Osborne v Signature Security Group Pty Limited t/as Security Systems

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Osborne v Signature Security Group Pty Limited t/as Security Systems [2023] NSWPIC 10
APPLICANT:	Donna Osborne
RESPONDENT:	Signature Security Group Pty Ltd t/as Security Systems
Member:	Michael Inglis
DATE OF DECISION:	11 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Whether revisional surgery in the form of an L5/S1 instrumental fusion following earlier spinal surgery was reasonably necessary; Held – that the spinal surgery proposed, namely the L3-S1 instrumented fusion, is reasonably necessary.
determinations made:	1. That the spinal surgery proposed by Associate Professor Papantoniou, namely L3-S1 instrumented fusion is reasonably necessary.

STATEMENT OF REASONS

BACKGROUND

Donna Osborne (the applicant) was employed by Signature Security Group Pty Ltd, trading as Security Systems (the respondent) as a Security/Administration Officer on a full-time basis.
She is presently 65 years of age.
On or about 24 February 2000, the applicant, in the course of her employment was going up some fire stairs when she lost her footing and fell down four steps.
As a result, the applicant sustained an injury to her lower back.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether spinal surgery proposed by A/Prof Peter J Papantoniou is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to each 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 at the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

The respondent did not seek to cross-examine the applicant.
On or about 5 June 2000, the applicant underwent a lumbar spine MRI as she was still experiencing back pain. She says that she has continued to live with back pain ever since the accident.
On or about 25 May 2011, she consulted A/Prof Papantoniou concerning her painful back as the pain had worsened and she was experiencing pain in the lower back region and down both legs. She says that A/Prof Papantoniou advised her not to lift, bend or twist and referred her to undergo a steroid injection and further MRI.
On or about 26 September 2011, the applicant again consulted A/Prof Papantoniou as her back pain had progressively worsened despite her undergoing what she describes as an exhaustive range of treatment. At that time, her pain was so severe that she was forced to walk approximately one hour each night so that she could get to sleep. A/Prof Papantoniou recommended that the applicant undergo a nerve root block with additional physiotherapy. Furthermore, she was advised to undertake an exercise programme and weight loss programme.
On or about 15 February 2012, the applicant underwent the nerve block treatment but she says that this treatment provided no relief.
She continued to suffer from debilitating back pain which restricted her ability to perform even basic domestic tasks.
On or about 2 April 2012, the applicant says that she again consulted A/Prof Papantoniou following the nerve root block. The applicant was concerned that the insurer had not approved payment for physiotherapy and other non-operative treatment. She said she was advised to return for a further examination by A/Prof Papantoniou in six to seven weeks.
On or about 29 July 2013, the applicant’s back pain had again worsened and she consulted A/Prof Papantoniou. She says that at that time A/Prof Papantoniou recommended L4/S1 surgery. The applicant says that she was informed by A/Prof Papantoniou that surgery would provide the only chance of her being able to increase her daily activities and capacity for work.
The applicant was very frustrated at that time as her back had not improved or stabilised despite undergoing various recommended non-operative treatment.
On 27 April 2015, the applicant underwent surgery at the hand of A/Prof Papantoniou. Nevertheless, she continued to suffer from extreme back pain which was worsened by lack of sleep. Following the surgery, the pain down both the applicant’s legs was relieved, however her left leg gave way on her on an occasion as a result of which she tore a meniscus in the knee. She also sustained particularly strong back pain at that time.
The applicant says further in her statement that on 6 February 2017, she again returned to A/Prof Papantoniou to discuss the results of a recent bone scan as she was still experiencing significant pain. At that time, the pain would often radiate down the left side of her buttock and hip. The applicant says that A/Prof Papantoniou informed her that there was a high chance that there had been non-union and that in his opinion, further revision surgery was necessary to treat the ongoing symptoms.
On or about 17 May 2017, the applicant underwent a further steroid injection to assist with the management of her back pain. She says however, that this provided no relief and she continued to have extreme back tenderness and difficulties including getting in and out of bed.
On 13 July 2017, another injection was undertaken around a screw positioned in the S1 area. The applicant says that this made no significant difference to her back symptoms.
On or about 24 August 2020, the applicant underwent an injection at the L3/4 level. She says that whilst this provided some relief, she continued to have sleep difficulties as a result of the pain and difficulties performing basic domestic tasks.
On or about 20 February 2018, the applicant returned to A/Prof Papantoniou for further examination in view of the severity of her back and leg pain. She says that she was informed by A/Prof Papantoniou that she had reached maximum medical improvement with the available non-operative treatments. He prescribed medication including Endone, Panadeine Forte, and Lyrica which the applicant agreed to ingest. In her statement, she makes the point that she had had several injections by that time without any significant relief.
The applicant says that she was informed by A/Prof Papantoniou that her symptoms would continue without further operative treatment. He recommended a further fusion procedure to her back, namely a revision L3-S1 fusion. A/Prof Papantoniou made an application for approval for the surgery on 7 April 2021.
In her statement, the applicant notes that on 23 April 2021, her then solicitors received a Section 78 Notice from the insurer in which it was stated that there was insufficient evidence to establish the need for surgery and advised that an appointment had been made for the applicant to be examined by Dr John Sheehy, neurosurgeon and spine surgeon.
On 15 September 2021, the applicant says that she received a further Section 78 Notice from the insurer advising that the surgery was not deemed to be reasonably necessary and that she should instead consult a pain physician.
On or about 16 February 2022, the claimant was medically examined by Dr Peter Khong. She says that Dr Khong informed her that the surgery proposed by A/Prof Papantoniou was reasonably necessary.
The applicant was informed by her solicitors that they had submitted a request for a review of the section 78 decision on the basis of the additional evidence provided in the form of the report from Dr Peter Khong.
The insurer maintained its position in that it declined to accept that the surgery proposed was reasonably necessary.
The applicant says in her statement that she continues to take medication and that she is unable to engage in even menial activity as she is extremely restricted with her domestic and leisure time activities.
She has to rely on a shower chair to enable her to independently shower. She is hopeful that her surgery will improve her levels of pain and capacity for work around the house and meaningful employment.
In her statement, she confirms that she wishes to undergo the surgery proposed by
A/Prof Papantoniou in whom she has confidence in the hope and expectation that her back and leg pain will be alleviated and thereby increase her ability to function and be independent in terms of domestic chores.

Applicant’s medical evidence

Associate Professor Papantoniou

On 27 April 2015, A/Prof Papantoniou performed “L4-S1 laminectomy decompression, discectomies, neurolysis, posterior and instrumented fusion, autograft, Alto graft, PLIF, paravertebral nerve blocks”.
A/Prof Papantoniou continued to monitor the applicant over the years and reported regularly both to the applicant’s GP and the insurer. It is apparent from a reading of those reports that the applicant did continue to suffer from lower back and sciatic pain following the initial surgery.
On 20 February 2018, A/Prof Papantoniou reported to Dr Sam Chen, the applicant’s GP in the following terms.
“Opinion:
Mrs Osborne is now 34 months after L4-S1 instrumented fusion. She has largely plateaued in terms of improvement and has certainly reached maximum medical improvement. I feel that she will probably be left with the symptoms she currently has on a long-term basis.
Management:
I would like Mrs Osborne to have ongoing physiotherapy, hydrotherapy, core stability exercises and a supervised gym programme. She should continue her TENS machine as well as her medication. I have given her another prescription for vitamin D3 50,000 international units one weekly. I will see Mrs Osborne in several months’ time, but should she have any problems, queries or concerns prior to this, I have asked her to contact my rooms and be seen sooner.”
On 18 November 2020, A/Prof Papantoniou provided a progress report to the applicant’s GP wherein he noted:
“Progress
Mrs Osborne had her L4-S1 instrumental fusion on 27/4/2015. I note she has developed L3/4 adjacent segment pathology.
She had her bilateral L3/4 facet joint steroid injections and these worked well for a while.
Unfortunately, the pain has returned.
In addition to the L3/4 level lower back pain, she also has a central and bilateral lower back pain, mostly central on the L5-S1 region. The pain radiates into both buttocks with the right being worse than the left.
This L5-S1 lower-level back pain has been present for about a year.
I note her bone scan demonstrates the bilateral L3/4 facet joint increased uptake. It also demonstrates increased uptake to the bilateral L5-S1 posterolateral bone graft regions with the right being worse than the left.”
A/Prof Papantoniou found it was unclear why she continued to have bilateral lower back pain but recommended further investigation in the form of a new CT and MRI scan.
In follow-up reports to the GP on 28 April 2021 and 26 May 2021, A/Prof Papantoniou confirmed that the applicant continued to suffer back pain and ingest medications and also his recommendation for further remedial surgery.
On 10 August 2021, A/Prof Papantoniou noted:
“Progress
Mrs Osborne had her L4-S1 instrumental fusion on 27/4/2015.
She continues to have severe lower back pain and sciatica. She also has a chronic limp. The limp is a direct result of the adjacent segment pathology at L3/4. This has resulted in a left hip tendonitis and a trochanteric bursitis.
She is apparently due for an injection into these areas next week.
I note I had previously requested a revision L3-S1 instrumental fusion last April. We have not received approval yet.
I understand Mrs Osborne has been sent to Dr John Sheehy for an IME. She apparently saw him last week.
Opinion
I still believe Mrs Osborne is best served with a revision L3-S1 instrumental fusion. She remains unfit for work until after she has recovered from this surgery. …
Whilst we are awaiting approval, I have asked Mrs Osborne to practice the usual back precautions and avoid any heavy lifting, bending or twisting activities.
She should continue appropriate analgesia under your supervision."

Dr Peter Khong, neurosurgeon and spine surgeon

The applicant’s solicitors obtained a report dated 16 February 2022 from Dr Khong.
In that report, Dr Khong expresses the following opinion:
“3. What is your diagnosis?
The diagnosis is severe lower back pain and left leg symptoms due to an exacerbation of pre-existing degenerative changes in the lumbar spine due to a fall. Mrs Osborne has had an L4-S1 decompression and fusion. She states after a year she started to experience worsening lower back pain, as well as pain, pins and needles and numbness in the whole left leg. Her CT demonstrates fusion at L4/5 and L5/S1. The bone scan post-operatively demonstrated some increased uptake to the left L3/4 and right L5-S1 facet joints. A subsequent bone scan demonstrated some mild facet joint arthropathy bilaterally at L3/4. This adjacent level may be the cause of her worsening lower back pain. The cause for her left leg and right foot symptoms are not entirely clear. …
8. Do you consider the medical treatment proposed by Professor Peter Papantoniou, namely L3-S1 revision fusion procedure for our client to be reasonably necessary?
An L3-S1 revision fusion is reasonably necessary. Mrs Osborne has had over five years of worsening lower back pain and leg symptoms. The source of her leg symptoms is not entirely clear. Her back injury pain may be coming from adjacent segment disease at L3/4. There was some increased uptake at L3/4 facet joints on bone scans. She had some transient benefit from L3/4 facet joint injections. Given her pain has been getting progressively worse, a fusion at the level above is reasonably necessary.”

Respondent’s medical evidence

Dr John Sheehy, neurosurgeon

In the Section 78 Notice and reviews, the respondent relies upon the opinion expressed by Dr John Sheehy in his report of 27 August 2021.
In that report, Dr Sheehy opines:
“In answer to your specific questions:
1.   What is the diagnosis of Ms Osborne’s lower back condition? (Dr Papantoniou has proposed a Revision L3-S1 laminectomy, decompression, discectomy, neurolysis, Posterolateral Instrumented Fusion, PLIF, PRP, Bone graft, paravertebral nerve blocks, fascia graft (please see attached approval request).
The diagnosis is that of a back condition managed with a two-level fusion at the L4/5 and L5-S1 levels with ongoing and progressive symptoms. Further surgery is unlikely to be of benefit.
2.   Please describe the MRI and bone scan imaging findings.
The MRI scan demonstrates a circumferential disc bulge at L3/4 with moderate right foraminal stenosis and mild left foraminal stenosis without definite nerve root impingement. There is a cystic collection posterior to the operative site of the L4/5 and L5-S1 levels extradurally.
The bone scan shows increased uptake in the L3/4 facet joints and in the bone graft at L5-S1.
3.   Is the proposed treatment medically appropriate for the pathology identified? Please refer to evidence-based literature supporting revision fusion (if available).
Ms Osborne has failed a CT-guided injection at the L3-4 level. This has not provided her with significant relief.
Before the surgery is considered, Ms Osborne should have a review with a pain physician to see if further conservative measures can be identified which would be of assistance.
4.   What is the likely functional improvement for Ms Osborne following surgery?
It would be very difficult to comment on likely functional improvement in this clinical setting. There is no evidence of nerve root compression or spondylolisthesis. There is some change on a bone scan. The likely functional improvement would be difficult to predict.
5.   What is the likelihood of return to work following the proposed surgery?
Remote.
6.   What is the likelihood of poor prognosis following the proposed surgery?
Very likely.
7.   Do you recommend more appropriate alternative treatment for Ms Osborne? If yes, please identify the type and duration of treatment and the likely improvement following this treatment.
Review by a physician.
8.   Having considered the reasonably necessary criteria (outlined above), does the proposed Revision L3-S1 posterior fusion meet the reasonably necessary criteria?
No.”

SUBMISSIONS

Respondent’s submission

Mr L Morgan, counsel for the respondent essentially submits that I should prefer the opinion expressed by Dr Sheehy over those expressed by A/Prof Papantoniou and Dr Khong.
The thrust of the submission is that all alternative possible treatments have not been exhausted in that the applicant has not undergone a pain management assessment.
Mr Morgan submits that the proposed surgery is unlikely to be successful. He notes that Dr Sheehy expresses the opinion, which it is submitted I should prefer, that the surgery is likely to be unsuccessful and will not alleviate the applicant’s symptoms.
Mr Morgan further submits that neither A/Prof Papantoniou nor Dr Khong have provided adequate reasons for forming the view that further surgery is warranted.
It is also submitted that the criteria to be applied as enunciated in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) have not been satisfied by the available evidence.

Applicant's Submissions

Mr Perry, for the applicant submits that there is clearly new pathology at the L3/4 level.
Mr Perry submitted that I should look at the evidence as a whole in determining whether or not the proposed surgery is reasonable. Both A/Prof Papantoniou and Dr Khong agree that the back pain may be coming from the adjacent level that is L3/4 for and that pathology has been identified at that level by bone scan and MRI.
Mr Perry noted that the applicant has undergone all reasonable conservative modalities of treatment even though she has not been assessed by a pain management physician.
Mr Perry says that the bone scan points to a high probability of non-union at some level that I should accept that there is not a solid fusion at the L5-S1 level.
Contrary to the submission made by Mr Morgan, Mr Perry submitted that the opinions of A/Prof Papantoniou and Dr Khong were carefully considered having regard to all the available evidence. Mr Perry also made the point that the proposed surgery is directed to eliminating or at least improving the applicant’s pain levels whereas opined management course is more directed to managing the pain.
In summary, he submitted that given the long history, the various modalities that have been unsuccessful, in all the circumstances it is reasonable for the applicant to have the surgery proposed by A/Prof Papantoniou in whom she has great confidence.
In terms of the Diab principles, Mr Perry submitted that is whether the applicant should have the surgery and given that the surgery will address the source of the problem rather than the management of the painful symptoms, it is reasonable for her to undergo the proposed surgery.

FINDINGS AND REASONS

The applicant carries the onus to establish that the treatment is reasonably necessary, and that it results from the injury.
The test as to whether any treatment is reasonably necessary developed in a series of decisions, including Bartolo v Western Sydney Area Health Service [1997] NSWCC 1 (Bartolo); Rose; Ajay Fibreglass v Yee [2012] NSWWCCPD 431; and Sunrise T&D Pty Ltdv Le [2012] NSWWCCPD 47. Factors to be considered include the medical opinions involved as to the reasonable necessity of the treatment concern, the range of alternative treatments, the costs of the relevant and alternative treatments, the actual potential or potential effects of the relevant treatment, and the place of the relevant treatments amongst the armoury of all treatments available for the condition.
In Bartolo, Burke CCJ approached the issue with the proposition; “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”.

In Campbell v WorkCover Authority (NSW) [2003] NSWCA 52; (2003) 25 NSWCCR 99, (Clampett) Grove J (Meagher and Santaw JJR agreeing) noted that the trial judge had sought guidance from the principles discussed by Burke CCJ and Rose. Grove J referred to the dictionary definitions of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Shorter Oxford English Dictionary, 3^rd Ed) and “that cannot be dispensed with” (Macquarie dictionary). His Honour added at [23];
“23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation, it is apt to consider the surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary”, there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.”
The requirement for statutory attention to incapacity rose on the facts of Clampett, but does not arise in this case. In this case, the question is whether the proposed revision surgery is reasonably necessary as a result of the injury.
This series of cases was revisited by Roach DP in Diab at [76] to [91]. After reviewing the authorities, the Deputy President concluded at [88] to [90] (referring to the matters for consideration identified by Burke CCJ in Rose):
“88. In the context of section 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 and namely:
a.The appropriateness of the particular treatment
b.The availability of alternative treatment, and its potential effectiveness
c.The cost of the treatment
d.The actual or potential effectiveness of the treatment and
e.The acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by different treatment, but at a much lesser 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; (97) 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, ‘no paraphrase of the expression can be adopted as a sufficient explanation of his operation, let alone definition of its content’.”
Roach DP also noted that “reasonably necessary” does not mean absolutely necessary Diab, at [86]. I have read and given due weight to the reports of the treating spinal and orthopaedic surgeon, who has treated the applicant over many years including the performance of previous surgical procedure. I note that A/Prof Papantoniou has identified instability in the previous fusion and L3/4 adjacent segment pathology. The adjacent segment pathology is identified by way of CT and MRI scans together with a bone scan. The purpose of the L5-S1 revisional instrumental fusion is to address pathology. It is the opinion of A/Prof Papantoniou that the L3/4 segment pathology results from the original surgery.
Dr Khong agrees that the applicant’s back pain may be coming from adjacent segment disease at L3/4. He noted that there was some increase uptake at the L3/4 facet joints on the bone scan and that there had been some transient benefit from L3/4 facet joint injections. He concluded that given that the applicant’s pain had been getting progressively worse, a fusion at the level above was reasonably necessary.
Dr Sheehy agrees that there is some pathology present at the L3/4 level demonstrated on the MRI scan. He also accepts that the bone scan shows increase uptake in the L3/4 facet joints and in the bone graft at L5/S1. In his opinion, it is difficult to predict the likely functional improvement from the proposed surgery. In the circumstances, it is his firm view that the applicant should undergo a “review by a pain physician” before undergoing any surgery. He provides no opinion as to the cost or likely outcome of such an assessment. He does not consider nor discuss the other modalities.
As for alternative treatments, it is clear from the evidence that the applicant has undergone protracted conservative management, prolonged medication, physiotherapy and hydrotherapy in addition to the earlier spinal surgery.
True it is that she has not been assessed by a pain management specialist and neither A/Prof Papantoniou or Dr Khong comment specifically upon the appropriateness of such an assessment in the applicant’s case. However, the applicant has a protracted history involving repeated spinal injections at various levels which have not provided any lasting relief. Earlier surgery provided some relief initially, particularly in relation to leg pain, but the applicant subsequently relapsed to the circumstances in which she presently finds herself.
It should be noted that the matters for consideration when dealing with the question of reasonable necessity as summarised in Diab are not criteria or factors to be weighed in a for and against counting exercise. As Roach DP said himself, the ultimate question is whether the treatment is reasonably necessary. It is not whether it is absolutely necessary. Similarly, it is not required that the proposed procedure carries no risk, or that it has chances of success greater than 50%.
As Mr Perry pointed out when making his submissions, the surgery proposed by
A/Prof Papantoniou and Dr Khong are designed to address the cause of the applicant’s pain, not the clinical management of it.
Overall, I consider that the proposed surgery offers a reasonable chance of actual and effective reduction in symptoms, together with added benefits such as increased activity, reduced medication and quality of life. In coming to this conclusion, I have given weight to the fact that A/Prof Papantoniou has managed the applicant’s condition for a number of years and, but for a pain management assessment, has recommended and explored all modalities other than surgery that is now recommended. As an experienced clinician, he would have been well aware of the availability of pain management courses and has not chosen to recommend that the applicant pursue such an assessment. I am also persuaded by the supportive opinion of Dr Khong.

Results from injury

Although neither counsel have chosen to address me specifically on this issue, I must be satisfied that the proposed surgery is not only reasonably necessary but results from the injury.
Causation is a question of fact (March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 (March) per Mason CJ at [16]). The worker need only establish, applying the common-sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 at NSW CCR 796; March per Mason CJ at 515 and Deane J at 552), 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).
The respondent contested that the original surgery was reasonably necessary as a result of the applicant’s work accident. However, a medical assessment certificate was issued by Dr Drew Dickson and Approved Medical Specialist on 1 October 2014 that the “L4/S1 laminectomy, decompression, neurolysis, instrumental fusion, posterior fusion, bone graft plus PLIF was reasonably necessary as a result of the injury on February 24, 2000”.
I am satisfied that the proposed further surgery as revision surgery from the original surgery and that accordingly, the necessary causation is established.

SUMMARY

I am satisfied that the surgery proposed is appropriate. A pain management and assessment may be an available alternative but there is no evidence as to its potential effectiveness. The aim of the surgery is to eliminate the cause of the pain, not to assist the applicant in management of the pain. The cost of the treatment is not disputed and there is no evidence as to the cost of the proposed alternative pain management assessment. It is the view of two specialists, including the treating specialist that the proposed surgery will have the potential effect of eliminating and/or alleviating the applicant's painful symptoms.

[2023] NSWPIC 10

11 January 2023