Nguyen v Real Pet Food Company Pty Ltd
[2023] NSWPIC 63
•16 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Nguyen v Real Pet Food Company Pty Ltd [2023] NSWPIC 63 |
| APPLICANT: | Van Vuong Nguyen |
| RESPONDENT: | Real Pet Food Company Pty Ltd |
| Member: | Rachel Homan |
| DATE OF DECISION: | 16 February 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for the costs of and incidental to lumbar surgery; lumbar injury conceded; whether surgery reasonably necessary as a result of injury; where significant abnormal pathology and previous surgery at higher levels of the spine; ongoing thoracic symptoms; where the procedure recommended had changed; Held – the proposed lumbar surgery is reasonably necessary as a result of the injury to the applicant’s lumbar spine; respondent to pay the costs of and incidental to the proposed surgery. |
DETERMINATIONS MADE: | 1. The L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion as recommended by Dr Simon McKechnie on 19 September 2022 is reasonably necessary as a result of the injury to the applicant’s lumbar spine on 10 September 2020 (deemed). |
ORDERS made: | 2. The respondent to pay the costs of and incidental to the L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion as recommended by Dr Simon McKechnie on |
STATEMENT OF REASONS
BACKGROUND
Mr Van Vuong Nguyen (the applicant) was employed by Real Pet Food Company Pty Ltd (the respondent) from 16 November 1983 to 10 September 2020. The applicant claims that as a result of the nature and conditions of his employment with the respondent he sustained an injury to his spine.
The applicant previously brought proceedings before the Personal Injury Commission[1] (the Commission) seeking weekly compensation and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred medical and related treatment expenses including, the costs of and incidental to a T9-T12 decompressive laminectomy performed by neurosurgeon, Dr Simon McKechnie on 20 November 2020 and a four-level cervical decompression performed by Dr McKechnie on 30 April 2021.
A Certificate of Determination was issued on 6 August 2021 in which it was found that the applicant had sustained an injury pursuant to s 4(b)(ii) of the 1987 Act to his thoracic spine and cervical spine as a result of the nature and conditions of his employment with the respondent from 16 November 1983 to 10 September 2020. Orders were made for the payment of compensation including for the costs of and incidental to the thoracic and cervical spine surgeries performed by Dr McKechnie.
[1] W1978/21.
On 10 November 2021, Dr McKechnie forwarded a request to the respondent’s insurer for approval for a lumbar laminectomy at L4, L 5 and S1. Liability for the surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 February 2022. The decision to dispute liability for the lumbar surgery was maintained following internal review in a further notice issued on 27 April 2022.
On 23 September 2022, the applicant’s solicitors wrote to the insurer serving a claim for a L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion surgery as recommended by Dr McKechnie in a report dated 19 September 2022.
Liability for the new surgical procedure was also disputed in a notice issued pursuant to s 78 of the 1998 Act on 10 October 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 11 October 2022. The applicant seeks compensation pursuant to s 60 of the 1987 Act for the costs of and incidental to the L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion surgery recommended by Dr McKechnie on
19 September 2022.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 16 January 2023. The applicant was represented by Mr Stephen Hickey of counsel, instructed by Mr Danny Lam. The applicant was also assisted by an interpreter in the Vietnamese and English languages. The respondent was represented by Ms Sarah Warren of counsel, instructed by Mr Luke McCann. A representative from the insurer was also present.
During the proceedings, the respondent confirmed that it did not rely on a dispute as to “injury” to the lumbar spine with a deemed date of 10 September 2020.
A direction was made admitting into evidence in accordance with r 67(4) of the Personal Injury Commission Rules 2021, a supplementary report from the respondent’s Independent Medical Examiner, Dr Anthony Smith, dated 11 November 2022.
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.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion recommended by Dr Simon McKechnie on 19 September 2022 is reasonably necessary as a result of injury to the applicant’s lumbar spine on
10 September 2020 (deemed).
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) supplementary report of Dr Anthony Smith, dated 11 November 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by him on 18 May 2021 and 17 August 2022.
The applicant described the nature of his employment duties with the respondent as a forklift driver. The applicant described driving new and old forklifts, some of which had poor suspension. The applicant described uneven areas in the factory floor which would cause his body to be thrown up and down or side to side as the forklift drove over those areas. The applicant described moving boxes by hand and using a trolley to push boxes. The applicant said he had to do a lot of bending and lifting in awkward spaces.
As a result of the heavy nature of his work, the applicant had back pain from time to time.
The applicant consulted his general practitioner, Dr Tan Vu on 27 September 2016 for lower back pain. By the beginning of 2017, the applicant noticed pain and numbness in his right leg and foot. Later the applicant noticed pain and tingling in his left leg and foot. The applicant had difficulty sleeping as his symptoms were worse at night.
The applicant took six months off work using his sick leave, annual leave and long service leave entitlements before returning to work in mid 2018. During this period, the applicant was referred for an injection on 23 January 2018.
After returning to work, the applicant was doing lighter work but his leg problems got worse. The applicant ceased work on 10 September 2020.
The applicant was treated with physiotherapy before undergoing surgery on his thoracic spine on 20 November 2020. The applicant underwent a cervical spine surgery on
30 April 2021.The applicant said that after the thoracic spine surgery, he had some reduction in his back pain but it did not make the pins and needles going down his legs to his feet better.
Since the surgery, the applicant had noticed increasing pain and pins and needles in both legs. Symptoms were worse on the right leg. The applicant had pain and pins and needles in both legs all of the time.
The applicant said he was unsteady on his feet and had fallen over because his legs were numb and had given way. Symptoms were worse if walking or standing for longer than 10 minutes. The applicant avoided doing anything that would make his pain worse, including housework.
The applicant was undergoing physiotherapy twice a week but had stopped taking painkillers due to their effect on his stomach. The applicant was no longer able to control his pain in that way.
The applicant said he had discussed the proposal for lumbar surgery with Dr McKechnie and had been advised of the risks of surgery. The applicant wished to have the surgery.
Treating evidence
Consultant rheumatologist, Dr Ian Portek prepared a report for the applicant’s general practitioner, Dr Vu, on 24 January 2018. Dr Portek took a history of right lower limb pain and numbness with no obvious precipitant to the applicant’s symptoms. It was noted that the applicant was a forklift driver. The applicant had attended physiotherapy without benefit and had taken Panadol Osteo.
On examination, Dr Portek noted that there was decreased sensation over the L4 and L5 dermatome. Dr Portek expressed the view that the most likely aetiology of the applicant’s radiculopathy was his L4/5 disc space. Dr Portek organised a neural sheath injection.
In a further report dated 5 February 2018, Dr Portek noted that the neural sheath injection had exacerbated the applicant’s pain. The applicant had been taking Tramadol and Voltaren. Dr Portek recommended physiotherapy and instruction in an exercise program.
In a report of 20 March 2018, Dr Portek noted that the applicant’s lower back pain and sciatica had improved.
The applicant was seen by neurosurgeon, Dr Simon McKechnie on 17 August 2020. The applicant reported a history of gradually worsening back and leg pain. The applicant had noticed a loss of mobility, loss of balance, numbness in the legs and mild weakness.
Dr McKechnie described an MRI of the lumbar spine as showing “impressive” findings:
“A lumbar spine MRI demonstrates severe multilevel canal stenosis with cord compression and myelomalacia at this superior aspect of the imaging at T10/11 and T11/12. There is severe lumbar canal stenosis maximal at L4/5 with obliteration of CSF around the cauda equina nerve roots and multilevel severe bilateral foraminal stenosis.”
Dr McKechnie recommended further imaging and suggested a multilevel laminectomy to treat the applicant’s cord compression and myelomalacia.
In a report dated 10 September 2020[2], Dr McKechnie said a whole spine MRI demonstrated severe degenerative change from the superior cervical region to the sacral area. There was severe bilateral foraminal stenosis at L4/5 and L5/S1, although the main pathology was severe cord compression from T9 to T12 with a large area of myelomalacia.
[2] The parties agreed that a number of Dr McKechnie’s reports showed an incorrect date of 4 August 2022 and that the correct dates appeared in the first paragraphs of those reports.
In a report dated 22 September 2020, Dr McKechnie noted that the applicant was clinically unchanged with severe difficulty walking, numbness and weakness mainly affecting the lower limbs. Dr McKechnie discussed the severe MRI findings and suggested that without the surgery, the applicant would continue to deteriorate and ultimately become paraplegic or even a quadriplegic. Dr McKechnie recommended a lower thoracic laminectomy.
The applicant’s general practitioner, Dr Albert Nguyen, prepared a report for the applicant’s solicitors on 20 November 2020. Dr Nguyen noted that the applicant had complained of recurrent/severe lower back pain and leg pain for many years and this had deteriorated recently. The applicant complained of loss of sensation and power in both legs. Balance was a major problem.
Dr Nguyen reported that on examination, the applicant had mild tenderness at L5/S1. The applicant had bilateral lower limb weakness and variable paraesthesia.
Dr Nguyen reported that the applicant would require a multilevel laminectomy to treat his cord compression and myelomalacia.
Following a review on 3 February 2021, Dr McKechnie recorded that the applicant was neurologically stable and had been referred for physiotherapy.
On 1 March 2021, Dr McKechnie recommended a cervical laminectomy. On 20 July 2021, it was noted that the applicant was three months post decompressive cervical laminectomy.
On 23 September 2021, Dr McKechnie reported:
“He also has significant pathology in the lower back and continues to experience back and leg pain. Eventually this may also require surgical treatment but currently I would recommend he continue with medical and physical therapy.”
On 28 October 2021, Dr McKechnie again noted:
“Most of the residual pain is in the back radiating through the legs where there is significant L4/5 and less severe L5/S1 canal stenosis. He has recovered well from the two previous decompressions higher in the spine. He will likely require lumbar decompressive surgery in the near future. Currently however we have agreed to continue with twice weekly physiotherapy and focus on strengthening exercises.”
On 10 November 2021, Dr McKechnie noted that the applicant was complaining of persistent back pain radiating through both legs with persistent mild loss of balance and numbness. There had been no improvement with further physical and medical therapy and, given the impressive MRI findings of L4, L 5 and S1 canal stenosis, Dr McKechnie recommended the applicant proceed with surgical decompression. Dr McKechnie estimated an 80 to 90% chance of improvement in the radicular leg pain but explained that the numbness and lower back pain would likely persist particularly given the previous areas of spinal cord compression and myelomalacia. Dr McKechnie indicated that he had explained the risks of the surgery to the applicant.
On 14 December 2021, Dr McKechnie noted that the surgery had not been approved and repeated:
“He is still complaining of back and leg pain consistent with the MRI findings of canal stenosis from L4/5 to L5/S1 involving the L4, LS and S1 nerve roots. I have previously recommended he proceed with surgical decompression. I would recommend a lumbar laminectomy at L4, L5 and S1 to decompress the thecal sac and nerve roots. In general there is an 80 to 90% chance of improvement in the mobility and leg pain with a less than 5% risk of complication.”
The applicant was encouraged to continue to perform self-directed exercises and take medication.
On 10 February 2022, Dr McKechnie, prepared a medical report for the insurer. In that report, Dr McKechnie summarised the radiological findings and his treatment of the applicant’s spine. Dr McKechnie described good recoveries following the surgeries to the thoracic spine and cervical spine. Dr McKechnie stated:
“I have continued to review his progress again on several occasions this year. His main remaining symptoms relate to his severe lumbar spine canal stenosis which is the only area which has not yet been surgically decompressed. He continues to experience significant lower back pain radiating through the legs consistent with neurogenic claudication and lumbar canal stenosis. There is numbness distally and reduced balance. Imaging confirms severe L4/5 and moderate to severe L5/S1 canal stenosis.
Now that he has satisfactorily recovered from his cervical and thoracic spinal surgery, given his gradually worsening symptoms and the severe residual lumbar MRI pathology I have now recommended he proceed with lumbar decompressive surgery.”
Dr McKechnie commented on a report from the respondent’s expert, Dr Anthony Smith, stating:
“Mr Van Vuong Nguyen's signs and symptoms are consistent with myelopathy and neurogenic claudication. He has recovered well from his two previous operations to decompress the cervical and thoracic region. As expected, he has some residual neurological signs and symptoms related to his myelopathy and myelomalacia. Most of the symptoms are not reversible at this stage.
He continues however to experience severe lower back pain radiating intermittently through the legs with distal numbness. This relates to his severe multilevel lumbar canal stenosis causing neurogenic claudication which requires a multilevel lumbar laminectomy. Without surgery he will continue to experience severe back and leg pain and it is likely that his numbness and mobility will continue to decline. There are no other non-surgical options to treat this condition.
Generally speaking I would estimate an 80% chance of improvement in the back and radicular leg symptoms. It is likely he will still have residual neurological problems from his cervical and thoracic myelomalacia however including reduced balance and residual numbness.”
On 28 July 2022, Dr McKechnie recorded that the applicant continued to experience considerable lower back pain with intermittent radiation through the legs, particularly when standing and walking. Dr McKechnie said this was typical of lumbar canal stenosis. The applicant was referred for an MRI to reassess the structural pathology and guide remaining treatment options. Dr McKechnie reiterated that the applicant would almost certainly require lumbar laminectomy surgery.
On 29 August 2022, Dr McKechnie said the follow-up MRI demonstrated multiple disc protrusions and several areas of retrolisthesis. The main area of pathology was at L4/5 and L5/S1 with lateral recess and bilateral foraminal stenosis and mild to moderate canal stenosis. Dr McKechnie said he had referred the applicant for a CT scan and bone density study to assess whether he required a fusion surgery or if a decompression could be performed.
Dr McKechnie reviewed the CT scan in a report dated 19 September 2022 and reported:
“I have again discussed the diagnosis, natural history and treatment options but I have offered him a L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion. I would estimate an 80 to 90% chance of improvement in the radicular leg pain although I have explained that his numbness and lower back pain will likely persist. I have discussed the operation and the risks including a 1 in a 1000 risk of paralysis or other serious complication and a 5% risk of infection, haemorrhage, chronic pain, numbness or weakness, sphincter disturbance, CSF leak, malposition or breakage of screw and failure of fusion requiring early or late revision. etc cetera. There is a risk of adjacent level disease requiring further surgery and he may require surgery on the left at L2/3. It will permanently lose some mobility in the lumbar spine.”
Dr McKechnie requested approval for the L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion on 19 September 2022. Surgical fees for the procedure were estimated at $17,797.
Dr Bentivoglio
Neurosurgeon, Dr Peter Bentivoglio, prepared a medicolegal report for the applicant in connection with a prior claim on 16 April 2021.
Dr Bentivoglio took a history of the applicant’s work duties and the onset of symptoms. It was noted that the applicant had a full spinal MRI undertaken on 29 August 2020 which showed multilevel degenerative disease in the cervical, thoracic and lumbar spine. At the lumbar spine, the applicant had a spinal canal stenosis at L4/5 and to a lesser degree at L5/S1.
It was noted at the time of that report that the applicant had undergone a surgical decompression of the thoracic spine in November 2020. The surgery had not improved the numbness in the applicant’s legs while the weakness in his legs improved. The applicant did not at that time have any low back pain.
Dr Bentivoglio made a diagnosis of persistent symptoms of cord myelopathy in the legs despite the decompressive surgery at the lower thoracic spine. Dr Bentivoglio expressed the opinion that the sort of excessive degenerative disease in the applicant’s cervical, thoracic and lumbar spine would not have developed unless the applicant was doing heavy manual labour like that performed for the respondent over the last 39 years. There were no relevant lifestyle factors. The applicant’s work had been the “main contributing factor” to the development and progression of the degenerative disease in his lumbar spine.
Dr Khong
In these proceedings, the applicant relies on a medicolegal report prepared by neurosurgeon and spine surgeon, Dr Peter Khong.
In a report dated 1 June 2022, Dr Khong took a history of injury that was consistent with the applicant’s statement evidence.
Dr Khong noted that the applicant had a right L4 perineural injection on 23 January 2018, which did not help at all. The applicant experienced increasing pain and numbness radiating down both lower limbs to the feet.
The thoracic laminectomy performed on 20 November 2020 did not help with the applicant’s leg symptoms.
The applicant now complained of persistent lower back pain with numbness radiating down both lower limbs to the feet, equal on both sides. The applicant could not walk more than five minutes without significant numbness. The applicant was taking Mersyndol for pain and having ongoing physiotherapy but this was not helping much.
Asked to provide a diagnosis, Dr Khong stated:
“Mr Nguyen continues to complain of lower back pain and bilateral lower limb numbness. He has significant multi-level degenerative changes in the lumbar spine. His work likely caused an acceleration and exacerbation of the degenerative changes in his spine.
Mr Nguyen’s leg symptoms sound like neurogenic claudication. There is moderate canal stenosis at L4/5 and bilateral lateral recess stenosis at L5/S1. There is also severe bilateral L5/S1 and moderate bilateral L4/5 foraminal stenosis. His leg symptoms may be coming from these levels.”
Dr Khong said the surgery proposed aimed to decompress the central neural elements at L4/5 and L5/S1. The decompression might help with the numbness in the applicant’s legs but was unlikely to help significantly with his back pain.
Asked to comment on the appropriateness of the particular treatment, Dr Khong stated:
“A lumbar decompression is appropriate to decompress the central neural elements at L4/5 and L5/S1. A fusion may be necessary to address the foraminal stenosis at L4/5 and L5/S1.”
Asked to comment on the availability of alternative treatment, Dr Khong noted that the applicant had failed nonoperative management options in the form of analgesia and physiotherapy.
Dr Khong said the surgery was likely to be effective in reducing some of the applicant’s lower limb numbness and was accepted as a valid treatment option for neurogenic claudication by medical experts. The cost of the surgery was estimated at $10-$15,000.
Asked to comment on the opinion given by the respondent’s medicolegal expert, Dr Smith, Dr Khong responded:
“Mr Nguyen clearly describes bilateral lower limb numbness, worse with walking longer distances. This sounds like neurogenic claudication. A decompression may help with Mr Nguyen’s lower limb numbness. If his symptoms are due to the foraminal stenosis at L4/5 and L5/S1, he may also require a decompression and fusion.”
In a supplementary report dated 26 September 2022, Dr Khong indicated that he had reviewed a CT scan of the lumbar spine performed on 9 September 2022, noting severe multilevel degenerative disc disease. Dr Khong also considered a DEXA scan performed on the same date, and an MRI of the lumbar spine performed on 3 August 2022, which showed severe multilevel degenerative disc disease, bilateral L4/5 and L5/S1 foraminal stenosis and lateral recess stenosis from L2 to S1.
Dr Khong commented:
“The salient findings regarding Mr Nguyen’s increasing lower limb pain and numbness are severe bilateral foraminal and lateral recess stenosis at L4/5 and L5/S1. This is the likely cause of his bilateral lower limb symptoms and his difficult walking.”
Asked to comment further on whether the newly proposed L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion surgery was reasonably necessary, Dr Khong responded:
“Surgery is reasonably necessary. A decompression and fusion at L4 – S1 primarily aims to decompress the neural elements at L4/5 and L5/S1 to help with Mr Nguyen’s lower limb symptoms. A proper decompression of the foramen at L4/5 and L5/S1 requires a fusion, as this cannot be adequately performed without direct decompression by removing the facet joints at L4/5 and L5/S1, thus destabilising these motion segments, or through indirect decompression by removal of the disc and insertion of interbody cages to increase the disc space and foraminal height (or both).”
Dr Khong said the surgery would likely help with the applicant’s lower limb, numbness and improve his ability to work. It may also help a component of his lower back pain.
Dr Stephen
Orthopaedic surgeon, Dr John Stephen, prepared a medicolegal report for the respondent in respect of a prior claim on 17 November 2020.
Dr Stephen recorded a history of numbness and paraesthesia in both feet together with loss of balance and the need for a stick. The applicant had intermittent and fairly widespread thoracolumbar and lumbar pain.
Dr Stephen agreed that there was severe bilateral foraminal stenosis at L4/5 and L5/S1.
Dr Stephen attributed the applicant’s symptoms to severe degenerative change and did not consider any surgery to be the responsibility of the insurer.
Dr Smith
In these proceedings, the respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Anthony Smith, dated 4 January 2022.
Dr Smith took a history of the onset of symptoms and treatment that was broadly consistent with the other evidence, although Dr Smith noted that there was no description of claudicant symptoms in the legs.
Dr Smith referred to various radiological reports from 2020 and 2021 and made reference to some of the reports prepared by Dr McKechnie.
Dr Smith diagnosed multilevel spinal degenerative disease including spinal canal stenosis and outlet canal stenosis in the lumbar spine. Dr Smith noted that radiology of the whole spine indicated that there was no normal level. All the discs were degenerative, dehydrated and narrow. There was facet joint arthritis at every level. Dr Smith considered the radiological changes were consequent to a combination of Scheuermann’s disease and spinal degenerative disease.
Asked whether the proposed decompression surgery was reasonably necessary, Dr Smith responded that the lumbar decompression was for radiologically apparent spinal canal stenosis. Dr Smith said it was unlikely that the applicant would get much of an improvement. Dr Smith stated:
“The spinal canal stenosis in the lumbar spine has no true spinal cord to compress. He did not describe symptoms that I would consider to be consistent with claudication, so it is improbable that he will derive much in the way of benefit from any lumbar decompression. His neurological abnormalities are consequent to the myelomalacia in the lower thoracic and upper lumbar spine. As he has not recovered since that decompression in November 2020, 12 months ago, no recovery is likely to occur.”
Dr Smith commented that the applicant was unlikely to derive any benefit from the proposed surgery and commented that it was a pity that the decompressions to the applicant’s cervical and thoracic spine had not been performed earlier.
Dr Smith prepared a supplementary report on 11 November 2022. Dr Smith was asked to comment on the revised procedure recommended by Dr McKechnie and responded:
“When I last wrote to you, it was my impression that Dr McKechnie was going to do an operation in the lower lumbar spine, the nature for which I was not certain about. Decompression would be one part of any such operation. I would have thought there is little likelihood that fusing L4-5 and L5-S1 will provide any pain relief as he has a very abnormal spine above L4.”
Applicant’s submissions
The applicant submitted that the dispute before the Commission was between the opinion of Dr Smith for the respondent and the opinions of Dr Khong and Dr McKechnie, with some earlier support from Dr Bentivoglio, for the applicant.
Dr Smith attributed the applicant’s current presentation to Scheuermann’s disease and degenerative disease and said the applicant was unlikely to get much improvement from surgery.
At the time of Dr Smith’s first report, Dr McKechnie was considering a different surgical procedure to that now sought in these proceedings.
The applicant noted that, more recently, Dr McKechnie had referred the applicant for a further MRI, CT scan and bone density study. The current recommendation for surgery was made after considering the results of those investigations. Dr McKechnie estimated there was an 80 to 90% chance of improvement in the applicant’s radicular leg pain, although he agreed that numbness and lower back pain would likely persist.
Dr Khong also supported the surgery now proposed by Dr McKechnie. Dr Khong had provided an opinion that the applicant’s leg symptoms were consistent with neurogenic claudication. Dr Khong opined that the surgery was reasonably necessary to decompress the central neural elements at L4/5 and L5/S1.
The applicant submitted that Dr McKechnie had performed the previous surgeries to the applicant’s thoracic spine and cervical spine. Dr McKechnie was well-placed to provide an opinion about the surgery now proposed.
The applicant noted that the observations made by Dr Bentivoglio at the applicant’s lumbar spine were consistent with the evidence from Dr McKechnie and Dr Khong.
The applicant referred to the decision in Murphy v Allity Management Services Pty Ltd[3] and submitted that it was only necessary for the applicant to establish that the injury “materially contributed” to the need for surgery. It had already been determined by the Commission that the applicant had a lumbar injury.
[3] [2015] NSWWCCPD 49.
With regard to the requirement that the surgery be “reasonably necessary”, the applicant referred to the decisions in Rose v Health Commission (NSW)[4], Bartolo v Western Sydney Area Health Service[5] and Diab v NRMA Ltd[6].
[4] (1986) 2 NSWCCR 32 (Rose).
[5] [1997] NSWCC 1.
[6] [2014] NSWWCCPD 72.
The applicant submitted that the radiological evidence reinforced Dr McKechnie’s view as to the necessity for surgery.
The applicant noted Dr Smith’s view that there was little likelihood that the procedure would provide any pain relief due to the applicant’s very abnormal spine at the levels above L4. The applicant conceded that there was significant pathology and deterioration at the higher levels. Dr McKechnie’s focus performing the surgery was to relieve the applicant’s leg pain being generated by the pathology at L4 to S1. The radiological evidence showed nerve root compression at those levels and moderate to severe bilateral foraminal narrowing.
The possibility of ongoing symptoms due to the pathology at higher levels was beside the point.
Respondent’s submissions
The respondent submitted that the Commission had not determined that there was a lumbar injury. Only injuries to the thoracic spine and cervical spine were in issue in the previous proceedings. The reference to the lumbar spine in the previous statement of reasons was likely to be a typographical error.
Nonetheless, the respondent confirmed that injury to the lumbar spine was not in dispute in these proceedings.
The respondent submitted that the Commission would not be satisfied that the proposed surgery was reasonably necessary, referring to the reports of Dr Smith.
The respondent submitted that Dr Smith was aware of the previous surgeries and had reviewed the radiological investigations before him. Considering the level of degeneration throughout the spine, Dr Smith formed the view that it was improbable that the applicant would derive benefit from the surgery.
Dr Smith noted the applicant’s failure to recover following the previous surgeries and formed the view that the applicant’s symptoms were not likely to resolve post-surgery.
Although Dr Smith’s initial report dealt with the proposal for a laminectomy, his supplementary report dealt with the surgery currently proposed. Dr Smith gave the clear opinion that there was little likelihood that the currently proposed surgery would provide any pain relief due to the very abnormal spine above L4.
The respondent noted the applicant’s reliance on the opinions of Dr Bentivoglio, Dr Khong and the treating specialist, Dr McKechnie. It was also observed that the applicant had been experiencing lumbar symptoms since 2018 treated by Dr Portek. When the applicant was seen by Dr McKechnie in September 2020, he formed the view that the most likely cause of the applicant’s symptoms was the pathology at the thoracic spine. The respondent submitted that the evidence raised the question of whether the applicant’s symptoms resulted from the thoracic spine rather than the lumbar spine.
Dr Khong’s opinion that the applicant’s leg symptoms “sounded like” claudication coming from the lumbar levels failed to address whether symptoms were coming from higher up in the spine. Given the failure to deal with the contribution made by the pathology at the upper spine, Dr Khong’s opinion ought to be given less weight. Dr Khong did not engage with the impact of the spinal stenosis in other areas of the spine. Nor did he address the significance of the new radiology or the change in the proposed surgery to include a fusion.
The respondent submitted that if the applicant’s symptoms were being caused by degeneration at other levels, the surgery at the lumbar spine would not be of assistance. This was consistent with Dr Smith’s opinion that the proposed surgery would have little or no benefit.
The respondent submitted that Dr McKechnie had not explained the change in the proposed procedure. The clinical picture appeared to be unaltered. Nor did Dr McKechnie explain why it was appropriate to treat pathology at the lumbar levels, as opposed to the other levels.
Dr McKechnie conceded that the applicant would still have residual neurological problems resulting from his cervical and thoracic myelomalacia, including reduced balance and residual numbness.
In all the circumstances, the respondent submitted that the Commission would not be satisfied that the proposed procedure was reasonably necessary medical treatment.
Applicant’s submissions in reply
The applicant submitted that Dr McKechnie’s evidence did explain the change of procedure and need for a fusion surgery. The fusion procedure was offered following the further investigations ordered by Dr McKechnie. In view of those further investigations,
Dr McKechnie considered a fusion was called for.The applicant noted that even in his first report, predating the further radiological investigations, Dr Khong had suggested that a fusion may be called for. That opinion was confirmed on receipt of the new scans.
FINDINGS AND REASONS
Injury
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
In these proceedings, there is no dispute that the applicant sustained an “injury” to his lumbar spine, although there was disagreement between the parties as to whether this question had been determined by the Commission in the previous proceedings.
At paragraph 133 of the statement of reasons accompanying the certificate of determination issued by me in proceedings W1978/21, it was recorded:
“I am satisfied that the applicant has sustained an injury pursuant to s 4(b)(ii) of the 1987 Act to his thoracic spine and lumbar spine.”
The reference to an injury pursuant to s 4(b)(ii) to the “lumbar” spine was clearly a typographical error. The word “lumbar” ought to be replaced by the word “cervical”.
Those proceedings sought compensation for the costs of and incidental to the thoracic and cervical spine surgeries performed by Dr McKechnie.
The issues in dispute were agreed to include:
“whether the applicant sustained an injury to his cervical spine and thoracic spine as a result of the nature and conditions of his employment with the respondent between
16 November 1983 and 10 September 2020”Consistently with this articulation of the issues in dispute, the certificate of determination itself determined,
“The applicant has sustained an injury pursuant to s 4(b)(ii) of the Workers Compensation Act1987 to his thoracic spine and cervical spine as a result of the nature and conditions of his employment with the respondent from 16 November 1983 to 10 September 2020.”
A corrigendum will be issued in relation to the statement of reasons in W1978/21.
As indicated above, however, ultimately, the issue is not determinative as a lumbar injury due to the nature and conditions of the applicant’s employment with the respondent has been conceded by the respondent.
Whether the proposed surgery is reasonably necessary as a result of the injury
Section 60 of the 1987 Act relevantly 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).”
It is the applicant who bears the onus of establishing on the balance of probabilities that the proposed surgery is reasonably necessary as a result of the injury to his lumbar spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[7] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[7] [2008] NSWCA 246.
The test in s 60 requires consideration of both the causal relationship to the injury and the reasonableness of the treatment. Both of these issues have been put in dispute as a result of the opinion given by the respondent’s medicolegal expert, Dr Smith.
With regard to causation, a common sense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[8], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[8] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is uncontroversial that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[9] Roche DP stated:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[9] [2015] NSWWCCPD 49.
What constitutes “reasonably necessary” treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[10] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[10] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[11] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[11] [1997] NSWCC 1.
In Diab v NRMA Ltd[12], Roche DP provided a summary of the relevant principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] 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’.”[13]
[12] [2014] NSWWCCPD 72.
[13] At [88] to [90].
Deputy President Roche commented further[14]:
“Reasonably necessary does not mean “absolutely necessary” (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[14] At [86].
The evidence before the Commission indicates that the applicant has complained of symptoms including lower limb pain and numbness which have been attributed by his doctors to pathology at his lumbar spine since at least 2018.
Rheumatologist, Dr Portek, following a physical examination noting decreased sensation over the L4/5 dermatome, expressed the view that the most likely aetiology of the applicant’s radiculopathy was his L4/5 disc space.
Although the injection arranged by Dr Portek was not successful in relieving the applicant’s symptoms, Dr Portek’s reports suggests some improvement in the applicant’s symptoms with physiotherapy and an exercise program. The applicant’s own evidence was that he also took a period of time off work around this time in early 2018.
By the time the applicant was seen by Dr McKechnie in 2020, his symptoms had deteriorated. Dr McKechnie reviewed the MRI of the applicant’s lumbar spine, noting severe lumbar canal stenosis maximal at L4/5. Following further investigation via a whole spine MRI, however, Dr McKechnie expressed the view that although there was severe bilateral foraminal stenosis at L4/5 and L5/S1, the main pathology was an area of severe cord compression and myelomalacia from T9 to T12. As a result, Dr McKechnie recommended a lower thoracic laminectomy. A cervical spine laminectomy followed.
In September 2021, Dr McKechnie noted that the applicant continued with back and leg pain and referred again to the significant pathology in the lumbar spine at the L4/5 and L5/S1 levels.
Dr McKechnie did not immediately recommend surgery but suggested the applicant continue with twice-weekly physiotherapy and strengthening exercises. The persistence of back pain radiating through both legs, persisting mild loss of balance and numbness, however, led
Dr McKechnie to recommend surgery in the form of a surgical decompression in
November 2021.In a report for the respondent’s insurer, Dr McKechnie explained that the applicant’s remaining symptoms were related to his severe lumbar spine canal stenosis, confirmed on imaging, which was the only area which had not yet been surgically decompressed.
Dr McKechnie said the applicant had signs and symptoms consistent with myelopathy and neurogenic claudication.Dr McKechnie acknowledged that the applicant had residual neurological signs and symptoms related to the myelopathy and myelomalacia at the cervical and thoracic regions, but said the applicant also had severe lower back pain radiating intermittently through the legs with distal numbness related to the pathology at the lumbar spine.
Further radiological investigations in mid-2022 confirmed multiple disc protrusions and areas of retrolisthesis with the main area of pathology at L4/5 and L5/S1. Following a CT scan and bone density study, Dr McKechnie, amended his recommendation for surgery to include a laminectomy with pedicle screw and posterior lateral fusion. The surgery was said to provide an 80 to 90% chance of improvement in the applicant’s radicular leg pain although, numbness and lower back pain would likely persist.
Dr McKechnie’s opinion that the applicant’s radicular symptoms were due to the pathology seen on radiological investigations at L4/5 and L5/S1 receives support in the reports from
Dr Khong.Dr Khong was also ognizant of the previous history of pathology and surgery to the thoracic spine and cervical spine. Dr Khong considered, however, that in view of the canal stenosis at L4/5, bilateral recess stenosis at L5/S1 and the bilateral foraminal stenosis at both levels, the applicant’s leg symptoms were likely to be coming from the pathology at those levels.
Dr Khong agreed that the surgery proposed by Dr McKechnie would assist with the applicant’s lower limb symptoms and may help a component of his lower back pain.
There is, therefore, in the applicant’s medical evidence, a clear and consistent history of lower back and leg symptoms attributed to pathology at the lumbar spine, the presence of which has been confirmed on radiological investigation. The surgery now proposed by Dr McKechnie is supported by the applicant’s medicolegal expert, Dr Khong, as reasonably necessary to decompress the central neural elements at L4/5 and L5/S1. Both doctors are in agreement that the surgery is likely to improve the applicant’s leg symptoms and may assist with his lower back pain.
Weighing against the applicant’s evidence is the opinion of Dr Smith. Dr Smith, like
Dr Stephen before him, agreed that the applicant had pathology at L4/5 and L5/S1. Dr Smith considered, however, that the pathology was, not due to the applicant’s employment, but a combination of Scheuermann’s disease and spinal degenerative disease. Dr Smith did not consider whether the nature and conditions of the applicant’s 39 years of employment with the respondent had aggravated the constitutional and degenerative pathology at the applicant’s spine. That point has now been conceded by the respondent in these proceedings.Dr Smith also gave the opinion that the applicant was unlikely to derive any benefit from the proposed surgery due to the extensive pathology at the other levels of his spine. Dr Smith considered the applicant’s neurological abnormalities were consequent to the myelomalacia in the lower thoracic spine, which persisted notwithstanding the surgery in November 2020.
Dr Smith’s opinion has been considered by both Dr McKechnie and Dr Khong. Both of the applicant’s doctors were clearly aware of the other abnormalities in the applicant’s spine and the previous surgeries. Both of the applicant’s doctors were also cognisant of the persisting neurological symptoms associated with the pathology at the thoracic spine, notwithstanding the 2020 surgery.
Both Dr McKechnie and Dr Khong have maintained their opinions that the applicant’s current leg and lower back symptoms are related to pathology at L4/5 and L5/S1. They have also maintained their opinions that the surgery proposed by Dr McKechnie would be likely to result in an improvement in the applicant’s symptoms, particularly the applicant’s radicular leg symptoms.
Dr Smith has not clearly addressed whether any of the applicant’s current symptoms are attributable to pathology in the lumbar spine, notwithstanding the presence of symptoms stemming from pathology at the higher levels of the spine. Given the body of treating evidence and expert opinion from the applicant attributing symptoms to pathology at the lumbar spine, this omission is significant.
Dr Smith’s opinion is also inconsistent with Dr McKechnie’s and Dr Khong’s opinions, insofar as he expressed the view that the applicant did not have symptoms of claudication. Both Dr Khong and Dr McKechnie have expressed the opinion that the applicant’s symptoms were consistent with claudication.
It is not necessary for the applicant to demonstrate that a complete resolution of his symptoms would be achieved by the surgery proposed by Dr McKechnie. The weight of evidence suggests that the surgery has good prospects of alleviating the applicant’s radicular leg pain, notwithstanding that symptoms of back pain and numbness, and symptoms associated with thoracic pathology may persist. This indicates that the surgery is likely to be effective in improving the applicant’s quality of life and functional capabilities.
Dr Smith has not suggested that any alternative treatment is available. Dr McKechnie has confirmed that no non-surgical treatment is available. The evidence suggests that the applicant has attempted to address his symptoms through conservative measures including physiotherapy and exercise programs over a lengthy period of time, without success.
The weight of evidence before me indicates that the particular surgery proposed by
Dr McKechnie is appropriate and would be accepted by a body of medical experts as appropriate and effective treatment for the applicant’s symptoms.Contrary to the respondent’s submissions, I am satisfied that Dr McKechnie and Dr Khong have explained why the procedure now proposed is reasonably necessary as opposed to that which had been previously recommended by Dr McKechnie. I also accept that they have explained why it is appropriate to treat the pathology at the lumbar levels as opposed to that at levels higher in the applicant’s spine.
The cost of the treatment is not insignificant, however, it has not been submitted by the respondent that this is a factor that should, in itself, lead to the conclusion that the surgery is not reasonably necessary.
Considering the evidence as a whole, I accept the consistent opinions expressed by
Dr McKechnie and Dr Khong.I am satisfied that the L4, L5 and S1 laminectomy with pedicle screw and posterolateral fusion as recommended by Dr McKechnie on 19 September 2022 is reasonably necessary as a result of the injury to the applicant’s lumbar spine.
There will be an order for the respondent to pay the costs of and incidental to the proposed surgery in accordance with s 60 of the 1987 Act.
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