Proctor v Paragon Risk Management Pty Limited
[2021] NSWPIC 382
•29 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Proctor v Paragon Risk Management Pty Limited [2021] NSWPIC 382 |
| APPLICANT: | Mark Edwin Proctor |
| RESPONDENT: | Paragon Risk Management Pty Limited |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 29 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Applicant claimed cost of anterior and posterior lumbar decompression and fusion from L3 to S1, pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act); previous L3 to L5 fusion performed after determination of Workers Compensation Commission; respondent disputed that proposed treatment was reasonably necessary; consideration of Diab v NRMA Ltd; Held - the proposed surgery is reasonably necessary as a result of injury; award for the applicant for the cost of surgery, pursuant to section 60(5) of the 1987 Act. |
| DETERMINATIONS MADE: | 1. That the respondent is to pay, pursuant to section 60 (5) of the Workers Compensation Act1987, the cost of anterior and posterior lumbar decompression and fusion from L3 to S1. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mark Edwin Proctor (Mr Proctor) was employed by the respondent, Paragon Risk Management Pty Limited, as a security officer.
Mr Proctor sustained multiple injuries on 2 January 2012 when he collided with a kangaroo while riding his motorcycle to work. Those injuries included injury to his neck, lower back, left and right shoulders, left and right wrists, right elbow and left knee. Liability for the injuries is not in dispute.
The applicant previously claimed the cost of L3 to L5 anterior and posterior decompression and fusion. Liability for the surgery was disputed, although the dispute notices are not in evidence.
The applicant then lodged in the Workers Compensation Commission an Application to Resolve a Dispute, in Matter Number 477 of 2018. The dispute was determined by Arbitrator Young on 11 April 2018. Arbitrator Young, in an ex tempore decision, determined that the proposed surgery was reasonably necessary medical treatment that resulted from the motor vehicle accident on 2 January 2012. The respondent was ordered to pay the costs of and incidental to the surgery.
In December 2020, the applicant sought approval from the respondent’s workers’ compensation insurer, AAI Limited t/as GIO (GIO) for L3/S1 anterior lumbar interbody fusion and decompression, proposed to be performed by Dr Brian Hsu.
On 13 January 2021, GIO issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed liability for the proposed surgery on the basis that it was not reasonably necessary, as required by section 60 of the Workers Compensation Act 1987 (the 1987 Act). GIO advised that it had requested further information from Dr Hsu, but his responses were inadequate. As it had inadequate information to determine liability, the matter was in dispute. GIO did not have the required medical information to determine if the procedure was reasonably necessary, and therefore declined liability pending further medical information. It had arranged an independent medical examination with Dr Vidyasagar Casikar on
3 February 2021 and would review the decision on receipt of further medical information.On 26 February 2021, GIO issued the applicant with a further dispute notice. It again disputed liability for the proposed surgery, on the basis that it was not reasonably necessary as a result of an injury, as required by section 60 of the 1987 Act.
By letter dated 1 April 2021, the applicant’s solicitors requested that GIO review its decision to dispute liability.
10.On 15 April 2021, GIO issued a notice of its review, pursuant to section 287A of the 1998 Act. It advised the applicant that its decision was maintained.
11.The applicant lodged an Application to Resolve a Dispute (the Application) on 8 June 2021. He claimed the sum of $44,876.40; and an order that the spinal surgery proposed by Dr Hsu, that is an anterior and posterior lumbar decompression and fusion from L3 to S1, is reasonably necessary medical treatment as a result of his motorcycle accident on 2 January 2012.
12.The respondent lodged its Reply on 30 June 2021.
ISSUES FOR DETERMINATION
13.The parties agree that the following issue remains in dispute:
(a) whether the surgery proposed by Dr Hsu is reasonably necessary medical treatment pursuant to section 60 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
14.The matter was listed for conciliation/arbitration hearing by telephone on 8 September 2021. Mr Halligan of counsel, instructed by Ms Branch, appeared for the applicant; and Mr Combe of counsel, instructed by Ms Gallagher, appeared for the respondent. The applicant was present.
15.During the conciliation phase of the proceedings, the respondent proposed that it may be appropriate to refer the question of the reasonable necessity of the surgery to a Medical Assessor as a general medical dispute. After taking instructions from Mr Proctor, Mr Halligan advised that he could not consent to this course, while acknowledging that I had discretion in the matter. After being advised of my preliminary view that the issue should not be referred to a Medical Assessor in the absence of the applicant’s consent, Mr Combe advised that he was instructed not to press for a referral.
16.The applicant objected to the admission of the report of Dr Murray Hyde Page, dated 5 April 2017, which was attached to the respondent’s Application to Admit Late Documents dated 19 July 2021. The report had not been attached to any of the dispute notices issued to the applicant. He therefore maintained that the respondent was in breach of clauses 38 and 41 of Workers Compensation Regulation 2016.
17.For reasons provided at the hearing, and which were recorded, the report of Dr Hyde Page was not admitted.
18.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.
EVIDENCE
Documentary evidence
19.The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
Oral evidence
20.There was no application to call oral evidence.
FINDINGS AND REASONS
Evidence of the applicant, Mark Edwin Proctor
21.Mr Proctor’s first statement is dated 16 May 2017. He has given evidence about the accident, which it is unnecessary to repeat in these reasons.
22.At that stage, the applicant had undergone a CT scan of his lumbar spine on 2 January 2013, and it had revealed some disc bulges. He had been referred to Dr Hsu for treatment of both his back and neck. Dr Hsu advised him that he had disc bulges in his lumbar spine at L4/5 and L5/S1, and an annular tear. He also advised that surgery was not warranted at that time and referred Mr Proctor to pain management specialist, Dr Ragavan.
23.Dr Ragavan recommended that the applicant have a series of cortisone and anaesthetic injections in his neck and lower back, but the insurer refused to approve them.
24.By early 2017, the applicant’s lower back pain had increased significantly, and he returned to Dr Hsu, who ordered a further MRI on 15 February 2017. Dr Hsu recommended L3 to L5 anterior and posterior decompression and fusion. He believed the applicant had a 70% to 80% chance of a reduction in his lower back and leg pain from the surgery.
25.Approval for the surgery was sought from GIO in early March 2017, and the applicant was examined by Dr Hyde Page on 5 April 2017. GIO denied approval for the surgery on 8 May 2017.
26.The applicant “very much” wanted to have the surgery proposed by Dr Hsu. He had thought carefully about it and had discussed it at length with Dr Hsu, who had explained it all, including the possible benefits and risks. He had every confidence in Dr Hsu.
27.On 2 June 2021, the applicant stated that his application for an order that the insurer pay for anterior/posterior lumbar spinal fusion from L3 to L5 was heard in the Workers Compensation Commission on 6 April 2018 and was successful.
28.It took GIO at least six weeks to provide Dr Hsu with the required paperwork to commence various medical procedures. The applicant had to have several blood tests over a few months, to confirm he had no nicotine in his system. Dr Hsu refused to perform the surgery unless he gave up smoking. He also had to attend a consultation with Dr Neale, vascular surgeon, to assess his vascular health.
29.The applicant underwent a two-stage lumbar spinal fusion, anterior and posterior, by Dr Hsu on 18 March 2019 (Stage 1) and 26 March 2019 (Stage 2) at North Shore Private Hospital. He was then transferred to the Mayo Private Hospital at Taree for rehabilitation and recovery, remaining there for about a month.
30.After the surgery, the leg pain the applicant had been experiencing for eight to nine years resolved for a little while. However, it gradually came back and by about August 2019 he had pain in both legs.
31.The applicant had consultations with Dr Hsu in May, August, and December 2019, and in early February 2020. Dr Hsu was a little concerned about how slowly the bone was grafting over the fusion site. He requested a further bone scan, which was done on 18 February 2020.
32.After reviewing the bone scan, Dr Hsu recommended a CT guided injection to locate the source of the pain. This was done in about May 2020. It caused the applicant more severe pain than ever, and he was still relying heavily on oral opiate medication.
33.In June 2020, Dr Hsu recommended extending the applicant’s lumbar fusion down to S1. He asked Mr Proctor to take some time to think about the surgery, and to give some thought to learning to live with the pain, before deciding. He arranged to review the applicant in about three months.
34.The applicant took Dr Hsu’s advice. He spent the next several months considering his decision, particularly in light of his delayed recovery from the first surgery. He eventually decided he could not put up with the ongoing pain, his inability to participate in a normal lifestyle and his reliance on very strong pain medications for the rest of his life. By about July 2020, he was having severe pain again. Even bending over to pick something up could result in severe sciatic symptoms.
35.The applicant advised Dr Hsu of his decision in mid-October 2020. Dr Hsu requested a further MRI scan, which was done in late 2020. After reviewing it, Dr Hsu recommended extending the spinal fusion from L3 to S1. He sought approval from GIO on 3 December 2020. Liability for the surgery was denied.
36.Dr Hsu had advised the applicant that he should have done the more extensive fusion the first time but decided to restrict it to levels L3 to L5 in the hope the lesser surgery would resolve most of the back and leg pain. Dr Hsu had advised this was the wrong decision and he should have extended the spinal fusion to the S1 level the first time.
37.The applicant would very much like to go ahead with the extension of the spinal fusion, so he can hopefully wean himself off most of his opiate pain medications. He relied heavily on them to get through the day and allow him to perform some of his usual activities. He was fully aware of the complications the medications were causing.
38.It had been nine years since the accident and the applicant had not been able to return to any type of normal pre-injury lifestyle. His multiple injuries had severely restricted his lifestyle and ability to participate in any employment or leisure activities.
39.The applicant has listed the various medications he has taken since the accident. His current medications were Palexia, Panadol Rapid, Endep and Endone when the pain was unbearable, which could occur three to four days per week. He also suffered from depression, for which he had been prescribed Pristiq.
40.Each time the applicant tried to cease taking medication, he was unable to do so because he suffered increased pain following further surgery. His need for pain medication seemed to increase each time he had another surgery. He has had over 10 surgeries since the accident. His treating doctor had encouraged him to reduce the use of heavy opiate medications. He would very much like to be able to do this and attempt to live a semi-normal life.
Medical evidence
Dr Brian Hsu – Adult and Paediatric Spine Surgeon
41.Dr Hsu reported to the applicant’s general practitioner, Dr Chris Larkin, on 26 June 2014.
42.The applicant had undergone MRI of his cervical and lumbar spines. Dr Hsu noted that in the lumbar spine there was loss of disc height and disc bulging at L4/5 and L5/S1, and a suggestion of an annular tear.
43.Dr Hsu opined that the applicant’s pathology was not severe, and he did not feel he would require surgery. He would arrange a course of physiotherapy.
44.Dr Hsu reported on 26 February 2017 that the applicant had had a further MRI of his lumbar spine. It demonstrated L3/4 and L4/5 pathology, which were likely the levels that caused most of his pain.
45.Dr Hsu felt that the applicant had exhausted non-operative treatment, as his symptoms had been ongoing for a few years. He had first consulted Dr Hsu in 2013 and had been trialling different non-operative strategies since then.
46.The applicant felt strongly that he would like to consider surgery, which would be an L3 to L5 anterior and posterior decompression and fusion. Dr Hsu opined that he had a 70% to 80% chance of approximately 50% reduction of his back pain. He sought approval for the surgery.
47.On 21 March 2017, Dr Hsu replied to a series of questions from GIO regarding the surgery. Relevantly, he opined that it was unlikely to result in further surgery, but there was the possibility of adjacent segment problems. He was not anticipating this within the next two years.
48.Dr Hsu reported on 7 January 2019 that the applicant had finally obtained approval for surgery. His symptoms had become more severe, and he was to undergo updated MRI scan. It again demonstrated pathology at L3/4 and L4/5, which Dr Hsu felt correlated with the symptoms. They had decided to proceed with surgery.
49.On 13 May 2019, Dr Hsu reported that the applicant was six weeks post-surgery. He had made excellent progress, the implants were in situ and bone fusion was progressing well.
50.Dr Hsu reported on 13 August 2019 that the applicant’s back pain overall had improved significantly, but he had developed increased pain in the most lower lumbar segment, with symptoms radiating to the coccygeal area. This would be in keeping with the adjacent segment problem at L5/S1. The applicant was to undergo a further x-ray in four months. The symptoms could be improved with time, and Dr Hsu was not yet concerned.
51.On 18 December 2019, Dr Hsu reported that he was very happy with the applicant’s progress. He still had occasional symptoms and Dr Hsu recommended a CT scan to assess the fusion.
52.Dr Hsu reported on 12 February 2020 that the CT scan showed stable L3/5 fusion, but the bone graft did not appear to have consolidated as much as he would have expected. The applicant used tobacco, which can explain some cases of delayed union. He was to have a bone scan to assess the fusion.
53.Dr Hsu reported on 21 April 2020 that the applicant’s most recent injection had provided some relief and gave good diagnostic information. His symptoms had gradually returned, and he may need to consider a further injection.
54.On 23 April 2020, Dr Hsu reported that the applicant had been experiencing a return of symptoms after his L5/S1 injection. This had provided some diagnostic information, but his current symptoms were quite significant. Dr Hsu recommended L2/3 injection and possibly an updated bone scan in one to two months.
55.Dr Hsu reported on 4 June 2020 that the injection confirmed that the L2/3 level was the likely cause of the applicant’s symptoms. He had arranged a bone scan to assess the adjacent segments.
56.On 23 June 2020, Dr Hsu reported that the bone scan showed the adjacent segment facet pathology, confirming the reason for the applicant’s ongoing intermittent back pain. His symptoms were not too severe, and Dr Hsu did not propose any further aggressive intervention. The applicant was able to manage his pain with simple analgesics and they would continue that treatment.
57.Dr Hsu reported on 15 October 2020 that the applicant’s symptoms had increased gradually and were bothering him more. Both his back and leg pain had increased. It was likely they may need to consider further surgery, but Dr Hsu had arranged a face to face consultation at the next Taree clinic and would also arrange an MRI.
58.On 6 January 2021, Dr Hsu responded to a request from GIO for information about the surgery. He described the expected outcome as improved function and decreased pain. The applicant had had two injections and his imaging confirmed adjacent pathology. He had tried chronic pain management. The L3/5 fusion was related to the need for surgery.
Dr Rajen Ragavan – Rehabilitation Consultant
59.Dr Ragavan started treating Mr Proctor in July 2015.
60.Dr Ragavan managed the applicant’s medications. He reported on 27 August 2015 that it should be possible to wean him off all medications once he had gone through a day program and had spinal facet joint and shoulder injections.
61.On 29 April 2019, Dr Ragavan reported that the applicant’s Palexia had been increased until he was reviewed by Dr Hsu on 11 May 2019. He was to await the review before starting the day therapy program.
Dr James Bodel – Orthopaedic Surgeon
62.Dr Bodel was qualified by the applicant and reported first on 16 October 2017.
63.Dr Bodel recorded a consistent history of the injury and the applicant’s treatment. He noted that approval for spinal surgery had been denied.
64.The applicant’s main area of complaint was his lower back. There was constant pain across both the left and right sides and in the midline, spreading to the buttocks and thighs. The pain could be aggravated by prolonged sitting or bending, twisting or lifting.
65.Dr Bodel noted that Dr Hsu had written extensively regarding the applicant’s back complaint. He clearly indicated that Mr Proctor had had a lengthy period of conservative treatment, without any relief. Dr Bodel opined that the proposed surgery was reasonably necessary. He agreed that, although extensive, it was appropriate.
66.Dr Bodel again reported on 10 March 2021. He confirmed the previous history.
67.Dr Bodel recorded that, although a three level fusion had been recommended, only two levels, at L3/4 and L4/5 were done.
68.In about July 2020, the applicant bent down to pick something up off the ground and his back pain had deteriorated since that time. Dr Hsu had recommended anterior and posterior lumbar interbody fusion at L5/S1.
69.The applicant’s main complaint was still the lower back, with referred pain down the left leg. He had numbness and tingling to the little toe side of the left foot.
70.Dr Bodel diagnosed mechanical backache associated with disc pathology at the lumbosacral junction. The applicant had signs of persisting radiculopathy involving the S1 nerve root, and in the circumstances Dr Bodel opined that the surgery was reasonably necessary for the management of back pain and associated sciatic radiation of the pain. He did not see the point of further exploration of the L3/4 and L4/5 levels, but merely the extension of the decompression and fusion at L5/S1.
71.Dr Bodel opined that the surgery had the potential to improve the applicant’s symptoms and overall condition, although complete resolution of symptoms was unlikely. He had exhausted other measures.
Dr David Lewington – Approved Medical Specialist
72.Dr Lewington provided a Medical Assessment Certificate (MAC) dated 11 December 2017. He had been asked to advise whether the applicant’s degree of permanent impairment was fully ascertainable, specifically pending lumbar spinal fusion, if required.
73.Dr Lewington opined that the proposed surgery was not indicated and was relatively contraindicated. His reasons may be summarised as that the applicant had received inadequate non-operative treatment, including pain management counselling from a psychologist, attending a pain clinic or participating in a structured cognitive behavioural pain program; available evidence from the medical literature regarding back pain surgery in the absence of radiculopathy; the effect of psychological comorbidity and chronic pain on fusion surgery; the risk of complications; and a consideration of the opinions.
74.Dr Lewington certified that the applicant had reached maximal medical improvement.
Medical Appeal Panel Statement of Reasons for Opinion
75.The applicant appealed against the MAC.
76.On 15 February 2018, the Medical Appeal Panel (MAP) determined that the applicant’s degree of permanent impairment was not fully ascertainable because the respondent had denied liability for the proposed surgery.
77.The MAP revoked the MAC issued by Dr Lewington and issued a new MAC certifying that the applicant’s degree of permanent impairment was not fully ascertainable.
Dr Vidyasagar Casikar – Neurosurgeon
78.The respondent has qualified Dr Casikar, who reported on 9 February 2021.
79.Dr Casikar recorded a consistent history of the injury. He noted that in 2018 Dr Hsu performed a 360 degree spinal fusion, following which the applicant’s back pain continued. He had radiation to both legs, more on the right. A cortisone injection did not help him, and physiotherapy made it worse. Mr Proctor indicated that the surgery had a very poor result.
Dr Hsu had said he would do a further 360 degree fusion at L5/S1.80.The applicant’s previous history included depression on and off since 2000. He smoked four cigarettes a day.
81.Dr Casikar diagnosed constitutional degenerative disease of the lumbar spine and failed back syndrome.
82.Dr Casikar opined that the applicant had been complaining of back pain after Dr Hsu performed a 360 degree fusion two years before, that is approximately six years after the injury. The indication for a spinal fusion was not clear. The outcome of the surgery was poor. The applicant had failed back syndrome. Dr Hsu wanted to fuse him again at a different level. Dr Casikar was unable to explain the decision to operate on a patient who already had failed back syndrome.
83.Dr Casikar reported that it is “well recognised that any spinal fusion on a background of depression has a poor outcome”. If the applicant were to go through a further 360 degree fusion, the outcome was likely to be equally poor. Dr Casikar was unable to understand the implications for the first spinal fusion and now the second spinal fusion. They were unrelated to the accident.
84.Dr Casikar opined that the main pain generator was the degenerative disease of the lumbar spine. This was unrelated to the accident. The applicant had had multiple injuries. He had had post-traumatic stress disorder in the past, and a long history of depression. These may be some of the pain generator locations.
85.Dr Casikar referred to evidence of adjacent segment disease. This followed the spinal fusion at L3, L4 and L5. The indications for spinal fusion were unrelated to the accident. Because of the multiple level fusion, the applicant had an adjacent segment disease. He already had a well-established failed back syndrome. Further fusion was likely to have a very poor outcome, as before. The likelihood of improvement of the applicant’s symptoms “do[es] not exist”.
86.Dr Casikar noted that surgery for this condition is widely accepted. However, he reiterated that the indications for the first fusion and second fusion are unrelated to the accident. Spinal fusions are accepted treatment for degenerative disease of the lumbar spine, in situations outside the workers’ compensation situation. When there is a compensation issue, they have a very poor outcome, particularly where the patient already has failed back syndrome. Further spinal fusion is not generally an accepted method of treatment.
87.Dr Casikar did not believe adequate non-surgical options had been explored. The main alternate treatment would be management of the applicant’s depression and standard pain management programs.
88.The two-stage procedure for 360 degree fusion is a commonly performed procedure, but
Dr Casikar opined that there are no evidence-based studies to indicate it is superior to a single posterior or anterior fusion.89.Dr Casikar concluded that the proposed surgery was not reasonable. It is likely to make the applicant’s condition worse. He also emphasised that the indications for spinal fusion in the first instance were unrelated to the accident, mainly because the applicant has degenerative disease of the lumbar spine. Further spinal fusion would only add a further burden to pre-existing failed back syndrome. The applicant would not be a beneficiary of such fusion.
SUBMISSIONS
90.Counsel’s submissions have been recorded, so I will summarise them only briefly.
Applicant
91.The applicant referred to the evidence of Drs Bodel and Hsu. He submitted that Dr Hsu originally had in mind to address the levels of his spine that are the subject of this Application. He had made a sub-optimal recovery from surgery and the bone graft failed to consolidate. This had brought about the situation where he was faced with further remedial surgery, as had bending over, which worsened his condition.
92.The applicant relied on the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). He submitted that one matter to be considered is the appropriateness of alternative measures, which have been exhausted. The authorities, including Diab, make it clear that treatment need not be reasonable and necessary, but reasonably necessary.
93.The applicant submitted that Dr Casikar’s opinion is of no value. He opined that the spinal fusion the applicant has undergone was unrelated to the accident, but he is bound by Arbitrator Young’s findings. There is no evidence of pre-existing degenerative disease of the lumbar spine, and the respondent accepted in the section 78 notice that the condition was related to the motor vehicle accident.
94.In reply to the respondent, the applicant submitted that there is no medical evidence in the Reply to suggest that injections at other levels of the spine would be appropriate treatment. If that were the case, one might expect Dr Casikar to say so.
95.The applicant submitted he had undergone pain management and Dr Bodel opined that alternatives have been exhausted. He would be able to identify alternative treatment. The applicant submitted I would accept his evidence at face value.
96.The applicant submitted that Dr Casikar talked about failed back syndrome, without attempting to explain what it is. It is left to me to work it out. He submitted it could be ignored and was most unhelpful.
97.The applicant submitted that what has been overlooked by the respondent, and Dr Bodel, in his departure from what Dr Hsu has said about the levels of pathology, is that part of the problem with his spinal condition is that, 10 months after surgery, he had an unconsolidated graft in his spine. That can’t be left alone and must be addressed at the first principles of treatment. It can’t be addressed by cortisone injections. There is a need for it, if nothing else.
Respondent
98.The respondent submitted that the most recent application of Diab and Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 was in Whiteman v Delmai Pyu Ltd [2021] NSWPIC 156. Diab was reviewed at paragraphs 76 to 79. The respondent submitted that, applying Diab and Rose, I could not be satisfied that the surgery is reasonably necessary, and particularly its appropriateness.
99.The respondent submitted that Dr Hsu’s clinical justification for the surgery, provided in his response to GIO’s request, was that it is to improve function and decrease pain. This was fairly brief and prompted GIO to decline liability for the surgery.
The respondent referred to Dr Bodel’s evidence. He did not agree with the staged approach. He did not agree that all the surgery is required. This contradicts the request for approval of surgery by Dr Hsu. There is inconsistency between the opinions of Drs Hsu and Bodel. The respondent submitted that I would have an immediate concern as to the appropriateness of the proposed treatment that forms the basis of the Application.
The respondent submitted that the actual or potential effectiveness of the treatment was not really addressed by Dr Hsu. Dr Bodel has opined that “hopefully”, it will improve the applicant’s symptoms. The respondent submitted that this is the nub of Dr Casikar’s concern. He has a real concern that the surgery will not improve the applicant’s condition. He opined that the likelihood of it doing so does not exist.
The respondent submitted that the first set of fusions did not improve the applicant’s symptoms. Given Dr Bodel’s opinion and that Dr Hsu does not provide a clear opinion that this surgery will result in a resolution of symptoms, the respondent submitted I could not be satisfied it is reasonably necessary.
The respondent submitted that there is available alternative treatment and that conservative treatment by injections has not been fully investigated. The injections the applicant has had have helped. There is no evidence of injections at L5/S1 and no evidence as to why injections at that level, where fusion is recommended, have not been attempted. Dr Hsu had “launched” into a request for surgery, going straight to surgery without trying modalities addressed to the L5/S1 symptoms.
The respondent finally submitted that I could not be satisfied of the appropriateness of the treatment; that alternatives have been explored; or of the actual or potential effectiveness of the treatment.
SUMMARY
The issue to be determined is whether the proposed surgery is reasonably necessary as a result of the injury to the applicant’s lumbar spine on 1 January 2012.
The applicant has the support of his treating specialist, Dr Hsu. Dr Bodel provides qualified support. In his opinion, it is not necessary to further explore the L3/4 and L4/5 levels.
Dr Casikar does not support the proposed surgery as being reasonably necessary. His opinion is at least in part based on his belief that the indications for the first surgical procedure were not related to the applicant’s accident. The difficulty with that proposition, of course, is that the issue has been litigated and decided by Arbitrator Young in the applicant’s favour.
Both parties have referred me to the decision of Roche DP in Diab.
Roche DP said in Diab [at 86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity 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 claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP cited with approval the decision of Judge Burke of the Compensation Court in Rose and said:
“ [88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose…namely: (a) the appropriateness of the particular treatment; (b) the availability of alternative treatment, and its potential effectiveness; (c) the cost of the treatment; (d) the actual or potential effectiveness of the treatment, and (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. Evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon BleuCookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo [Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233] is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealthof Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.
I intend to apply the principles of Diab in making this determination.
Firstly, considering the appropriateness of the treatment, it is supported by Dr Hsu, who has been the applicant’s treating specialist since 2013. Dr Bodel disagreed with the extent of the proposed surgery, but he agreed that it is reasonably necessary to manage the applicant’s back pain and sciatica.
Dr Casikar disagreed that the surgery is reasonably necessary treatment. His opinion is based on several factors. He opined that the applicant had constitutional degenerative disease and failed back syndrome. He believed the outcome of spinal fusion on a background of depression would be poor. Dr Casikar did not accept that the first fusion surgery was related to the applicant’s work injuries. That matter has already been determined. Dr Casikar, however, did opine that because of the multiple level fusion, the applicant had an adjacent segment disease. Dr Hsu had predicted this possibility.
As to the availability of alternative treatment, Dr Hsu initially took a conservative approach, as he had before the applicant’s first surgical procedure. When it became apparent that the bone graft had not consolidated as expected, he arranged for injections and updated investigations. Contrary to the respondent’s submission, the applicant had an injection at L5/S1, to which Dr Hsu referred in his report dated 23 April 2020. His symptoms had returned. He also had an injection at L2/3, with some relief. There is no evidence that further injections at L5/S1, or indeed L2/3, would be effective.
In June 2020, Dr Hsu recommended that the applicant continue pain management with analgesics, as the symptoms were not too severe. It was not until four months later that he raised the possibility of further surgery. Even then, he wanted to see the applicant face to face and with an up to date MRI. I do not agree that he “launched” into a request for surgery.
Dr Bodel opined that the applicant had exhausted other measures. Dr Casikar has recommended management of the applicant’s depression, and pain management programs.
The cost of the surgery is not insubstantial, particularly as a two-stage process is planned. However, the respondent has not disputed liability on the basis of cost, although it referred in its submissions to Dr Bodel’s support for merely the extension of the decompression and fusion at L5/S1, and the potential expense of the more extensive procedure.
As to the potential effectiveness of the treatment, I accept that Dr Hsu’s response to GIO’s request for information was brief. However, “improved function and decreased pain” is in fact what he expected the surgery to achieve. He had referred in a previous report to the gradual increase in symptoms, which were bothering the applicant more. Dr Bodel was conservative in opining that the surgery has the potential to improve the applicant’s symptoms and condition, warning that a complete resolution of symptoms was unlikely. Dr Hsu was also clearly not expecting complete resolution of Mr Proctor’s symptoms.
Dr Hsu and Dr Bodel agree that the treatment is appropriate, although Dr Bodel does not completely agree with Dr Hsu’s proposal. Dr Casikar accepted that the two-stage procedure for 360 degree fusion is a procedure that is commonly performed, so it is obviously accepted by medical experts. Dr Casikar, however, reported that there are no evidence-based studies that support that it is superior to single level fusion. In the applicant’s case, he believed the proposed surgery would make him worse.
Roche DP referred in Diab to the “useful heads for consideration” in Rose, while reiterating that the essential question remains whether the treatment is reasonably necessary. As he said, all treatment, especially surgery, carries with it the risk of a less than ideal result.
The applicant has given evidence that he has taken some time to consider whether to undergo further surgery, particularly in view of the result of his first surgery. He eventually decided he could not put up with the pain, inability to live a normal life and reliance on very strong pain medication for the rest of his life. He is still only 47 years old. I accept that he has given the matter appropriate consideration and he wants to undergo the proposed surgery.
Having considered the criteria referred to in Diab, I have determined that the surgery proposed by Dr Hsu is reasonably necessary medical treatment as a result of injury sustained by the applicant on 1 January 2012.
I prefer the evidence of, in particular, Dr Hsu, and Dr Bodel to that of Dr Casikar. Dr Hsu has been the applicant’s treating specialist for many years. He has taken an initially conservative approach to Mr Proctor’s treatment. He has now come to the view that further surgery is appropriate. He has provided adequate reasons for his opinion. While Dr Bodel disagrees as to the extent of the surgery required, he does agree that the applicant is out of options and surgery has the potential to improve his condition. Dr Hsu is best placed to determine the surgical procedure that is most appropriate for the applicant’s condition.
Dr Casikar believes very strongly that the surgery will not assist the applicant and will in fact make his condition worse. He has provided his reasoning. It is not only because he does not believe that the reason for the first spinal fusion was related to the accident, but it appears to be partly influenced by that opinion. His pessimism is not shared by Dr Hsu and Dr Bodel. On balance, I accept that the proposed surgery is reasonably necessary as a result of the injury.
I therefore determine that the proposed medical treatment, that is anterior and posterior lumbar decompression and fusion from L3 to S1 is reasonably necessary medical treatment as a result of the injury on 2 January 2012.
The respondent is to pay, pursuant to section 60 of the 1987 Act, the cost of the proposed medical treatment.
The orders are as set out in the Certificate of Determination.
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