Rainbird v Mountain Trail Engineering Pty Ltd
[2022] NSWPIC 353
•1 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Rainbird v Mountain Trail Engineering Pty Ltd [2022] NSWPIC 353 |
| APPLICANT: | Nicole Rainbird |
| RESPONDENT: | Mountain Trail Engineering Pty Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 1 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of proposed right shoulder arthroscopy; consideration of medical opinion; consideration of Rose v Health Commission (NSW) and Margaroff v Cordon Blue Cookware Pty Ltd; Held – proposed surgery is reasonably necessary. |
DETERMINATIONS MADE: | 1. Right shoulder arthroscopy proposed by Associate Professor Tan (the proposed surgery) is reasonably necessary as a result of injury on 9 April 2019 arising from the nature and conditions of the applicant’s employment with the respondent. |
| ORDERS MADE | 2. The respondent to pay the costs of and related to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
In an Application to Resolve a Dispute dated 21 March 2022 (the application),
Ms Nicole Rainbird (the applicant) claimed future treatment expenses in the sum of $6,372.50 for a right shoulder arthroscopy and associated expenses, as recommended by A/Prof Tan, as a result of injury on 9 April 2019 arising from the nature and conditions of her employment with Mountain Trail Engineering Pty Ltd (the respondent).The application also recorded that there had been previous proceedings in which there had been a determination on liability in the Commission in matter number W3007/21.
PROCEDURE BEFORE THE COMMISSION
At the conciliation/arbitration hearing of this matter on 2 June 2022, the applicant was represented by Mr McEnaney of counsel, instructed by Ms Sutcliffe, solicitor, and the respondent by Mr Doak of counsel, instructed by Ms Tancred, solicitor.
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.
A preliminary issue that was decided, before submissions as to the applicant’s claim, was the respondent’s application to rely upon a s 78 notice dated 20 April 2022 which was included in an Application to Admit Late Documents dated 21 April 2022 (AALD). I declined to grant leave pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998, with reasons sound recorded. The AALD was accordingly not admitted. Following further discussion, I declined to admit video surveillance footage, Quantumcorp surveillance reports (2), and report of Dr Gothelf dated 5 April 2022, which were attached to the Reply. The respondent thereafter in its submissions relied upon its s 78 notice dated 23 December 2021.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) Reply and attached documents, excluding the video surveillance footage, Quantumcorp surveillance reports (2), and report of Dr Gothelf dated 5 April 2022, all referred to above.
Oral Evidence
There was no oral evidence.
Certificate of determination dated 20 September 2021 and reasons
In a Certificate of Determination in the Workers Compensation Division of the Personal Injury Commission (the Commission) dated 20 September 2021 of Member Rimmer, the following determination was made:
“The Commission determines:
1. Claim for section 60 expenses discontinued.
2. Respondent to pay the applicant weekly benefits pursuant to s 37(1) of the Workers
Compensation Act 1987 at the rate of $1,014.25 per week from 16 April 2021 to date and continuing.”
In her reasons, by way of background Member Rimmer noted:
“2. Ms Rainbird sustained injuries to her neck, right arm, low back and shoulders in the course of employment due to the nature and conditions of her employment, which included sewing heavy canvas products with the date of injury being 9 April 2019.
3. Ms Rainbird made a claim for weekly benefits and medical treatment.
4. iCare disputed that Ms Rainbird was entitled to compensation for the cervical spine and right shoulder injury in a section 78 notice dated 30 June 2020.
5. iCare issued a review notice dated 15 September 2020 maintaining the decision dated 30 June 2020.
6. iCare issued a further section 74 notice dated 23 February 2021 disputing the claim for ongoing weekly benefits in respect of the injury on 9 April 2019. iCare disputed that the injury arose out of employment as required by section 4 of the Workers Compensation Act 1987 (the 1987 Act) and did not agree that employment was a substantial contributing factor to the injury as required by s 9A of the 1987 Act. Further, iCare did not agree that Ms Rainbird was entitled to weekly payments or medical expenses for the claimed injury as she did not have total or partial incapacity for work resulting from a work injury as required by s 33 of the 1987 Act and because medical treatment was not reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.
7. In a letter dated 27 August 2021 to Ms Rainbird’s solicitor, Ms Brown of Hicksons Lawyers advised that the only issue in dispute was Ms Rainbird’s entitlement to weekly payments due to “total partial incapacity for work” under s 33 and ongoing medical expenses for the claimed shoulder injury. Ms Brown noted that in these circumstances, iCare would not be issuing an amended s 287A notice ‘making reference to the cervical spine, which was initially included by way of error’”.
Member Rimmer noted statements of the applicant dated 16 November 2020 and 21 April 2021.
Member Rimmer noted that the applicant stated that:
“she was referred to an orthopaedic surgeon, Dr Matthew Howard, in November 2019. She said that she was given cortisone injections in her neck, which did not help, and was then reviewed in December 2019 and January 2020. She said that in March 2020 she underwent a CT guided C5 nerve block which provided some relief, but she still had pain across both shoulders and the neck. She said that Dr Howard recommended she undergo a right shoulder arthroscopy and debridement. Ms Rainbird said a request for surgery was made to the insurer, iCare, but on 30 June 2020 she was issued with a section 78 notice. She said she continued to receive weekly payments of compensation in respect of the accepted injury to the left shoulder, thoracic and lumbar spine, but iCare denied liability for the right shoulder and neck injury.”
Member Rimmer also noted that the applicant stated that her then treating orthopaedic surgeon, Dr Howard,
“offered to perform a right shoulder debridement procedure on the basis he thought there was some damage to the shoulder, but liability for this procedure was denied by the insurer. She said she subsequently consulted with Associate Professor Jin Tee, neurosurgeon, in November 2020, who recommended nerve root injections to ascertain what part of her symptoms were from the shoulder and which part were from the neck. She stated she had not been able to have those injections as the insurer declined liability for her injuries.”
Among other reports, Member Rimmer referred to a report to the insurer dated 24 July 2020, in which:
“Dr Howard noted that he was happy to offer Ms Rainbird surgery on the right shoulder. He stated that he had extensively investigated Ms Rainbird and had not been able to solve her pain. He considered that a shoulder arthroscopy in these circumstances was reasonable on the basis that several injections had not rendered her more pain-free. He wrote:
“In reference to Dr Wallace’s report, I definitely agree that her neck is an issue. I do not think that I will solve all of her pain by offering her shoulder surgery, but I may make some contribution in reducing her pain.
Dr Wallace is an experienced medico-legal examiner as I have noted. He is suggesting Ms Rainbird’s pain is basically due to her neck which is not necessarily a workers compensation issue.
I would however agree with Dr Mobilia that Ms Rainbird’s symptoms have been manifested by work activities that she undertakes, and I remain happy to offer her surgery. I hope this clarifies the situation from my point of view.”
Member Rimmer also referred to a report dated 10 December 2020, in which:
“Dr Howard noted he had reviewed Ms Rainbird on 9 December 2020. He noted he had requested permission twice for arthroscopic debridement of the right shoulder, which had been declined.”
Member Rimmer noted:
“In a report dated 23 February 2021, Dr Peter Giblin, orthopaedic surgeon, stated that he examined Ms Rainbird on 18 February 2021. He noted that she had been working full time as a sewing machinist in a canvas factor and in December 2018 developed the onset of pain in her right shoulder and in the right side of her neck while she was at work. He reported that the harder and the more she worked, the worse her symptoms became so she started to favour the right side and then developed similar symptoms in the left side. He noted that the injury was reported to her employer on 9 April 2019, and she was off work for two weeks and then returned to suitable duties. Dr Giblin noted she had a cervical spine injection which gave her some benefit for about three months. He reported that on 21 November 2019 she was told to go home and not to return until she got better. He noted that she remained off work.
Dr Giblin reported that Ms Rainbird’s chief complaint was neck pain and stiffness with bilateral shoulder pain, the left worse than the right. He noted that the low back area was painful and radiated around to both iliac crests.
Based on examination and the history, Dr Giblin made a diagnosis of soft tissue injury in the course of her employment involving the neck and right shoulder. He concluded that employment was the main contributing factor to this disease injury. He noted that the proposed right shoulder arthroscopy and debridement proposed by her treating specialist was reasonably necessary as it was intended to provide some degree of symptoms relief and provide Ms Rainbird with improved work opportunity.”
Member Rimmer thereafter considered other evidence and the issue of capacity to work. In this regard, Member Rimmer noted the following:
“110. While in her statement dated 16 November 2020 Ms Rainbird did not specifically address her capacity for work, she said she had frequent pain in the neck and both shoulders which varied on a day to day basis. She stated that she got pins and needles which radiated down her right arm affecting several fingers in the right hand. She said that she had pins and needles in the left arm down to the elbow. Ms Rainbird stated that she got some pain in her lower back and also the thoracic spine. She said that she could not lift more than 5 kg in each arm. She said that the quality of her sleep was affected and she sometimes woke up in pain and had pins and needles. She said that she could not lift her arms above her head and had difficulty with tasks such as putting on a sweater or hanging out washing.”
Member Rimmer found:
“On balance, I accept that Ms Rainbird had no current capacity for work from 16 April 2021 to date. I prefer the opinions of Dr Mobilia, Dr Sheehy and Dr Howard to those of Dr Wallace and Dr Giblin in relation to the issue of capacity to work. Dr Sheehy is a neurosurgeon and better placed to assess the extent of the injury to the cervical spine and the treatment required than either Dr Wallace or Dr Giblin, who are both orthopaedic surgeons. I accept that Dr Wallace and Dr Giblin provided more recent opinions than those provided by Dr Sheehy and Dr Howard, but the evidence does not suggest that there has been any improvement in Ms Rainbird’s condition since the reports from Dr Sheehy and Dr Howard, and indeed possibly looking at Dr Mobilia’s clinical notes and certificates there has been a deterioration in her condition and an increase in pain until the recent nerve root blocks.”
Section 78 notice by iCare dated 23 December 2021
In the s 78 notice dated 23 December 2021, iCare notified the applicant that it did “not believe that the claimed medical or related treatment is reasonably necessary as a result of an injury as required by section 60 of the Workers Compensation Act 1987”.
In its reasons for the decision, iCare stated:
“We had received a request from Associate Professor Simon Tan for approval of right shoulder arthroscopic surgery and a possible labral repair, rotator cuff repair and open biceps tenodesis. A/Prof Tan has also suggested you will require surgery to your left shoulder.
Section 60 of the Worker's Compensation Act 1987 provides that an employer is liable to pay for reasonably necessary medical or related treatment as a result of your injury.
In his report dated 1 December 2021 A/Prof Tan advised he viewed the MRI scans performed in February 2021, noting they were "very limited sequences. They are 3 mm slices and there were no oblique coronal reconstructions (the preferred assessment for the superior labral region.
A/Prof Tan noted some fluid in the sub coracoid recess stating this ‘may’ be within normal limits but could represent pathology. He also noted high signal lines in the anterior superior quadrant of the labarum, stating this ‘again could represent pathology. [sic]
A/Prof Tan provided an opinion you had refractory pain related to post traumatic AC arthritis and "what clinically appears" to be superior labral pathology. On the basis of these possible findings, A/Prof Tan recommended you proceed to a shoulder arthroscopy. He advised that your recovery from the surgery could take up to a year.
Without providing any reasoning A/Prof Tan advised your left shoulder needs the same surgery which would not be considered until 6 months following surgery to your right shoulder.
Noting the deficiencies in the radiological evidence identified by A/Prof Tan we are not satisfied the proposed arthroscopic surgery is a reasonably necessary treatment for your work injury.
We propose you undergo a further MRI investigation of your right shoulder and we have written to A/Prof Tan requesting he provide the appropriate referral to ensure the MRI examination includes the preferred sequences to fully assess the pathology in your right shoulder.
We furthermore have sought clarification of certain aspects of A/Prof Tan's report.
We also propose that you undergo examination by an independent orthopaedic surgeon with a speciality in shoulder surgery to examine the Upon receipt of this additional evidence and review of the further MRI examination of your right shoulder by A/Prof Tan, we should give further consideration to whether the proposed surgery to both your shoulders is reasonably necessary treatment as a result of your injury.”
The applicant’s statements
The applicant provided statements dated 16 November 2020, 21 April 2021 and 10 March 2022.
In her statement dated 10 March 2022, the applicant said that in late 2021 she was referred by her general practitioner (GP), Dr Mobilia, to A/Prof Tan for treatment of her right and left shoulder symptoms. She stated that she had previously seen Dr Howard, orthopaedic surgeon, in relation to her shoulder complaints and he had recommended a right shoulder arthroscopy. She stated that EML on 30 June 2020 had denied liability for injury to her right shoulder and for the proposed right shoulder arthroscopic procedure. She also stated that her claim for medical expenses associated with the proposed right shoulder surgery had been discontinued in the previous proceedings in the Commission on 20 September 2021.
The applicant stated that she saw A/Prof Tan on 1 December 2021 and he recommended right shoulder arthroscopy and also later left shoulder arthroscopy but the left shoulder would be delayed pending recovery from the right shoulder surgery.
The applicant said that, following the s 78 notice dated 23 December 2021, she had the MRI scans of both shoulders, as suggested by EML. The MRI scan results were sent to
A/Prof Tan.The applicant said she wished to proceed with the right shoulder arthroscopy recommended by A/Prof Tan. She also continues under the care of A/Prof Tee for her neck injury. The applicant stated that no surgery has been scheduled for her neck at this stage.
Associate Professor Tan
A/Prof Tan, orthopaedic surgeon, provided a report dated 1 December 2021. He diagnosed “posttraumatic AC arthritis, anterior capsulitis ? labral tears both shoulders. Cervical disc bulges”. He recommended right shoulder arthroscopy and left shoulder arthroscopy, once recovered.
He noted the presenting problem was pain in both shoulders and neck and a history of repeated overhead work and lifting for four years causing the development of the problem. He was of the opinion that the problem is directly causally related to her work. He noted a “somewhat convoluted journey towards shoulder surgery”.
A/Prof Tan noted that the applicant saw Dr Howard “who I understand considered the possibility of labral pathology as well as the AC pathology. Surgery was planned but for various reasons, postponed”. He also recorded that “after a difficult journey resulting in psychological, social and financial impact, she now presents to proceed with this original management plan”.
On examination, A/Prof Tan noted:
“Examination reveals prominent and tender AC joints, especially on the right. There is anterior capsular tenderness and hesitation of movement due to fear of pain. There is apprehension. Her cuff seems reasonable to examine but difficult to assess on the right due to her pain. Passively she has about 90% range on the right compared to the left. The left is not near as irritable today as the right. There is certainly some long head of biceps signs and superior labral signs today bilaterally.”
A/Prof Tan reviewed MRI scans performed in February 2021. He noted that they were “very limited sequences. They are 3mm slices and there were no oblique coronal reconstructions (the preferred assessment for the superior labral region)”. He stated:
“I note some fluid in the subcoracoid recess which may be within normal limits but could represent pathology. I note high signal lines in the anterosuperior quadrant of the labrum which again could represent pathology. Her cuff appears reasonable. The AC joint has high signal, swelling in the capsule and cysts.”
A/Prof Tan was of the opinion that the applicant “has refractory pain related to post-traumatic AC arthritis and what clinically appears to be superior labral pathology”. He stated that:
“We have discussed her diagnosis, the failure of non-operative measures and my recommendation to proceed to a shoulder arthroscopy. I would arthroscopically debride her AC joint. I would perform a decompression and inspect the rotator cuff. We would also assess the intra-articular space and if indeed a labraI tear is identified, repair this at the time. If her biceps is damaged at its anchor point (likely - given the duration of her symptoms), she will also need an open tenodesis.”
Dr Gothelf
In a report dated 17 March 2022, Dr Gothelf, orthopaedic surgeon, recorded the applicant’s history of injury with the respondent. He noted that she had seen Dr Howard, orthopaedic surgeon, who recommended surgery in the form of labral repair of the right shoulder, but she did not have the surgery and the surgery was denied.
Dr Gothelf noted the following history of treatment by Dr Howard:
“The documentation below indicated that Nicole was seen by Dr Matthew Howard initially November 2019 for both upper limbs and necks symptoms. Dr Howard indicated that Nicole started having problems with both right and left shoulders and neck since about April 2019. A CT of the neck showed changes at the C6 level and Dr Howard suggested a suprascapular nerve block. A nerve block was performed 4 December 2019. Nicole returned to Dr Howard December 2019 who indicated the injection helped somewhat but there was still pain. Dr Howard then sent Nicole for a right shoulder AC joint injection. Dr Howard indicated February 2020 that the AC joint injection had some effect, but there was still pain. Dr Howard then requested bilateral C6 perineural nerve root injections after reviewing the MRI of the cervical spine. Dr Howard indicated April 2020 that the injection helped the spine but there was still considerable shoulder pain. Dr Howard indicated he felt a labral tear was the cause of pain and recommended surgical treatment for a right shoulder debridement.”
Dr Gothelf noted there was a letter dated 8 October 2020 from Dr Howard requesting right shoulder arthroscopy and debridement. He also noted the report of A/Prof Tan dated 1 December 2021.
Dr Gothelf also noted an MRI right shoulder dated 18 October 2019. He recorded that there was no evidence of adhesive capsulitis and no rotator cuff disease. He noted that a SLAP tear was identified by a non-arthrogram MRI. He recorded minor subacromial bursitis and minor hypertrophy of the AC joint. He also noted that the applicant reported persistent right shoulder pain around the posterior clavicular region and down the right shoulder. He recorded that physical examination revealed a reduced active range of motion and pain with movement in the right posterior clavicular region. He was of the opinion that the right shoulder “current symptoms” were likely a combination of neck pathology and possible right shoulder AC joint arthritis and biceps tendonitis not caused by the workplace injury. However, in respect of that opinion, the matter for determination is whether the surgery proposed by A/Prof Tan is reasonably necessary, and to that extent I do not take into account Dr Gothelf’s opinion that current right shoulder symptoms are not caused by workplace injury.
In response to a question as to the sufficiency of the radiological material relied upon by
Dr Tan in concluding that the applicant requires the recommended surgery, noting the request by iCare that A/Prof Tan provide a referral for the appropriate investigation and an offer to fund the additional studies by way of MRI and spec CT, Dr Gothelf stated that “I understand that Professor Tan reviewed MRI scans from February 2021 of both shoulders. Considering that Nicole has longstanding shoulder symptoms that have not improved, it is reasonable that surgery was offered”. However, Dr Gothelf considered that the right shoulder surgery was not reasonably necessary treatment as a result of the workplace injury as he considered that the current right shoulder symptoms were not caused by the workplace injury of 9 April 2019, for reasons previously given, although he considered that the surgery was “reasonably offered for the believable symptoms”.
Reasons
The issue to be determined is the question of whether the right shoulder arthroscopic surgery recommended by A/Prof Tan is reasonably necessary. There is no claim in these proceedings in respect of the left shoulder.
In response to my enquiry about the opinion of Dr Gothelf in his report of 17 March 2022, the respondent submitted that in the absence of the report of Dr Gothelf dated 5 April 2022 his earlier report of 17 March 2022, which is in evidence, it is an ultimately somewhat restricted and arguably misleading piece of evidence to say that the “believable” symptoms presented to the doctor can be considered with the issues now to be determined by the Commission. The applicant submitted that the submission by the respondent as to the meaning of the word believable by way of credit should be disregarded as there is nothing before the Commission in relation to an issue of credit, and there is no evidence that would cause any difficulties as to credit. The respondent replied that this was a submission in response to my enquiry, and the report of Dr Gothelf of 17 March 2022 has very little probative value.
I accept the applicant’s submission to the extent that there is no evidence before me as to the applicant’s credit. I have not had regard to the report of Dr Gothelf dated 5 April 2022, nor to the other excluded material.In any event, the respondent’s submissions were directed to the report and opinion of
A/Prof Tan.The respondent’s submissions criticised the report of A/Prof Tan for deficiencies in the radiological evidence identified by A/Prof Tan, and also for not providing reasoning as to why the surgery was reasonably necessary.
It was submitted that the absence of clear MRI scanning, as indicated by A/Prof Tan, affects what might be regarded as appropriate prior to further investigation, and cost effective, having regard to decisions including Rose v Health Commission (NSW)[1] (Rose), Bartolo v Western Sydney Area Health Service[2] (Bartolo), Margaroff v Cordon Blue Cookware Pty Ltd[3] (Margaroff) and Diab v NRMA Ltd[4] (Diab).
[1] (1986) 2 NSWCCR 32.
[2] (1997) 14 NSWCCR 233.
[3] (1997) 15 NSWCCR 204.
[4] [2014] NSWWCCPD 72.
I do not accept the respondent’s submissions in relation to the MRI scanning referred to by A/Prof Tan. In my view, when A/Prof Tan’s report of 1 December 2021 is viewed as a whole, he considered the history, presenting complaints and findings on examination when considering the right shoulder MRI investigation of February 2021. He then exercised his clinical judgement as an orthopaedic surgeon in making his diagnosis and recommendation for surgery. I do not accept that his diagnosis was based upon subjective complaint of pain. While he did opine that the applicant has refractory pain related to her post traumatic AC arthritis, this was in the context of his review of the MRI scans in which he noted the “AC joint has high signal, swelling in the capsule and cysts”. His opinion was that there was also “what clinically appears to be superior labral pathology”, having noted “superior labral signs” on examination.
In relation to the explanation provided by A/Prof Tan, I note that he clearly explained the surgical procedures that he proposed. A/Prof Tan proposed arthroscopic debridement of the AC joint and decompression, and also inspection of the rotator cuff and assessment of the intra-articular space and, if identified, repair of a labral tear, and for likely biceps damage, open tenodesis. In my view, identification of any labral tear that may be present is but one of the reasons for the proposed surgery. The limitation in the MRI scan noted by A/Prof Tan in my view should be considered in light of the expert clinical judgement of A/Prof Tan and the clear explanation as to the procedures to be undertaken in the proposed surgery. Against a background noted by A/Prof Tan of the earlier treatment and surgical recommendation by
Dr Howard, and the failure of non-operative treatment, A/Prof Tan exercised his clinical judgement in recommending surgery.As to reasonable necessity, the respondent submitted that while the proposed surgery may ultimately be appropriate, and alternative treatment would be to carry out the further scanning to ensure that what the doctor has identified clinically, particularly the possible labral tear, is in fact present. The applicant submitted that the suggested further scanning is not treatment, it is a diagnostic tool, and not therapeutic. I accept the applicant’s submission. In my view, further scanning is not treatment in the sense of attempting alleviation of symptoms or restrictions, which is the point of considering treatment as an alternative to surgery.
The respondent also submitted that the further scanning, while not replacing the doctor’s opinion, might better inform the appropriate means of treatment, and, in doing so, is cost effective as the cost of the proposed surgery is considerably greater than further MRI scanning. The applicant submitted that the cost is relatively trivial compared to the discomforts she has. In my view, consideration of the cost of the proposed surgery is not necessarily a matter of comparison with a diagnostic tool such as an MRI. A/Prof Tan has provided a quote for the proposed surgery, attached to the application, of $6,372.50, plus related expenses. There was no issue taken with this amount. In my view, the cost is a factor in favour of the applicant. I do not accept the comparison with the cost of an MRI in circumstances where the surgery is proposed after A/Prof Tan noted and weighed the limitation of the 2021 MRI.
The applicant submitted that A/Prof Tan and Dr Gothelf both thought the proposed surgery was appropriate. The applicant also submitted that there is no alternative treatment, and none has been suggested by any medical practitioner. The applicant has undergone injections and physiotherapy. As to effectiveness, it was submitted that the surgeon is attempting to alleviate symptoms. It was submitted that the material attached to the application shows dates of scans and injections and it is apparent that the applicant’s right shoulder has been a cause of some discomfort and a problem for several years, and has undergone conservative treatments. I accept the applicant’s submissions. It seems to me that there was no issue taken with these matters, other than in the specific terms submitted by the respondent as to ultimate appropriateness after further investigation, alternative treatment and cost effectiveness, none of which I have accepted. Additionally, I have considered matters of history and medical opinion referred to by Member Rimmer, quoted above, in her decision.
In my view, the heads of consideration in Rose have been satisfied. As was observed by Campbell CJ in Margaroff, when considering the factors listed by Burke J in Rose, “I accept those topics as useful heads for consideration, although the essential question remains whether the treatment was reasonably necessary”. In my view, the surgery proposed by A/Prof Tan is reasonably necessary.
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