McDiarmid v Boral Limited
[2024] NSWPIC 219
•30 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McDiarmid v Boral Limited [2024] NSWPIC 219 |
| APPLICANT: | Anthony McDiarmid |
| RESPONDENT: | Boral Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 30 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for proposed left hip replacement surgery; dispute whether surgery was reasonably necessary as a result of the accepted injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA discussed and applied; Held – surgery was reasonably necessary as a result of injuries; respondent to pay for proposed surgery pursuant to section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent is to pay the applicant’s reasonably necessary medical expenses with respect to the proposed left total hip replacement, and associated expenses, pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
After exhausting the usual case management pathway and reaching impasse at conciliation, I have been asked to determine whether the current claim relating to the request for total left hip replacement surgery is reasonably necessary. The Personal Injury Commission (Commission) has in previous proceedings, (differently constituted) determined Anthony McDiarmid (the applicant) sustained consequential injury to his left hip arising from injury he sustained to his left knee on 19 August 2018 in the course of his employment with Boral Limited (the respondent).[1] The matter has a long history, well known to both parties and so will not be repeated here, save for its relevance to the need for surgery.
[1] Matter Number 1547/22
At the conciliation/arbitration hearing, the applicant was represented by Mr Parker of counsel instructed by Ms Ross. The respondent was represented by Ms Compton of counsel instructed by Coleman. Ms Odisho and Ms Nolan represented the employer and insurer.
In determining the matter, I considered oral submissions from counsel, the documents attached to the Application to Resolve the Dispute (ARD), the Reply and the law found in the 1987 Act. No oral evidence was adduced.
CONSIDERATION
As indicated above, the only issue to determine is whether proposed left hip replacement surgery is reasonably necessary with reference to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant’s evidence
There are multiple statements by the applicant recounting the long history which has ultimately led to left total knee replacement funded by the respondent in February 2020. The statements record he noticed left hip pain and soreness following his knee replacement on first arising and with walking. Cortisone injections were trialed with little relief of symptoms. Physiotherapy and anti-inflammatories likewise were said to do “little to improve my pain”.
The applicant[2] states that two of his treating surgeons, Dr Olschewski and Dr Randhawa have recommended hip replacement surgery. He states the hip pain is now constant and radiates into the groin and buttocks and intensifies with walking. He has difficulty getting in and out of his car and putting on shoes and socks. Steps are challenging. He limps and finds prolonged weight bearing painful. He reports stiffness. Pain impacts sleep.
[2] Statement dated 29 February 2024 folio 9 of the ARD.
Relevantly he records that the respondent’s qualified specialist incorrectly recorded that he did not wish to have hip replacement surgery.
Dr Olschewski, orthopaedic surgeon
Dr Olschewski is the applicant’s treating surgeon. Following a physical examination on 31 March 2023 he reported there was a positive left sided Trendelenburg sign with obvious limp and motion of the left hip accompanied by both discomfort in the hip and knee. He concluded that the “hip pain may be coming from intra articular hip pathology and some of the knee pain may also be referred from the hip”. He further recorded intra articular hip injection failed to provide significant relief. At that assessment referrals were made for new X-rays of the hip, repeat blood work and an MRI scan of the spine with arrangement for follow up review to discuss the possibility of replacement.[3]
[3] Folio 28 of the ARD.
At the follow up assessment on 23 May 2023, the applicant’s complaints of pain, restriction on mobility and activities of daily living were recorded with the pain in the left hip being recorded as worse than the left knee pain. Examination on that day revealed obvious limp and positive Trendelenburg sign with pain on rotation. Review of the X-rays (presumably those taken on 4 April 2023) confirmed findings consistent with osteoarthritis, with joint space narrowing, particularly superolaterally with prominence at the head neck junction along with subtle osteophytes.
In light of the “significant ongoing pain in his left hip region”, hip replacement surgery was proposed with the caveat that whilst this is likely to alleviate symptoms in the hip, left knee symptoms were unlikely to change. Risks and rehabilitation were discussed along with plans to obtain patient specific guides used to facilitate the laser guided surgical technique.[4]
[4] Folio 31 of the ARD.
Dr Sunny Randhawa, hip, knee and trauma surgeon
Following assessment on 19 December 2023 (on referral from Dr Olschewski and the general practitioner), Dr Randhawa reported restriction of motion and painful weight bearing of the left hip, interference with sleep, walking and standing. On examination, an antalgic gait was seen, negative Trendelenburg test but significant left hip irritability with a positive FADIR[5] test. He reviewed X-rays of the left hip dated 4 April 2023 and reported these as showing “significant left hip joint degeneration with decreased joint space, acetabular rim and femoral head neck osteophytes, and a subchondral cyst to the femoral head”. It was concluded that symptoms arose from his work related issues and he concluded “unfortunately, we are in the position where the only option for him to return to a pain free and active lifestyle is to undertake total hip replacement”.[6]
Respondent’s evidence
[5] Flexion, reduction and internal rotation testing.
[6] Folio 51 of the ARD.
Dr Silva, consultant orthopaedic surgeon
Following an assessment on 12 July 2023, Dr Silva recorded negative Trendelenburg test but painful flexion, internal and external rotation and adduction of the left hip when compared to the right. Radiology was reviewed but in relation to the left hip appeared to be limited to
X-rays taken on 15 June 2021 (and not the most recent X-rays as discussed by Dr Randhawa or Dr Olschewski undertaken on 4 April 2023). The films in June 2021 suggested “as far as the joint lines were concerned or the cartilage spaces the left equals the right hip and there were early osteoarthritic changes in both hips. However, there is some spurring with a suggestion of femoral acetabular impingement”...The report records two cortisone injections provided “very temporary” relief. As regards treatment it was recorded:
“…before left total hip replacement is embarked upon, I think because the worker is not very keen on hip replacement surgery at this stage, it would be advisable for him to consult a hip arthroscopy surgeon who will arthroscope the left hip and attend to the FAI and do some debridement of the labrum, and if that relieves his symptoms then the consequential aggravation of the pre existing left hip arthritis from this incident would be considered to have resolved….Before hip replacement surgery is considered in the left hip, he should have left hip arthroscopy and labral debridement to correct the FAI which was pre existing”.[7]
[7] Folios 45-51 of the Reply.
Dr Olschewski, orthopaedic surgeon
At the request of the insurer, Dr Olschewski reviewed the suggestions of Dr Silva and in response to a questionnaire dated 5 September 2023 reported Dr Silva’s suggestion that the applicant be reviewed by a hip arthroscopist was sensible because:
…“even if the arthroscopist feels that hip replacement is a more appropriate option for Anthony, it will provide him with peace of mind that a less invasive procedure than total hip replacement should not have been tried as a first line treatment…. I would recommend Dr Sunny Randhawa who performs hip arthroscopy and hip replacement and would be able to provide an appropriate opinion on which of these two procedures would be best suited to Anthony”.
On review of Dr Silva’s findings he maintained his opinion that:
“…symptoms arise from osteoarthritis of the left hip, it may be that FAI and related mechanics of the hip joint have contributed to the degenerative process. I look forward to an opinion from a hip arthroscopist, as to whether an [sic] can be addressed arthroscopically or whether hip replacement is the more appropriate option at this stage”.[8]
[8] Folios 38 and 39 of the Reply.
Submissions
The applicant’s submissions were:
i) conservative treatments have been exhausted, the total hip replacement surgery is the last resort given the applicant’s deterioration of symptoms and quality of life, and
ii) there are two specialists who agree that hip replacement surgery is reasonably necessary and there are no other treatments that would yield assistance given the pathology.
The respondent’s submissions were:
i) the applicant has failed to establish on the balance of probabilities that hip replacement surgery is reasonably necessary;
ii) the applicant’s medical case fails to identify the extent of conservative treatment undertaken to date and what possible alternatives particularly with regards to cost effectiveness may exist;
iii) it fails to identify whether the applicant will be able to return to work or what the benefits of the procedure will be, and
iv) there has been a failure by the applicant’s medical assessors to differentiate pain that arises from the hip or the knee.
In reply the applicant submitted;
i) the treating practitioners have identified the difference in the characteristics of the pain in both the knee and hip joint and have identified that the hip joint pain is the worst of the two impacting on mobility, and
ii) the applicant technically has three medical opinions which confirm that surgical intervention to the left hip is required. The only difference in the respondent’s opinion is that arthroscopy should be undertaken at first instance, but the respondent’s qualified expert does not rule out that hip replacement surgery.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Section 60 of the 1987 Act prescribes that if as a result of an injury, it is “reasonably necessary” that treatment be undertaken, then the employer (respondent) is liable to pay for the costs of such treatment or service.
The 1987 Act does not define “reasonably necessary” however case law repeatedly emphasises the following are relevant considerations in such assessment:
i) “Treatment” relates to the management of the disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest, abate or retard the condition or alleviate, cure or remedy the condition;[9] (Rose);
ii) in deciding whether treatment is reasonably necessary, a decision maker must have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, cost, potential effectiveness and acceptance of the treatment modality by the medical experts[10] (Diab);
iii) a poor outcome from treatment does not necessarily mean that the treatment was not reasonably necessary;
iv) each case must be determined on its own facts;
v) the question is whether the treatment should be undertaken. If it is better that it is undertaken, then it is deemed necessary and should not be foregone. If it is determined that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary;[11] (Bartolo)
vi) whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts of the case;[12] (Kooragang)
vii) it is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for the treatment, that is, the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment, and[13] (Murphy)
viii) the standard is on the balance of probabilities, meaning that I must feel an actual persuasion of the matters necessary to establish the claim.[14] (Ireland)
[9] Rose v Health Commission (NSW) (1986) 2NSWCCR 32 (Rose).
[10] Diab v NRMA Ltd [2014] NSWWCCPD 72.
[11] Bartolo v Western Sydney Area Health Service [1997] NSWCC1; (1997) 14NSWCCR 223.
[12] Kooragang Cement Pty Ltd v Bates (1994) 35NSWLR 452: 10 NSWCCR 796.
[13] Murphy v Allity Management Services Pty Ltd [2015]NSWWCCPD 49.
[14] Department of Education and Training v Ireland [2008] NSWCCPD 135; Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The outcome of this case is determined by whose medical opinion I prefer. In this case, I prefer the opinions of Dr Olschewski and Dr Randhawa because;
(a) whilst Dr Silva is to be commended for his cautious and conservative approach, I cannot ignore that it was based on historical radiology and appears to be cushioned in an understanding that the applicant sought to avoid total hip replacement (which is incorrect);
(b) Dr Silva refers to hip X-rays taken in June 2021 and focuses on femoral acetabular impingement pathology. It is unclear why he did not assess the radiology undertaken on 4 April 2023 which ultimately formed the basis for the recommendations for total hip replacement by Dr Olschewski and Dr Randhawa;
(c) at no stage does Dr Silva exclude hip replacement as being reasonably necessary, rather focuses on addressing pathology seen on investigations taken in 2021 which is vastly different to radiological findings of April 2023. The findings on X-ray in July 2021 as interpreted by Dr Silva showed “early osteoarthritic changes in both hips”, whereas Dr Randhawa reported “significant left hip joint degeneration with decreased joint space” on review of the recent investigation;
(d) Dr Silva did not request up to date radiology for the hip given the applicant’s complaints of increasing pain and restriction in mobility and his own examination findings of restricted movement. (Reference is made to an MRI report of the lumbar spine dated 24 April 2023) but no request was made to assess up to date radiology relating to the hip!;
(e) it is not clear why the respondent did not ask Dr Silva to comment on the most recent X-rays taken in April 2023 especially given that he only referred to radiology of the hip in June 2021;
(f) it is also not clear why the respondent did not seek a supplementary report from Dr Silva to comment on Dr Randhawa’s assessment (it had receipted the report and referred to it in its internal review decision).[15] Had this proactive enquiry been made, the dispute may have been avoided (however I do appreciate that the onus is on the applicant);
(g) Dr Olschewski was keen to accommodate the recommendations of Dr Silva, that is, the applicant should be reviewed by a hip surgeon, but maintained his view that whilst femoral acetabular impingement may be contributing to the overall presentation, the symptoms were primarily a result of the osteoarthritis (such findings being consistent with the April 2023 X-ray) but preferred to defer to the ultimate opinion of Dr Randhawa a specialist hip surgeon, and
(h) Dr Randhawa suggests the “only option” is to undertake total hip replacement, consistent with the opinion that Dr Olschewski offered seven months earlier. The examination findings of both specialists and the complaints recorded are largely consistent.
[15] Folio 19 of the Reply.
The respondent was critical of the report of Dr Randhawa in that it did not explore other treatment modalities or at least refer to them. Certainly, this would no doubt have avoided the dispute but Dr Randhawa is not required to explore the legal tests of Rose and Diab, such burden resting with the lawyers.
As discussed above, injury is not disputed, the only issue is whether the hip replacement surgery is reasonably necessary. The respondent has opted to maintain the conservative and cautious approach of Dr Silva, however for the reasons above, realistically cannot do so given that his findings are based on aged investigations which do not accurately represent the applicant’s current symptoms or deterioration in pathology. Further, it appears to have ignored that both Dr Olschewski and Dr Randhawa have reviewed the most recent radiological findings and concluded that hip replacement surgery is the preferred option available to alleviate symptoms given such findings and the applicant’s complaints.
Returning to the tests of Rose and Diab, whilst alternative treatment was advanced by Dr Silva, it has limited evidentiary weight given it is predicated on aged investigations. Further Dr Silva does not expressly state that the proposed hip replacement surgery is not ultimately reasonably necessary. Dr Olschewski and Dr Randhawa reviewed the failure of conservative approaches and Dr Randhawa specifically reported that only possible treatment which may alleviate the consequences of the condition is hip replacement surgery. No other alternatives have been offered apart from those discussed above. I also note that the applicant has undertaken injections, medications and had physical therapy all of which produced limited benefit.
I have not ignored the respondent’s criticism that the applicant has failed to provide any information about the extent of his conservative treatment, and whilst this would have been ideal, it is not fatal to his case. I am satisfied on the balance of probabilities that the applicant has had since 2021 hip pain which appears to be increasing in severity culminating in obtaining two specialist opinions which are largely consistent about the need for a replacement. In the interim he has undertaken treatment (admittedly not particularised) which has yielded little positive benefit.
As regards effectiveness, both Drs Olschewski and Randhawa consider that pain will reduce whilst mobility will increase with replacement, but do fall short of guarantees. There is no dispute amongst the medical opinion and medical literature generally that a hip replacement procedure is an accepted procedure to treat degenerative pathology identified consequential to the workplace situation.
As regards cost, these are substantial but fixed. Once the joint is replaced, with the exception of rehabilitation expenses, costs should largely be contained. Dr Silva’s approach suggested that an arthroscopy be undertaken and then if no relief achieved, a hip replacement be considered, thereby potentially increasing the overall management costs of this condition.
The respondent has made valid although harsh criticisms of the medical evidence in this case. Much like the respondent, I also prefer for all the i’s to be dotted and the t’s crossed but the applicant relies on his specialists who are focused on medicine and not law. Overall, the evidence is adequate but by no means optimal as the respondent (and indeed I) would like it to be, however the test is to establish the need for treatment on the balance of probabilities and not beyond reasonable doubt!. Ideally, in a perfect world both the applicant and respondent would forward to the various specialists a checklist or questionnaire for completion containing the tests summarised in paragraph 20 above, specifically those found in Rose and Diab. Such an approach may reduce disputes but again it needs to be emphasised that these are legal tests and it cannot be expected that the medical professional would appreciate their significance.
Overall, having considered the matters raised in Rose and Diab and being satisfied on the balance of probabilities that the need for treatment arises from workplace injury (a matter already accepted by the respondent and subject of formal findings of the Commission previously), I find that the proposed hip replacement procedure of Dr Randhawa is reasonably necessary treatment with reference to s 60 of the 1987 Act.
SUMMARY
For the above reasons, I make the findings and orders as set out on page 1 of the Certificate of Determination.
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