Mitchell v Alvora Pty Limited
[2021] NSWPIC 42
•24 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mitchell v Alvora Pty Limited [2021] NSWPIC 42 |
| APPLICANT: | Daniel John Mitchell |
| RESPONDENT: | Alvora Pty Limited |
| MEMBER: | Ms Kerry Haddock |
| DATE OF DECISION: | 24 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for cost of proposed disc replacement surgery at L4/5 and L5/S1 level pursuant to section 60 of the 1987 Act; accepted injury at L5/S1; disputed claim for consequential condition at L4/5; Held- the applicant has sustained consequential condition at L4/5; the proposed surgery is reasonably necessary as a result of the injury. |
| DETERMINATIONS MADE: | 1. That the respondent is to pay, pursuant to section 60 of the Workers Compensation Act1987, the cost of L4/5 and L5/S1 double disc replacement surgery. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Daniel John Mitchell (Mr Mitchell) sustained an injury to his lumbar spine in the respondent’s employ as an electrician on 22 August 2000 while lifting and carrying light poles. Liability for the injury was accepted.
The applicant was paid weekly benefits and medical expenses were paid.
The applicant left the respondent’s employ in about 2001. He worked for Partners Energy Management, his father’s business, until March 2008; and commenced work for Clipsal in May 2008.
As a result of the injury on 22 August 2000, the applicant has been paid the sum of $10,200 pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 17% permanent impairment of his back; and the sum of $5,000 pursuant to section 67 of the 1987 Act.
On 9 April 2020, the respondent’s insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for payment of weekly benefits and medical expenses, maintaining that the applicant did not have a total or partial incapacity for work; and medical treatment was not reasonably necessary as a result of the injury. EML disputed that the respondent was the applicant’s last employer in employment to the nature of which a disease was due; and that it was the employer that last employed him in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury.
EML noted that the applicant’s entitlement to weekly benefits ceased on 7 November 2014, after a work capacity decision. His entitlement to payment of reasonably necessary medical expenses ceased on 7 November 2016.
On 6 July 2020, EML issued the applicant with a further section 78 notice. It disputed that the applicant sustained injury arising out of or in the course of his employment on 22 August 2000; that his employment was a substantial contributing factor to the injury; that employment was the main contributing factor to the contraction of his disease injury; and that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of his disease injury. It therefore disputed liability for payment of weekly benefits and medical expenses.
On 10 September 2020, EML issued the applicant with a further section 78 notice. It disputed liability for L4/5 and L5/S1 disc replacement surgery; and for payment of both weekly benefits and medical expenses.
In this notice, EML admitted liability for the applicant’s injury on 22 August 2000. It maintained that the contemporaneous medical evidence established that the injury was isolated to the L5/S1 level of his spine. It therefore disputed that he had sustained injury to the L4/5 level of his spine.
EML maintained that the proposed surgery was not reasonably necessary as a result of the injury; and the applicant’s entitlement to payment of medical expenses ceased on 7 November 2016.
EML issued a further section 78 notice dated 21 October 2020. It disputed the applicant’s claim for weekly benefits as he was not totally or partially incapacitated for work as a result of the injury.
The applicant lodged an Application to Resolve a Dispute (the Application) on 20 October 2020. He claimed weekly benefits and past and future medical expenses, including the sum of $73,263 in respect of proposed L4/5 and L5/S1 double disc replacement, pursuant to section 60 of the 1987 Act.
The respondent lodged its Reply on 11 November 2020. It stated that the matters in dispute are: whether the applicant has sustained a consequential condition in the L4/5 level of his lumbar spine which had resulted from the L5/51 disc injury on 22 August 2000; whether the applicant is entitled to weekly payments of compensation pursuant to section 36 of the 1987 Act as claimed; whether the proposed two-level disc replacement procedure is reasonably necessary within the meaning of section 60 of the 1987 Act; whether the past medical expenses as claimed are reasonably necessary within the meaning of Section 60 of the 1987 Act; and whether the applicant is entitled to the medical treatment expenses as claimed, having regard to the operation of sections 59A and 60(2A) of the 1987 Act.
The applicant subsequently discontinued his claim for weekly benefits and past medical expenses. He now claims only future medical expenses, being the cost of the proposed surgery.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) The application of section 59A of the 1987 Act to the proposed medical treatment, that is L4/5 and L5/S1 disc replacement;
(b) whether the proposed medical treatment is reasonably necessary as a result of the injury on 22 August 2000, and
(c) whether the applicant has sustained a consequential condition of the L4/5 disc as a result of the accepted injury to the L5/S1 disc.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing on 18 January 2021. The applicant sought and was granted leave to rely on written submissions, to be provided.
The applicant was directed to lodge and serve written submissions by 1 February 2021.
The respondent was directed to lodge and serve written submissions by 15 February 2021.
The applicant was directed to lodge and serve any submissions in reply by 22 February 2021.
The parties complied with the direction.
The applicant lodged late documents on 22 February 2021. He had not sought and had not been granted leave to lodge further evidence and I have not taken it into account in determining the matter.
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.
The parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 10 November 2020 filed by the applicant and admitted by consent;
(d) Application to Admit Late Documents dated 11 January 2021 filed by the respondent and admitted by consent, and
(e) Application to Admit Late Documents dated 12 January 2021 filed by the applicant and admitted by consent.
Oral Evidence
There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Daniel John Mitchell
Mr Mitchell’s first statement is dated 15 June 2020.
Mr Mitchell states that he ceased work for the respondent in about 2001. He then went to work for Partners Energy Management until March 2008; and commenced work for Clipsal in sales in May 2008.
The applicant provides detail of the injury on 22 August 2000, which it is unnecessary to repeat. He states that his symptoms never resolved after this injury.
The applicant consulted Dr Paul Watterston over the years and underwent a number of investigations. He was referred to Karl Sprogis for physiotherapy, as he was suffering from continual flareups.
By 2011, the applicant had psychological symptoms as a result of his back pain and restriction. He felt depressed about his inability to work as an electrician, play sport and enjoy hobbies, and play with his children. His psychological state affected his marriage, and he was referred to Dr Scurrah, psychiatrist. Dr Scurrah diagnosed him with chronic depression and anxiety.
The applicant was also referred to pain specialist, Dr James O’Callaghan, who arranged for facet joint injections. They did not help his pain and Dr O’Callaghan told him there was no further treatment he could offer.
The applicant was being prescribed “pretty heavy pain killers, including Oxycontin”. He decided to try massage and was referred to exercise physiologist Tim Boyd in February 2013. His treatment was “really helpful” and he put together a gym program. Dr Watterson also referred the applicant to chiropractor Rick Endres in July 2013.
In late 2013 the applicant suffered a back spasm that caused his right leg to give way and hit the ground. MRI showed a minimally displaced fracture of the head of the fibula, and he was referred to Dr Mark Pearce.
By July 2014, Dr Watterston had advised the applicant that he was going to have to live with the condition of his back for the rest of his life.
The applicant had chiropractic treatment in 2017 and 2018 and has attended numerous massage practices over the last six years.
On 6 March 2020, the applicant consulted Dr McEntee, spinal surgeon, for an opinion. He arranged up to date investigations and after reviewing them suggested that the applicant have a double disc replacement. The applicant is keen to proceed, as he is “sick of being in pain and being unable to work”.
The applicant has never been certified fit for pre-injury duties since the injury in 2000. He has always been either unfit for work, on light duties, or fit for suitable employment with lifting restrictions.
The applicant’s back injury has caused many issues with his everyday life activities. They include mowing the lawn; mopping and sweeping; “enjoying the kids growing up” and activities with them, such as fishing and mud crabbing – this was the “undoing” of his marriage, as his wife thought he was lazy and no help to her; sporting activities; running or jogging; his libido; disturbed sleep; and stomach cramps caused by medication.
The applicant attempted to return to work with the respondent but found it difficult to complete his duties. There were no suitable duties and his employment was terminated.
The applicant was able to complete his duties with Partners Energy Management, as it was his father’s business, so he had a sympathetic employer. His duties were estimating and administrative works and attending jobsites with apprentices and walking them through projects, while he supervised and taught them. He was “more like their apprentice”, as all he could do to help was grab tools like screw drivers and cordless drills etc., which was within his lifting ability of less than 10 kilos. He also programmed any projects that required smart automation.
The applicant’s back pain continued, so he had to be careful what he did. He could become bedridden, from simple things such as sitting or driving, for a week at a time. They were “good enough” to give him the time he needed to get his pain under control.
There were times when the applicant could not avoid heavier tasks. By 2008, he could not lift even two kilos without lower back pain and left sided sciatica; and he decided to change employment. During this time, he was receiving top up payments from EML.
The applicant “honestly” does not believe his work for Partners Energy Management made his injury worse. He believes his injury in 2000 has just taken its natural course.
In 2008 the applicant was employed by Clipsal as Sales Business Development Manager and was recently promoted to State Sales Manager. His duties involved calling on electricians, architects, and developers and designing solutions for their projects. He was also the State Manager for the Schneider Projects in Queensland. This involved guiding a team of business development people. There was no lifting required as these are desk and B2B business meetings.
The applicant feels lucky to have an understanding working community. He does not lift anything that he feels would trigger pain. The team knows of his injury and gets help if he needs a hand, but he generally asks someone to lift things that are outside his comfort zone.
The applicant is required to commute to Brisbane a few times a week. He stops every hour or two to rest, so the drive takes longer, but he has been doing this for 10 years and is used to it. He is allowed to work remotely most of the time.
The applicant’s job does not entail heavy physically demanding tasks, so he does not believe he has suffered “aggravation” of his back injury due to this employment. He has just continued to suffer from symptoms ever since the original injury in 2000.
Mr Mitchell made a further statement dated 10 November 2020. He clarified that Clipsal and Schneider Electric are the same employer, Schneider having acquired Clipsal some years ago.
The applicant stated that by the middle of 2020, he was really working only a couple of days a week at home, due to back pain and sciatica. He felt bad that his employer was paying him for full time work.
On 10 August 2020, the applicant was certified unfit for work and that certification had continued. It was decided that he would go on sick/personal leave. He does not anticipate he will be able to return to work until he has had spinal surgery and recovered.
The applicant has been prescribed medication to help him sleep, and Endone. He has discussed with Dr Watterston a referral to a psychiatrist. He has been trying conservative treatment for 20 years, but his injury has worsened and he lives in pain all day, every day.
The applicant states that Dr Cochrane (who was qualified by the respondent) “definitely downplays” his symptoms and has made some errors about his medication. He advised
Dr Cochrane that if he mows the lawns and/or garden, it “puts me in bed the following day with headaches, severe back pain and bowel and bladder problems”. He tries to limit these activities as much as possible.The applicant disagrees that his gait was normal. Dr Cochrane also did not mention his difficulty getting in and out of the office chair and on and off the examination table. He was also very slow moving during the consultation.
Medical Evidence
Dr Leong Tan – Neurosurgeon
Dr Tan reported to Dr Watterston on 12 October 2000.
He did not record any history of the injury but recorded that the applicant’s pain initially started “about a year ago and took a week to settle”. There was some pain in his back and some sensation down his leg that settled within a week.
The applicant then had a recurrence of symptoms, associated with paraesthesia into both legs. His symptoms had eased over the last couple of weeks, although they appeared to have increased on the drive to the consultation.
Dr Tan reported that the applicant’s x-ray was unremarkable, and the CT scan in October 1999 (that is, before the injury) compared to that in September 2000, “basically it shows a very subtle disc bulge at L5-S1 region more on the left side, but the nerve roots and thecal sacs are free”. There was no change in the size of the disc lesion.
Dr Tan recommended conservative treatment. The applicant was fit to return to light duty work on a graduated basis. It was quite safe for him to play sport, but Dr Tan advised that there was always a risk that the disc could protrude further and cause problems.
Mr Karl Sprogis – Physiotherapist
Mr Sprogis reported on 14 December 2005.
He recorded a history that on 22 August 2005 [sic] the applicant was installing and lifting steel light poles. At the end of the day, he felt low back pain and numbness in the posterior thighs and calf muscles. Light duties were not available; and he resigned on 26 October 2000.
The applicant was working as an electrician for his father. His low back pain flared regularly, and he had had substantial time off as a result. He had constant variable low back pain on the left. He had increased pain at the end of the work day, the level depending on the vigour of his work activities.
Mr Sprogis opined that if the applicant were to continue work as an electrician, he would require considerable restrictions. Jobs that did not require physical labouring or prolonged sitting would suit him. It would be in everyone’s interests if he could find a suitable job.
Dr John Ashwell – Orthopaedic Surgeon
Dr Ashwell reported first on 23 January 2006, having been qualified by the applicant’s solicitors.
He recorded a consistent history of the injury and the applicant’s subsequent course. The applicant had had a few weeks off lately with increased back pain. He was hoping to have an MRI in the near future.
The applicant complained of constant soreness in his low back, but no radiation of pain down his legs. His back pain particularly troubled him with prolonged sitting or standing. He developed numbness in his left leg with prolonged sitting, especially driving a long distance. He was having no specific treatment but had his own exercise program.
The remainder of the report is missing.
Dr Ashwell again reported on 13 February 2006. He had available MRI scan dated 1 February 2006. This indicated that the applicant’s pathology lay in the L5/S1 region. It was due to a broad-based disc bulge and a focal central annular tear. There was no radiological evidence of nerve root compression and no radiation of pain down the applicant’s legs.
Once again, the remainder of the report is missing.
Dr G A Miller – Specialist Surgeon
Dr Miller was qualified by the applicant’s solicitors and reported on 6 February 2006.
He recorded a consistent history of the injury and subsequent events. The applicant said he could do the job at Partners Electrical easily. He nonetheless complained of constant pain in the lumbar region. It did not radiate. It was made worse by sitting, and standing for longer than 30 minutes. His problem was aggravated by bending, stooping and lifting. The pain woke him at night and was worse in cold weather.
Dr Miller diagnosed a soft tissue injury to the lumbo-sacral spine. It appeared the problem was most likely located in the lumbar facet joints on his left lumbar spine, or left sacro-iliac joint.
Dr Miller did not believe there was any surgery that would improve the applicant’s condition; and he should continue with conservative treatment. He opined that the applicant was not fit to return to his previous occupation as an electrician unless with his current restrictions of lifting less than 15 kilos. It appeared that he was only able to hold down his employment because it was his father’s business.
Dr Miller assessed the applicant with 15% permanent impairment of his back as a result of the injury on 22 August 2000. He assessed 8% whole person impairment as a result of the ongoing nature and conditions of his employment. His opinion was unchanged after reviewing the MRI dated 1 February 2000.
Dr Geoffrey M Boyce – Consultant Neurologist
Dr Boyce was qualified by the applicant’s solicitors and reported on 6 February 2006.
He recorded a consistent history (although he has recorded the date of the injury as 1998). The applicant was working for his father and was able to do light work, with a lifting limit of
5 kilos.The applicant complained of low back pain that was present most of the time. It radiated to the left buttock but there was no radiation to the left leg.
Dr Boyce opined that the applicant had an injury to the L5/S1 disc with some desiccation. He was unable to do heavy lifting and the condition would continue. He had a permanent impairment of his back (but the report does not contain an assessment).
Dr Paul Watterston – General Practitioner
Dr Watterston reported on 23 March 2006.
He noted that he had been the applicant’s local medical officer for 18 years. He provided a consistent history of the injury.
Dr Watterston diagnosed a soft tissue injury to the lumbo-sacral spine. The applicant continued to suffer chronic lower back pain, with regular acute flareups of severe pain. It appeared that his injury was not ever going to fully settle.
The main consequence of the injury was that the applicant would have to assess his future employment. His back was not suitable to heavy lifting or repetitive bending. Dr Watterston had encouraged him to consider a “desk-type” job.
The applicant’s prognosis was for a lifetime of chronic lower back pain with regular acute flareups. He was fit only for restricted duties.
Dr Ross Gurgo – Neurosurgeon
Dr Gurgo reported to Dr Watterston on 23 April 2008.
He recorded a history that the applicant’s symptoms of back pain and diffuse numbness in his legs had persisted over several years. They waxed and waned but gave him some trouble. He had no true lower leg radicular symptoms.
Dr Gurgo organised a further MRI of the applicant’s spine and brain, and EMG studies of his lower limbs.
On 16 May 2008, Dr Gurgo reported that the applicant’s back pain was settling down. He was having physiotherapy and had changed jobs, which was beneficial.
Dr Gurgo “would like [the applicant] to continue on as he is currently”.
Dr Gurgo reported on 4 August 2008 that the applicant’s back problems had settled down. Imaging had identified a posterior fossa lesion in his brain, but recent scanning indicated that it was almost certainly an arachnoid cyst.
Dr Con Kafataris – Injury Management Consultant
Dr Kafataris reported to EML on 3 March 2009.
He recorded a consistent history of the injury. The applicant had seen at least three physiotherapists and undergone what appeared to be a work-related activity program. He had also seen a chiropractor.
The applicant said his spine had improved but he had recurrences on a regular basis. The most significant was in April 2008, when he had two months off work.
Dr Kafataris recorded a complaint of constant left sided lower back pain, with no radiation. The applicant had previously had non-specific left leg symptoms with neurological symptoms. There was none at that stage. He took Endone very intermittently.
Dr Kafataris opined that the applicant most likely had internal disc disruption at L5/S1. He may have an element of facet joint pain, but his MRI was typical of internal disc disruption, with good disc height and hydration at the other levels; and substantial degeneration with annular tear at L5/S1. There were no features of radiculopathy or nerve root compression.
Dr Kafataris agreed with Dr Watterston that the applicant was unlikely to be able to return to his pre-injury duties and permanently modified duties were appropriate. He should be given a “final” certificate with a long-term lifting restriction of 10 to 15 kilos.
Dr James O’Callaghan – Pain Medicine Physician
Dr O’Callaghan reported to Dr Watterston on 11 July 2011.
He recorded complaints of left sided lower back pain, with occasional numbness down the back of the leg and into the sole of the left foot.
Dr O’Callaghan diagnosed mechanical low back pain, which may arise from the L5/S1 disc or the left L5/S1 facet joint. Very occasionally, the applicant may have nerve irritation with numbness in the left foot.
The only way to find out whether the applicant’s pain was associated with the facet joint or the disc was to do either medial branch blocks or left L5/S1 facet joint injection.
Dr Laurence McEntee – Orthopaedic Surgeon
Dr McEntee reported to Dr Watterston on 6 March 2020.
Dr McEntee recorded a consistent history of the injury. The applicant was “certainly not in a good way”. His back pain was constant. His leg pain was not truly constant but present a lot of the time. His symptoms recently became worse and he had noted erectile, bladder and bowel dysfunction. There was no true incontinence recently, but there had been some episodes some years ago.
The applicant’s sleep was disturbed by pain. He was stiff and sore in the morning. He could not sit or stand for any length of time, as his leg symptoms increased. Lifting, bending and twisting caused his symptoms to flare. He was more concerned about his leg pain than his back pain.
The applicant had had physiotherapy and chiropractic treatment and had been to a pain clinic. He had had nerve root blocks and epidural injections, but nothing had really led to any long-term improvement.
Dr McEntee arranged for the applicant to have further investigations.
On 23 April 2020, Dr McEntee provided a report at EML’s request.
He reported that there was no history of any new injury. The applicant had had ongoing symptoms since 2000. There was no recorded history of aggravation and Dr McEntee regarded this as a recurrence of the original injury. There was no specific mechanism of injury regarding the recurrence.
Dr McEntee noted that the applicant worked in sales, and there was no history of any particular recent injury. He was not aware of any other factors contributing to the recurrent [sic]/increase in symptoms.
The applicant’s status was that he described constant low back pain with intermittent sciatic pain down the left leg. Dr McEntee was unable to provide a diagnosis until he had reviewed the investigations. It was likely to be no different from the original injury.
Dr McEntee opined that, given the applicant had had back pain for 20 years, he was likely to have ongoing aggravation/recurrences at work.
On 28 May 2020, Dr McEntee reported that the applicant’s EMG confirmed bilateral L5 and S1 radiculopathies in keeping with his ongoing leg symptoms. His bone scan did not show any active facet or sacroiliac arthropathy. His MRI confirmed disc issues at L4/5 and L5/S1, with advanced degeneration with annular tears in both discs, which was almost certainly the cause of his ongoing pain.
Dr McEntee opined that “we are looking at surgical intervention”; and “we could look at a two-level lumbar disc replacement at L4/5 and L5/S1”.
Dr McEntee requested that EML approve the surgery by letter dated 2 June 2020.
Dr Ventzi Bonev – Neurologist
Dr Bonev reported to Dr McEntee on 15 May 2020.
He had examined the applicant and carried out EMG studies. He concluded that the applicant had neurophysiological evidence of chronic bilateral L5 and S1 nerve root dysfunction.
Dr James Clayton – Orthopaedic Surgeon
Dr Clayton was qualified by the applicant and reported first on 30 July 2020. He noted that the report superseded one dated 23 July 2020, as he had included additional questions provided on 7 July 2020, but no further changes were made.
Dr Clayton recorded a consistent history of the injury. The applicant had had investigations that demonstrated L5 disc protrusions.
The applicant had left the respondent’s employ and went to work for his father’s company. He had ongoing intermittent exacerbations and non-operative management until 2008. He had consulted multiple allied health and specialists over the years, with associated interventions, but had failed to gain lasting relief.
In 2020, the applicant learned of the possibility of a disc replacement. He obtained a referral to Dr McEntee, who arranged investigations and diagnosed L5/S1, greater than L4/5, disc degeneration as the cause of his ongoing pain. Dr McEntee recommended a two-level disc replacement.
Dr Clayton recorded that the applicant rated the background pain in his lumbar spine as 5/10, which had been essentially stable since November 2019. He has aggravations up to 9/10, including left leg sciatica in the L5, greater than S1 regions, which demonstrate down the lateral and posterior aspect of his leg into the foot. These aggravations occur with even minor twisting activities. If the applicant drives for 60 minutes, he needs to rest for 5 to 10 minutes before he can continue. He described night pain that woke him most nights.
The applicant also had had urinary incontinence most weeks since the accident and occasionally had bowel incontinence. He had erectile dysfunction, which he felt was related to his neurological symptoms and associated pain, and for which he had trialled Viagra.
The applicant had not recently had physiotherapy or chiropractic treatment. He was performing exercises, as he had previously been taught. He was taking Lyrica, Oxycodone and Panadeine Forte, paracetamol and ibuprofen. He was able to continue working. He could not mop or vacuum, and could undertake other domestic chores, but had significantly slowed down and needed to rest regularly. He walked for fitness but did not participate in other fitness activities due to pain.
Dr Clayton examined the applicant and reviewed his investigations. He opined that the investigations were consistent with the history and examination.
Dr Clayton summarised that the applicant sustained a workplace injury on 22 August 2000. He had no previous back issues or underlying congenital concerns. He had experienced ongoing pain with recurrent exacerbations since. There had been no further trauma to his back.
Dr Clayton therefore opined that the injury was the direct and only causative factor resulting in the applicant’s symptomatology and function, and requirement for surgery. This was confirmed by MRI and EMG. There was no relevant family history.
The applicant had undertaken maximal non-operative management with little relief.
Dr Clayton opined that there was no further intervention in the form of outpatient procedures that was likely to be beneficial. He therefore supported Dr McEntee’s opinion that the next appropriate step and the reasonably appropriate management was to definitively address the L4/5 and L5/S1 disc pathology in the form of a two-stage disc replacement.Dr Clayton opined that while single-level arthrodesis in addition to disc replacement and two-level disc arthrodesis is also a possibility, the appropriate direction was two-level disc replacement, as recommended by the applicant’s spinal surgeon.
Dr Clayton’s diagnosis of the applicant’s spine condition was spondylosis localising to the L4/5 and L5/S1 discs. This had resulted in discogenic pain and associated lower limb radiculopathy. The applicant’s lumbar condition was not secondary to a pre-existing injury; and in all probability it was secondary to the frank injury of 22 August 2000 and its progression. While he may have had several other exacerbations following twisting or moving, there has been no other event or injury that has caused aggravation, acceleration or deterioration of the disease.
Dr Clayton opined that the work injury was the substantial contributing factor to the applicant’s lumbar spine condition. The proposed surgery was reasonably necessary; and the applicant would not have required it had it not been for the definable injury. He has exhausted all available alternative treatments and has essentially been palliating the condition. The recommended treatment is relevant and appropriate treatment for the injury and the benefits outweigh any risk in terms of the potential effectiveness of the treatment.
Dr Clayton also opined that the cost of the recommended treatment “certainly does not” outweigh its benefit. He expected the procedure would allow the applicant to return to more productive employment and remain in the workforce longer than he would otherwise. It would also probably improve his psychological and social prospects.
Dr Clayton was not of the opinion that the applicant’s subsequent employment had materially contributed to the requirement to undergo the surgery. There was no evidence that any other factors had contributed to his condition.
Dr Clayton opined that the applicant’s likely prognosis if he did not undergo the surgery was poor. It was expected that he would be able to function to a certain extent over the next couple of years as he was currently, but in a short period of time would have acceleration of symptoms that would require him to leave the workforce. It was particularly concerning due to the bladder and bowel incontinence; and it was expected that if there was a significant delay in the surgery, the applicant would have ongoing progressive and permanent neurological injuries.
Dr Clayton responded to a request for a supplementary report on 16 September 2020. He reported that he had been surprised that the applicant was able to perform many duties and it was very generous of his employer to keep him on.
Dr Clayton opined that the applicant’s L4/5 disc condition and pathology were directly related to the work injury on 22 August 2000. While the injury resulted in L5/S1 disc protrusion and associated degeneration over time, this results in overloading of the adjacent intervertebral disc. There is more stress placed through this disc, being the L4/5, subject to ongoing wear and tear and damage above and beyond what would be expected without the workplace injury. Accordingly, in Dr Clayton’s opinion, the condition and pathology at this level is directly related, as a consequence of the injury of the L5/S1 disc.
In addition, Dr Clayton opined that it would be inappropriate to address only the disc at L5/S1. Surgery at only this level would further aggravate the condition at L4/5 and accelerate the condition. The applicant would then require a further operation that would be directly related to the original workplace condition. A process of staged intervertebral disc replacement or arthrodesis would also be inappropriate. This would place the applicant at increased risk for ongoing and permanent damage to spinal nerves and the spinal cord. There would be increased risks associated with two operations, including anaesthetic, infection and DVT. Dr Clayton opined that it would therefore be irresponsible to approve and undertake surgery only at the L5/S1 level, in the applicant’s condition.
Dr Clayton opined that the applicant’s employment with the respondent was a substantial contributing factor to the L4/5 condition/pathology. While there was not a specific disc injury in this region, the workplace caused a disc injury to the level below. This overloaded the disc above and caused chronic degeneration and the current pathology. The workplace had a direct and substantial causal link to the pathology in the L4/5 disc region.
Dr Clayton was still of the opinion that the surgery recommended by Dr McEntee was reasonably necessary as a result of the applicant’s work injury on 22 August 2000.
Dr Clayton provided a supplementary report dated 12 January 2021, in which he commented on Dr Cochrane’s reports dated 17 August 2020 and 14 December 2020.
Dr Clayton reported that Dr Cochrane’s opinions did not alter his previous opinion. He opined that the workplace injury directly resulted in L5/S1 pathology. This has resulted in altered biomechanics at that level, a phenomenon supported by literature, which he cited. This is similar to the altered biomechanics that occurs following surgery such as arthrodesis on adjacent levels. This then has an effect on the adjacent intervertebral levels, resulting in accelerated degeneration at those levels, known as “adjacent segment disease”. This is a well-established phenomenon following surgery, and this opinion is supported by
Dr Cochrane in his report dated 11 December 2020 and in the literature. This also occurs and is well-documented in the upper and lower limbs.Dr Clayton opined that, with degenerative disease isolated to L4/5 and L5/S1, and no family history of spinal disorders or osteoarthritis, while it is not impossible that the applicant’s adjacent level disease could have occurred independently of the injury at L5/S1, it is improbable that it would be present as such localised pathology. It is his opinion that in all probability, the L4/5 pathology is directly related to the L5/S1 pathology and in turn the workplace injury.
Dr Clayton further opined that the injury on 22 August 2000 materially contributed to (the necessity for) disc replacement at L4/5. It is also Dr McEntee’s opinion, and that of
Dr Cochrane, that it is reasonably necessary to operate on L4/5, even if the primary pathology resides in L5/S1. If the surgery were to be confined to L5/S1, it would then permanently aggravate the L4/5 pathology and result in the requirement for further surgery in this region. Accordingly, whether the procedure was performed in a single operation or a multiple operation, there is a direct causal link to the workplace injury being the main contributor at both levels. Given this, it is prudent, and would be considered best current and evidence-based medical practice, to perform the procedure at both levels at the same time.The surgery is reasonably necessary, in Dr Clayton’s opinion. The applicant had exhausted all non-operative management and was functioning at an extremely low level with all activities of daily living; and no work capacity. The surgery had the reasonable expectation of significantly increasing his quality of life, life expectancy and allowing a return to gainful employment. The benefits of the surgery outweighed any associated costs.
Dr Neil Cochrane – Neurosurgeon & Spinal Surgeon
Dr Cochrane was qualified by the respondent and reported first on 17 August 2020.
He recorded a consistent history of the injury and the applicant’s symptoms. He noted that the applicant had approximately three weeks off work, due to left leg weakness, pain and numbness. He later had “a few months” off work due to his symptoms. He also recalled episodic poor bowel control and some episodes of faecal and urinary incontinence, which seemed to be self-limiting.
In his ongoing work as an electrician apprentice, working for his father, the applicant recalled episodic flareups of low back pain, which might require “one week or more” in bed; and medication such as Endone, Nurofen and Celebrex. The applicant recalled very light work between 2001 and 2008, to avoid re-injury.
The applicant commenced work for Clipsal in 2008. His employer put him through University and he obtained a Master of Business Law. He became State Manager for Schneider and continued in his “desk job”.
Dr Cochrane recorded that the applicant recalled developing depression or depressive symptoms in about 2001, as a result of his ongoing symptoms and simply “having had enough” and seeking treatment.
The applicant had recently sought an opinion from Dr McEntee, being frustrated with symptoms that, by his recollection, had never settled over 20 years. Dr McEntee organised investigations and has recommended two-level (L4/5 and L5/S1) anterior lumbar discectomy and disc replacement.
The applicant recalled seeing Dr O’Callaghan and having undergone facet joint injection, which was ineffective. He had also seen neurosurgeons, including Dr Tan in 2000 and
Dr Gurgo in about 2008. He recalled conservative treatment being recommended. He also recalled having extensive and allied health-based treatments, including physiotherapy, chiropractic treatment and a gymnasium-based rehabilitation program. These did not improve his symptoms.Dr Cochrane recorded that the applicant was taking Lyrica twice a day, Oxycontin (not every day); and Celebrex, Panadeine Forte and Nurofen most days. He had massages as required for his symptoms.
The applicant complained of central low back pain, radiating to the pelvis. He had episodic sciatica down the left lower limb, infrequently on the right. It typically went to the arch of his foot or pre-tibial region, more on the left, with episodic burning pain in the instep of the right foot and numbness in the instep of the left. His primary sensation or abnormality was a feeling of numbness in the left lower limb, particularly the medial foot and arch of the foot on the left. There were occasional “spasms” of pain diffusely in the left lower limb, which were episodic and unpredictable.
The applicant was sometimes comfortable at night and sometimes had poor quality of sleep due to hypersensitivity and irritability of the left lower limb. He rated both his back and lower limb pain as 5/10. As a result of back pain flareups, he described irritability and looseness of his bowels. With increasing pain, there was a degree of erectile dysfunction.
Dr Cochrane noted that the applicant used a robot vacuum cleaner and mop but did other housework, with symptoms. He could mow the lawn and garden, with symptoms, but could not continue playing golf. He stopped work in March 2020 as he was “sick of symptoms”.
Dr Cochrane performed a comprehensive examination. He also referred to investigations performed in May 2017 and May 2020 (MRI),
Dr Cochrane opined that as a result of an injury to the applicant’s low back in 2000, there had been an injury to the L5/S1 intervertebral disc. He had been provided with a report of
Dr Tan dated 12 October 2000, and Dr Gurgo’s and Dr Kafataris’s reports. He noted that they suggested a degree of low back pain, likely emanating from the L5/S1 disc, more on the left. The neurosurgeons did not see any indication at that time for surgical treatment. Conservative treatment had been the mainstay in the 20 years since the injury.Dr Cochrane noted that Dr McEntee had diagnosed discogenic pain, likely from the L4/5 and L5/S1 levels; and had recommended two-level anterior lumbar discectomy and total disc replacement.
Dr Cochrane opined that the mechanism of injury was consistent with the cause of injury to the left L5/S1 disc, and with accelerated degeneration thereafter. There appeared to have been modest recovery early after the injury, but in the intervening 20 years, no resolution.
Dr Cochrane’s clinical assessment was that the applicant had asymmetrically restricted lumbar movements, equivocal but non-verifiable radicular symptoms in the left lower limb and reported sensory problems in the right lower limb; and two-level degenerative disc disease, most likely coming from L5/S1. Given the 20-odd years of symptoms, it was highly likely that the applicant had a degree of chronic pain phenomenon and chronic dysesthesia in the lower limbs. Dr Cochrane suggested this was highly unlikely to resolve with any medical or surgical treatment. The lower back pain may respond to surgical treatment, as it appears likely to be discogenic, given the pain syndrome, radiological findings; and noting the absence of abnormalities of the facet joints on a recent SPECT CT bone scan.
As to liability for the surgery, Dr Cochrane opined that it did not seem there was liability for treatment at L4/5. Although there is quite clearly degeneration at this level, and he agreed with Dr McEntee that it may be a symptomatic lesion, in his opinion this represented natural degenerative changes evolved between the injury and the present. He noted the MRI of the lumbar spine on 30 April 2008 did not describe a lesion at L4/5. The L4/5 degeneration therefore appeared to be subsequent to 2008.
With respect to the L5/S1 level, Dr Cochrane believed treatment was reasonably indicated, in the sense that the disc was injured, has remained painful, and has progressively degenerated. The indication for surgical treatment is chronic failure of non-operative conservative treatments over time.
Dr Cochrane accepted that there was radiological evidence of degeneration at L4/5 and a reasonable clinical inference that it represented discogenic pain from both L4/5 and L5/S1, but he could not relate the findings at L4/5 to the workplace injury.
Dr Cochrane opined that the proposed surgery was accepted treatment and had a reasonable chance of assisting the applicant with his back pain. Given the absence of any neurocompressive lesion, he considered it highly unlikely that the leg symptoms would be effectively resolved; and the latter represented chronic sensitisation and central pain phenomena. He estimated a 60% to 70% chance of significant reduction in back pain and a 20% to 30% chance of significant improvement in the lower limb symptoms. He estimated the cost of surgery at $40,000 to $45,000. He was not of the opinion that there were any likely alternative treatments that were likely to assist the applicant, with the exclusion (exception?) of spinal cord stimulation.
While acknowledging that there is conjecture as to the use of discography, Dr Cochrane opined that discography at L4/5 and L5/S1, typically with a “control” level such as L3/4, may help to determine whether the applicant’s pain was emanating from both L4/5 and L5/S1; and therefore provide some clarity as to whether one-level or two-level surgery is required. He remained of the opinion that surgery at L4/5 cannot reasonably be related to the workplace injury.
On 11 December 2020, Dr Cochrane provided a further report, having reviewed the applicant’s statements and Dr Clayton’s reports.
Dr Cochrane reported that his opinion was unchanged. He agreed with Dr Clayton that the surgery recommended by Dr McEntee was very reasonable treatment for significant disc degeneration at the L5/S1, more than the L4/5, level. He also agreed that it could be problematical to perform fusion at L5/S1 alone, as this would significantly accelerate and further exacerbate any concurrent degeneration at L4/5. Disc replacement at L5/S1 is less likely to accelerate degeneration at L4/5, as this is the specific function of a disc replacement prosthesis.
Dr Cochrane did not agree that the accepted injury of L5/S1 disc protrusion and annular fissuring had “overloaded” the L4/5 disc. There was no biomechanical reason why this should be the case. A previous fusion can cause adjacent segment degeneration. However, there has not been any previous fusion surgery at L5/S1 to cause accelerated adjacent segment deterioration. Dr Cochrane therefore did not agree that there has been any evidence of “overloading” at L4/5 due to the injury at L5/S1. He remained of the opinion that the applicant’s pathology at L4/5 represented natural age-appropriate degeneration, noting that 20 years have passed since the incident.
Dr Cochrane “fully” understood Dr McEntee’s rationale for surgery and agreed that surgery at L5/S1 alone would not treat the degenerative L4/5 level, but he could not relate the need for surgery at L4/5 as being substantially required as a result of the work-related injury, as there was no accepted injury at L4/5 and 20 years have lapsed since the injury.
Dr Cochrane further opined that the chance of the applicant responding to surgery, with approximately 20 years of pain, due to the likely emergence of chronic central pain phenomena, was quite low.
On 14 December 2020, Dr Cochrane opined on the applicant’s claim for weekly benefits. As the applicant no longer makes that claim, it is unnecessary to consider that report.
SUBMISSIONS
Applicant
The applicant submits that the remaining issues are:
(a) the application of section 59A of the 1987 Act;
(b) the reasonable necessity of the surgery; and
(c) whether the applicant has sustained a consequential condition (of the L4/5 disc as a result of the accepted injury to the L5/S1 disc).
As regards section 59A of the 1987 Act, the applicant submits that the proposed surgery is consistent with the exception contained in section 59A(6).
The applicant submits that the replacement of an internal part of the body is considered to be an “artificial aid”, consistent with authority: Pacific National Pty Ltd v Baldacchino [2018] NSWWCCPD 12 [confirmed in the Court of Appeal – Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281]; and Herborn v Spotless Services Australia Ltd [2020] NSWWCCPD 24.
The applicant submits that there can be no doubt that the removal of one or two spinal discs and their replacement with artificial discs is caught by section 59A(6). As a result, he is not caught by the transitional provisions of section 59A with respect to the future treatment expenses claim. He referred to the late documents to which I have referred above, which have not been admitted and to which I have had no regard.
As to the reasonable necessity of the surgery, the applicant submits that none of the experts denies that the proposed surgery is reasonably necessary. It appears that Dr Cochrane has some reservation about the proposed surgery at L4/5, with respect to liability. He does not deny that it is a reasonable treating decision; and accepted that it is likely to have a benefit with respect to the reduction of symptomatology, especially with respect to low back pain. It is accepted that he is somewhat more pessimistic with respect to the referred pain into the leg.
The applicant submits that, based solely on the respondent’s own expert, with respect to the probable reduction of pain in the low back, I would be satisfied that the proposed surgery at both levels is reasonably necessary.
As regards whether the applicant has sustained a consequential condition, he submits that the starting point is that he has had back pain since the date of the injury, 20 years ago. Applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) NSWLR 45), there is an absence of evidence suggesting any issues with his back prior to the incident; and he has had a consistent history of treatment since. He has worked through his pain levels, which have increased over the years. He has found work he is able to do and intends to return once he has had the surgery.
The applicant submits that there is no dispute that he sustained injury to his L5/S1 disc; and no dispute, in the real sense, that he needs surgery at that level. The operating surgeon has proposed surgery at that level and the level above.
The applicant further submits that, even without a finding that the L4/5 disc results from the injury at L5/S1, I would still accept, in the light of his level of pain, and the treating surgeon’s opinion, that [the need for] surgery at both levels results from the original injury. Dr Clayton (in his report dated 12 January 2021) provides a highly persuasive opinion as to the need to operate at both levels, even if there is only symptomatic pathology at one level.
The applicant submits that Dr Cochrane’s line of reasoning is that without fusion there can be no additional stress placed on the adjacent disc. Dr Clayton disagrees. His reports are persuasive, consistent with the treating and factual evidence and should be preferred to the opinions expressed by Dr Cochrane.
The applicant further submits that the treating surgeon has indicated that, to treat the pain from the L5/S1 level, both discs need to be replaced. That is, even if there is no relationship between the pathology at each level, in order to treat the L5/S1 level, it is also necessary to address the issues in the adjacent disc. Dr Cochrane does not address this line of reasoning. Dr Clayton, in his two reports, provides persuasive opinion evidence as to the relationship between both discs.
The applicant finally submits that I would find that the L4/5 disc condition results from the L5/S1 injury; that the surgery is reasonably necessary; and that it consists of the provision of an “artificial aid”. In the circumstances, I would order the respondent to pay for the proposed surgical procedure.
Respondent
The respondent submits by way of background that Dr McEntee first saw the applicant on 6 March 2020. He noted left leg pain worse than back pain. Because there had been no imaging for four years, he arranged MRI, bone scan, EOS scan and EMG of the applicant’s lower limbs.
The MRI scan report, importantly, at L4/5 is as follows:
“There is a subtle loss of disc height and signal, with a subtle posterior annular tear, but no significant disc bulge/attrition. No adverse affect [sic] upon the emerging L4 nerve roots. Low grade bilateral facet arthropathy at this level. No definite multifidus wasting”.
Dr McEntee has recommended total disc replacement at L4/5 and L5/S1. The respondent challenges both its reasonable necessity and the causal connection with the event on 22 August 2000.
The respondent deals with the issues of “consequential condition” and “reasonable necessity” together, as they are intertwined.
The applicant, in his statement, acknowledged that a CT scan on 22 September 2000 showed a slight posterior bulging at L5/S1 but no focal disc protrusion. MRI of 1 February 2006 showed no significant disc pathology at L4/5 but a loss of height and disc desiccation at L5/S1. Just over a year later, a CT scan showed no evidence of any significant posterior disc bulge or protrusion at any level above L5/S1. Dr Gurgo, in his report of 23 April 2008, referred to a recent MRI scan showing no findings of note, other than at L5/S1.
In these circumstances, it would require persuasive evidence to demonstrate that the need for a prosthetic disc at L4/5 is necessary. There is no persuasive evidence to this effect. There is no statement from Dr McEntee and none from Dr Clayton that the L4/5 disc is the site of such significant pathology that the replacement of the disc is warranted.
Alternatively, the respondent submits that if there is a need for a prosthetic disc at L4/5, the applicant would require persuasive evidence to demonstrate that the need resulted from an injury which, the respondent contends, clearly did not damage the L4/5 disc. Arguably, there is no acceptable evidence that there is a link. Alternatively, if the evidence reached the level of acceptability, it is not persuasive.
The respondent submits that Dr McEntee provides the applicant with no assistance. In his report of 2 June 2020, he seeks approval for the replacement of L4/5 with a prosthetic disc without explaining why that is necessary, or how, if that need exists, it results from an event in 2000.
The applicant submits that Dr Clayton’s opinion is highly persuasive. The respondent submits that it is anything but persuasive.
Dr Clayton’s thesis that the pathology revealed at L4/5 results from the injury at L5/S1 is based firstly on the phenomena of surgery at one level leading to pathology at another. The applicant refers to Dr Cochrane’s report of 11 December 2020 as supporting a link on this basis. The respondent submits that this is precisely what Dr Cochrane does not do. He makes clear the distinction between the circumstance where there has been fusion at one level adding biomechanical stress to another level. He notes, accurately, that that is not the case here.
The second basis on which Dr Clayton purports to support the link is when he says:
“It further occurs and is well documented in the upper and lower limbs, where pathology and/or surgery results in altered loading patterns of adjacent joints and resulting in accelerated wear and tear and degeneration. The classic example of this is where altered ankle joint biomechanics have a direct effect on the knee or adjacent foot joints and other musculo skeletal structures following development of pathology and/or following surgery to address pathology.”
The respondent submits that Dr Clayton’s report might make ample sense where a damaged ankle has led to biomechanical imbalance as a result of an altered gait. It provides no assistance whatever in a case where there is no damage to a limb, but damage to an intervertebral disc. There is no suggestion, and could be none, that the applicant’s gait has been altered at all, let alone in such a way as to create additional stress on the L4/5 disc.
The respondent submits that the outcome is that neither of the two bases on which
Dr Clayton purports to support a causal link provides any support at all.The respondent notes that Dr Clayton makes the rather surprising proposition that surgery at L5/S1 “…would then permanently aggravate the L4/5 pathology and result in the requirement for further surgery in this region”.
The respondent submits that this proposition ignores the fact that fusion surgery is not suggested. The notion that a second prosthetic disc ought to be implanted in the level above that at which a first prothesis has been implanted is not supported by any reasoning and ought to be rejected: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130].
The respondent submits that there is therefore no support for the link; and a report from
Dr Cochrane that informs the Commission there is no link. Dr Cochrane presents the following:“I am not of the opinion…that surgery at L4/5 can be reasonably related to the workplace injury noting that 20 years have lapsed and no abnormality was reported at L4/5 on a 2008 MRI scan. Abnormalities at L4/5 represent, in my opinion, the natural passage of time and the evolution of degenerative changes which are seen in the adult population.”
The respondent submits that, contrary to what is said by Dr Clayton, Dr Cochrane does not support the proposition that it is reasonably necessary to operate on the adjacent level of L4/5.
The procedure for which the applicant seeks an order pursuant to section 60(5) of the 1987 Act is a procedure involving dual disc replacement. The applicant has failed to demonstrate that replacement of the L4/5 disc has been made necessary as a result of the injury of August 2000.
The respondent submits that, in the absence of a supportive report, it is not open to the Commission to make an order pursuant to section 60(5) to order it to pay for a different treatment, namely disc replacement at L5/S1 alone; and the applicant does not make that contention. The application for a section 60(5) order should be rejected.
The respondent accepts that the proposal is for the provision of an artificial aid, and is therefore exempted from the restrictions imposed by section 59A of the 1987 Act: section 59A(6).
Applicant in Reply
In reply, the applicant submits that the respondent’s submissions ignore the history, in that he sustained an accepted injury on 22 August 2000; has had back pain and dysfunction since; and now requires surgery to alleviate increased levels of pain and dysfunction.
The respondent’s submissions ignore that, while the treating surgeon does not offer a direct opinion as to causation, it not being uncommon for treating practitioners not to wish to be involved in issues of liability, he still supports the necessity for surgery; and is supported wholeheartedly by Dr Clayton and in part by Dr Cochrane.
The respondent’s submissions document the findings of investigative scans between the period 2000 and 2008 and highlight that no “significant” pathology is found at L4/5. The applicant submits that as the L4/5 disc was not injured in 2000 and is one of a consequential nature, it would have occurred gradually over 21 years. It is therefore not surprising that no significant pathology was found during this period.
The applicant notes that the respondent submits that neither Dr McEntee nor Dr Cochrane states that the L4/5 disc is the site of such significant pathology that replacement of the disc is warranted. He submits that Dr McEntee, in his report dated 28 May 2020 stated that “His MRI confirms disc issues at L4/5 and L5/S1 with advanced degeneration with annular tears in both discs, and this is almost certainly the cause of his ongoing pain”. Dr McEntee then requested approval on 2 June 2020 for L4/5 and L5/S1 total disc replacements, due to the chronicity and severity of the applicant’s symptoms.
The applicant submits that the respondent has not correctly reflected Dr Clayton’s opinion as to surgery at one level leading to pathology at another. Dr Clayton states that it is “similar to the altered biomechanics as occurs following surgery” (emphasis in submissions).
The applicant emphasises that Dr Clayton does not opine that altered biomechanics can only occur in a disc that has been the subject of surgery, as suggested by the respondent. He is clearly saying it can occur in either situation. Dr Cochrane therefore stands on his own in expressing an opinion that without a fusion, stresses cannot be placed on an adjacent disc.
The applicant submits that Dr Cochrane’s opinion that abnormalities at L4/5 represent the natural passage of time and the evolution of degenerative changes does not have regard to the fact that no degenerative changes were found in any other of his discs. The degenerative disease is isolated to L4/5 and L5/S1, being the location of the work injury and the directly adjacent disc. The discs are not some way apart, with healthy discs in between.
The applicant again submits that, regardless of whether injury at L4/5 is satisfied, the treatment of the accepted injury to the L5/S1 disc requires replacement of the disc at both levels, in the opinion of the treating surgeon. This is supported by Dr Clayton when he states that “It is reasonably necessary to operate on the adjacent level of the L4/5 even if the primary pathology resides in L5/S1, due to the risk of acceleration of pathology and corresponding symptoms in L4/5.”
The applicant finally submits that, applying a common sense test of causation, the L5/S1 pathology has aggravated the adjacent disc; and therefore it is reasonably necessary to operate on both discs, as a direct result of the work injury.
SUMMARY
The respondent has properly conceded that the proposed surgery is for the provision of an artificial aid, and is exempt from the restrictions imposed by section 59A of the 1987 Act, pursuant to section 59A(6). It is therefore unnecessary that I consider the application of section 59A.
The remaining issues to be determined are, therefore, whether the applicant has sustained a consequential condition of his L4/5 spine as a result of an accepted injury to his L5/S1 spine on 22 August 2000; and whether the proposed medical treatment, that is disc replacement at L4/5 and L5/S1, is reasonably necessary as a result of the injury.
Section 60 of the 1987 Act provides:
“ (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).
…”
I will deal first with the reasonable necessity of the proposed surgery.
It would have been preferable had the applicant obtained additional evidence from
Dr McEntee, who proposes to perform the surgery. While the applicant has submitted that it is not uncommon for treating practitioners not to wish to become involved in issues of liability, there is no evidence that Dr McEntee was asked to comment on this issue.However, Dr McEntee has reported that the applicant’s EMG confirmed bilateral L5 and S1 radiculopathies; and his MRI confirmed disc issues at L4/5 and L5/S1, with advanced degeneration, with annular tears in both discs. In his opinion. this was almost certainly the cause of the applicant’s ongoing pain. This does provide some support for disc replacement at both levels.
Both Dr Clayton and Dr Cochrane, who have been qualified in the matter, support the reasonable necessity of surgery at L5/S1 as a result of the injury.
Summarising Dr Clayton’s opinion, which is expressed in his reports discussed above, he opined that the surgery is reasonably necessary. The applicant has exhausted all non-operative management and is functioning at an extremely low level in all his activities of daily living, with no work capacity. The surgery had the reasonable expectation of significantly increasing his quality of life and life expectancy and allowing a return to gainful employment. The benefits of the surgery outweighed any associated costs.
Dr Cochrane’s opinion is also expressed in several reports. He opined that the proposed surgery was accepted treatment and had a reasonable chance of assisting the applicant with his back pain. He considered it highly unlikely that his leg symptoms would be effectively resolved. He estimated a 60% to 70% chance of significant reduction in back pain and a 20% to 30% chance of significant improvement in the lower limb symptoms. He was not of the opinion that there were any likely alternative treatments that were likely to assist the applicant, with the exclusion (he may mean exception) of spinal cord stimulation.
Dr Cochrane agreed with Dr Clayton that the surgery was “very reasonable treatment”. While he also opined that the chance of the applicant responding to surgery, with approximately 20 years of pain, was quite low, he did not change his opinion that it was reasonable.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Deputy President Roche said:
“Reasonably necessary does not mean ‘absolutely necessary’… 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.”
Roche DP cited the decision of Judge Burke in Rose v Health Commission(NSW) (1986) 2 NSWCCR 32 (Rose) with approval and said:
“[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…namely: 7 (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] NSWCC 13; (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’”.
Applying the principles of Diab and considering the medical evidence and the applicant’s evidence of the effects of the injury, I am satisfied that the proposed disc replacement surgery at L5/S1 is reasonably necessary as a result of the injury.
Dr Clayton and Dr Cochrane differ in their opinions as to whether the condition of the applicant’s L4/5 disc is a consequence of the accepted injury at L5/S1.
Dealing with the issue of consequential condition, I am satisfied that the applicant has sustained a consequential condition at L4/5 as a result of the accepted injury at L5/S1. I accept Dr Clayton’s evidence that the L5/S1 disc protrusion and associated degeneration over time caused overloading at L4/5. It was subjected to wear and tear and damage beyond what would be expected had the workplace injury not occurred.
Dr Clayton has explained that the altered biomechanics of the disc are similar to those experienced after surgery. He is comparing the effect to that which occurs after a fusion at one level. He is well aware that there has been no surgery. He has explained why he disagrees with Dr Cochrane’s opinion.
Dr Clayton was not suggesting that the applicant’s gait had been altered, in comparing the effects of the injury to the example of an injured ankle. What he said was that a similar situation can occur when an altered loading pattern of adjacent joints results in accelerated wear and tear and degeneration. In his opinion, this is what has occurred in the applicant’s case to the discs in his spine.
Dr Cochrane appears to have based his opinion at least partly on the fact that the L4/5 degeneration post-dated the MRI in 2008. However, as the applicant submits, the L4/5 disc was not injured in 2000 and is one of a consequential nature. It would have occurred gradually over 21 years, so it is not surprising that no significant pathology was found during this period.
Dr Cochrane opined that the applicant’s pathology at L4/5 is due to age-appropriate degeneration. However, as the applicant submits, there is no evidence of degeneration at other levels, which would reasonably be expected if the pathology was age-related.
Dr Clayton opined that, with degenerative disease isolated to L4/5 and L5/S1, and no family history of spinal disorders or osteoarthritis, it is improbable (although not impossible) that the applicant’s adjacent level disease would have occurred had he not had the injury at L5/S1. It is improbable that it would be present as such localised pathology.
I prefer Dr Clayton’s evidence. Dr Cochrane has not explained why the applicant’s pathology would be localised at the level adjacent to the injured disc, and not be present at any other level of his spine, if it is age-related. Dr Clayton has addressed this issue.
Had I not determined that the applicant had sustained a consequential condition at the L4/5 level of his lumbar spine, I would nonetheless have determined that the proposed surgical treatment, including disc replacement at L4/5, was reasonably necessary medical treatment.
Dr McEntee has reported that the applicant’s MRI confirmed disc issues at L4/5 and L5/S1.
Dr Clayton is of the opinion that if the applicant undergoes disc replacement surgery at L5/S1, he should also undergo disc replacement at L4/5. He opined that it is reasonably necessary to operate at L4/5, even if the primary pathology is at L5/S1, due to the risk of acceleration of pathology and corresponding symptoms in L4/5. If the surgery were confined to the originally injured level of L5/S1, it would permanently aggravate the L4/5 pathology and result in the requirement for further surgery.
Dr Clayton also opined that staged intervertebral disc replacement or arthrodesis would place the applicant at increased risk for ongoing and permanent damage to the spinal nerves and the spinal cord; and would also be inappropriate. It would be irresponsible to approve and undertake surgery only at the L5/S1 level.
Dr Cochrane opined that the two-level lumbar disc replacement is accepted treatment and has a reasonable chance of assisting the applicant with his back pain. He said that he “fully understand[s] Dr McEntee’s rationale for surgery and would also agree that surgery at L5/S1 level alone would not treat the degenerate L4/5 level”. He also opined that while it would be problematical to perform fusion at only one level, disc replacement at L5/S1 is less likely to accelerate degeneration at L4/5, as this is the specific function of a disc replacement prosthesis. He did not rule out the possibility that disc replacement at L5/S1 may accelerate degeneration at L4/5, which Dr Clayton believed was a risk.
I accept that, if the applicant undergoes disc replacement surgery at L5/S1, it is reasonably necessary that he undergo disc replacement at L4/5 at the same time. It would not be appropriate, and Dr Cochrane goes so far as to say that it would be irresponsible, to undertake surgery only at L5/S1. The applicant should not be subjected to the additional risks of a further surgical procedure.
For the reasons above, I determine that the applicant has sustained a consequential condition of at L4/5, as a result of the injury at L5/S1 that occurred on 22 August 2000; and that the proposed medical treatment, that is L4/5 and L5/S1 double disc replacement, is reasonably necessary medical treatment as a result of the injury. The respondent concedes, and I determine, that the proposed treatment is not precluded by the provisions of section 59A of the 1987 Act.
The respondent is to pay, pursuant to section 60 of the 1987 Act, the cost of L4/5 and L5/S1 double disc replacement surgery.
Kerry Haddock
MEMBER
24 March 2021
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