Quoc (Ken) Hai Dang v KD Dang Pty Ltd
[2022] NSWPIC 285
•14 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Quoc (Ken) Hai Dang v KD Dang Pty Ltd [2022] NSWPIC 285 |
| APPLICANT: | Quoc (Ken) Hai Dang |
| RESPONDENT: | KD Dang Pty Limited |
| Member: | Christopher Wood |
| DATE OF DECISION: | 14 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether proposed lumbar spine surgery was an expense reasonably necessary for the purposes of section 60 of the Workers Compensation Act 1987 (1987 Act); competing medical opinion against background of treating surgeon’s change in opinion regarding surgical priorities after an earlier decision by Personal Injury Commission; in favour of respondent that surgery to different body part (cervical spine) not related to original injury; consideration of Diab v NRMA Limited; Young v Vietnam Veterans Keith Payne VC Hostel; Held- Award for the applicant; applying Diab v NRMA the option of decompression surgery and fusion to the lumbar spine at L4-5 level as proposed and associated expenses was reasonably necessary for the purposes of section 60 of the 1987 Act. |
| determinations made: | 1. 1. The surgery to the applicant’s spine, specifically decompression and fusion at L4-5 level, is reasonably necessary as a result of his injury received on 14 June 2016. 2. 2. The respondent is to pay for the cost of such surgery including all incidental treatment pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
1. The applicant, Mr Quoc Hai Dang, was employed in his own company as a truck driver.
2. Although the work he was carrying out from approximately 2011 as a delivery driver was undoubtedly heavy and he experienced symptoms of neck and back pain from time to time, it was not until 14 June 2016 that he suffered a major injury to his lumbar spine for which there is objective support at L3-L4 and L4-L5 while lifting a heavy paper shredder. He has not worked since.
3. Liability for Mr Dang’s lumbar spine injury has been accepted by the respondent. Mr Dang continues to experience pain despite receiving considerable treatment.
4. In earlier proceedings before the Personal Injury Commission (the Commission), Mr Dang contested a decision by the respondent to decline liability for the cost of a cervical discectomy and fusion on the basis that he did not continue to suffer an injury to his neck as a consequence of the incident on 14 June 2016 nor that such surgery was reasonably necessary. That application was resolved by a decision in favour of the respondent although there was a finding that the surgery was (otherwise) reasonably necessary.
5. Mr Dang’s treating orthopaedic specialist, Dr Singh, subsequently determined that it was appropriate for him to undergo surgery to the lumbar spine which had initially been intended to follow the cervical spine surgery.
6. The respondent again contests the necessity for such surgery as being reasonably necessary for the purposes of section 60 of the Workers Compensation Act 1987 (the 1987 Act).
ISSUE FOR DETERMINATION
7. The parties agree that the only matter to be determined is whether the proposed surgery to the spine in the form of an L4-L5 decompression and fusion is reasonably necessary.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
8. The parties attended a telephone conference on 17 March 2022. Mr Tanner of counsel represented Mr Dang and Ms Kant, solicitor, appeared for the respondent.
9. It became clear on that occasion that this was to be an “all or nothing” application with considerable divergence of opinion as to how the medical evidence ought be applied to the matter in issue.
10. The matter proceeded to conciliation/arbitration on 21 April 2022 with Mr Tanner again appearing for the applicant and Mr Baker for the respondent.
11. The prospects for resolution were briefly explored and the matter otherwise proceeded to arbitration.
12. At the commencement of the arbitration both counsel presented arguments as to the admissibility a medical report of Dr Y K Lee dated 28 March 2022 which had been served late by the respondent. The report had been served in accordance with the rules, but no notification had been given to the applicant or the Commission that the respondent intended to rely on the report.
13. Whilst this was not ideal, the report was ultimately admitted into evidence because it raised no new issues.
14. A second issue arose as to the respondent’s reliance on two medico legal opinions, one from Dr Lee and the other from Dr Casikar. The applicant did not object to the reports being allowed into evidence, dealing as they do with two medical specialities, one neurological and the other orthopaedic.
15. There were some technical difficulties during the course of the arbitration, with Mr Tanner’s connection being interrupted on a few occasions. As such the matter could not be completed within the allocated time and it was agreed it was appropriate for the applicant to file submissions in reply to those of the respondent, with a limited right of reply given to the respondent thereafter in relation to any issues arising from the applicant’s late provision of a medico legal report of Dr Gehr dated 30 November 2020.
16. Both parties have completed written submissions supplementing those made orally at the arbitration.
Oral evidence
17. There was no application to lead oral evidence or cross examine Mr Dang in any way.
EVIDENCE
Applicant’s evidence
18. Adopting applicant’s counsel, Mr Tanner’s, comments in his submissions, Mr Dang has been treated by a variety of general and other practitioners. In considering the evidence, is useful to review some of Mr Dang’s treatment history and medico legal consultations at a high level.
Dr Arthur Chesterfield-Evans
19. Mr Dang initially came under the care of Dr Chesterfield-Evans following his accident.
20. Dr Chesterfield-Evans’ notes appear at pages 274 – 287 of the Application to Resolve a Dispute (the ARD) and consistently refer to back pain.
21. Dr Chesterfield-Evans referred Mr Dang to a neurosurgeon, Dr Renata Bazina, who saw him for the first time on 12 August 2016 providing a report to Dr Chesterfield-Evans dated 16 August 2016.
22. In addition to seeing Dr Bazina, Dr Chesterfield-Evans arranged for Mr Dang to undergo various diagnostic procedures including MRI which took place on 14 July 2016. The findings on the MRI in relation to the L4-L5 level was that:
“There is a broad-based left paracentral disc protrusion extending into the left lateral recess. There mild canal narrowing. There is left lateral recess narrowing potentially pinching on the descending left L5 nerve region…”
23. Dr Chesterfield-Evans also referred Mr Dang to Associate Professor Peter Papantoniou, orthopaedic surgeon.
24. Dr Chesterfield-Evans records some improvement from exercise therapy.
Dr Renata Bazina
25. As noted above, Dr Bazina first saw Mr Dang in 2016. She has written three reports which are in evidence. During the time she saw him Dr Bazina recorded some improvement in Mr Dang’s condition and essentially advocated conservative treatment which Mr Dang did not actively participate in, preferring to use Chinese medicine. She does not appear to have been persuaded that there was any significant underlying neurological explanation for Mr Dang’s continuing presentation involving lumbar spine pain radiating into both legs.
Associate Professor Peter Papantoniou
26. There are a number of medical reports provided by A/Prof Papantoniou who found an organic basis for Mr Dang’s discomfort on the basis that he had suffered an acute annular tear to both L3-L4 and L4-L5 levels as a direct result of his workplace injury. He noted that Mr Dang had been pain free before this incident and referred him for epidural-steroid injections. A/Prof Papantoniou saw Mr Dang routinely for approximately 12 months.
27. By mid 2018, he noted in a report dated 28 June 2018 that unfortunately the epidural injections did not produce any lasting benefit for Mr Dang who continued to complain of bilateral lower back pain. Mr Dang was also taking pain killers at that time. He continued to recommend conservative treatment, avoiding lifting, bending or twisting while the outcome of the steroid injections was awaited.
28. Associate Professor Papantoniou continued to record ongoing pain and in his report of 26 July 2018, noted that the L4-L5 steroid injection “was of not much help”.
29. At that stage, Mr Dang continued to use Endep, Temazapam, Endone and Coleccaria regularly. They are recorded as not being enough to assist his pain. A/Prof Papantoniou persevered and at the time of his report of 28 August 2018 to Dr Chesterfield-Evans, reported that the pain was coming from a L4-L5 level with an element of discogenic pain as well as radiculopathy. As steroid injections had not worked, he advocated a relatively straightforward surgical intervention in the form of L4-L5 nucleoplasty. I note at this point such a procedure is invasive but significantly less so than the surgery now proposed by Dr Singh, Mr Dang’s current treating specialist.
30. Associate Professor Papantoniou booked Mr Dang for nucleoplasty on 20 December 2018 but the day prior to it, Mr Dang called to cancel such surgery. I return to this below in the context of Mr Dang’s wishes in relation to the currently proposed surgery.
31. While under the care of Dr Bazina and A/Prof Papantoniou, Mr Dang also continued to see Dr Chesterfield-Evans who records ongoing symptoms well into mid and late 2018.
Dr Singh and Workers Health Centre
32. In the early part of 2019, Mr Dang came under the care of various general practitioners in the practice known as the Workers Health Centre in Cowper Street, Paramatta. This is a well known multi-disciplinary medical practice which, apart from general practitioners, houses various allied health professionals and associated medical specialists.
33. The first entry of Mr Dang’s attendance at this medical centre is on 5 February 2019 when he was seen by a Dr Calvache-Rubio. That entry records injuries to both the neck and back and the notes thereafter are consistent with one eye it seems to recording matters relevant to Mr Dang’s workers compensation claim. The entries thereafter record both neck and lumbar spine pain however, there were significant investigations of Mr Dang’s cervical spine symptoms which ultimately lead to the recommendation for surgery, the subject of the earlier decision by this Commission referred to above. Attention continued to be given to the lumbar spine with consistent reports of back pain throughout 2019 and an MRI confirming the previously diagnosed lumbar bulging and an annular tear. Lower back pain is also recorded by physiotherapists who saw Mr Dang towards the later part of 2019.
34. Dr Singh first consulted Mr Dang in February 2020. At the initial consultation, Mr Dang reported persistent neck, pericapsular pain and lower back pain. Failure of conservative treatments is recorded and at this stage, Dr Singh was suggesting surgery for both the cervical spine in the form of decompression and fusion from C5 to C7 and an L4-L5 decompression and fusion. At that stage it was not clear whether one was to be given priority over the other.
35. Following initial consultation with Dr Singh, Mr Dang continued to be seen by various general practitioners, psychologists and physiotherapists. All record complaints of pain as well as low mood.
36. By 5 June 2020 Dr Mo was recording upper spine radiculopathy with symptoms at C5-C6, C6, C3-C4 and variously bulging discs and nerve compression, shoulder strain, lumbar spine radiculopathy, and chronic pain with psycho-social barriers.
37. Dr Singh saw Mr Dang again on 7 July 2020. There was no mention of lower back pain in that record within the notes and Dr Singh was recommending cervical decompression and fusion.
38. In an entry by Dr Mo on 22 July 2020 there is no reference to lower back pain. Dr Singh saw Mr Dang again by telehealth conference on 18 August 2020, and again there is no mention of lower back pain however, in an entry from Dr Mo dated 19 August 2020 there is reference to lumbar spine radiculopathy.
39. Dr Singh again records his opinion that surgery is necessary in an entry dated 15 October 2020 although the focus was clearly on the cervical spine by that stage, there are references to ongoing lumbar spine problems. It was decided that Dr Peter Khong would provide a second opinion regarding the proposed cervical spine surgery. His notes record lower back pain as well as neck pain.
40. Following the decision by the Commission in favour of the respondent that Mr Dang did not continue to suffer a work-related neck injury, Mr Dang did not come to cervical spine surgery and the focus has shifted to the lumbar spine and operation now under consideration.
41. Dr Singh has been a consistent feature of Mr Dang’s treatment since 2019. He has provided three medical reports in addition to the matters recorded above which have been drawn from the Workers Medical Centre notes attached to the ARD.
42. Dr Singh’s first report is that dated 28 May 2019 addressed to Dr Calvache-Rubio within the Workers Health Centre. The report dealt solely with surgical intervention on the C3-C4, C4-C6 level but did mention the MRI which revealed disc bulging and the annular tear (previously identified by A/Prof Papantoniou) at L3-L4 and L4-L5 level. That diagnosis is repeated in Dr Singh’s report to Mr Dang’s solicitors dated 10 September 2019 where lumbar symptoms are again recorded from L3-L5 level. The focus remained on the surgery to the cervical spine which Dr Singh confirmed was appropriate in his opinion.
43. Dr Singh’s final report is dated 16 August 2021. In response to direct questioning from Mr Dang’s solicitors, he confirms his recommendation that Mr Dang should undergo lumbar spine fusion surgery at L4-L5. Importantly, for the purposes of the current determination, Dr Singh also records all other treatments undertaken by Mr Dang which included, pain medication, physiotherapy, pain psychology and injections. His back pain is said to have extended for the past two and a half years. This seems to be a reference to the term of his treatment by Dr Singh but in reality, having regard to the totality of the medical evidence, this does not accurately record the position which is lower back pain with associated radiculopathy from the time of the accident.
Dr Eugene Gehr
44. Dr Gehr initially provided two medico legal reports dated 13 July 2019 and 17 July 2019. These provide some marginal assistance to a determination as to whether the lumbar spine surgery proposed by Dr Singh is necessary. Dr Gehr is an orthopaedic surgeon. His reports detail both cervical and lumbar spine complaints. The medico legal opinions of Dr Casikar for the respondent (which are referred to below) are addressed by Dr Gehr and his first report provides an excellent overview of Mr Dang’s treatment history. At the time of the report, Mr Dang reported pain in the mid-lumbar spine and pain into the groin and hips. Dr Gehr’s opinion is broadly consistent with those of other doctors in terms of his findings and recorded significant cervical spine pain with radicular pain as well as significant lumbar spine pain with right radicular pain with right radicular pain and dysmetria. He was prepared to defer to the clinical judgment of Dr Singh.
45. A final report from Dr Gehr’s of 17 July 2021 addresses the lumbar spine problems being suffered by Mr Dang. Dr Gehr, at the time of writing his report in responding to the specific question from Mr Dang’s solicitors as to whether lumbar spine surgery was reasonably necessary, said he had not been given information that lumbar spine fusion had been proposed. Dr Gehr reiterates his view that the cervical spine fusion was necessary and in a fairly cursory response to the question, says:
“the lumbar spine surgery is reasonably necessary based on non-operative management has now failed [sic] and he has been under the care with treating spinal surgeons which made a clear recommendation for it and I support that.”
46. The report referred to above makes reference to a further report dated 30 November 2020 which was not in evidence. Orders were made requiring it to be filed and served. The respondent was given the opportunity to respond to the contents of the report and has done so, agreeing that it only deals with the cervical spine injury in terms of the necessity for future treatment. As I have said Dr Gehr provides only marginal assistance.
Respondent’s medical evidence
47. The respondent’s case, apart from detailed analysis of the diagnostic material and the reports relied upon by the applicant, is based on two medico legal specialists, Drs Casikar and Lee.
Dr Casikar
48. Dr Casikar first saw Mr Dang on 10 April 2019 for medico legal purposes.
49. By that stage, Mr Dang had come under the care of Dr Singh. Dr Casikar took a history consistent with that of the other doctors, including Mr Dang twisting his back and developing lower back pain. Amongst other things, he records Dr Bazina as seeming to indicate to Mr Dang that he requires surgery on the back at L5 disc [sic]. He then notes that the surgery appeared to be in the form of a nucleoplasty. I take this to be a mistaken reference to the recommendation of A/Prof Papantoniou.
50. After detailing treatments to date and other poor outcomes from conservative treatment, Dr Casikar comes to the conclusion that Mr Dang’s symptoms are a function of constitutional degenerative disease and then proceeds to answer the questions put to him by the respondent’s insurer on matters relevant to neck pain which he said could not be related to Mr Dang’s accident. He does not deal with the lumbar spine in any material way.
51. A second opinion is provided in a report dated 25 June 2019 where he deals with a query concerning whether or not Mr Dang suffered a right shoulder injury subsequent to the conceded lumbar spine injury in his accident on 14 June 2016.
52. Dr Casikar’s final report is dated 6 August 2020 and is addressed to the respondent’s solicitors. It appears to follow a consultation which lasted for 25 minutes on 30 July 2020. He examined the cervical spine. There was no reference to lower back pain but there is mention of numbness in both legs. There was concern with allegations of a right shoulder injury and Dr Casikar records that Mr Dang “probably suffered a soft tissue injury to his lumbar spine following his workplace accident on 14 June 2016”. He then suggests that he would have expected the injury to have resolved within about five to six weeks, suggesting that the present complaints are directly related to the injury. General comments are made to the effect that he would have expected a resolution in a short space of time – about six weeks and Mr Dang has a pain-focused personality.
Dr Y K Lee
53. Dr Lee saw Mr Dang for medico legal purposes and has provided a report dated 18 November 2021. Again there is a consistent history recording Mr Dang’s ongoing complaints of pain in both the neck and lumbar spine. He makes a diagnosis of L4-L5 disc injury causing back pain and right sciatica. He was specifically asked whether he agreed with the diagnosis provided by Dr Singh and in noting that there are many reports of Dr Singh, Dr Lee says that “in the lumbar spine there is annual tear and disc bulging from L3 to L5 giving rise to back pain and leg pain. I agree with the diagnosis”.
54. Dr Lee expresses scepticism about discectomy and fusion at L4-L5 being likely to bring about desired symptomatic relief. He also notes the pathology at L3-L4 and the risk of aggravating that level if the discectomy and fusion were to go ahead. He makes reference to studies showing there are no long term benefits from spinal fusion surgery although as applicant’s counsel Mr Tanner notes, these studies are not detailed.
55. Dr Lee favours conservative treatment specifically long term exercise therapy and multi-disciplinary cognitive behavioural and exercise rehabilitation programs.
56. He was asked to specifically consider whether the surgery proposed by Dr Singh is reasonably necessary. He does not outright oppose the surgery but doubts it will bring about the desired relief and comments that it does not address the other conditions at L3-L5 and L5-S1 degeneration.
57. Dr Lee’s last report is that dated 28 March 2022 and was served late. The admission into evidence of this report is addressed above.
58. Dr Lee expresses his opinion more strongly in the context of surgery and it not being reasonably necessary but does not really express an opinion different to that in his earlier reports. He expressed the scepticism that the surgery will solve Mr Dang’s problems and could compromise L3-L4 and L5-S1 levels.
59. Consistent with that view, he does not agree with Dr Gehr in so far as that practitioner supports Dr Singh’s opinion. Dr Lee’s opinions are, to his credit as medico legal practitioner, balanced and thorough in outlining the alternative to surgery that many in the community may be more attracted if they were in Mr Dang’s position.
REASONS
60. The preceding review while far from exhaustive sets out the treatment undertaken over six years during in which period despite debate over the true pathology and a shifting focus of treatment, it is accepted Mr Dang has continued to suffer lower back pain.
61. There is no contest over whether Mr Dang suffered an injury to his lumbar spine in the incident in 2016.
62. The respondent has continued to pay all medical expenses and indeed, in closing submissions experience counsel, Mr Baker, opined without instructions that whilst the respondent does not agree that proposed surgery in the form of L4-L5 decompression and fusion is reasonably necessary, the insurer may well be open to meeting the costs of more conservative treatment recommended by some of the doctors involved in Mr Dang’s treatment or assessment for medico legal purposes.
63. Mr Baker also conceded in his submissions that there has been consistency of complaints of pain and discomfort in the lumbar spine. Whether there is sufficient supporting neurological or other evidence to warrant the surgery in the face of the alternate more conservative treatment which some doctors have recommended, is the issue which the respondent presses.
64. Section 60 of the 1987 Act provides the basis for an order that the respondent pay for the costs of surgery provided it is reasonably necessary medical treatment.
65. The relevant test to determine whether a course of medical treatment is reasonably necessary appears in the decision of the Commission in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), and relevantly involves consideration of:
a. (a) the appropriateness of the particular treatment;
b. (b) the availability of alternate treatment and its potential of effectiveness;
c. (c) the costs of the treatment;
d. (d) the actual potential effectiveness of the treatment, and
e. (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
f.66. I propose to address those aspects seriatim but before doing so make some general observations. Mr Baker, on behalf of the respondent, urges caution in so far as Dr Singh’s change of tune is concerned, i.e. that he was emphasising the necessity for cervical spine surgery (preceding lumbar surgery) for some time and only after neck symptoms found not to be linked to Mr Dang’s accident, the focus turned to the lumbar spine. I understand a lawyer’s scepticism but a change of focus does not of itself invite criticism of Dr Singh. Mr Dang seeks relief from his pain. Surgery is not inexpensive and in the absence of funding for it and beyond enduring public hospital waiting lists, doctors are entitled to consider other treatment which may alleviate pain even if it involves a change of focus to another body part. The respondent does not deny lumbar surgery was also in contemplation by Dr Singh.
g.67. Mr Baker drew attention to the more conservative approaches taken by Dr Bazina and A/Prof Papantoniou and in so far as the latter is concerned, that the surgery proposed by that practitioner was nowhere near the invasive level of that which is now proposed by Dr Singh.
h.68. He noted that the preponderance of medical evidence actually favoured conservative treatment. Conservative treatment is certainly a reasonable option but those opinions are now becoming quite dated having been given some four years ago.
69. Mr Dang has undoubtedly endured attending a wide range of doctors and allied health professionals since his accident in 2016. One can well imagine he would suffer from depressed mood from time to time. Comment was also made regarding Mr Dang not pursuing exercise therapy more diligently and also driving to Wollongong after he discovered he enjoyed fishing (spending up to two hours in a car). He ought not be criticised for this to the extent it might convey inconsistencies of complaint or failure to participate more fully in conservative exercise regimes such that they are the only appropriate (reasonably necessary) treatment. Rather Mr Dang seems to have got on with things as he has worked his way through the medical and compensation system with an established lumbar spine injury for which he has rightly received compensation. He would have had good days and bad days; we do not operate in a “Temple of Perfection”.
j.70. Just as conservative treatment in the form of an exercise regime and pain management is one recommendation which might reasonably assist him, so is surgery. Medical minds may differ and the competing opinions make a determination for the purposes of s 60 of the 1987 Act difficult. Many people would instinctively avoid the risks of surgery particularly to the spine but it equally may produce the result Mr Dang desires and an experienced treating surgeon has been recommending it for over three years.
k.71. Regard must also be had to Mr Dang’s views on the matter. He is clearly cognisant of what he wishes to do to the extent that he took the steps of cancelling surgery recommended by A/Prof Papantoniou at the last minute. This self-awareness is commendable and would not have been an easy decision. It reflects a man who will not unnecessarily expose himself to surgery. Indeed, he might choose to cancel again when the proposed lumbar surgery is scheduled to go ahead. Mr Dang as I have noted, has put up with quite a lot both in terms treatment and the medico legal world.
l.72. Dr Casikar is out of step with the other practitioners including Dr Lee. He has primarily focused upon the neck injury and the suggestion that Mr Dang was fully recovered or ought to be fully recovered from the effects of his injury within six weeks is so out of step with all the other medical evidence I discount the opinion accordingly. There are obvious attractions to the more conservative opinions expressed by Dr Bazina and A/Prof Papantoniou and one can well understand Dr Lee’s position however, the fact is Mr Dang’s pain has gone on for a long time and the alternative is surgery.
m.73. That of course is not determinative of whether the surgery is reasonably necessary and ‘the end of the line’ type approach to the matter which has been addressed by this Commission in more recent times is to be avoided. Just because all other treatments have failed or an applicant has given up, does not of itself justify a conclusion that surgery ought proceed.
n.74. Turning to the Diab points;
Is the treatment appropriate?
a.75. Dr Singh has had lengthy involvement in the applicant’s treatment. He did not immediately proceed to recommend lumbar surgery, or for that matter cervical spine surgery. A range of conservative treatments followed Dr Singh’s involvement after what had already been a lengthy period of different loads of treatment since the time of the accident. Dr Lee does not say the treatment is inappropriate but rather that he doubts it will assist. A/Prof Papantoniou was prepared to undertake surgery although not the same form being less invasive. Time has move on since that opinion.
b.76. It is a difficult question to determine but the medical evidence importantly from the treating specialist dictates that the surgery proposed is a reasonably necessary treatment.
Is there alternative treatment available and what is its likely effectiveness?
a.77. There is no doubt there is alternate treatment available and Mr Dang has pursued it for a lengthy period although perhaps not as diligently as he might have from time to time. Mr Baker drew attention to his pursuit of Chinese medicine as a remedy when perhaps he could have adhered more closely to Dr Bazina’s recommendations. A/Prof Papantoniou of course also recommends conservative treatment but ultimately felt that some form of surgical intervention was necessary. Mr Baker opined that the insurer might be prepared to pay for the couple of treatments contemplated by Dr Lee, being long term exercise therapy and cognitive pain management.
b.78. Alternate treatments are no doubt readily available and may be effective but so may the other option, surgery, be effective. There is perhaps a third option which is of course to do nothing but no practitioner seems to be saying that.
The cost of treatment
a.79. Cost of treatment is a factor in consideration of whether the surgery is reasonably necessary. The ARD seeks the amount of $19,048.50 which is the fee that Dr Singh would charge. There would be a period of hospitalisation, anaesthetist and other medical support at the time of the surgery and no doubt a period of convalescence and therapy to assist Mr Dang. There is no evidence on point but conservatively, future s 60 expenses are I anticipate likely to be in the region of $30,000 - $35,000.
b.80. In response to a direct question from me in the arbitration, the parties agreed that the number of physiotherapy treatments was (already) well in excess of $40,000.
c.81. There has been significant medical investigation and treatment the such that expenditure to date no doubt approaches or exceeds the likely future expenses. It seems to be that the cost of treatment would not be out of proportion to that which has already been incurred and it ought not influence the outcome. One might rhetorically ask what is the cost to Mr Dang of denying him his choice of an alternative equating in cost to what the respondent’s insurer has probably spent without alleviation of his symptoms?
Will the treatment be effective?
a.82. This is the unknown question but as forcefully submitted by the applicant’s counsel Mr Tanner, Mr Dang ought be given the opportunity to find relief for what are clearly the long continuing painful symptoms of his accident. Dr Singh has seen Mr Dang for several years believes it is an option for him to find relief.
Do the medical experts accept the treatment as being appropriate and likely to be effective?
a.83. This is possibly a way of answering all of the preceding questions. The matter is finally balanced and from a layman’s perspective there are clearly risks. They are however risks that Mr Dang is willing to undergo to obtain relief for his pain. As I have noted however, he may change his mind as he did when A/Prof Papantoniou recommended surgery in 2018.
b.84. He has not exhausted all of his treatment options and Mr Baker outlined what these might be however, he is entitled to pursue an option which his treating specialist believes is reasonably necessary. Dr Gehr adds support for this and I do not see that it is for the Commission to stand in his way on this occasion. Dr Lee accepts that Mr Dang is not exaggerating or displaying any behaviours which might be inconsistent or exaggerated. Mr Dang ought be allowed to pursue a course which may alleviate his pain and discomfort of many years and of course it remains open for him to still pursue the options which the respondent suggests are a better alternative. This is not an end of line case, Mr Dang has choices and his choice is to have surgery on the advice of his treating surgeon; that position is supported by the evidence and ought be respected.
c.85. I therefore find that the surgery proposed being decompression and fusion at L4-L5 level is reasonably necessary as a consequence of the injury suffered by Mr Dang on 14 June 2016 and the respondent should meet the expenses of such surgery and related treatments pursuant to s 60 of the 1987 Act.
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