Raffie v HIH Workers Compensation (NSW) Ltd t/as NRMA Workers Compensation (NSW) Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Raffie v HIH Workers Compensation (NSW) Ltd t/as NRMA Workers Compensation (NSW) Ltd [2022] NSWPIC 135
APPLICANT:	Lookman Raffie
RESPONDENT:	HIH Workers Compensation (NSW) Ltd t/as NRMA Workers Compensation (NSW) Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	30 March 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims the cost of recommended surgical treatment for injury to sustained to his low back in 2000 in the course of his employment with the respondent; the respondent disputes the recommended surgical treatment is reasonably necessary treatment for the injury the applicant sustained to his low back in 2000; Held– the recommended surgical treatment is not reasonably necessary medical treatment for the injury the applicant sustained to his low back in 2000.
DETERMINATIONS MADE:	1. By consent, the applicant discontinues his claim for weekly compensation payable under the Workers Compensation Act 1987, and I dispense with requirement to lodge notice of discontinuance relevant to this component of the applicant’s claim. 2. Award for the respondent with respect to the applicant’s claim for costs payable under s 60 of the Workers Compensation Act 1987, being the costs associated with recommended surgical treatment in the nature of Anterior Lumbar Interfusion Fusion L4-S1 (Stage 1) and L4-S1 Posterior Spinal Fusion (Stage 2).

STATEMENT OF REASONS

BACKGROUND

The applicant, Lookman Raffie (Mr Raffie), was previously employed by the respondent, HIH Workers Compensation (NSW) Ltd t/as NRMA Workers Compensation (NSW) Ltd (HIH), as an insurance underwriter. Mr Raffie is currently 55 years of age.
In these proceedings describes the circumstances of injury the subject of his claim in the following terms:
“On or about 15 February 2000, the applicant suffered injury to his back when he slipped on marble steps on his way home as he was leaving the AMP building which is where his office was located. His foot slipped, and as he tried to hold himself from falling, he felt his back jar and he had sharp pain in his back”.
Mr Raffie claims weekly benefits payable under s 36 and s 37 of the Workers Compensation 1987 (1987 Act) from 15 September 2020 ongoing and he also claims the costs associated with surgical treatment in the nature of an Anterior Lumbar Interfusion Fusion L4-S1 (Stage 1) and L4-S1 Posterior Spinal Fusion (Stage 2) under s 60 of the 1987 Act. Mr Raffie’s claim for compensation is declined and he has been issued with notices dated 29 October 2020[1] and 4 November 2021[2] in which he has been advised of the decision to decline his claim. In essence, HIH disputes Mr Raffie suffers an incapacity for work and requires medical treatment resulting from the injury he sustained to his low back in February 2000.
[1] Application to Resolve a Dispute (ARD) at p 46.
[2] Reply at p 6.
In previous proceedings (Workers Compensation Commission Matter No 14057-5) HIH agreed to pay Mr Raffie permanent impairment compensation payable under s 66 of the 1987 Act for 9% permanent impairment of his back, 5% loss of efficient use of his left leg at or above the knee, and 20% permanent loss of efficient use of sexual organs resulting from the injury he sustained in February 2000 in the course of his employment with HIH[3].
[3] Reply at p18.

ISSUES FOR DETERMINATION

At arbitration hearing Mr Raffie discontinued his claim for weekly benefits payable under the 1987 Act and accordingly the parties agree the following issue remains in dispute:
(a) whether the recommended surgical treatment in the nature of an Anterior Lumbar Interfusion Fusion L4-S1 (Stage 1) and L4-S1 Posterior Spinal Fusion (Stage 2) is reasonably necessary treatment resulting from the injury Mr Raffie sustained to his low back in February 2000.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Mr Raffie’s claim for compensation came before me for teleconference on 4 February 2021. Ms Ratnasinghan appeared in the interests of Mr Raffie and Mr Bennett appeared in the interests of HIH. Mr Raffie was present.
With Mr Raffie’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 23 March 2021. Mr Carney of counsel appeared in the interests of Mr Raffie, instructed by Ms Ratnasinghan. Ms Compton of counsel appeared in the interests of HIH instructed by Mr Bennett. Mr Raffie was present. Mr Raffie discontinued his claim for weekly compensation payable under the 1987 Act.
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

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 22 February 2022 lodged on behalf of Mr Raffie and attached documents (AAALD), and
(d)    Application to Admit Late Documents dated 8 March 2022 lodged on behalf of HIH and attached documents (RAALD).

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statements of Mr Raffie

Mr Raffie relies on two statements, the first is dated 2 December 2021[4] and the second is dated 21 February 2022[5].
[4] ARD at p 1.
[5] AAALD at p 1.
In his initial statement Mr Raffie said:
“On or about 15 February 2000 I suffered injury to my back when I slipped on marble steps on my way home as I was leaving the AMP building which is where our office was located. From memory it was a rainy day and my foot slipped. I tried to hold myself from falling and in the process felt my back jar and I had a sharp pain in my back. I took a few breaths and then continued on my way home.
The next morning I woke up and I was not able to move at all and I had sharp pain travelling down my left leg. I couldn’t move from my bed. Later that day I went and saw my GP. He gave me time off work and sent me to have scans and gave me pain killers.
I had a few weeks off work and then returned to work. I was still in pain however I needed to get back to work so I could earn money.
I continued to take pain medication to treat my pain and try my best to carry out my work duties.
I changed jobs a few times following my injury. Between 2006 and 2017 I decided to take a break from work all together because my back pain was really affecting my abilities to work. I received Centrelink benefits during this time. Eventually I had to push myself to go back to work.
My pain has continued to increase over the years and from about May 2020 I have not been able to work. I have been receiving Centrelink benefits since then.
My doctor referred me to see Dr Singh in 2020 due to the ongoing problems I have been having which have been getting in the way of my ability to return to the workplace. Dr Singh told me that the issues in my back require surgery.
I have tried to find employment which isn’t too difficult however if I stand for more than 5 – 10 minutes my back starts to hurt me. If I sit for 5 – 10 minutes my back also starts to hurt me. For this reason I cannot find a job that will work with my restrictions even if it is an office job.
I want to get back to the workforce as I have always been someone who has worked.
Also I have been taking pain medication for the 21 years and this lead to me suffering from 3 burst ulcers due to the medication intake. I believe that this surgery will give me an opportunity to cut out the medication”.
In his subsequent statement Mr Raffie explained that the correct date of injury is 1 February 2000 and this correct date is reflected in the Medical Assessment Certificates issued in his earlier proceedings.

Treating medical evidence
Diagnostic imaging

An X-ray of the lumbar spine dated 3 February 2000 reportedly demonstrated no significant abnormality[6].
[6] ARD at p 47.
A CT scan of the lumbar spine dated 3 February 2000 reportedly demonstrated a small protrusion of calcified disc material at the lumbosacral disc on the left side, which was causing minor displacement of the left S1 nerve root[7].
[7] ARD at p 47.
A lumbosacral spine CT scan report dated 7 January 2013[8] provided a clinical history of “low back ache with right sciatica” and in part demonstrated:
“At L5/S1 there is a small disc herniation compressing the left nerve root and compounded by small posterior osteophytes in the mid line and to the left side”.
[8] AALD at 70.
An X-Ray and MRI scan dated 27 October 2020 report[9] noted a clinical history of “L4/5 disc disease, work related injury after a fall downstairs” and provided conclusion there were multilevel disc bulges with no significant central canal narrowing, foraminal narrowing or nerve impingement at any level.

Medclinic Panania
[9] Reply at p 74.

The clinical records of Dr Vij, who practises out of Medclinic Panania[10] are before the Commission and it is evident from these records Mr Raffie suffered quite significant health issues for which he consulted Dr Vij between 9 January 2005 and 16 April 2013.
[10] AAALD at p 58.
Although difficult to read, it appears that on 9 January 2005 Dr Vij took a history from Mr Raffie:
“Fall at work 2002 since then L sciatica over buttocks to back of knee”
Dr Vij appeared to have prescribed analgesic medication. Mr Raffie does not appear to have consulted with Dr Vij again until 8 July 2007 on which occasion there is no complaint of low back or left leg sciatica. While there is no further complaint of low back or left leg sciatica in Dr Vij’s notes, there is the lumbosacral spine CT scan report dated 7 January 2013 that provided a clinical history of “low back ache with right sciatica” and which in part concluded:
“At L5/S1 there is a small disc herniation compressing the left nerve root and compounded by small posterior osteophytes in the mid line and to the left side”.

Campbelltown General Practice

The clinical records of Dr Tran, who practises out of Campbelltown General Practice[11] are before the Commission and it is evident from these records Mr Raffie suffers quite significant health issues for which he consulted Dr Tran between 11 August 2015 and 10 February 2020.
[11] AALD at p 13.
Although Mr Raffie made no complaint of back or left leg symptoms during consultation on 18 September 2019, Dr Tran made a note of Mr Raffie sustaining a “work related injury to his lower back” in the context of Mr Raffie requesting a script for Viagra.

Myhealth Macarthur Square

The clinical records of Myhealth Macarthur Square are before the Commission[12] and it is evident from these records Mr Raffie suffers quite significant health issues for which he consulted doctors at the practice.
[12] ARD at p 20 and RAALD at p 6.
At initial consultation on 30 January 2020 there is a note of “LBP” but there is no complaint of low back pain or left leg symptoms until 13 November 2020 when Dr Kwan recorded complaint of low back pain with note of an L4/5 disc bulge demonstrated on MRI and Mr Raffie being under the care of Dr Singh.

Workers Doctors

Mr Raffie has come under the general medical care of Dr Lim and in his report dated 15 September 2020[13] Dr Lim confirmed Mr Raffie initially consulted with him on 11 September 2020. Dr Lim described the circumstances of injury occurring in February 2000 in terms of Mr Raffie suffering a shoulder and low back injury “after he slipped and fell down stairs at work” and noted his current complaint included “lower back pain radiating down L) leg”.
[13] ARD at p 15.
Dr Lim provided diagnosis which included “Lumbar spine radiculopathy” and also, quite nonsensically, provided opinion:
“From my understanding of the injured worker’s role as an Insurance Underwriter, it would be reasonably to conclude that the mechanism of injury was the direct result of performing those specified tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternate mechanism of injury, but would be happy to consider such evidence if provided to me”.
Dr Lim referred Mr Raffie to Dr Singh for review and management of his low back symptoms.

Dr Singh

Dr Singh is Mr Raffie’s treating spinal specialist. Mr Raffie came under his care following referral from Dr Lim for management of his low back and left leg pain. In his initial report dated 22 September 2020[14] Dr Singh wrote of Mr Raffie:
“He had an injury to his back when he fell down the stairs on his way back from work. This was a few years ago. He has been having increasing back pain, with radiation down the left leg to the knee.
Recently he was having a colonoscopy and had an MRI scan for this. The MRI scan done at Campbelltown Public Hospital reported that he had significant disc changes in the lower lumbar spine”.
[14] ARD at p 13.
With Dr Singh unable to review the MRI scan referred he made arrangement for Mr Raffie to undergo X-ray and MRI of the lumbar spine. Dr Singh’s accompanying notes[15] describe Mr Raffie as having sustained “significant back injury in 2000 when he fell down the steps of Circular Quay on his way back from work”.
[15] ARD at p 14.
In his subsequent report dated 15 June 2021[16] Dr Singh described Mr Raffie as suffering “persistent lower back pain from the structural disease in the lumbar spine” and following discussion about “the pros and cons, risks and benefits of surgical and nonsurgical treatment” Dr Singh wrote:
“He understands the risks and is keen to proceed with his surgical option as a more durable solution to his ongoing lumbar pathology. I shall request the insurer for approval for staged lumbar surgery from L4 to S1 followed by a posterior L4 to S1 decompression and fusion operation”.
[16] ARD at p 11.

30. In his most recent report dated 3 February 2022[17], in response to specific questioning as to Mr Raffie’s current need for surgical treatment, Dr Singh provided opinion:

“His employment was the main contributing factor to his current condition and to the need for the proposed surgery. His back was further injured when he fell down the stairs on his way back from work”.
[17] AAALD at p 11.

Independent medical evidence

Dr Crane

Mr Raffie was assessed by Dr Crane in his capacity as independent medical examiner on 25 November 2002 and he provided a report dated the same day[18]. While Dr Crane’s report principally canvasses injury Mr Raffie sustained to his hand in a fall on a train on 5 February 2001, Dr Crane noted a past history:
“There was a fall at work on 15/2/2000 in which he sustained a back injury which necessitated having two weeks off work. There were no ongoing problem with the back following that incident”.

Dr Matalani
[18] Reply at p 36.

Mr Raffie was assessed by Dr Matalani in his capacity as independent medical examiner on 5 December 2002 and he provided a report dated the same day[19]. While Dr Matalani’s report principally canvasses injury Mr Raffie sustained to his hand in the fall on a train on 5 February 2001, Dr Matalani noted on examination Mr Raffie was “walking with a normal gait and was not limping” and noted a past history:
“A previous accident occurred on 15^th February 2000, whilst he was employed by HIH Workers Compensation. On the way home from work he slipped down the steps and strained his low back. He went home and rested. The following day he sneezed suddenly and aggravated the pain in his back. He had to have two weeks off work and consulted Dr Jim Oshon who referred him for an x-ray. Mr Raffie returned to work and continued in his pre-injury duties. The back symptoms have resolved completely and he is now asymptomatic”.
[19] Reply at p 40.
Mr Raffie was re-assessed by Dr Matalani on 7 October 2004 and he provided a report dated the same day[20]. Dr Matalani again noted on examination Mr Raffie was walking with a normal gain and not limping and again noted the history of the incident occurring in February 2000. However, on this occasion Dr Matalani made reference to Mr Raffie having consulted with Dr Leung who referred him for X-ray and CT scan, which Dr Matalani said demonstrated a small calcific protrusion of the lumbosacral disc on the left side, and said of Mr Raffie’s symptoms following his return to work on pre-injury duties:
“His symptoms improved significantly and virtually resolved. However he would get residual symptoms with prolonged sitting, prolonged standing or heavy manual handling. He developed pain in the left leg particularly with prolonged sitting and prolonged standing. Since he has had intermittent pain in the low back and would see his doctor for analgesia. He was prescribed Panadeine Forte for the pain intermittently”.
[20] Reply at p 45.
Dr Matalani provided diagnosis of a soft tissue injury and chronic musculoligamentous strain of the back, with long term prognosis as guarded. He said Mr Raffie “is likely to require further conservative and medical management and intermittent physiotherapy”.

Dr Allman

Mr Raffie was assessed by Dr Allman in his capacity as independent medical examiner on 7 April 2003 and he provided a report dated the same day[21]. Dr Allman’s report canvasses the injury Mr Raffie sustained to his hand in the fall on a train on 5 February 2001 and there is no mention of complaint made by Mr Raffie of back or left leg symptoms. Dr Allman specifically said he obtained no history of previous injury sustained by Mr Raffie to his back.

Associate Professor Fearnside
[21] Reply at p 53.

Mr Raffie was assessed by Associate Professor Fearnside on 28 February 2005 and he provided a report dated the same day[22]. Associate Professor Fearnside reported a history of injury and sequelae:
“Mr Raffie stated that on 15/2/00, he was leaving work in the AMP building and was descending some stairs when he slipped, falling one step and jarring his back.
As a result of this incident he sustained an injury to the back.
He noted the immediate onset of discomfort and stiffness in his back but the pain was not severe at that time. He said that he was intending to walk to the Circular Quay railway station and then home. He was able to get home and went to bed. The next morning when he awoke and rose, he sneezed and had very severe back pain with left sided sciatica. Pain was referred to the left foot.
He saw his family doctor, Dr Peter Leung who sent him for X-rays. He took Panadol and Panadeine Forte for pain relief. Mr Raffie went off work and spent two weeks in bed during which time he experienced ongoing back pain and left sided sciatica… After ten days he mobilised and was able to return to normal duties.
Over the years, Mr Raffie has experienced recurrent low back pain. Pain was aggravated when he was playing sport for example squash in 2003. After this episode he required Panadeine Forte and the pain settled. He had experienced ongoing back pain when sitting in a chair for a prolonged period of time. There had been no further injuries to his low back. When his low back pain exacerbated, he experienced left sided sciatica. The pattern of pain varied”.
[22] Reply at p 56.
Following clinical examination and review of the diagnostic imaging dated 3 February 2000 Associate Professor Fearnside provided opinion Mr Raffie sustained a soft tissue injury to his back in the incident occurring in February 2000, which “has continued to cause problems over the years”. He described pain as having “persisted” with Mr Raffie suffering “intermittent symptoms of left sided sciatica but no evidence of focal neurological disorder”.

Dr Kalnins

Mr Raffie was assessed by Dr Kalnins in his capacity as independent medical examiner on 9 December 2004. Dr Kalnins provided a report dated 10 June 2005[23]. Dr Kalnins reported a history of injury and sequelae:
“Mr Lukmaan Raffie gave a history that on 2 February 2000 he slipped going down some stairs at work. He experienced low back pain. He was already on his way home and he continued on his trip home. The next morning he was ironing some clothes in readiness to go to work when he sneezed and experienced pain in his lower back and his left leg. He sought attention from his local medical officer who had x-rays performed. He is not sure of the results of these x-rays. He was treated with Panadeine medication and possibly anti-inflammatory medication. He needed to stay at home for two weeks. Apart from oral medication, he had no other treatment”.
[23] Reply at p 66.
Following clinical examination during which Dr Kalnins noted Mr Raffie walked normally, and review of the reports of the X-ray and CT scan lumbar spine dated 3 February 2000, Dr Kalnins provided opinion Mr Raffie suffered an episode of low back pain following a slip on his way home from work in February 2000. While Dr Kalnins accepted Mr Raffie “now complains of intermittent lower back symptoms”, he said “most of these symptoms have settled and at this stage he has not required any medical treatment for some time for these symptoms. Although Dr Kalnins cautioned it was possible that in the future Mr Raffie may “require conservative management for the presence of the lumbosacral disc protrusion demonstrated in the CT scan he said “it is extremely unlikely that he will require any operative treatment”.

Dr Harris

Mr Raffie was assessed by Dr Harris in her capacity as independent medical examiner on 5 October 2005 and she provided a report dated the same day[24]. Dr Harris reported a history of injury and sequelae:
“He had left work and was going down the stairs to Circular Quay when he slipped down one step. He did not fall down but felt that his back was jarred and there was ongoing discomfort in the lower back. He went home with a sore back and woke up with back discomfort. He states that as he was getting ready to go to work he sneezed and there was very severe back pain radiating down the left leg and he had difficulty moving. He consulted his family doctor and was referred for x-rays and prescribed Panadeine Forte and bed rest for two weeks. Although he did improve with this regime his back pain persisted and he returned to work carrying out the same duties. He states that he continued working with days off intermittently and with Panadeine Forte for the relief of pain despite this causing constipation. The patient stated that the back pain persisted since that time. He has not undergone any further investigations or had any specific treatment. He states that surgery has been suggested but he has declined this.
At present he states that he has been unable to find employment and he blames this to his workers compensation status. As he need to work he obtained a truck driver’s licence and worked intermittently for his brother. He states that this work usually causes increased pain and he has to increase his intake of Panadeine Forte”.
[24] Reply at p 69.
Following clinical examination, during which Dr Harris described Mr Raffie as “a young man of stated age who walks in holding on to his back and with some left sided limp”, and review of the reports of the X-ray and CT scan lumbar spine dated 3 February 2000, Dr Harris provided opinion the incident occurring in February 2000 “would have had the potential to cause a lower back strain with a soft tissue injury”. In response to specific questioning she provided diagnosis of lower back strain with ongoing lower back and left leg pain, and provided prognosis as “guarded in view of his complaint of persistence of symptoms for such a prolonged period. He has not aggravated a pre-existing condition”.

Associate Professor Hope

Mr Raffie was assessed by Associate Professor Hope on 12 October 2021 “via teleconference”. Associate Professor Hope provided a report dated the same day[25]. Associate Professor Hope accepted Mr Raffie suffered pre-existing lumbar spondylosis, which was age related, but described it as:
“… not symptomatic, not investigated, not diagnosed and not treated. Therefore it is largely irrelevant”.
[25] ARD at p 3.
Associate Professor Hope described the incident occurring in February 2000 and sequelae (although he incorrectly referredto his assessment of Mr Raffie occurring “18 months after the injury”):
“An axial loading injury to the lumbar spine occurred during a slip on stairs whilst walking home from work on 15 February 2000. Nonoperative treatment has failed and surgery is proposed. Today, 18 months after the injury, there is lumbar pain and left sciatica with stiffness causing a severe functional loss. Examination shows lumbar tenderness and asymmetric stiffness with reduced sensation in the anterior thigh. The X-ray and MRI shows the pre-existing lumbar spondylosis.”
Associate Professor Hope provided diagnosis of “a permanent aggravation of lumbar spondylosis”. Associate Professor Hope accepted Mr Raffie required surgical treatment in the nature of L4/S1 fusion as recommended by Dr Singh and provided opinion this requirement for surgical treatment was “work-related” as Mr Raffie had previously been “symptom-free”. He described the recommended surgical treatment as “reasonably necessary” treatment for the injury Mr Raffie had sustained to his low back in the incident occurring in February 2000.

Medical Assessment Certificates

In the Medical Assessment Certificate dated 23 February 2006[26] Dr Taylor in his capacity as Approved Medical Specialist (AMS) provided a history:
“Mr Raffie gave me a history that on 1 February 2000, he was on his way home from work, and as he went down the steps of the AMP building at Circular Quay he slipped on one of the steps, landing on his feet on the step below. He jarred his lower back considerably, but did not fall over. He had discomfort in the lower back but was able to continue home without undue problem.
The next morning he awoke and got out of bed, and then sneezed. He immediately experienced sudden, severe pain in the lower central back that radiated down the posterior aspect of his left leg as far as his foot.
The pain was severe so Mr Raffie consulted his family doctor. He had X-rays performed and was told they showed nothing significant. He was given oral analgesia, given two weeks off work and told to rest.
He did all of these things but the pain continued. Indeed it has done so to the present day”.
[26] ARD at p 61.
Mr Raffie’s treatment was Panadeine Forte “as necessary for pain” and his symptoms were described in terms of “significant back pain”:
“The current situation is that Mr Raffie has constant pain in the central lower part of his back. This pain is worsened by all movement of his back, and when it is worsened it usually radiates down his left leg as far as the foot”.
In the Medical Assessment Certificate dated 6 March 2006[27] Dr Bhattacharyya in his capacity as AMS provided a history:
“The patient told me that he was at work on 1 February 2000. After he finished work he was coming down the steps when he slipped accidently but did not actually fall. He jarred his back. At that time he did not feel any pain but the next morning he had low back pain. In the morning when he sneezed the pain increased in the back and it started radiating down the left leg.
He saw Peter Leung at Glenfield. X-ray was done and he was given analgesics. He was advised to rest in bed for two weeks. However, some amount of pain continued on and off”.
[27] ARD at p 52.
At the time of assessment Mr Raffie had received no physiotherapy treatment and had not consulted with a specialist. His present treatment was Panadeine Forte “now and then” and symptoms were recorded as:
“1.     Some mornings his back feels stiff and bending forward to was his face is a problem.
2.     After a shower the back feels better.
3.     There is some amount of pain in the back all of the time.
4.     Sometimes the pain radiates to the back of the left thigh”.
Following clinical examination and review of comment provided by Dr Matalani relevant to the X-ray of the lumbar spine dated 3 February 2000 and CT lumbosacral dated 2000, the AMS provided diagnosis of “soft tissue injury of L Sacral Spine without radiculopathy” and provided opinion “the calcified disc at L5/S1 is definitely long standing”.

Submissions

Ms Compton and Mr Carney made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.

Determination

Is the surgical treatment in the nature of an Anterior Lumbar Interfusion Fusion L4-S1 (Stage 1) and L4-S1 Posterior Spinal Fusion (Stage 2) reasonably necessary treatment resulting from the injury Mr Raffie sustained to his low back in February 2000 in the course of his employment with HIH?

Section 60 of the 1987 Act relevantly provides:
“(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).”
While liability is not disputed for an injury Mr Raffie sustained to his low back in February 2000 in the course of his employment with HIH, HIH has disputed the surgical treatment with which Dr Singh seeks to treat Mr Raffie is not reasonably necessary treatment for that injury, as required by s 60 of the 1987 Act.
The onus of demonstrating the need for the surgical treatment proposed by Dr Singh arises as a result of the injury Mr Raffie sustained to his low back in February 2000 lies with Mr Raffie and the relevant principles of onus of proof are discussed in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[28]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[28] [2008] NSWCA 246.
Whether the need for reasonably necessary treatment arises as a result of a particular injury is a question of causation and must be determined on the facts in each case as discussed in Kooragang Cement Pty Ltd v Bates[29]. Mr Raffie is required to establish the injury he sustained to his low back in February 2000 materially contributes to the need for the surgical treatment proposed by Dr Singh and this requirement was confirmed in Murphy v Allity Management Services Pty Ltd[30].
[29] (1994) 35 NSWLR 452.
[30] [2015] NSWWCCPD 49.
Mr Raffie said he sustained injury to his low back in February 2000 when he slipped on steps on his way home from work. He described an attempt to stop himself from falling when his foot slipped and feeling pain in his back. He described an intensifying of symptoms the next day and attending on his general practitioner. He said he was referred for diagnostic imaging, provided with analgesic medication and time off work.
While there are no clinical records available relevant to Mr Raffie’s consultation with his general practitioner the day following the incident (variously noted to be Dr Oshon and Dr Peter Leung) an X-ray of the lumbar spine dated 3 February 2000, which is not before the Commission, reportedly demonstrated no significant abnormality and a CT scan of the lumbar spine dated 3 February 2000, which is also not before the Commission, reportedly demonstrated a small protrusion of calcified disc material oat the lumbosacral disc on the left side, which Dr Bhattacharyya described to be “definitely long standing”.
Mr Raffie was assessed by a number of independent medical examiners between November 2002 and October 2005, relevant to both the injury he sustained to his low back in February 2000 and an injury he sustained to his right hand in February 2001 and I think it is fair to say Mr Raffie has provided a consistent history of the injury he sustained to his low back in February 2000 to the independent medical examiners, albeit there is variance as to the actual February 2000 date of occurrence.
Dr Crane reported on 25 November 2002 Mr Raffie suffered “no ongoing problem with the back following that incident”, Dr Matalani reported on 5 December 2002 “the back symptoms have resolved completely and he is now asymptomatic” and Dr Allman specifically reported on 7 April 2003 he obtained no previous history of injury sustained by Mr Raffie to his back.
It was not until 7 October 2004 that Dr Matalani reported on re-assessment that Mr Raffie suffered residual low back symptoms and a couple of months later on 9 December 2004, although not reported until 10 June 2005, Dr Kalnins noted Mr Raffie complained of intermittent low back symptoms. On 18 February 2005 Associate Professor Fearnside reported Mr Raffie had experienced recurrent low back pain with intermittent symptoms of left sided sciatica “over the years” and some nine months later Dr Harris reported Mr Raffie had complained of back pain since the incident occurring in February 2000.
On 23 February 2006 Dr Taylor likewise described complaint by Mr Raffie that his low back pain and left leg symptoms had continued since the incident and on 6 March 2006 and Dr Bhattacharya described complaint by Mr Raffie that “some amount of pain continued on and off” since the incident.
There are no clinical records available relevant to any consultations Mr Raffie may have had with his general practitioners about the injury he sustained to his low back in February 2000 until he consulted with Dr Vij at Medclinic Panania on 9 January 2005 when Dr Vij made the note “fall at work 2002 since then L sciatica over buttocks to back of knee” and prescribed Mr Raffie with analgesic medication. Thereafter, there does not appear to be any further complaint of back pain made by Mr Raffie to his general medical practitioners at Medclinic Panania, Campbelltown General Practice and Myhealth Macarthur Square until he consults with Dr Kwon on 13 November 2020 (by which time Mr Raffie has consulted with Dr Lim on 15 September 2020, with complaint of low back pain radiating down his left leg, and had been referred for spinal review with Dr Singh). This said, with the lumbosacral CT scan dated 7 January 2013 amongst the clinical records of Medclinic Panania, a medical consultation around that time canvassing low back symptoms suffered by Mr Raffie can perhaps be inferred.
The absence of documentary complaint by Mr Raffie to his treating general medical practitioners is I believe, a serious omission in Mr Raffie’s case. There is no documented contemporaneous complaint to his general medical practitioner. There is no documented complaint to his general medical practitioners during the period between the incident occurring and when Mr Raffie was re-assessed by Dr Matalani on 7 October 2004 with complaint of residual low back complaint in the context of previous reporting by Dr Crane, Dr Matalani and Dr Allman of no continuing low back complaint resulting from the incident. While there was one documented complaint to Dr Vij on 9 January 2005 and apparent referral for diagnostic imaging of his lumbar spine which was reported on 7 January 2013, there is no further documented complaint to his general medical practitioners until Mr Raffie consulted with Dr Lim on 15 September 2020, with referral to Dr Singh for medical management of his low back and left leg pain.
Although Dr Singh provided opinion Mr Raffie’s employment with HIH is the main contributing factor to his current condition and also to the need for the surgical treatment he has proposed, Dr Singh noted a history that Mr Raffie had suffered a significant back injury when he “fell down the stairs” in 2000 and it is not evident Dr Singh has had the opportunity to review either the X-ray of the lumbar spine dated 3 February 2000 or the CT scan of the lumbar spine dated 3 February 2000, which reportedly demonstrated no significant injury sustained by Mr Raffie to his lumbar spine.
Associate Professor Hope provided diagnosis of injury in terms of “a permanent aggravation of lumbar spondylosis” resulting from the incident, provided opinion the surgical treatment Dr Singh proposed results from this injury, and provided opinion the surgical treatment is reasonably necessary treatment for the injury. However, it is not evident Associate Professor Hope had available to him the X-ray of the lumbar spine dated 3 February 2000, the CT scan of the lumbar spine dated 3 February 2000 or any treating medical records or reports relevant to Mr Raffie’s low back injury.
While I accept neither Dr Singh or Associate Professor Hope are required to “offer chapter and verse” in support of opinion provided[31] and I accept I am required to assess their reports in light of all the evidence[32], in circumstances where Mr Raffie consulted with Dr Singh and was assessed by Associate Professor Hope some 20 or so years after the incident and there is before the Commission very little documented complaint by Mr Raffie of low back pain to his treating general medical practitioners during that 20 year period, I am of the view I cannot afford much weight to the opinions provided by Dr Singh and Associate Professor Hope.
[31] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; Australia Security and Investments Commission v Rich [2005] NSWCA 152.
[32] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
For the reasons discussed above, I do not accept Mr Raffie has discharged the onus of proof required of him and I do not accept the injury Mr Raffie sustained to his low back in the incident occurring in February 2000 materially contributes to the surgical treatment proposed by Dr Singh.
Even if I was to accept the injury Mr Raffie sustained to his low back in the incident occurring in February 2000 materially contributes to the surgical treatment proposed by Dr Singh (which I do not), s 60 of the 1987 Act provides that the surgical treatment proposed by Dr Singh is “reasonably necessary” treatment resulting from that injury.
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[33]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
His Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
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.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition”.
[33] (1986) 2 NSWCCR 32 (Rose).

In Diab v NRMA Ltd[34], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[34] [2014] NSWWCCPD 72 (Diab).
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts”.
Dr Singh has proposed surgical treatment but has provided no comment as to the availability of alternative treatment and its potential effectiveness and has provided no comment as to the actual or potential effectiveness of the proposed surgical treatment. Associate Professor Hope accepted the surgical treatment proposed by Dr Singh is reasonably necessary, merely noting “nonoperative treatment has failed” and providing comment the proposed surgical treatment “will benefit” Mr Raffie. There is very little documented comment on any conservative treatment Mr Raffie may have received during the 20 year period between the incident occurring in February 2000 and his consultation with Dr Singh in 2020 and his assessment with Associate Professor Hope in 2021. As to whether the surgical treatment is “reasonably necessary” treatment for the injury Mr Raffie sustained to his low back in the incident occurring in February 2000 as required by s 60 of the 1987 Act, as before, I am of the view I cannot afford much weight to the opinions provided by Dr Singh and Associate Professor Hope.
For the reasons discussed above, I do not accept Mr Raffie has discharged the onus of proof required of him and I do not accept the recommended surgical treatment in the nature an Anterior Lumbar Interfusion Fusion L4-S1 (Stage 1) and L4-S1 Posterior Spinal Fusion (Stage 2), which is proposed by Dr Singh, is reasonably necessary treatment resulting from the injury Mr Raffie sustained to his low back in February 2000 in the course of his employment with HIH as required by s 60 of the 1987 Act.

SUMMARY

The Anterior Lumbar Interfusion Fusion L4-S1 (Stage 1) and L4-S1 Posterior Spinal Fusion (Stage 2) recommended by Dr Singh is not reasonably necessary treatment resulting from the injury Mr Raffie sustained to his low back in February 2000, as required by s 60 of the 1987 Act.

[2022] NSWPIC 135

30 March 2022