Pirrello v F. F. Bowen & J. v Bowen t/as Bowens Spray Painting Services
[2023] NSWPIC 337
•11 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Pirrello v F. F. Bowen & J. V. Bowen t/as Bowens Spray Painting Services [2023] NSWPIC 337 |
| APPLICANT: | Michael Pirrello |
| RESPONDENT: | F. F. Bowen & J. V. Bowen t/as Bowens Spray Painting Services |
| Member: | Karen Garner |
| DATE OF DECISION: | 11 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted injury to applicant’s lumbar spine; whether requested spinal surgery is reasonably necessary to address the applicant’s injury; Held – the requested spinal surgery is reasonably necessary to address the applicant’s injury; respondent to pay the costs of and incidental to the requested surgery pursuant to section 60. |
| determinations made: | The Commission determines: 1. The requested surgery, being: stage 1 – anterior lumbar interbody fusion L5 – S1, ATP L 3-4, L 4-5; and, stage 2 – T10 to pelvis rev posterior spinal fusion, which was requested by The Commission orders: 1. The respondent to pay the costs of and incidental to the requested surgery in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Michael Pirrello (the applicant) was employed by F. F. Bowen & J. V. Bowen t/as Bowens Spray Painting Services (the respondent) as a spray painter.
On 1 April 2014, the applicant sustained injury to his back at work.
On or about 15 April 2014, the applicant made a claim for workers compensation pursuant to the Workers Compensation Act 1987 (the 1987 Act) in respect of the injury.
By notice dated 2 December 2020 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer stated that it did not dispute that the applicant sustained a workplace injury to his lumbar spine on
1 April 2014. However, the insurer disputed liability for “L3-4 fusion surgery” requested by
Dr Sean Suttor on 1 September 2020 on the basis that it was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.By notice issued on or about 7 January 2021 (incorrectly noted as 2020) pursuant to s 287A of the 1998 Act, the insurer maintained its decision dated 2 December 2020.
On or about 15 March 2022, Dr Bisham Singh, orthopaedic and spine surgeon, made a request to the respondent’s insurer for a two stage surgery, being: stage 1 – anterior lumbar interbody fusion L5 – S1, ATP L 3-4, L 4-5; and, stage 2 – T10 to pelvis rev posterior spinal fusion[1] (together referred to as “the requested surgery”).
[1] Refer to ARD, pages 35, 37 and also 39.
By notice dated 12 April 2022 issued pursuant to s 78 of the 1998 Act, the insurer disputed liability for “Stage 1 L3 to S1 decompression and fusion, followed by Stage 2 posterior T10 to pelvis decompression and stabilisation surgery” requested by Dr Singh on 24 March 2022 on the basis that it did not have sufficient information to determine liability.
By notice dated 14 June 2022 issued pursuant to s 78 of the 1998 Act, the insurer disputed liability for “Stage 1 L3 to S1 decompression and fusion, followed by Stage 2 posterior T10 to pelvis decompression and stabilisation surgery” requested by Dr Singh on 24 March 2022 on the basis that it was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act. The applicant sought a review of that decision.
By notice dated 18 August 2022 issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision dated 14 June 2022.
On 13 January 2023, in separate proceedings brought by the applicant in the Personal Injury Commission (Commission), the Commission issued a Certificate of Determination – Consent Orders, whereby those proceedings were discontinued. It noted that the respondent would consider payment of any claim for out-of-pocket expenses if and when sought and that the respondent would meet the costs of a pain management consultation with Dr Deshpande on 7 February 2023.
On 9 February 2023, Dr Sushama Deshpande, pain management specialist and consultant anaesthetist, requested approval for pain management treatment, which included “Diagnostic Medial Branch Blocks (Bilateral Lumbar) and Right SIJ block and Caudal EDS” (procedure requested by Dr Deshpande).
By notice dated 14 March 2023 issued pursuant to s 78 of the 1998 Act, the insurer disputed liability for the procedure requested by Dr Deshpande on the basis that it was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.
On 12 April 2023, the insurer approved a request for surgery by Dr Sushama Deshpande for diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS.
On 13 April 2023, the applicant initiated these proceedings in the Commission by way of an Application to Resolve a Dispute (ARD), in relation to a claim for medical and related expenses pursuant to s 60 of the 1987 Act for the requested surgery.
On 4 May 2023, the respondent lodged in the Commission a Reply to the ARD.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At a hearing before the Commission conducted by MS Teams on 19 June 2023, Ms Nicole Compton, counsel, appeared on behalf of the applicant, instructed by Ms Hanaa Survery of Turner Freeman Lawyers, together with the applicant. Mr Phillip Perry, counsel, appeared on behalf of the respondent, instructed by Mr Lloyd Carman of Hicksons Lawyers, together with Mr James Glavinceski of the insurer, GIO.
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.
ISSUES FOR DETERMINATION
There is no dispute that the applicant sustained injury on 1 April 2014 in the course of his employment with the respondent.
The parties agree that the following issue remains in dispute:
(a) whether the requested surgery is reasonably necessary in accordance with s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
No application for cross-examination was made and no oral evidence was given.
FINDINGS AND REASONS
The applicant’s evidence
The applicant gave evidence by way of a lengthy statement dated 28 March 2023.
The applicant stated that he was working for the respondent as a spray painter on or about
1 April 2014 when he heard and felt a pop in his back with associated back and right leg pain.The applicant set out a very detailed history of the substantial pain and symptoms that he has endured since the injury on 1 April 2014. The applicant also detailed the numerous investigations, surgeries and other treatment that he has undergone in relation to the injury since that time.
The applicant stated that he has not returned to proper employment since the date of the injury. He stated that he returned to work as a tow truck driver in 2017, but had to cease that employment as it aggravated his back pain. He stated that he continues to remain totally incapacitated from returning to work.
The applicant stated that he continues to suffer excruciating ongoing lower back pain and stiffness. The applicant’s back pain radiates down his anterior right thigh and stops at the knee. He also has restricted movement in his lumbar spine. He is unable to lie flat on his back at night and he is unable to sit in a chair. He is unable to perform bending and squatting movements. He is now unable to walk, sit and stand for prolonged periods of time, to the point where he has pain across his back and right leg. He is able to perform self-care and personal tasks however he has to do them slowly so as not to aggravate his pain. The applicant also now suffers from erectile dysfunction following surgery with Dr Suttor in February 2021.
The applicant stated that he now wishes to undergo the requested surgery.
The applicant stated that at a conciliation and arbitration hearing before the Commission on 13 January 2023, it was suggested that he should undergo pain management before proceeding to surgery. The applicant stated that he then discontinued his claim for the surgery on the basis that the insurer agreed to cover the medical costs of pain management.
The applicant stated that on 7 February 2023, he attended Dr Sushama Deshpande and was advised to undergo a medial branch block to his lumbar spine as well as a right SIJ block and Caudal EDS. However, subsequently, on or about 14 February 2023, the insurer disputed that procedure on the basis that Dr Deshpande had not provided sufficient information regarding the procedure.
The applicant stated that he now wishes to pursue his initial claim for the requested surgery, to be performed by Dr Singh. The applicant stated that he believes that the requested surgery will significantly reduce his ongoing lower back pain and provide him with more permanent relief than temporary relief from injections. He stated that he understands that he has had multiple surgeries that have been ineffective to date however his back pain is still present and has continued to deteriorate over time. The applicant feels that the longer that he leaves the requested surgery, the harder his recovery will be and the more damage will occur from ongoing deterioration of his spine.
The applicant noted that the MRI lumbar spine scan of 16 February 2022 and the CT scan of 16 February 2022 reveal disc bulges that will only be fixed by means of the requested surgery.
The applicant stated that he is not on the public waiting list because he is not classified as being within the Greater Western Sydney region and therefore he cannot undergo the requested surgery on the public health system.
Treating medical evidence
The treating medical evidence includes reports of numerous treating practitioners, relevantly, Dr Darweesh Al Khawaja (brain and spine surgeon), Dr Sean Suttor (spine surgeon),
Dr Bisham Singh (orthopaedic and spine surgeon), Dr Charles H New (orthopaedic and spinal surgeon); Dr Richard Haddad (urological surgeon), and Dr Sushama Deshpande (interventional pain specialist). It also includes reports of numerous investigations and other clinical records.For convenience, I will detail the treating medical evidence in chronological order.
On 5 May 2014, an MRI of the lumbar spine showed: multilevel degenerative change; moderate canal stenosis at L4/5 with potential impingement of the traversing right L5 nerve in the subarticular recess, and Left S1 traversing neve is displaced, but not compressed by a focal L5/S1 disc.
On 13 June 2014, Dr Khawaja, brain and spine surgeon, reported that the applicant reported continued pain symptoms and on examination he had severe limitation of spinal movements to all sides, with decreased sensation at right L5 and left S1 distributions. An MRI of the lumbar spine showed acute disc herniation at L4/5 level on the right side causing pressure on the right L5 nerve root and active disc herniation of the left L5/S1 level causing pressure on the left S1 nerve root. Dr Al Khawaja recommended epidural and, if that did not provide relief, right L4/5 and left L/S1 microdiscectomy. He requested approval from the insurer for the surgery. The applicant subsequently underwent an epidural injection under the care of
Dr Al Khawaja. The injection was not successful and Dr Al Khawaja recommended that the applicant undergo right L4/5 and left L/S1 microdiscectomy surgery.On 26 February 2015, a CT lumbar sacral spine showed: right L5 nerve root impingement and mild to moderate L4/5 canal stenosis; multilevel posterior disc bulges notably at the L4/5 and L2/3 levels; mild narrowing of the L4/5 neural exit foramina bilaterally, and mild multilevel facet joint degenerative change.
On 17 March 2015, an MRI of the lumbosacral spine showed: degenerative change at the intervertebral joint and facet joints at multiple levels; disc protrusion at L2/3 and L4/5 levels; disc protrusion and small annular tear at L3/4 and L5/S1 levels; central canal stenosis and right neural foraminal stenosis at L4/5 level; the protruded disc at the L2/3 level slightly displaced the left L3 traversing nerve root.
On or about 1 April 2015, Dr Suttor reported that the applicant had a 12 month history of back and left leg pain, which was predominantly referred to the posterior aspect of his leg and radiated into the foot and some anterior thigh pain. The applicant had painful lumbar extension. Physiotherapy and analgesic had been ineffective in relieving the applicant’s symptoms.
On 15 April 2015, an X-ray of the lumbar spine showed: normal vertebral body alignment with no evidence for acute compression fracture; mild multilevel disc space narrowing was present; there was moderate mid to low lumbar facet arthritis; no pars defect was seen, and the sacroiliac joints were normally aligned and unremarkable.
On or about 12 June 2015, the applicant underwent an L4/5 decompression, performed by Dr Suttor.
On 8 September 2015, an X-ray of the lumbar spine showed: normal vertebral body alignment with no acute compression fracture; a recurrent (post L4/5 decompression) postero-lateral disc protrusion approximating the right L5 origin and extending to the foramen where there is L4 compression; large fluid collection within the surgical tract posterial soft tissues; stable left pamedian disc protrusion at L2/3 with mild dural sac deformity.
On or about 12 October 2015, the applicant underwent surgery to repair a dural defect adjacent to the previous repair at L4/5, performed by Dr Suttor.
On 10 February 2016, an MRI of the lumbo-sacral spine showed: appearances similar to those noted previously; posterior and left paracentral L2/L3 disc protrusion again noted without nerve root compression; small broadbased L3/4 disc bulge; posterior and right paracentral L4/5 disc protrusion with associated right sided foraminal stenosis, and no residual posterior postoperative collection was noted.
On 24 February 2016, Dr Suttor noted that the applicant had developed bilateral anterior thigh pain, worse on the right side. Dr Suttor opined that an L4 radiculopathy was indicated, as opposed to the previous L5 radiculopathy.
On 15 March 2016, Dr Suttor noted that the applicant’s leg pain had worsened and he was walking with a limp.
On or about 16 March 2016, a CT guided right L4 perineural injection was performed for diagnostic and therapeutic purposes.
On or about 8 April 2016, Dr Suttor reported that the injection had provided only transient relief and the applicant reported significant ongoing pain which was impairing his quality of life and causing significant limitations.
On or about 20 June 2016, the applicant underwent a posterior decompression and fusion of the L4/5, performed by Dr Suttor.
On 21 July 2016 an X-ray of the lumbar spine six weeks after the L4/5 fusion showed no complicating features.
On or about 3 November 2016, Dr Suttor reported that, four months after the surgery, the applicant’s leg pain symptoms were largely resolved but he still had some back pain symptoms.
On 25 November 2016, a CT of the lumbosacral spine showed stable alignment since
21 July 2016, with no adverse hardware features seen and no significant compromise of the spinal canal or neural exit foramina was observed.On 1 December 2016, Dr Suttor reported that the applicant had lower back pain, localised in the lumbar spine. Dr Suttor noted that the CT scan indicated no complications of the surgery however the applicant had some adjacent segment degeneration which may be contributing to his symptoms.
On 28 April 2017, Dr Suttor reported that the applicant had experienced an increase in back and leg pain over the last two to three weeks. X-rays showed no obvious complication nor abnormality.
On 3 May 2017, a CT of the lumbar spine showed: L4/5 posterior decompression and fusion, with no evidence of hardware complication, no significant interval bony fusion of the L4 and L5 vertebral bodies; residual multi-level disc protrusions and foraminal stenoses in the lumbar spine, worse at L2/3 compared to previously, and similar compared to previously at other levels.
On or about 26 May 2017, the applicant underwent a CT guided right L4 perineural injection.
On 30 June 2017, Dr Suttor reported that the right L4 perineural injection had no positive effect on the applicant’s pain. Dr Suttor opined that the applicant’s pain was still related to some adjacent segment pathology.
On 10 July 2017, an MRI lumbosacral spine post posterolateral metal fusion and laminectomy at L4/5 showed: disc bulges and disc protrusions at the lower three levels; the features at L2/3, L3/4 and L5/S1 were stable since the last examination in September 2015; disc protrusion which had previously been identified at L4/5 posterolaterally on the right was resolved, and features of adhesive arachnoiditis at the operated level were less marked than in 2015.
On 19 July 2017, Dr Suttor reported the findings of the MRI scan. He noted that the applicant had continuing pain and walked with quite a limp. Dr Suttor recommended an L3/4 decompression. He did not recommend further extension of the fusion given that the applicant had further disc degeneration at the L2/3 and to a lesser extent at the L1/2 level.
Dr Suttor did not think that fusion was necessary as there was no evidence of instability on the scans.On 28 August 2017, the applicant underwent an L3/4 decompression, performed by
Dr Suttor.On 19 September 2017, an X-ray of the lumbar spine showed no complicating features of the surgery.
In September, October and November 2017, Dr Suttor reported that the applicant’s leg pain was resolved but he had ongoing lower back pain. The applicant underwent physiotherapy.
On 17 January 2018, Dr Suttor reported that the applicant had back pain but no leg pain.
On 28 August 2019, an X-ray of the lumbar spine: evidence of previous L4/5 posterior decompression; mild interval progression of foraminal stenoses at L3/4 above the level of the fusion, and increase in left subarticular extruded disc at L5/S1 causing mild interval progression of left foraminal stenosis.
On 29 August 2019, Dr Suttor reported that the applicant had developed left leg radiculopathy over the last six months, which tends to follow in L5 distribution. Having regard to the X-ray, Dr Sutor opined that it may be related to some adjacent segment changes.
On 3 September 2019, an MRI lumbar spine showed: at the L2/3 level, broadbased disc protrusion and mild facet joint arthrosis, mild narrowing of the neural exit foramina without neural impingement; at the L3/4 level, broadbased disc protrusion and mild facet joint arthrosis, mild narrowing of the neural exit foramina without neural impingement; at the L4/5 level, mild residual broadbased disc protrusion and mild residual bilateral foraminal narrowing, without neural impingement; at the L5/S1 level, mild broadbased disc protrusion with left paracentral extruded disc component which had increased compared to previously, and now measured 8mm CC x 5mm AP x 16mm transverse, which contributes to left foraminal stenosis and impingement of exiting left L5 nerve root, and also impingement of the descending left S1 nerve root in the lateral recess.
On 17 September 2019, a CT lumbar spine showed: multilevel lumbar spine spondylitic change with size significant central canal and neural exit foraminal narrowing; at L3/4, there was a moderate sized broadbased disc bulge with associated postero-central to right greater than left paracentral foraminal disc protrusion and mild indentation of the anterior thecal sac, severe left and moderate severe right-sided foraminal stenosis with probable irritation of the exiting L3 nerve roots particularly on the left; at L4/5, there was a moderate sized broadbased disc bulge with small postero-central to left greater than right paracentral foraminal disc protrusion, moderate left and moderate to severe right-sided foraminal stenosis, the disc was abutting the exiting L4 nerve roots bilaterally; at L5/S1, there was a mild broadbased disc bulge with small postero-central to left greater than right paracentral and foraminal disc protrusion, severe left-sided foraminal stenosis with probable irritation of the exiting left L5 nerve root, on the right there was moderate to severe right-sided foraminal stenosis, the disc was abutting the exiting right L5 nerve root.
On 17 September 2019, Dr Suttor reported the findings of the MRI scan. He noted that it demonstrated some left L5/S1 foraminal stenosis below the fused level and also some lateral recess stenosis on the left at L3/L4 proximal to it. There was no evidence of acute disc herniation nor otherwise concerning features. Given the applicant’s ongoing pain symptoms, Dr Suttor recommended a simple revision decompression on the left above and below the fused level. In relation to potentially fusing other segments in the applicant’s spine, Dr Suttor noted that the applicant had a tendency to develop adjacent segment degeneration and once he starts extending a fusion there is a significant possibility of progressive adding on and needing to do further fusion surgery down the track. On that basis, Dr Suttor stated that he would prefer to avoid that if possible due to the applicant’s age.
On 15 October 2019, Dr Suttor reported that a CT scan showed no evidence of loosening or complication around the L4/5 fusion. The applicant did have a nondisplaced parts fracture of indeterminate age through the right L3/4 pars but that did not correlate with his pain symptoms. There was no significant foraminal osteophytes. The applicant reported a mild improvement in his left leg radiculopathy. On that basis, Dr Suttor recommended deferring a surgical intervention.
On 23 October 2019, a CT guided left L4 perineural injection was performed.
On 20 November 2019, Dr Suttor reported that the applicant’s pain had returned. The applicant’s pain was referred down the left leg, mainly in the anterior shin but also occasionally posteriorly as well. Given the applicant’s lack of response to injection and resumed pain, Dr Suttor recommended a revision decompression on the left at L3/L4 and L5/S1. Dr Suttor said that he discussed trying to avoid any further fusion surgery with the associated risk of further adjacent segment problems.
On 2 December 2019, the applicant underwent a revision L3/4 and L5/S1 decompression, performed by Dr Suttor.
On 19 February 2020, Dr Suttor reported that, two and a half months after the surgery, the applicant reported that his back was feeling quite good although he had mild anterior right knee pain and the applicant walked with a slight limp. The left leg radiculopathy seemed to have resolved. Dr Suttor recommended continued physiotherapy.
On 15 April 2020, Dr Suttor reported that, eight months after the surgery, the applicant was progressing well and he felt that the left leg was much better although he still had some pain around the surgical site. The applicant walked without a limp.
On 12 August 2020, Dr Suttor reported that the applicant had a recurrence of some lower limb radicular-type symptoms over the last month or two, worse on the left, that radiate all the way down to the toes. The applicant’s lower back symptoms had been fairly static.
On 1 September 2020,[2] Dr Suttor reported that an MRI scan showed some interval degenerative changes at the L3/L4 level, with the size of the broad-based disc bulge bigger and further foraminal stenosis as well as lateral recess stenosis at that level. The L5/S1 level showed no significant neural impingement. Dr Suttor stated that, given the applicant’s previous decompression at that level, any further surgical intervention would require instrumented fusion and extension from L4 to L3. Dr Suttor did not consider that an extension down to S1 is necessary at that stage. Dr Suttor stated that there was no other surgical option at that stage. Dr Suttor noted that the applicant’s symptoms were not settling and were causing him trouble on a daily basis and he was having increasing difficulty managing. Dr Suttor requested approval for the surgery.
[2] ARD, page 46.
On 3 December 2020, Dr Suttor reported that the applicant’s radicular symptoms were getting worse, and more predominantly on the right side and he was walking with a right-sided limp. Dr Suttor stated that they had discussed pain management options but that multiple analgesics and injections had provided no significant benefit in the past.
On 3 December 2020, Dr Suttor rejected a diagnosis of failed back syndrome. Dr Suttor stated:
“I note a second opinion refers to no response to his previous operations and a diagnosis of failed back syndrome. I would differ in terms of opinion in this regard that Michael has responded to surgery in the past but unfortunately, he has had a recurrence of symptoms due to further disc degeneration. The term failed back syndrome is not particularly useful and is not diagnostic. I have explained this to Michael. He still has ongoing radicular symptoms with mechanical issues on his imaging that would be amendable to surgical treatment and is keen to get something done.”
On 14 January 2021, Dr Suttor reported that the applicant had recurrence of his lower limb radiculopathy over the last six months, on the background of previous L4/5 fusion and then L3 to S1 decompression. At the last review on 2 December 2020, the applicant was neurologically intact but mobilised with a right sided limp due to his leg pain symptoms.
Dr Suttor opined that the applicant’s incapacity was related to adjacent segment degenerative changes above the L4/5 fusion level which was the site of his original injury.
Dr Suttor opined that the applicant’s current pain was likely to be partially related to age related degenerative changes and partially related to adjacent segment pathology from his fusion. Dr Suttor stated that, given the ongoing symptoms, the applicant’s prognosis for spontaneous recovery was poor.On 9 July 2021, Dr Charles H New, orthopaedic and spinal surgeon, reported that he reviewed the applicant and provided a second opinion. Dr New noted that the applicant had undergone six surgeries. Dr New stated that the previous surgery had fused L3-L5, and that the two levels above were arthritic and probably became pain generators. Dr New stated that “The chances of him having a successful seventh surgery to ablate his leg pain and back pain are very remote”. However, it was not apparent from Dr New’s report what proposed surgery Dr New was referring to. Dr New recommended that the applicant had a nerve conduction study and EMG to review his radiculopathy, attempt weight loss, and continue with physical therapy, hydrotherapy and Pilates. It was apparent from the report that Dr New did not have copies of relevant operation reports and discharge summaries.
On 18 January 2022, Dr Suttor reported:
“1. Since 14 January 2021 I have reviewed Michael on 5 March 2021, 4 May 2021, 20 July 2021, 16 September 2021, 1 December 2021.
2. I had seen Michael because of recurrence of left leg symptoms and lower back pain. Subsequent imaging had demonstrated some concern about instrumentation after his L3 to L5 fusion. He was referring his pain in a radicular pattern down the left leg again.
3. At examination he had findings consistent with a recurrence of his left leg radiculopathy and was neurologically intact. Imaging with a CT scan demonstrated possibly some lucency of hardware consistent with a non-union. Subsequently, a revision surgery was performed at Westmead Public Hospital on 8 November 2021 and he was found to have loosening of his L3 pedicle screws with a non-union at the L3/L4 level. This was revised with repeat bone grafting and instrumentation. Subsequently, on review in December 2021 he had improvement in his radicular symptoms and was looking more comfortable.
4. Currently Michael has had a complex course with his back requiring revision surgery. He is still in the recovery process and has no capacity for work at the present.
5. Michael’s incapacity has been a result of subsequent issues and surgeries relating to his initial injury at the L4/L5 level. In this setting the employment which was the initial cause for incapacity and injury is a substantial contributing factor.
6. Michael is now 64 and he has had several operations on his back. He certainly has not completed his recovery and there is a risk of recurrence of symptoms or further issues with healing of the fusion. As such, I think his prognosis is relatively poor for returning to full-time employment.”
On 24 January 2022, Dr Haddad, urological surgeon, reported that potential mechanisms for the applicant’s erectile dysfunction included nerve disturbance from surgery and it was typically multi-factorial.
On 16 February 2022, an MRI lumbar spine showed: post surgical changes in the lumbar spine; a small central disc protrusion at L1/2 without significant nerve root impingement; small right L4/5 disc protrusion abuts the thecal sac near the origin of the descending right L4 nerve root; small left L5/S1 disc protrusion abuts the thecal sac near the origin of the descending left S1 nerve root, and no definite nerve root impingement was seen at either level.
On 16 February 2022, a CT of the lumbar spine showed: expected post surgical change in the posterior paraspinal soft tissues without discrete collection or haematoma; minor retrolisthesis of L2 on L3, and on L5 on S1; multilevel endplate degeneration with intradiscal gas; mild anterior osteophytosis greatest at L2/3; moderate to marked multilevel facet arthrosis; at L1/2, there is disc bulge causing mild canal stenosis, with no significant foraminal stenosis; at L2/3, there is minor foraminal stenosis; at L4/5, there is mild to moderate right foraminal stenosis and at L5/S1, there is minor disc bulge without significant canal stenosis, and there is mild bilateral foraminal stenosis.
On 18 February 2022, a regional bone scan with SPECT/CT (low dose) showed: overall satisfactory appearance to the lumbar fusion site and low grade stress reaction at T12/L1 discovertebral junction, which was non-specific. There was minor uptake in the posterior elements of L3/4 which was regarded as satisfactory and not suggestive of pseudo arthritis. There was no evidence of sacroiliitis.
On 15 March 2022, Dr Bisham Singh, orthopaedic and spinal surgeon, made a request for the requested surgery “in the form of an Anterior Lumbar Interbody Fusion L5-S1, ATP L3-4, L4-5 followed by a T10-pelvis revision Posterior Spinal Fusion a week later”.
On 15 March 2022, Dr Singh provided estimates of fees for the requested surgery as follows:
(a) for Anterior Lumbar Interbody Fusion L5-S1, ATP L3-4, L4-5 (stage 1) - $17,340.80, and
(b) for T10 Pelvis Rev Posterior Spinal Fusion (stage 2) - $36,272.30.
In relation to the request for the requested surgery, on 24 March 2022,[3] Dr Singh reported that, notwithstanding seven surgeries over the last several years, the applicant continues to have lower back pain and while he does not have any significant radicular symptoms, he has poor sitting and standing tolerance and is unable to cope. Dr Singh noted, on examination, that the applicant has an antalgic gait with limited range of motion of his lumbar spine. Imaging reveals that the applicant has had decompression and fusion from L3 to L5 and there is evidence of disc bulging proximal to the fusion, and distal to the fusion at L5-S1 there is evidence of a vacuum disc phenomenon. Dr Singh noted that there is also some evidence of vacuum disc at L3-4 despite having had posterior fixation. Dr Singh opined that the applicant likely has non-union at L3-4 despite a nuclear medicine scan recently showing only slight uptake of tracer. He opined that the applicant also has adjacent segment disease with failure of the L5-S1 disc as well as disc bulging at L3-4, L2-3 and L1-2. Dr Singh recommended that the applicant undergo an anterior column support at L3-4, L4-5 as well as an anterior lumbar interbody fusion at L5-S1. Dr Singh stated that should be followed by posterior fixation which will need to encompass all the involved levels to address the problem of alignment in addition to axial instability. Dr Singh recommended that the applicant undergo the surgery in the form of a staged lumbar fusion, the first stage being an L3 to S1 decompression and fusion, followed by the second stage being posterior T10 to pelvis decompression and stabilisation. Dr Singh stated that he had provided the applicant with detailed surgical education and would request the insurer for approval for the surgery and that the applicant requested surgery.
[3] ARD, page 38.
On 10 October 2022, Dr Singh reported that he examined that applicant on 15 March,
24 March, 20 May and 30 June 2022. Dr Singh stated that the applicant continues to have lower back pain and while he does not have radicular symptoms, he has poor sitting and standing tolerance and is unable to cope. Dr Singh stated that the applicant has been unable to manage and had not been able to return to work or to deal with household chores. On examination, the applicant had an antalgic gait and limitation of range of motion of the lumbar spine. Neurological examination was otherwise not contributory. Dr Singh stated that imaging revealed that: the applicant has had decompression and fusion from L3 to L5; there was evidence of disc bulging proximal to the fusion, and distal to the fusion at L5-S1 there was evidence of a vacuum disc phenomenon. There was also some evidence of vacuum disc at L3-4 despite having had posterior fixation. Dr Singh opined that “Without surgery his prognosis is guarded”. Dr Singh stated that the applicant has significant structural lumbar disease, with failure of the L5/S1 motion segment as well as deterioration of the proximal junctions about the fusion as well as a non-union at L3/4 and he also has positive sagittal balance, which also needs to be corrected. Dr Singh stated:“The aim of the surgery is to stabilise and realign the spine proximal and distal to the fusion, and provide a better sagittal alignment so that he can have a better quality of life. This is certainly complex surgery, but he has no other choice. The alternative is to accept permanent functional impairment and trial chronic pain management.”
On 18 January 2023, Dr Deshpande, interventional pain specialist, stated that the applicant reported constant lumbar axial pain which affected his function and mood. The applicant had radiculopathy to the right leg with altered sensory disturbance to the great toe and foot and continuing erectile dysfunction. Dr Deshpande recommended multidisciplinary pain management.
On 9 February 2023, Dr Deshpande wrote to the insurer as follows:
“Many thanks for your approvals for the initial assessment of Michael Pirello. You will soon receive my detailed report.
At this consultation I would like to apply for the following approvals:
1. Please approve follow up consults with myself at the AMA Gazetted rates. He will need 8 follow up consults. The AMA code is AF020.
2. Please approve Pain Education Program KICKSTART. This is a multidisciplinary, one day, low intensity pain education program, provided by our experienced multidisciplinary team. The item code is OTT044 and the cost is $750.
3. Please approve initial clinical psychology assessment as a part of multidisciplinary treatment program. The item code for initial assessment program is PSY001.
4. Please approve the Diagnostic Medial Branch Blocks (Bilateral Lumbar) and Right SIJ block and Caudal EDS.
5. This is a day only procedure done under fluoroscopy and Sedation.
6. The item code is 61109, 39014, 39013.
7. The aim is to alleviate pain and also locate the pain generator so that we can proceed with more definitive treatment plan.
8. He will not need specific rehabilitation post procedure and can continue the Physiotherapy once approved.”
As noted above, Dr Deshpande sought various approvals from the insurer including for follow-up consultations, a pain education program, clinical psychology assessment, initial assessment for pain physiotherapy and diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS. Dr Deshpande stated that the aim of the procedure was to alleviate pain and also locate the pain generator in order to proceed with a more definitive treatment plan.
On 29 March 2023, Dr Deshpande provided further information requested by the insurer in relation to the request for approval. Dr Deshpande stated that the requested procedure was to address and locate the pain generator in the lumbar spine and to help with lumbar spinal pain in the event of adjacent segment disease. She stated that the proposed Caudal Epidural would assist with radiculopathy to the applicant’s right leg. She proposed that the procedures would be done bilaterally at L2, L3 and L5 level and also to the right SIJ area. Dr Deshpande also requested approval for Dr Haddad urologist in relation to the applicant’s ongoing erectile dysfunction.
Independent medical evidence
Dr Vidyasagar Casikar, consultant neurosurgeon
Dr Casikar provided an independent medical opinion, qualified by the insurer.
On 23 November 2020,[4] Dr Casikar reported that the applicant had ongoing pain in his back and radiating along the right leg up to the toes. The applicant reported that he had to cease taking Panadeine Forte pain medication due to reactions. On examination, Dr Casikar noted that the applicant had limited flexion. Dr Casikar stated that the applicant had already undergone five surgeries, namely “an L4/5 decompression followed by a fusion for right leg symptoms. Probably there was CSG leak sometime in between the decompression of L4/5 and fusion and he had a further decompression in L3/4 segment in 2017 followed with further revision of decompression at L3/4 segment”. Dr Casikar stated that notwithstanding those surgeries, there were consistent failures to relieve the applicant’s symptoms. Dr Casikar diagnosed failed back syndrome and constitutional degenerative disease. Dr Casikar stated that he could not understand the indications for the five surgical procedures that the applicant had undergone. Dr Casikar did not agree that a L3 to L4 posterior fusion proposed by
Dr Suttor was reasonably necessary, because he considered such surgery be “medically inappropriate” given the poor outcomes of the previous surgeries. Dr Casikar noted that he was unable to comment further as he did not have any radiology including MRIs following the previous surgeries and the most recent MRI which had prompted Dr Suttor to recommend further surgery. Dr Casikar opined that it was unlikely that the applicant would benefit from the surgery proposed by Dr Suttor. He stated that he would require access to the X-rays to recommend alternative treatment but anticipated that the applicant might benefit from a spinal cord stimulator.[4] ARD, page 47.
On 24 December 2020, Dr Casikar reported that, having reviewed the medical imaging dated 3 September 2019 and 21 August 2020, he still considered that surgery for an L3/4 fusion is not medically appropriate nor reasonably necessary. Dr Casikar stated that the applicant had already had multiple failed surgeries and that further surgery is not likely to produce any further advantage.
On 15 December 2022, Dr Casikar effectively restated the opinions expressed in his report dated 24 December 2020.
Dr Vasudeva Pai, orthopaedic surgeon
Dr Pai provided an independent medical opinion, qualified by the insurer.
On 30 May 2022, Dr Pai reported that the applicant had undergone seven surgeries under the care of Dr Suttor, namely a decompression, a CSF leak, re-exploration for the CSF leak, re-exploration, fusion from L3 to L5, revision of the screws after the applicant developed non-union, and re-fusion of L3-L5 in November 2021. Dr Pai noted that the applicant reported that he was worse than before his last operation and had ongoing consistent widespread pain in the lumbar spine and going into the right leg and difficulty walking, sitting, lying down and sleeping. The applicant had not worked since 2014, however he could perform activities of daily living at his own pace. The applicant also reported, since the most recent surgery, loss of erection, which had not been investigated. Dr Pai noted that the applicant reported that physiotherapy and pain medication were not working. The applicant had never undertaken any pain management sessions. On examination, Dr Pai noted generalised limitations with movement, with no objective radiculopathy. Dr Pai did not have any investigations available. Dr Pai diagnosed chronic back pain, mainly of axial origin, and some referred pain to the right leg with no objective radiculopathy, which he considered to be out of proportion to the injury event, imaging and previous surgery. Dr Pai opined that multiple factors were impacting on the applicant’s presentation and stated that as the applicant’s symptoms were mainly axial, it was hard to ascertain the cause for his ongoing symptoms. Dr Pai stated that medical literature noted that outcomes are poorer with subsequent operations unless there is a definitive compressive pathology which can explain his symptoms. In relation to the requested surgery, Dr Pai did not agree that the two stage anterior and posterior fusion of the lumbar spine recommended by Dr Singh on 24 March 2022 (being stage 1, L3 to S1 decompression and fusion; and, stage 2, T10 to pelvis decompression and stabilisation) was reasonably necessary. Dr Pai opined that the outcome of the requested surgery was uncertain and would not improve the applicant’s underlying widespread back pain. Dr Pai stated that it was also possible that the applicant’s symptoms would get worse or he could get further adjacent disc related issues at the thoracolumbar junction. Dr Pai stated that surgery at the front of the spine carried further risk, noting the applicant’s recent erection loss. Dr Pai recommended that the applicant have good counselling before considering the requested surgery. Dr Pai noted having seen at least four cases of long fusions with adjacent vertebral issues causing paraplegia. Dr Pai noted that the applicant had never had any pain management and that his issues seem to be more pain-related than radicular symptoms.
Dr Pai opined that the applicant would benefit from a few sessions of a multidisciplinary pain management program based on a cognitive-behaviour approach aimed at increasing function.
On 10 November 2022, Dr Pai addressed questions concerning the requested surgery.
Dr Pai’s report stated that the reports of Dr Singh and Dr Khong were reviewed however there was no reference to review of investigations or imaging. In relation to the appropriateness of the requested surgery, Dr Pai stated that further surgery may show good stabilisation, but it is unlikely to resolve the applicant’s pain symptom, the cause for which is multifactorial, including central sensitization. Dr Pai stated that the European Spine Journal of 2006 Volume 15, page S192 suggests that in cases of those individuals who have had multiple surgeries, any further surgery should be considered only if there is a definite structural pathology causing the pain, which Dr Pai was unable to identify. Considering that the applicant has had multiple surgeries, Dr Pai considered it was best to obtain a second opinion. Dr Pai did not give evidence of the availability of any alternative treatment. Dr Pai opined that the outcome of the requested surgery “is unpredictable, and it is more than likely his underlying pain is going to continue”. In relation to the acceptance by medical experts of the requested surgery as being appropriate and likely to be effective, Dr Pai opined that not many spinal surgeons would undertake such a major surgery given the applicant’s response to the previous surgery and the presence of underlying erectile dysfunction. Dr Pai diagnosed failed back syndrome, the cause for which is multifactorial and is related to the failed response to previous surgeries and treatment. Given the timeframe since the injurious event on 1 April 2014, Dr Pai opined that the failed response to treatment was difficult to explain on the basis of a structural pathology caused by the injury.
Dr Peter Khong, neurosurgeon and spine surgeon
Dr Khong provided an independent medical opinion, qualified by the applicant.
On 4 August 2022, Dr Khong noted that the applicant stated that he does not have much in the way of leg pain currently, however he complains of severe persistent lower back pain and stiffness and pain which radiates down the anterior right thigh to the knee. The applicant reported that he could not lie flat on his back, nor sit in a chair. His erectile dysfunction persisted. Dr Khong noted that the applicant had previously tried multiple analgesic agents and some cortisone injections without good effect. He previously had physiotherapy but stopped a long time ago. As a result of his symptoms, the applicant cannot do any work in the garden. He manages home duties and self-care activities slowly, at his own pace and with some difficulty.
Dr Khong diagnosed persistent lower back pain and right anterior pain due to an exacerbation of pre-existing degenerative changes in the lumbar spine and multiple unsuccessful lumbar spine surgeries. He opined that the applicant’s prognosis is poor.
In relation to the requested surgery, Dr Khong stated:
“The surgery is reasonably necessary. Mr Pirello continues to complain of severe lower back pain and anterior right thigh pain after multiple surgeries on his lumbar spine. His MRI demonstrated multi-level degenerative disc disease at L1/2, L3/4, L4/5 and L5/S1. There is vacuum phenomena at L2/3, L3/4, L4/5 and 5/S1. There has been some progressive disc herniation at L1/2 when comparing the film from 2019 to the current films.
The first part of the surgery will aim to restore an anatomic alignment and disc space height at L3/4, L4/5 and L5/S1. There is also degenerative disc disease at L1/2 and L2/3 which may be contributing to his back pain. As mentioned above, there is a new central disc herniation at L1/2 which was not apparent on the films from 2019. It is reasonable to extend the fusion up to these levels. However, a fusion should not stop at the thoracolumbar junction, as there is a high rate of failure at the top end of the construct. This it would be reasonable to extend the fusion to T10. Fusion from T10 to the pelvis aims to correct the anatomical deformity in the lumbar spine with the aim of reducing Mr Pirrello’s lower back pain.”
Other evidence
The evidence included a list of payments made by the insurer.
Submissions
Applicant’s submissions
Ms Compton’s submissions on behalf of the applicant may be summarised as follows:
(a) Ms Compton referred at length to various parts of the applicant’s evidence, the treating medical evidence and the independent medical evidence;
(b) Ms Compton referred to the relevant factors set out in the decision of Diab v NRMA Ltd[5] (Diab) andRose v Health Commission (NSW)[6] (Rose) and submitted that the Commission should be satisfied that the requested surgery is reasonably necessary;
[5] [2014] NSWWCCPD 72.
[6] [1986] NSWCC2; (1986) 2 NSWCCR 32.
(c) Ms Compton submitted that the applicant requires the requested surgery to address the applicant’s significant ongoing pain, but also his extreme disability and functional limitations;
(d) Ms Compton submitted that the requested surgery includes revision of previous surgery, and fusing the entire spine, to give the applicant the stability that he requires;
(e) Ms Compton submitted that the applicant has clearly articulated that he has made an informed decision that he wishes to proceed with the requested surgery, notwithstanding education that has been provided to him regarding potential complications and risks of the requested surgery;
(f) Ms Compton submitted that the requested surgery will not completely address all of the applicant’s issues, the applicant’s medical evidence demonstrates that it should resolve or significantly improve many of his symptoms;
(g) Ms Compton submitted that the applicant’s past spinal surgeries need to be considered individually and they do not preclude the requested surgery from being reasonably necessary. Since the past spinal surgeries, the applicant’s spinal condition, symptoms and functional limitations have progressed and worsened;
(h) Ms Compton submitted that the evidence of the applicant’s treating medical evidence and independent medical evidence is persuasive and should be preferred. Ms Compton submitted that Dr Singh’s opinion was based on the most recent imaging and his evidence was that the applicant effectively has no other choice apart from the requested surgery to treat his symptoms. Ms Compton submitted that, similarly, it can be inferred that Dr Khong had the most recent imaging and he provided a detailed explanation of how the requested surgery would restore the anatomical alignment and disc space height at the affected levels and address degenerative disc disease and a new central disc herniation (which was not apparent in 2019) to reduce the applicant’s symptoms.
Ms Compton submitted that there is no evidence that Dr Pai had the most recent imaging and it appears that he based his opinion solely on an examination.
Ms Compton further submitted that Dr Casikar did not review the most recent imaging and, in addition, Dr Casikar failed to explain or provide any basis for his opinion that the requested surgery was not reasonably necessary;(i) in relation to alternative treatments, Ms Compton stated that the applicant attended Dr Deshpande on approximately three occasions, the latest occasion being in early March 2023. Ms Compton stated that the insurer initially declined diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS requested by Dr Deshpande, and the applicant only became aware of the insurer’s approval of that procedure after commencement of these proceedings. Ms Compton stated that, notwithstanding the issue of approval for diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS issued by the insurer on or about 12 April 2023, the applicant wishes to press the claim in respect of these proceedings;
(j) Ms Compton submitted that. However, in any event, the applicant’s evidence is that his preferred course of option is the requested surgery which he feels is just being prolonged and it would be best for it to be performed as soon as possible;
(k) Ms Compton said that the requested surgery is reasonably necessary notwithstanding the approval for diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS because: the diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS is primarily diagnostic and it is not curative; there is no guarantee that it will provide pain relief; it will not address the applicant’s significant functional limitations and restrictions; the applicant needs to obtain the insurer’s approval for future pain management procedures and there is no guarantee that such approval will be granted or there may be delays with granting of approval; the requested surgery and the diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS are not mutually exclusive and the applicant can still undertake appropriate pain management concurrently or at a future time; and, further the applicant’s evidence is that his symptoms have worsened since previous surgery and he does not want to delay the requested surgery, which he feels is ultimately inevitable in any event;
(l) Ms Compton submitted that there is no issue regarding the cost of the requested surgery, and
(m) Ms Compton submitted that, on the basis of the evidence, the Commission should find that the requested surgery is reasonably necessary as a result of the injury.
Respondent’s submissions
Mr Perry’s submissions on behalf of the respondent may be summarised as follows:
(a) Mr Perry also referred to various parts of the applicant’s evidence, the treating medical evidence and the independent medical evidence;
(b) Mr Perry also referred to the relevant factors set out in the decision of Diab and Rose. Mr Perry submitted that the Commission’s consideration is not limited to those matters;
(c) Mr Perry submitted that the applicant has failed to discharge it’s onus to prove that the requested surgery is reasonably necessary;
(d) Mr Perry submitted that the requested surgery involves a long fusion is complex, and the evidence demonstrates that it is unlikely to have a positive outcome and in fact presents significant risks to the applicant. Mr Perry submitted that Dr Pai’s evidence is that the applicant’s symptoms cannot be improved by further surgery and that the requested surgery involves significant risks, potentially including paraplegia. Mr Perry submitted that the evidence of Dr New is that the chance of the requested surgery providing relief to the applicant is remote. He submitted that Dr Khong also acknowledged a high rate of failure at the top of the construct;
(e) Mr Perry noted that the applicant discontinued previous proceedings in the Commission to trial pain management treatment and the applicant’s medical evidence has not advanced since that time;
(f) Mr Perry submitted that the evidence overwhelmingly supports a finding that there is appropriate alternative treatment available, being pain management treatment recommended by Dr Deshpande, particularly including diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS, which was approved by the insurer. Mr Perry submitted that evidence of Dr Pai and Dr Singh confirms that a trial of chronic pain management is appropriate.
Mr Perry submitted that Dr Singh simply stated that the applicant effectively had no other choice to the requested surgery, but he did not give evidence to the effect that pain management treatment would not be beneficial to the applicant;(g) Mr Perry submitted that it is not a case where the applicant has trialled such pain management treatment and it has been found to be unsuccessful. He submitted that the applicant has not undergone the treatment to date and that the insurer’s approval remains available;
(h) Mr Perry submitted that no weight should be given to the evidence contained in the applicant’s statement in relation to Dr Deshpande stating that her pain management recommendations would not provide any permanent relief on the ground that it is not qualified evidence.[7] Mr Perry submitted that there is no reason to find that the pain management treatment recommended by
Dr Deshpande would not relieve the applicant’s pain symptoms and provide lasting benefit in that regard;(i) Mr Perry submitted that the pain management treatment recommended by
Dr Deshpande would alleviate the applicant’s pain symptoms without the inherent significant risks of long spinal fusion surgery;(j) Mr Perry submitted that it is not the case that the applicant can undertake both the requested surgery and the pain management treatment requested by
Dr Deshpande, and(k) Mr Perry submitted that the applicant has not discharged its onus of proof and, on that basis, an award should be made for the respondent.
[7] Applicant’s statement, paragraph 110, at ARD, page 14.
Applicant’s submissions in reply
Mr Compton’s submissions in reply on behalf of the applicant may be summarised as follows:
(a) Ms Compton submitted that the applicant has been delayed in undertaking the procedure requested by Dr Deshpande by the respondent’s initial refusal in respect of that treatment. Ms Compton submitted that the applicant needs to seek the respondent’s approval for each course of pain management treatment;
(b) Ms Compton submitted that, in any event, the applicant could undergo the requested surgery and the procedure requested by Dr Deshpande at the same time, and
(c) Ms Compton stated the applicant’s evidence is that he wishes to undergo the procedure requested by Dr Deshpande on the basis that it would provide permanent relief and he does not want to delay the requested surgery any longer.
The law
Subsection 60(1) of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(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).
...”
Is the requested surgery “treatment” in accordance with s 60(1) of the 1987 Act?
The applicant seeks compensation for expenses of and related to the requested surgery in accordance with the request of Dr Singh dated 15 March 2022.
The requested surgery is clearly “medical or related treatment (other than domestic assistance)” and “hospital treatment” within the meaning of ss 60(1)(a) and 60(1)(b) of the 1987 Act.
Is the requested surgery reasonably necessary?
In Diab,[8] Roche DP, referring to the decision in Rose, set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[9]
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at
48A-C:‘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 tis place in the usual medical armoury of treatments for the particular condition.’”
[8] [2014] NSWWCCPD 72.
[9] [2014] NSWWCCPD 72, at [76].
Roche DP[10] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[11]
“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.”
[10] [2014] NSWWCCPD 72, at [78].
[11] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[12]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably 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...”
[12] [2014] NSWWCCPD 72, at [86].
Roche DP found:[13]
[13] [2014] NSWWCCPD 72, at [88]- [89].
“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.”
Appropriateness
The applicant’s credibility is not in dispute. Further, there is no dispute in relation to the history of investigations and treatment which is recorded in the treating medical evidence.
The evidence of the applicant and the treating practitioners consistently demonstrates, and I accept, that the applicant has reported significant pain, symptoms, restrictions and limitations since the injury on 1 April 2014.
The evidence of the applicant and the treating practitioners also demonstrates, and I accept, that since the injury on 1 April 2014, the applicant has had undergone numerous investigations and treatments, including multiple surgeries, which I have detailed above (under the heading of treating medical evidence).
The applicant’s evidence is that he nevertheless continues to suffer significant ongoing lower back pain which radiates down his anterior right thigh and stops at the knee and he also has lower back stiffness. The applicant also continues to endure significant restrictions and limitations: he has restricted movement in his lumbar spine; he is unable to lie flat on his back at night; he is unable to perform bending and squatting movements; he is unable to walk, sit and stand for prolonged periods of time, to the point where he has pain across his back and right leg. Further, since surgery in about February 2021, the applicant also now suffers from erectile dysfunction. It is not disputed that the applicant remains totally incapacitated from returning to work.
On 24 March 2022 and again on 10 October 2022, the applicant’s treating orthopaedic and spine surgeon, Dr Singh, reported that, notwithstanding the previous surgeries, the applicant continues to have lower back pain and while he does not have any significant radicular symptoms, he has poor sitting and standing tolerance and is unable to cope. Dr Singh noted that the applicant had an antalgic gait with limited range of motion of his lumbar spine.
Dr Singh stated that the applicant has been unable to manage and had not been able to return to work or to deal with household chores. Dr Singh stated that neurological examination was otherwise not contributory.The evidence of the applicant and the treating specialist in relation to his ongoing pain, symptoms, limitations and restrictions are consistent and are not in dispute.
On that basis, I accept that the applicant continues to experience significant ongoing pain, restricted movement in his lumbar spine and significant functional restrictions and limitations. The applicant also suffers from erectile dysfunction.
An MRI of the lumbar spine on 16 February 2022 showed: post surgical changes in the lumbar spine; a small central disc protrusion at L1/2 without significant nerve root impingement; small right L4/5 disc protrusion abuts the thecal sac near the origin of the descending right L4 nerve root; small left L5/S1 disc protrusion abuts the thecal sac near the origin of the descending left S1 nerve root; no definite nerve root impingement was seen at either level.
A CT of the lumbar spine on 16 February 2022 showed: expected post surgical change in the posterior paraspinal soft tissues without discrete collection or haematoma; minor retrolisthesis of L2 on L3, and on L5 on S1; multilevel endplate degeneration with intradiscal gas; mild anterior osteophytosis greatest at L2/3; moderate to marked multilevel facet arthrosis; at L1/2, disc bulge causing mild canal stenosis, with no significant foraminal stenosis; at L2/3, minor foraminal stenosis; at L4/5, mild to moderate right foraminal stenosis, and at L5/S1, minor disc bulge without significant canal stenosis, with mild bilateral foraminal stenosis.
Further, on 18 February 2022, a regional bone scan with SPECT/CT (low dose) showed: overall satisfactory appearance to the lumbar fusion site and low grade stress reaction at T12/L1 discovertebral junction, which was non-specific. There was minor uptake in the posterior elements of L3/4 which was regarded as satisfactory and not suggestive of pseudo arthritis. There was no evidence of sacroiliitis.
On 24 March and also on 10 October 2022, Dr Singh considered the recent imaging and reported that the imaging reveals that the applicant has had decompression and fusion from L3 to L5 and there is evidence of disc bulging proximal to the fusion, and distal to the fusion at L5-S1 there is evidence of a vacuum disc phenomenon. Dr Singh noted that there is also some evidence of vacuum disc at L3-4 despite having had posterior fixation. Dr Singh opined that the applicant likely has non-union at L3-4 despite a nuclear medicine scan recently showing only slight uptake of tracer. He opined that the applicant also has adjacent segment disease with failure of the L5-S1 disc as well as disc bulging at L3-4, L2-3 and L1-2. Dr Singh stated that the applicant has significant structural lumbar disease, with failure of the L5/S1 motion segment as well as deterioration of the proximal junctions about the fusion as well as a non-union at L3/4 and he also has positive sagittal balance, which also needs to be corrected.
I accept that the most recent imaging does show significant post surgical changes which were considered and addressed by Dr Singh in his reports.
Dr Singh opines that the requested surgery is appropriate and reasonably necessary in the circumstances. Dr Singh explained that the requested surgery would involve an anterior column support at L3-4, L4-5 as well as an anterior lumbar interbody fusion at L5-S1.
Dr Singh explained that that surgery would be followed by posterior fixation, which would need to encompass all the involved levels to address the problem of alignment in addition to axial instability. Dr Singh recommended that the applicant undergo the surgery in the form of a staged lumbar fusion, the first stage being an L3 to S1 decompression and fusion, followed by posterior T10 to pelvis decompression and stabilisation.Dr Singh stated that the aim of the requested surgery is to stabilise and realign the spine proximal and distal to the fusion, and provide a better sagittal alignment so that the applicant can have a better quality of life. Dr Singh acknowledged that the requested surgery is complex surgery.
The applicant’s evidence is that he believes the requested surgery is effectively inevitably necessary to address his symptoms on a more permanent basis. The applicant expressed concern that delaying the requested surgery would result in continued deterioration in the interim period, and ultimately greater difficulty in recovering from the requested surgery. The applicant’s evidence is that he is unable to undergo the requested surgery on the public health system at this time.
It is the evidence of both the applicant and Dr Singh, and I accept, that the applicant was provided with education concerning the requested surgery, including relevant risks, and that the applicant’s request is made on an informed basis.
Availability of alternative treatment and its effectiveness
I note that the applicant has had limited success with alternative treatment in the past. On
3 December 2020, Dr Suttor reported that he had discussed pain management options with the applicant, however he acknowledged that multiple analgesics and injections had provided no significant benefit in the past. On 9 July 2021, Dr New recommended that the applicant attempts weight loss, and continue with physical therapy, hydrotherapy and Pilates. On
4 August 2022, Dr Khong reported that the applicant had previously tried multiple analgesic agents and some cortisone injections without good effect.Dr Pai opined that the applicant would benefit from a few sessions of a multidisciplinary pain management program based on a cognitive-behaviour approach aimed at increasing function.
The respondent submits that there is appropriate alternative treatment available, being the pain management treatments requested by Dr Deshpande on 9 February 2020, which included follow-up consultations, a pain education program, clinical psychology assessment, initial assessment for pain physiotherapy and diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and caudal EDS.
I note that diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS was approved by the insurer on 12 April 2023 and remains so approved. I accept that the applicant has not undergone that procedure to date.
In relation to the diagnostic medial branch blocks (bilateral lumbar) and right SIJ block and Caudal EDS, Dr Deshpande stated that the procedure was to address and locate the pain generator in the lumbar spine in order to proceed with a more definitive treatment plan. She opined that it would help with lumbar spinal pain in the event of adjacent segment disease and assist with radiculopathy to the applicant’s right leg.
Dr Singh opined that the applicant “has no other choice” to the requested surgery and that “the alternative is to accept permanent functional impairment and trial chronic pain management”. I do not accept the respondent’s submission that the evidence of Dr Singh confirms that a trial of pain management is appropriate as an alternative to the requested surgery. Dr Singh’s evidence made it clear that he considered that the alternative of a trial of chronic pain management was conditional on the applicant’s acceptance of permanent functional impairment.
There is no significant evidence of an alternative treatment which will specifically address the applicant’s functional restrictions and limitations.
As noted above, the applicant expressed reluctance to delay the requested surgery to undergo alternative treatment because of his concern that delaying the requested surgery would result in continued deterioration in the interim period, and ultimately greater difficulty in recovering from the requested surgery.
Cost of the requested surgery
On 15 March 2022, Dr Singh provided estimates of fees for surgery as follows:
(a) for Anterior Lumbar Interbody Fusion L5-S1, ATP L3-4, L4-5 (stage 1) - $17,340.80, and
(b) for T10 Pelvis Rev Posterior Spinal Fusion (stage 2) - $36,272.30.
Mr Perry noted that the cost of the requested surgery was significant. The parties have not otherwise raised the cost of the treatment as a significant issue.
Actual or potential effectiveness of the requested surgery
In relation to the actual or potential effectiveness of the treatment, Dr Singh explained that the aim of the surgery is to stabilise and realign the spine proximal and distal to the fusion, and provide a better sagittal alignment so that he can have a better quality of life. Dr Singh acknowledged that the surgery is complex. However, considering the applicant’s significant and complex history and spinal pathology, Dr Singh opined that “Without surgery his prognosis is guarded”.
I note however, that there is some considerable divergence of medical opinion regarding the actual or potential effectiveness of the requested surgery, which I will address in detail under the next heading.
Acceptance by medical experts of the requested surgery
The independent medical experts differ in their opinions regarding the requested surgery.
I note that both Dr Casikar and Dr Pai diagnosed “failed back syndrome” and opined that, consequently, future spinal surgery would likely be unsuccessful.
In relation to a previous request for L3 to L4 posterior fusion proposed by Dr Suttor, in November and December 2020, Dr Casikar provided an independent medical opinion qualified by the insurer that included a diagnosis of failed and constitutional degenerative disease. Dr Casikar opined that surgery for an L3 to L4 fusion was not likely to produce any further advantage because he considered that the applicant already had “multiple failed surgeries”. Dr Casikar has not considered the most recent imaging and he has not given an opinion specifically in relation to the requested surgery and accordingly I give his opinion little weight in relation to the requested surgery.
However, I note that on 3 December 2020, Dr Suttor rejected Dr Casikar’s diagnosis of failed back syndrome. Dr Suttor explained that the applicant had positively responded to past surgery however the applicant had a subsequent recurrence of symptoms due to further disc degeneration. Dr Suttor stated that the applicant still had ongoing radicular symptoms with mechanical issues on his imaging that would be amendable to surgical treatment.
I note that on 9 July 2021, Dr New stated that “The chances of him having a successful seventh surgery to ablate his leg pain and back pain are very remote”. However, it was not apparent from Dr New’s report what proposed surgery Dr New was referring to. Further, it was apparent from the report that Dr New did not have copies of relevant operation reports and discharge summaries.
Dr Pai provided an independent medical opinion qualified by the insurer in relation to the requested surgery. In a report dated 30 May 2022, Dr Pai diagnosed chronic back pain, mainly of axial origin, and some referred pain to the right leg with no objective radiculopathy, which he considered to be out of proportion to the injury event, imaging and previous surgery. Dr Pai considered that multiple factors were impacting on the applicant’s presentation. Dr Pai noted that medical literature stated that outcomes are poorer with subsequent operations unless there is definite compressive pathology which can explain the symptoms. Dr Pai opined that the requested surgery was not reasonably necessary. Dr Pai opined that the outcome of the requested surgery was uncertain and would not improve the applicant’s symptoms. Dr Pai opined that the applicant’s symptoms could nevertheless get worse or the applicant could get further adjacent disc related issues at the thoracolumbar junction. Dr Pai opined that the requested surgery carried risk of serious complications, potentially including paraplegia.
In a report dated 30 May 2022, Dr Pai stated that the requested surgery may provide good stabilisation but it was unlikely to resolve the applicant’s pain symptom, the cause for which he believed to be multifactorial, including central sensitization. Dr Pai referred to medical literature which stated that in patients who had undergone multiple surgeries, further surgery should be considered only if there is a definite structural pathology causing the pain, and Dr Pai was unable to identify any definite structural pathology causing pain. Dr Pai stated that not many spinal surgeons would undertake the requested surgery given the applicant’s response to previous surgery and the presence of underlying erectile dysfunction. Dr Pai opined that the outcome of the requested surgery was unpredictable and that it was likely that the applicant’s pain would continue. Dr Pai diagnosed failed back syndrome, caused by multiple factors and related to the applicant’s response to previous surgeries and treatment.
Dr Pai’s opinion seems to be based, at least in part, on his inability to identify any definite structural pathology causing the applicant’s pain. However, I note that whilst Dr Pai apparently considered reports of Dr Singh and Dr Khong, there is no indication that he reviewed the most recent imaging. In any event, Dr Pai did not specifically address the pathology shown in the most recent imaging.
Further, in relation to Dr Pai’s diagnosis of failed back syndrome, I note that Dr Suttor previously rejected Dr Casikar’s diagnosis of failed back syndrome, on the basis that that the applicant had positively responded to past surgery however the applicant had a subsequent recurrence of symptoms due to further disc degeneration. Dr Suttor stated that the applicant still had ongoing radicular symptoms with mechanical issues on his imaging that would be amendable to surgical treatment. As I noted above, Dr Pai did not specifically address the pathology shown in the most recent imaging.
In contrast to Dr Pai, Dr Khong provided a more detailed analysis of the applicant’s pathology as shown on the recent imaging and an explanation of structural pathology causing the applicant’s pain and the objectives of the requested surgery.
Dr Khong provided an independent medical opinion, qualified by the applicant. In a report dated 4 August 2022, Dr Khong diagnosed persistent lower back pain and right anterior pain due to an exacerbation of pre-existing degenerative changes in the lumbar spine and multiple unsuccessful lumbar spine surgeries and he opined that the applicant’s prognosis is poor. Dr Khong opined that the requested surgery is reasonably necessary. Dr Khong noted that an MRI demonstrated multi-level degenerative disc disease at L1/2, L3/4, L4/5 and L5/S1 and vacuum phenomena at L2/3, L3/4, L4/5 and 5/S1. Dr Khong noted that there has also been some progressive disc herniation at L1/2 when comparing the film from 2019 to the current films.
Dr Khong noted that the first part of the surgery aims to restore an anatomic alignment and disc space height at L3/4, L4/5 and L5/S1. Dr Khong opined that, because of the degenerative disc disease at L1/2 and L2/3 which may be contributing to applicant’s back pain and a new central disc herniation at L1/2 which was not apparent on the films from 2019, it is reasonable to extend the fusion up to these levels. Dr Khong opined however that a fusion should not stop at the thoracolumbar junction, because there is a high rate of failure at the top end of the construct. For that reason, Dr Khong opined it would be reasonable to extend the fusion to T10. Dr Khong stated that fusion from T10 to the pelvis aims to correct the anatomical deformity in the lumbar spine with the aim of reducing the applicant’s lower back pain.
I accept that the respondent’s submissions do have some merit and there is some difficulty with the medical evidence. I also accept that the requested surgery is complex, particularly in the context of the applicant’s significant history and structural pathology, and that there are inherent and potentially serious risks.
I accept the evidence of both the applicant and Dr Singh that the applicant was provided with education concerning the requested surgery, including relevant risks, and that the applicant’s request is made on an informed basis.
However, considering the evidence as a whole, I do find the evidence of the applicant’s treating specialist, Dr Singh, to be particularly compelling because I consider that he provides a more reasoned and logical explanation for the applicant’s symptoms having regard to the most recent imaging and the applicant’s significant history. His reports were comprehensive and I consider that he has taken a thorough and informed approach to the applicant’s pathology and symptoms and the aims of the requested surgery. He is an experienced specialist.
I also find the evidence of Dr Khong to be compelling because he also provided a particularly comprehensive analysis of the applicant’s structural pathology and a reasoned and logical explanation for the applicant’s symptoms and the reasonable necessity of the requested surgery.
In Honarvar, Deputy President Snell accepted a recommendation for surgery in circumstances where the treating surgeon considered prospects of positive improvements with surgery to be “good” notwithstanding that the doctor could not guarantee a positive result.[14]
[14] Honarvar, at [182].
For all of the above reasons, considering the evidence as a whole in the context of the criteria referred to in Diab and Rose, I feel a real sense of persuasion and I accept that, on the balance of probability, the requested surgery is reasonably necessary.
Does the need for the requested surgery arise as a result of a work injury?
A commonsense evaluation of the causal chain is required: Kooragang Cement Pty Ltd v Bates,[15] Murphy v Allity Management Services Pty Ltd.[16] The applicant bears the onus of proof.[17]
[15] (1994) 10 NSWCCR 796 at [810].
[16] [2015] NSWWCCPD 49 at [57], [58].
[17] Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15, at [40] to [43].
There is no dispute that the applicant sustained injury to his spine on 1 April 2014 in the course of his employment. The insurer accepted liability and paid for previous surgery to the applicant’s spine.
There is no evidence of any other significant causal factor.
Further, the applicant’s evidence and the medical evidence supports a conclusion that the subject injury is consistent with the injury on 1 April 2014.
Considering the evidence as a whole, I am satisfied and find that the applicant sustained an injury to his spine arising out of a work injury on 1 April 2014.
Having regard to the evidence as a whole, I am satisfied that the requested surgery is reasonably necessary as a result of the work injury on 1 April 2014.
SUMMARY
For all the reasons above, the following findings and orders are made:
The Commission determines:
(a)the requested surgery, being: stage 1 – anterior lumbar interbody fusion L5 – S1, ATP L 3-4, L 4-5; and, stage 2 – T10 to pelvis rev posterior spinal fusion, which was requested by Dr Bisham Singh on or about 15 March 2022, is reasonably necessary as a result of injury on 1 April 2014.
The Commission orders:
(a)the respondent to pay the costs of and incidental to the requested surgery in accordance with s 60 of the 1987 Act.
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