Perry v The Reject Shop Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Perry v The Reject Shop Limited [2022] NSWPIC 744
APPLICANT:	Carol Linda Perry
RESPONDENT:	The Reject Shop Limited
Member:	Catherine McDonald
DATE OF DECISION:	23 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Reasonably necessary medical treatment; claim for the cost of spinal fusion surgery; Diab v NRMA Limited; Honarvar v Professional Painting AU Pty Ltd discussed; brief medical reports from treating surgeon and Paric v John Holland (Constructions) Pty Ltd applied; Held – award for the respondent.
determinations made:	1. Award for the respondent on the claim for s 60 expenses of and incidental to surgery proposed by Dr Siu.

STATEMENT OF REASONS

BACKGROUND

Carol Perry was employed by The Reject Shop Limited as a stock handler. On 30 October 2020 she performed her usual duties moving stock around the store, including lifting heavy boxes. She experienced pain in her back while lifting drinks to the shelves and could not bend to pick up a box.
Ms Perry’s claim for compensation remains accepted though The Reject Shop’s insurer denied liability to pay for surgery proposed by Dr Siu, being L4 to S1 spinal fusion. Ms Perry seeks an order under s 60 of the Workers Compensation Act 1987 (the 1987 Act) that The Reject Shop pay the costs of and incidental to that surgery.

PROCEDURE BEFORE THE COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 7 December 2022 when Mr S Hickey of counsel appeared for Ms Perry and Mr Stiles of counsel appeared for The Reject Shop.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

The documents which were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination are:
(a) Application to Resolve a Dispute and attached documents (ARD) , and
(b) Reply.
The Reject Shop did not seek to rely on Dr Bentivoglio’s report dated 28 September 2021, on the basis of cl 44 of the Workers Compensation Regulation 2016 (the Regulation).
The Reject Shop did seek to rely on Dr Phonesouk’s report dated 30 March 2021 but accepted that it had not been served with the notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) served on 20 January 2022. I declined leave to rely on that report, noting that cls 41 (3) and (4) of the Regulation provide:
“(3) For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d).
(4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.”
Each party had filed an Application to Admit Late Documents. Those applications were not pressed.

Ms Perry’s evidence

Ms Perry described the injury in her statement dated 5 July 2022 and set out the history of her treatment. She saw her general practitioner, Dr Liyanage, on the Monday after the injury and was referred for a CT scan and to physiotherapy with Ms Van Dorp. Ms Perry underwent physiotherapy on a regular basis until the end of June 2021.
Ms Perry underwent a bone scan and an MRI scan and Dr Liyanage referred her to Dr Siu, a neurosurgeon. In March 2021 she underwent CT guided injections at Dr Siu’s request. At about the same time, Ms Perry was referred to a psychologist.
The statement sets out Ms Perry’s treatment in detail until mid 2021. Apart from a reference to 18 sessions of hydrotherapy in late 2021, there is no description in Ms Perry’s statement of the treatment she underwent between June 2021 and November 2021 when she returned to Dr Siu.
Ms Perry said that after she saw Dr Sheehy at the insurer’s request:
“My case manager asked me to get a referral from my GP to undergo a discogram. I spoke to my GP and did some research about discograms and they are a very painful and invasive procedure. I have had several injections in my back due to my injury and they have been extremely painful. I was not prepared to have a discogram due to the risk it would increase my back pain.
…
I spoke with my case manager on 20 June 2022 and informed him that I did not want to have the discogram done as it is invasive and very painful. My case manager told me that if I don't get the discogram then they will not approve my surgery. I was very upset by this and felt that I was being pressured into having the discogram.”
Ms Perry said that she continues to suffer significant pain in her lower back, right buttock and right foot. She was prescribed a series of medications – Celebrex, Endep, Panadol Osteo, Norgestic and Lyrica but had to stop taking Endep, Norgestic and Lyrica because of the side effects. The statement does not identify when the medications were prescribed or what Ms Perry was taking at the date of the statement.
She said that she has tried all conservative treatment recommended including physiotherapy, acupuncture, cortisone injections and a medial branch block. She attended 18 sessions of hydrotherapy between August and November 2021 but experienced increased pain. Dr Siu recommended she cease physiotherapy and hydrotherapy in November 2021. Ms Perry said that she had “tried Pain Management with Mr Drew Singleton at Core Healthcare Group”. She said:
“I understand the risks associated with the surgery proposed by Dr Siu and I still want to go ahead with the surgery. I have given it a great deal of thought and had many discussions with my husband, children and parents. I believe it is my best chance to improve my pain levels, be able to do some of the things I could prior to my injury and allow me to try and move forward with my life.”

Medical evidence

Ms Perry saw Dr Liyanage on 2 November 2020 when he recorded a history of gradually worsening back pain, which was not radiating. He noted that Ms Perry had no neurological symptoms in her legs. He referred Ms Perry for a CT scan and prescribed simple analgesia.
The CT scan dated 10 November 2020 was reported by Dr Cappe as showing:
“At L4-5 there is a mild canal stenosis secondary to post is but posterior disc bulging and degenerative change in the apophyseal joints and some ligamentum flava calcification on the right. [sic]
No disc lesion at LS-S1. Mild degenerative changes seen in the apophyseal joints. No compromise of the neural foramina.”
Ms Perry began physiotherapy with Ms Van Dorp at Dr Liyanage’s surgery on
20 November 2020.
The bone scan dated 22 December 2020 was reported by Dr Ting as showing:
“The bone scan demonstrates degenerative disease of the lumbar spine. There is uptake in the facet joints indicating arthritis, but this is low grade and of doubtful clinical significance.”
Dr Dyer reported on the MRI scan dated 18 January 2021 and said:
“The lateral lumbar alignment is normal. There is disc desiccation at all levels and mild disc space height loss from L4-51. There is no osseous lesion. The conus terminates at L1 and appears normal.
At L1-2 and L2-3, there is no disc herniation . There is no thecal or neural impingement.
At L3-4, there are small bilateral L3 foraminal disc protrusions but no impingement of the exiting nerves.
At L4-5, there is a mild spinal stenosis as a result of a mild annular disc bulge, mild facet OA and ligamentum flavum hypertrophy. There is a small left L4 foraminal disc protrusion but no impingement of the exiting nerve.
At LS-51, there is a small posterocentral disc protrusion but no thecal or neural impingement. There is mild facet OA.”
In her report dated 25 January 2021, Ms Van Dorp recorded that her impression was “L4/5/S1 disc bulge; nerve root compression L5/S1”. She said:
“Based on her above findings today, she is a bit worse with the leg pain referring into the anterior thigh for the first time with the femoral nerve stretch test. Her motor tests have also deteriorated just slightly. This is in line with a nerve root compression profile, which I have been suspicious of however the clinical profile didn't quite match before, but now it does.
I have resultantly advised her to rest a lot more in nerve decompression postures, to which her pain responds instantly.”
On 19 March 2021 Dr Cappe undertook a CT guided bilateral L4-5 facet joint injection.
On 4 March 2021 Dr Siu (and a neurosurgical registrar, Dr Spiro) wrote to Dr Liyanage and summarised the history Ms Perry provided. He said:
“On examination, there was reduced pinprick sensation in the left whole foot and lateral lower leg. Her power was 4/5 on right hip flexion and normal in all other movements. Her straight leg raising was positive at 45 degrees on the right.
We reviewed her MRI, which showed a mild disc protrusion at L4/5, L5/S1, not causing any impingement. A bone scan showed uptake at the L4/5 facet joints bilaterally.
We believe that her bilateral active facet joint arthropathy at L4/5 is causing her symptoms.
We have suggested L4/5 bilateral facet joint injections. If not effective, we have suggested a Pain Specialist review.”
On 8 March 2021 Dr Liyanage noted that Dr Siu had recommended facet joint injections. He recorded that Ms Perry was seeking referral to another neurosurgeon for a second opinion and prepared a referral to Dr Stoodley.
On 19 March 2021 Dr Liyanage noted that Ms Perry was booked to undergo facet joint injections.
On 24 March 2021 Dr Liyanage referred Ms Perry to Dr Cleaver, noting in his referral that her CT scan and bone scan were unremarkable. His notes for that day show that the referral was at her request. On 6 April 2021 Dr Liyange noted that Ms Perry was waiting for psychotherapy under a Mental Health Care Plan.
There are no notes from Dr Liyanage dated after that consultation.
On 14 April 2021 Dr Siu noted that Ms Perry said that she had no relief from the facet joint injections and that the pain was non-remitting. He observed that she had good active lumbar flexion but that extension was limited due to pain. He said:
“I think again Mrs Perry's low back pain is dominated by axial pain and her facet arthropathy is the likely contributing factor. To help optimise her pain management, I think she would benefit from a Pain Specialist review and I have referred her to see Dr Clarke in Coffs Harbour. Should her pain remain refractory to all non-operative measures in the future, a spinal fusion could be considered as a last resort. I have explained the above in detail to Mrs Perry and her husband.”
There is no further reference in the file to Dr Clarke and Mr Hickey said there was no evidence that the referral occurred.
An EOS body scan dated 26 May 2021[1] was reported by Dr Tang and addressed to Dr Cleaver. It showed a thoracolumbar scoliosis and mild to moderate multilevel mid-thoracic disc degeneration with disc height loss and marginal osteophytic lipping. The lumbar disc spaces were normal.
[1] Reply page 72.
On 26 May 2021 Dr Cleaver wrote to the insurer and sought approval for medial branch blocks at the L4/5 and L5/S1 facet joints.
The ARD contains an incomplete report from Dr Cleaver dated 28 May 2021. He also suspected Ms Perry’s pain was coming from the significant facet joint arthropathy at L4/5 and 5/S1. He said that her EOS scan showed a “very robust spine” and that the MRI scan showed normal age related changes in the anterior column. He noted that the injection of steroid into the L4/5 facet joints did nothing and suggested other possibilities as to the pain generator, including L5/S1 facet joints. His report does not contain a conclusion.
Dr Watts undertook CT guided lumbar medial branch blocks on 16 August 2021 where needles were placed adjacent to the L4, L5 and S1 medial branch blocks and local anaesthetic injected. Dr Watts said that the procedure was moderately well tolerated and a pain scoring chart provided.
On 16 August 2021 Dr Cleaver said that Ms Perry was instantly pain free for a few hours after the medial branch blocks. He said that the most appropriate treatment was medial branch ablation to those joints and noted that Ms Perry was not sure if she wanted the procedure.
A report from Drew Singleton, clinical coordinator and physiotherapist, of Core Injury Management dated 28 November 2021 set out a report dictated by Dr Rice after a review as part of “the Rehabilitation and Pain Management Program”. The letter shows that Dr Rice is a pain specialist, psychiatrist and anaesthetist. The review was undertaken as a telephone consultation. Dr Rice said that Ms Perry had “learnt a great deal especially on the emotional side” and;
“She has had several injections which did nothing, three psychology sessions with her not establishing rapport with the therapist, and following the programme she has started meditation which she uses to reduce her pain score from 70 to 30%.
…
Medication: she takes none and has never been keen on pills.
…
She has good rapport with her general practitioner who she will consult regarding referral to another psychologist should she feel she requires further help dealing with her residual frustrations.
Overall she has made good gains from attending the programme, and knows she needs to apply the concepts she has learnt not least of that of pacing.
Her psychological response of being cranky is consistent with her personality and always having been busy both in her work since aged 15, raising 4 sons, and running the 20 acres with her husband. Her psychological response was within the normal range of her personality.”
There is no other evidence in the file about the pain management program and Ms Perry did not provide any details about it in her statement.
On 24 November 2021 Dr Siu noted that he had not seen Ms Perry for seven months and that she had continued to undertake regular supervised physiotherapy and hydrotherapy though suffered non-remitting severe pain. He said that he understood Ms Perry had been reviewed by a pain specialist and radiofrequency denervation had been suggested but she was not keen due to the temporary nature of that treatment. He said:
“I think again Mrs Perry's lower lumbar segment disease (particularly at L4/S) is the main contributing factor to her ongoing severe low back pain. It is clear that she has exhausted a prolonged course of conservative treatment and the remaining therapeutic avenue would be a spinal fusion (L4-S1). I have gone through the above with her and also this time with her father. I have explained to her about the rationale of intervertebral arthrodesis to achieve longterm vertebral stabilisation and thereby alleviate pain arising from the diseased motion segments. The main caveat with spinal fusion for back pain is treatment failure and adjacent segment disease. In fact, the failure rate (or success rate) could be in the order of 50%. Spinal fusion is a major undertaking and there are material risks of harm from surgery and one could become a lot worse off. Mrs Perry has given a lot of thought about this already and would like to proceed. I will therefore correspond with her Workers' Compensation insurance about it. In the meantime, I would like to obtain an updated MRI, a bone scan and a dynamic x-ray.”
On 3 December 2021 Dr Siu wrote to the insurer and said that there was “non-remitting pain despite an exhaustive course of conservative treatment (regular supervised physiotherapy, hydrotherapy and pain specialist review)”.
Dr Singh reported on an MRI scan on 10 December 2021 and said:
“Multiple levels in the spinal column from T10-11 to L3-4 demonstrate no disc herniation, canal or foraminal narrowing.
At L4-5 , a minimal posterior disc bulge. Bilateral facet capsular and ligamental thickening. A small 4 mm right synovial cyst anteromedial to the right facet has been present previously. No significant canal, recess or foraminal compromise.
At LS-S1, normal appearances.
CONCLUSION :
A small disc herniation at L4-5 is non neural compressive.
No significant canal or foraminal compromise at any level.”
An X-ray on the same day showed, among other findings:
“There is 2 mm of grade 1 retrolisthesis at L4-5 in the neutral view . This is unchanged in extension, and not evident in flexion. Limited flexion generally.
Right convex scoliosis centred at LS with a Cobb angle of 4 degrees.
…”
Dr Ting reported on another bone scan on 14 December 2021 and said:
“The bone scan demonstrates degenerative disease of the lumbar spine. There is mild activity in the right L4/5 facet joint, which appears minor and of uncertain clinical significance. Arthritis is noted in bilateral sacroiliac joints.”
On 3 February 2022 Dr Siu wrote to Dr Liyanage and said that the MRI scan showed facet joint arthritis at L4 to S1 and that there were no obvious changes since the previous study. Dr Siu again noted that spinal fusion was a last resort and that Ms Perry remained very keen on it.
Dr Siu prepared a report to Ms Perry’s solicitor dated 14 July 2022. He said:
“Ms Perry reportedly injured her lumbar spine at work on 30/10/20. She was lifting boxes above her head when she developed severe low back pain which has since been persistent. She has undergone a prolonged course of conservative treatment (physiotherapy, hydrotherapy, and CT-guided steroid injections) without success and has exhausted all non-surgical forms of treatment.
Her MRI/CT /bone scan suggests that her L4-Sl segment degeneration is the underlying pain generator.
…
The standard treatment for degenerative spinal pain is non -operative. However, failing all available conservative measures, surgical stabilisation in the form of spinal fusion can be considered as a last resort. Therefore, in Ms Perry's case, fusion surgery can be considered reasonably necessary for her refractory spinal pain.”

Medico-legal reports

Dr Sheehy, neurosurgeon, saw Ms Perry at the request of the insurer and reported on 29 April 2022. He noted that she complained of lower back pain and obtained a history of her activities. He noted that she was not using any medication for pain relief. Dr Sheehy recorded that cortisone injections did not assist and she “has had a recent facet joint denervation, which also has not been of assistance”.
On examination, he said that straight leg raising was limited by lower back pain and that the last 30° of flexion was limited but extension was normal. Dr Sheehy described the radiology in detail. Dr Sheehy said:
“She sustained a soft tissue injury of the lumbar spine 30/10/2020 while lifting boxes. The MR scans and the bone scans reveal evidence of nerve root compression. There are degenerative changes in the lower lumbar segments. She may have sustained a derangement of one of the lower lumbar discs internally, and further investigation with discography would be appropriate in this regard. She has not improved in an 18-month period of conservative management.”
Dr Sheehy recommended discography to determine if there is internal derangement of one of the lower lumbar motion discs. He said:
“Further support is required before consideration should be given to instrumented fusion for degenerative changes but no radiological evidence of nerve root compression. Failure of conservative management is a poor indicator tor good recovery following instrumented fusion. There is minimal support on the imaging available with regard to the bone scan and MR scan. Further support should be sought in the form of a positive discogram.”

Dr Sheehy prepared a supplementary report dated 11 August 2022. He said:
“There was insufficient imaging information available on the MRI scan and the bone scan to support the proposed spinal fusion. Failure of conservative management and in the absence of nerve root compression, significant spondylolisthesis and significant end plate signal change, does not provide evidence to support such a serious intervention.”
Dr Sheehy said that the proposed surgery was unlikely to improve Ms Perry’s pain significantly and that it was problematic as to whether Ms Perry would return to suitable duties. He said that the alternative was a gentle exercise program with continuing review and medication under the supervision of her local medical officer.

SUBMISSIONS

Mr Hickey took me through Ms Perry’s statement, stressing the impact on her life and the treatment undertaken. He took me to the medical evidence in very close detail and most of his submissions consisted of that chronology. In particular Mr Hickey highlighted Ms Van Dorp’s report dated 25 February 2021.
Mr Hickey said that Dr Sheehy noted nerve root compression, though agreed, in answer to my question, that there was probably a typographical error (omitting “no”) in the quote set out at [36] above, based on the rest of the report. He said that Dr Siu said conclusively that there was instability.
Mr Hickey said that it was not unreasonable for Ms Perry to decline to undergo the discogram recommended by Dr Sheehy. Dr Siu said that the proposed surgery was the only option and Ms Perry’s reports of pain in her statement indicated that the surgery was reasonably necessary as explained in Diab v NRMA Limited[2] (Diab).
[2] [2014 NSWWCCPD 72.
Mr Stiles agreed that the relevant considerations were set out in Diab, though noted that the question of cost was not an issue. He noted that Ms Perry’s statement set out a long history about physiotherapy and hydrotherapy treatment undertaken but did not deal with Dr Cleaver’s treatment and the medial branch blocks administered. Mr Stiles said that Dr Siu’s reports did not provide a satisfactory description of the anticipated or proposed benefit of the surgery and that the question is not whether Ms Perry wants the treatment but whether it is reasonably necessary.
Mr Stiles notes that the investigations showed only mild disc protrusions and that there was no nerve root impingement. He said that the reference to nerve compression in Dr Sheehy’s report was a typographical error because there was no evidence of it in the reports of the scans nor was it suggested by Dr Siu. Dr Siu’s report dated 3 February 2022 confirmed that a lumbar spine X-ray demonstrated no instability on flexion or extension. While the reasoning offered by Dr Siu was that the surgery would provide stabilisation, there was no evidence of instability. The question then arises, Mr Stiles said, as to what Dr Siu is trying to achieve with the surgery. In several of his reports, Dr Siu said that surgery was a last resort in his report of 24 November 2021 he said that there was a 50-50 chance that the spinal fusion would be a failure leading to adjacent segment disease. Mr Stiles said that there was a no indication as to how the proposed procedure would achieve the desired income outcome of pain relief. He said that Dr Siu’s assessment of the likely success of the surgery was a “coin toss”.
Mr Stiles referred to the evidence that Ms Perry had ceased taking medication was relevant to the consideration of alternative treatments and, in particular, a more comprehensive pain management program. Referring to Dr Cleaver’s reports, Mr Stiles noted that after the medial branch blocks, Ms Perry was pain free for a few hours but that she did not described that treatment in her statement. He noted that Dr Rice said that Ms Perry made some gains as a result of the pain management program she attended but that a more comprehensive pain management program may lead to consideration of medication and alternative medication which will relieve pain without side effects. He said the evidence showed that Ms Perry’s medication had not been managed optimally and that pain management had not been properly explored.
Referring to Dr Sheehy’s reports, Mr Stiles said that the thrust of The Reject Shop’s case was that the failure of conservative management is a poor indicator for good recovery following instrumented fusion.
In reply, Mr Hickey said that the fusion was needed to stabilise Ms Perry’s spine to relieve pain. He noted the slight retrolisthesis shown on X-ray, the disc desiccation and the degenerative changes at multiple levels. To confirm that Ms Perry was not taking medication, Mr Hickey referred to the certificate of capacity dated 28 April 2022 in which medication was listed and the certificate dated 3 August 2022 in which the treatment was noted as “waiting for spinal fusion”.

FINDINGS AND REASONS

Section 60 of the 1987 Act provides that an employer is liable to pay the cost of reasonably necessary medical treatment as a result of an injury.
In Diab, Roche DP said that the standard test adopted in determining if medical treatment is reasonably necessary is that stated by Burke CCJ in Rose v Health Commission NSW[3]:
“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.”[4]
[3] (1986) NSWCC2; 2 NSWCCR 32.
[4] At [76].
Roche DP noted that the Commission has generally been guided by Burke CCJ’s statement in Bartolo:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”[5]
[5] At [78].
After considering the use of “reasonably necessary” in other contexts, Roche DP said:
“‘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.”[6]
[6] At [86].
Roche DP said:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose …, 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.”[7]
[7] At [88]-[89].
Roche DP said that those matters were useful heads for consideration but that the essential question remained whether the treatment was reasonably necessary and that it was not simply a matter of asking – as suggested in Bartolo - if the worker should have the treatment or not.
In Honarvar v Professional Painting AU Pty Ltd[8] (Honavar) Snell DP said:
“In Diab Roche DP dealt with the term ‘reasonably necessary’ in the context of s 60 of the 1987 Act. The Deputy President, applying Clampett v WorkCover Authority (NSW), said that the word ‘reasonably’ was ‘used as a diminutive and moderated the effects of the word ‘necessary’ ... reasonably necessary is a lesser requirement than ‘necessary’. The Deputy President concluded that matters relevant to the issue of ‘reasonableness’ included, but were not necessarily limited to, the matters raised in Rose at ‘5’ in the passage quoted immediately above. The Deputy President also observed, and I agree, that ‘each case will depend on its facts’.”
[8] [2022] NSWPICPD 12 at [34].

Consideration

There is little or no evidence about some of the treatment and investigations Ms Perry has undergone. Her statement sets out the dates on which she had physiotherapy and the dates on which her general practitioner certified that she had no work capacity but does not deal at all with important aspects of her treatment.
In Honarvar, Snell DP noted the extensive evidence in the worker’s statement about the treatment he had undergone and his statement that he had done everything his doctors had asked of him. That evidence was acceptable to show that the alternative treatment was undertaken.[9] It must be contrasted with Ms Perry’s statement which does not detail the treatment by Dr Cleaver and Dr Rice at all.
[9] At [174] and [178].
Dr Siu’s initial advice was that Ms Perry undergo facet joint injections and pain management treatment. The facet joint injections took place but were unsuccessful and Dr Siu again recommended pain management. Dr Siu said that he had made the referral to Dr Clarke but there is no evidence about whether that occurred. He said in April 2021 that surgery could be considered as a last resort if her pain remained refractory to all non-operative measures.
There is no further reference to a second neurosurgical opinion after Dr Liyanage prepared a referral to Dr Stoodley. Shortly after that referral was made, Dr Liyanage noted that Ms Perry asked to be referred to Dr Cleaver. Ms Perry’s statement did not describe her treatment by Dr Cleaver, even though there are some reports referring to his treatment. The only report in the ARD from Dr Cleaver is incomplete.
Dr Liyanage’s notes – which might otherwise have provided copies of specialist reports describing the treatment - end in April 2021, before Dr Siu recommended surgery. There is no report from Dr Liyanage.
On 14 April 2021 Dr Siu proposed a pain management review and referred Ms Perry to Dr Clarke in Coffs Harbour. There is no explanation as to whether that appointment took place or why it did not.
The significant gaps in the evidence are important when a determination of whether surgery is reasonably necessary involves a consideration of the appropriateness of the proposed treatment and the availability of alternative treatment and its potential effectiveness. That determination requires more than a mere statement from the surgeon that surgery is the last resort and a desire on Ms Perry’s part that it occur.
There is nothing at all in Ms Perry’s statement about treatment in the second half of 2021 other than a reference to hydrotherapy and saying that she had “tried pain management” with Mr Singleton. She described the pain management treatment undergone in one bald sentence, referring to the treatment as being undertaken by Mr Singleton, the clinical co-ordinator of the organisation, rather than Dr Rice, the pain specialist. She did not say anything about the nature of the treatment. Her comment that no ongoing relief was provided from any treatment is at odds with Dr Rice’s assessment.
Dr Rice’s letter, dictated to Mr Singleton, provides little information as to the extent of the pain management treatment undertaken or the type or length of program provided. It appears to have concluded in a telephone consultation in October 2021. Dr Rice said that Ms Perry took no medication at that time. The letter did not say whether the pain management program was of the kind frequently described in evidence in the Commission, which includes consideration and trials of appropriate medication. It appears that it was not; though, in the absence of other material about the program or detailed evidence in Ms Perry’s statement, it is not possible to know.
Dr Rice noted that Ms Perry did not take medication. He nonetheless considered that she had made good gains from the program but needed to apply what she had learned, suggesting a successful outcome even without medication.
Dr Rice envisaged ongoing treatment with a different psychologist at the referral of Dr Liyanage. There is no evidence as to whether a further referral was made.
Ms Perry returned to see Dr Siu in November 2021 after seven months. It is not clear if Dr Siu had the full history of the treatment undertaken in the meantime and whether he was able to consider any reports about that treatment. In his report of 24 November 2021, Dr Siu said that he “understood” that Ms Perry had “been reviewed by a pain specialist and radiofrequency denervation has been suggested”. Dr Siu’s report thus describes the treatment by Dr Cleaver and by Dr Rice as if they were the same practitioner. He did not express a view about whether Ms Perry’s reluctance to undergo the radiofrequency denervation because of the temporary nature of the treatment was appropriate.
Dr Siu said that Ms Perry has “exhausted a prolonged course of conservative treatment” and on the basis of the history said that the remaining avenue would be a spinal fusion.
Based on the evidence, I cannot determine if Dr Siu was given the opportunity to consider if Ms Perry had in fact exhausted a long course of conservative treatment or whether he was provided with that history by Ms Perry, whom he says is keen to have the surgery. Certainly it appears that physiotherapy and hydrotherapy had not provided relief, nor had facet joint injections but Dr Siu does not comment on the results of medial branch blocks nor does he consider the extent of the pain management undertaken. He has not commented on the fact that Ms Perry does not take medication.
Dr Siu said that the aim of the surgery was long term vertebral stabilisation, thereby alleviating pain from diseased motion segments. He suggested that the “main caveat” was treatment failure and adjacent segment disease which I understand to be two issues – that the treatment might not work and, even if it did, surgery may be required later at adjacent levels. Dr Siu said that the failure rate could be in the order of 50% and that Ms Perry could become a lot worse off.
An X-ray taken after the date of that report was reported as showing no instability in flexion and extension. Dr Siu noted that finding in his report to Dr Liyanage in February 2022 but did not explain its relevance in respect of surgery intended to achieve stabilisation. Dr Liyanage may well have understood the relevance or not of the lack of instability but the Commission cannot, without an explanation.
Dr Siu said that he would review Ms Perry after her insurance review which I presume to be the examination by Dr Sheehy on 1 March 2022. There is no report showing that he did so. He noted that Ms Perry was very keen to have the surgery.
A short report dated 14 July 2022 was addressed to Ms Perry’s solicitors, answering a series of questions. Dr Siu was asked to describe Ms Perry’s treatment and to say whether she had exhausted all non-surgical treatment. In responding that she had, Dr Siu referred only to physiotherapy, hydrotherapy and CT guided steroid injections. Dr Siu said that the standard treatment for degenerative spinal pain is non-operative and that surgical stabilisation is a last resort, when “all available conservative measures” had failed. He said that the surgery was therefore reasonably necessary.
Dr Siu did not consider whether there were other options, including more formal and extensive pain management. He did not address the fact that Ms Perry is not taking medication.
Dr Siu’s report is brief and he was directed by the questions to words which appear in the cases and the legislation – whether she had exhausted non-surgical treatment, whether employment was a substantial contributing factor to the injury and whether the surgery was reasonably necessary. He was asked to provide detailed reasons but did not.
In Paric v John Holland (Constructions) Pty Ltd Samuels JA said[10]:
“I have myself looked at the evidence and looked at the hypothetical facts and while I would agree that in some respects the material put does differ in terms from what was proved, all in all I would regard it as open to the tribunal of fact to consider that it was a fair foundation and remains a reasonable support for the opinions which were sought and given…
It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”
[10] [1984] 2 NSWLR 509, 510.
Dr Siu has not provided any report in which he considered the extent of the pain management treatment Ms Perry has undergone or the treatment by Dr Cleaver and the outcome of the medial branch blocks. A consideration of that treatment is important before expressing the view that all treatment has been exhausted. In the absence of detailed report commenting on the treatment – particularly that in the second half of 2021, I do not consider that he has been provided with a fair climate in which to express his opinion.
It is unusual that Ms Perry is not taking any medication, taking into account her evidence about the pain she suffers. The fact that she is not taking medication is gleaned from the histories provided to doctors rather than her own statement, which suggests that only some of the medications were stopped. Dr Siu has not commented on the lack of medication at all. It is a factor which I would have expected him to consider before stating that all forms of conservative treatment have been exhausted.
In many cases, the treating surgeon’s reports would be supplemented by a medico-legal report in which a surgeon considered all of the evidence and provided a reasoned opinion. There is no such report in this case.
Dr Sheehy saw Ms Perry in March 2022 and confirmed that she is not taking any pain relief. He was provided with a range of evidence including radiology and Dr Cleaver’s report dated 2 August 2022 but did not express an opinion as to the relevance of the medial branch blocks and their outcome. Despite one typographical error, he stressed the lack of nerve root compression on the scans so that there was minimal support for the surgery. He accepted that there may be internal derangement of one of the discs and said that he could not determine if surgery was reasonably necessary without a discogram. Dr Sheehy said that the failure of conservative treatment was a poor indicator for surgery. He was pessimistic about a return to any duties and in particular pre-injury duties.

In his first report, Dr Sheehy proposed a discogram which Ms Perry was unwilling to undergo. Dr Sheehy did not repeat that recommendation in his second report dated 11 August 2022. He said that there was insufficient explanation on the imaging to support surgery, saying that a failure of conservative management was an inadequate basis for such a serious intervention when there was no nerve root compression, no significant spondylolisthesis and no significant endplate change.
While Mr Hickey noted the presence of retrolisthesis on the X-ray taken in December 2021, Dr Siu did not comment on its significance other than to say that there was no instability. In saying that there was no significant spondylolisthesis, I conclude that Dr Sheehy did not consider that the findings were relevant.
I accept that Ms Perry sincerely wishes to have the surgery but that desire does not determine that the treatment is reasonably necessary treatment as a result of the injury. The fact that Dr Siu considers that the treatment is a last resort also does not mean that it is reasonably necessary, particularly when he said that the standard treatment for Ms Perry’s condition is non-operative. The evidence as to the availability and appropriateness of alternative treatment is wanting for the reasons set out above.
I am not satisfied on the evidence provided that the surgery is reasonably necessary and I make an award in favour of the respondent.

[2022] NSWPIC 744

23 December 2022