or complaints with regards to my right or left legs”. I note there is no evidence before me to suggest otherwise.
33.Dr Mattabang gave evidence as to why he wants the surgery:
“I wish to undergo the surgery recommended by my treating specialists and consider that it is the only way I can achieve some level of improvement in my symptoms and hopefully manage a return to work following a period rehabilitation.”
34.Following his injury at work on 14 January 2020, Mr Mattabang was referred for a CT scan of his lower back which took place two days after injury on 16 January 2020.
35.The CT scan dated 16 January 2020 reported discopathy, most marked at the L5-S1 level with mild canal and mild to moderate bilateral recess and foraminal crowding with potential for neural irritation at this level.
36.In view of persistent symptoms Mr Mattabang was referred for a MRI which was undertaken on 5 March 2020 and which reported L5-S1 herniation contacting the S1 nerve roots and also degenerative disc change at the L3-4 and L4-L5 in line with age.
37.I note that the radiological evidence undertaken proximate to injury report positive findings (neural irritation and compression of the nerve roots) which provide radiological support for the symptoms Mr Mattabang has experienced since injury.
38.That Mr Mattabang has undertaken conservative measures such as physiotherapy, injections, exercise physiology is clear on the evidence.
39.He continues to report pain and has reported persistent pain and right leg symptoms since the injury to all of the doctors that have reviewed him on a treating basis and on a medicolegal basis.
40.Dr Hsu is the treating surgeon. He is an orthopaedic surgeon who specialises in adult and paediatric spinal surgery.
41.Counsel for Vinidex submitted that an orthopaedic surgeon is not an appropriate speciality and that it really should be a neurosurgeon.
42.Dr Hsu is an orthopaedic surgeon who specialises in spinal surgery. Dr Hsu is the treating surgeon that Mr Mattabang’s GP Dr Hand referred him to for advice and treatment. There is no expert evidence put before that supports counsel for Vinidex’s assertion that Dr Hsu’s speciality is an inappropriate one for the operation sought. Vinidex has an independent medical expert (IME) opinion from Dr Sheehy. Dr Sheehy does not say that an orthopaedic surgeon is an inappropriate specialist for the operation proposed.
43.In view of his persistent symptoms since injury, Mr Mattabang was referred by his GP Dr Hand to orthopaedic surgeon Dr Hsu, adult and paediatric spine surgeon
44.Dr Hsu saw Mr Mattabang on 30 April 2020 and provided a report back to the GP dated 6 May 2020.
45.He attached to his report his clinical findings on 30 April 2020. He noted the chief complaint on presentation was back and leg pain.
46.Dr Hsu took a history consistent with the other evidence including the conservative measures undertaken as follows:
“Mr Mattabang is a very pleasant 60 year old gentleman who had a significant fall at work, Since the fall he has been experiencing significant back pian with also pain radiating down the right leg. The injury happened when he pulled on a load quite hard and slipped and fell backwards and landed heavily on his buttocks. His non operative treatment has included bed rest, physiotherapy, medication, acupuncture, hot packs, massage and he has had lumbar injections which only gave him relief during the anaesthetic phase.”
47.Dr Hsu undertook a thorough clinical examination which he recorded and I note there were positive findings on examination.
48.He reviewed the MRI of March 2020 noting as follows:
“Available for review today is an MRI scan of the lumbar spine which demonstrates significant L4-5 and L5-S1 disc bulge causing foraminal and lateral recess stenosis.
49.He records that he had a long discussion with Mr Mattabang as follows:
“I had a long discussion with Mr Mattabang regarding the radiographic finding and also the clinical findings. Mr Mattabang does demonstrate significant back and leg pain symptoms with a significant disc bulge and herniation, This most certainly relates to his work injury. I have arranged for him to undergo a bone scan to assess for any other acute injuries or fractures and I have also started him a course of Lyrica 75mg BO, and I plan to review him after the bone scan.”
50.Mr Mattabang duly underwent a bone scan and was reviewed by Dr Hsu following the bone scan on 13 May 2020 by tele-health. Of this review Dr Hsu reported back to the GP Dr Hand on 13 May 2020 as follows:
“I have reviewed Mr Mattabang in follow up today via telehealth (May 13, 2020).
He has had a bone scan of the lumbar spine which demonstrates significant uptake at multiple locations in the lumbar spine, most significantly at the L4-5 level on the right sided facet joint. I have recommended trialling a right sided L4-5 facet joint injection first and would like to review him in a face to face consultation after this to discuss further treatment options.
I plan to review him after the injection and I will keep you informed of his progress.”
51.Dr Hsu reviewed Mr Mattabang again on 11 June 2020. He reported back to the GP that Mr Mattabang continued to report significant pain and noted injection provided some temporary relief which would help diagnostically. He recommended exercise physiology which I note was undertaken over some months at the hands of Mr Smith whose reports are in evidence.
52.Dr Hus reviewed Mr Mattabang again on 18 June 2020 (via telehealth). He noted that Mr Mattabang continued to report significant pain and that the injection provided only temporary relief. Dr Hsu wrote to the GP:
“I feel it is safe to say that the injection did provide some diagnostic information but I have arranged for him to undergo an MRI scan of the cervical spine and to return to see me for a face to face consultation to ascertain the degree of ongoing symptoms. We may need to consider surgical intervention if we do have a clear diagnostic result from the most recent injection.”
53.Dr Hus reviewed Mr Mattabang again on 25 June 2020 and wrote back to the GP in a letter dated 30 July 2020 as follows:
“I have reviewed Mr Mattabang in follow up today (25 June 2020). He returns for follow up of his ongoing significant back pian.
We have trialled a number of non-operative treatments including injections and while these have given him temporary relief his symptoms are still quite significant.
I’ve discussed with him his further management options and an option would be to continue with non operative treatment or a surgical intervention. His non operative options would be pain medication and chronic pain management. His surgery option would be an L4-S1 anterior and posterior decompression and fusion.
I have discussed the surgical goals, risks and benefits of surgery and the peri-operative risks, These risks include anaesthetic risks, death, infection, neurological injury, non union requiring further surgery and CSF leak. I have also discussed further complications such as heart attack, stroke, blood clots and blindness.
The anterior and posterior combined surgery would allow the greatest rate of bony fusion and is most likely to given an improved result in the long term.
Mr Mattabang understands the risks of surgery and is keen to proceed. I will arrange for him to undergo surgery in the near future and I will keep you informed of his progress.”
54.On 25 November 2020, Mr Mattabang was reviewed on a treating basis by Dr Singh, orthopaedic and spinal surgeon, in the same practice as Dr Hsu.
55.Dr Singh wrote to the GP Dr Hand on 25 November 2020, detailing his review and recommendations (emphasis in the original):
“I have reviewed Mr Mattabang today (November 25, 2020). He has seen Dr Brian Hsu in the past. He appears to be significantly disabled by lower back pain and leg pain following an accident suffered in the workplace early this year.
He has poor sitting and standing tolerance. He is unable to walk any significant distance. He has problems with household chores and is unable to do any vacuuming, cleaning or yard work. He is able to perform activities of self care and hygiene. He has no work capacity since the injury. He localises the pain to the lumbar spine with radiation to the hips and down the legs into the calves. He had short term response to the injections but his pain has returned.
56.Dr Singh reported positive findings on examination and correlation with the results of the MRI investigation as follows:
“On examination he demonstrates an extension cajun limitation of range of motion of the lumbar spine, but more than 75%. Straight leg raise test is positive for back pain bilaterally at 60*. Ankle jerks are depressed, rest of the reflexes in the upper limb and lower limb are normal. Neurological examination is otherwise not contributory. MRI scan and X-rays of his lumbar spine do reveal that he has disc disease from L4 to S1. There is evidence of disc signal changes, disc bulging and neurological impingement.
57.Dr Singh notes the various attempts at conservative measures and the failure of same to alleviate Mr Mattabang’s persistent and significant symptoms. He writes:
“He has trialled and fails conservative treatment over the last several months. In the presence of persistent and significant symptoms, I am in agreement with Dr Hsu that it is both reasonable and necessary that the patient contemplate his surgical option as a more durable solution to his symptoms. While there are some signal changes in the L3/4 dics, his symptoms are arising from the lower two levels in the lumbar spine. Surgery should involve L4 to S1 decompression and sterilisation with the insertion of a prothesis. I see that Dr Hsu has recommended he have this done as a stage procedure. I am in agreement with this. A stage procedure will allow better anterior column support and more image instability. He will increase his success rates for fusion and result in a better outcome.”
58.Dr Singh reports on Mr Mattabang’s distress about how restricted he is in his daily activities:
“The patient is tearful today as he is very frustrated that he is unable to perform day to day activities without pain for so long. I recommend that he proceed with the surgical option as soon as possible. He may benefit from seeing a pain management team titrate his medication and assess for any psychosocial issues that may need sorting out.”
59.Dr Singh reviewed Mr Mattabang again on 17 March 2021 and wrote back to the GP Dr Hand on the same date.
60.Dr Singh reported as follows:
“I have reviewed Mr Mattabag in follow up today (March 17, 2021). He has ongoing pain in the lumbar spine and walks with an antalgic gait. He has significant limitation of range of motion of the lumbar spine and the updated MRI scan of the lumbar spine reveals that he has disc height loss and disc bulging from L3 to S1, with the worst pathology being at L4/5 and L5/S1 with lateral recess stenosis resulting in the symptoms of lower back pain and leg pain.”
61.Dr Singh addresses the decompression surgery recommended by the IME for Vinidex as opposed to the decompression and fusion surgery sought to be performed. He wrote:
“Apparently he has had an independent medical examination and has been told the insurer is liable to approve surgery for nerve root compression only.
I have discussed his finding with him on the scan. We have revisited his imaging. While a simple decompression operation is likely to improve some of his leg pain, this will not improve his back pain and given the fact that he has disc injury the lower lumbar he is likely to have further progression. I have explained to him that his surgical recommendation is to have a decompression and stabilisation of the lumbar spine from L4 to S1 in an effort to resolve the structural pathology which is present in the scans.
Doing an incomplete operation with the laminectomy and decompression is likely to lead to him requiring further treatment down the line. We have discussed the pros and cons and benefits of surgical and non surgical treatment, and the surgical choices and techniques available to him. I have recommended that he have a staged L4 to S1 decompression and fusion, knowing that he have some signal changes at the L3/4 disc which may well need treating in the future however his symptoms are arising from the lower two motion segments.
He will think about what we have discussed today and let me know how he wishes to proceed. My recommendation remains L4 to S1 stage decompression and stabilisation with the insertion of a prosthesis.
62.Dr Hsu reviewed Mr Mattabang again on 17 May 2021 and wrote back to the GP by letter dated 31 May 2021. He addressed the opinion of the IME for Vinidex that surgery was required but should be limited to a decompression. He provided the following explanation:
“I have reviewed Mr Mattabang in follow up today (May 27 2021). He returns for follow up of his ongoing back and leg pain.
He has had surgery approved for a lumbar decompression surgery but since his main symptoms are back pain, the lumbar decompression surgery alone is not likely to improve his function. His proposed surgery is an L4-S1 decompression and fusion. He has engaged a lawyer to argue the case for him at the Commission and considering the independent Medical opinion does agree that he requires surgical intervention, the type of surgery is really the point of dispute.
He is continuing to have significant back pain and he has not had a positive response to the pain management. He should continue with his exercise physiology treatment until he can undergo the recommended surgery and I will keep you informed of his progress. I plan to review him in 2 months time.”
63.Mr Mattabang was referred by his GP Dr Hand to Dr Standen of the Sydney Pain Clinic. Dr Standen saw Mr Mattabang on 19 July 2021 and provided a report back to the GP of the same date.
64.Dr Standen noted Mr Mattabang presented with “persistent lumbar pain and lower limb neuropathic pain in association with a work related injury. She takes a consistent history of sudden onset of lumbar pain following the fall at work on 14 January 2020. She notes the treatment and investigations to date.
65.Dr Standen reports the pain scores and depression scores.
66.She notes the surgery that is proposed in the form of fusion. She notes the radiology. She conducted a physical examination and noted positive findings on physical examination. Ultimately Dr Standen, after thorough review, supports the surgery. She notes the surgery will have better outcome if pre-operative pain is managed better.
67.Counsel for Vinidex seeks to make much of Dr Standen’s report. He highlights the pain levels and the depression scores. Counsel for Vinidex submitted that Dr Standen’s report supports a mutli-disciplinary pain management approach should be undertaken as opposed to the surgery proposed. However I note that Dr Standen, after thorough review, supports the proposed surgery that Mr Mattabang wants to undergo.
68.Dr Sheehy Neurosurgeon saw Mr Mattabang at the request of the insurer on 29 July 2020 and provided a report to the insurer dated 31 July 2020.
69.Dr Sheehy took a consistent history of injury. He took a consistent history of ongoing and current symptoms. He reviewed the CT scan of January 2020 and the MRI of March 2020. He conducted a clinical examination noting positive findings.
70.Dr Sheehy opined that the fall at work aggravated pre-existing degenerative changes and he noted the aggravation continued and the pre-existing pathology impacted on Mr Mattabang’s ability to recover with conservative treatment. He noted the aggravation continues.
71.Dr Sheehy opined:
“the indications for 2 stage anterior and posterior lumbar fusion at L4-S1 is not met”.
72.He gave the following reason:
“there is no evidence of instability. The published results for spinal fusion inpatients with purely degenerative changes do not support that indication for spinal surgery.”
73.I note that Dr Sheehy merely refers to “published results” but makes no specific references to any such published studies.
74.Dr Sheehy provides a supplementary report to the insurer at their request on 18 August 2020. He answers a series of specific questions. He is asked: “Has the aggravation of the underlying degenerative change of the lumbar spine ceased? If not what treatment is required to treat the aggravation?” Dr Sheehy answered:
“the aggravation of the underlying degenerative changes has not ceased. Treatment involves continuing with an exercise physiology program with gradually increasing exercise and continuing medication. Hands on exercise physiology will only be important over the coming months and then a home based exercise program would be the best plan. He needs to avoid any heavy lifting or bending with a lifting limit of 5kg. If continuing sciatica is a problem interlaminar decompression of the S1 nerve and partial discectomy would be appropriate.”
75.Dr Sheehy considered Mr Mattabang was unfit for pre-injury work and unfit for work with lifting more than 5kg.
76.Dr Sheehy provided further supplementary reports at the request of the insurer dated 9 October 2020 and 3 November 2020 positing that the aggravation would cease.
77.In his final supplementary report dated 18 February 2021 Dr Sheehy was asked the following question by the insurer: “Is Raul’s aggravation due to cease once his exercise physiology sessions are complete. If not, how do we determine once the aggravation is no longer present?
78.Dr Sheehy answered:
“his earlier scan did confirm compression of S1 nerve, but if the problem is continuing sciatic pain, he requires decompression of the S1 nerve root. If his ongoing symptoms are low back pain, the underlying aggravation of the degenerative change, is likely to cease in late 2020.
79.I note there is no evidence of the aggravation having ceased. All of the evidence supports consistent reports by Mr Mattabang of persistent pain and leg symptoms since the injury on 14 January 2020 unrelieved by conservative measures.
80.The insurer then agreed to pay for decompression surgery.
81.Essentially this case comes down to a difference in medical opinion. The treating specialist seeks to perform a two-stage procedure at L4-S1 that involves both decompression and fusion. The IME qualified on behalf of Vinidex considers that in the absence of instability of the spine, the operation should be limited to a decompression of the S1 nerve root.
82.Whilst counsel for Vinidex has sought to make much of the pain specialist report of Dr Standen, I note that she ultimately supports the fusion surgery that is sought.
83.As Deputy President Roche set out in Diab, each case depends on its own facts. Each case will be decided on the balance of probabilities on the evidence in the case. As Deputy President Roche said in Diab whilst the checklist of relevant matters according to the criteria of reasonableness is helpful, it is not determinative nor exhaustive. The question for determination in this case is whether the proposed treatment in the form of a two-stage fusion and decompression surgery performed at the L4-S1 levels, after weighing all of the evidence in the balance, is reasonably necessary as a result of injury on 14 January 2020. As the Deputy President said:
“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.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
84.When I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that Mr Mattabang has persistent lower back and leg pain since the injury on 14 January 2020. The radiological investigations which have been undertaken including CT scan In January 2020 and MRI in March 2020 reveal evidence of neural compromise and nerve root compression as well as discogenic changes from L4 to S1. Mr Mattabang has trialled a variety of conservative measures. His persistent back and leg pain is unrelieved by conservative measures. The IME qualified on behalf of Vinidex considers that surgery is reasonably necessary and considers the form it should take is decompression of the S1 nerve root. Mr Mattabang’s treating surgeon Dr Hsu and treating specialist Dr Singh consider that a two-stage decompression and fusion performed at the L4 to S1 levels is warranted on the grounds of Mr Mattabang’s ongoing clinical presentation and is supported by the radiological investigations. Dr Hsu and Dr Singh provide an explanation as to why the combined procedure of fusion and decompression performed in two stages is likely, in their view, to lead to a better outcome for Mr Mattabang. In their opinion performing a decompression alone will only relive some of the leg pain but will not help the back pain. In their opinion performing the decompression and fusion will likely lead to a better outcome for Mr Mattabang as it is more likely to relieve both back and leg pain and improve Mr Mattabang’s function. The proposed surgery is supported by the pain management specialist Dr Standen.
85.When I weigh all of the evidence in the balance I am satisfied, on the balance of probabilities, that the surgery proposed by Dr Hus in the form of a decompression and fusion performed at the L4 to S1 levels over two stages is reasonably necessary as a result of injury on 14 January 2020. Accordingly, I will make an award in favour of Mr Mattabang as follows:
(a) Award for the applicant under section 60 of the 1987 Act in respect of the costs of and incidental to surgery in the form of L4-S1 anterior interbody lumbar fusion and decompression as proposed by Dr Hsu on production of accounts and/or receipts.
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