Reed v National Contracting Services Pty Ltd (formerly Quarry Transport Solutions)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reed v National Contracting Services Pty Ltd (formerly Quarry Transport Solutions) [2022] NSWPIC 18
APPLICANT:	Jason Bryant Reed
RESPONDENT:	National Contracting Services Pty Ltd (formerly Quarry Transport Solutions)
MEMBER:	John Wynyard
DATE OF DECISION:	14 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of L5/S1 fusion; whether onus of proof met; whether concurrent treatment for psychiatric illness relevant to consequential condition to low back caused by fracture of the right leg; whether treatment proposed actually or potentially effective; whether proposed treatment appropriate; whether other treatment available; Held- evidence insufficient on a number of grounds; GP management of applicant revealed substantial and constant treatment by psychologists, and a Consultant Psychiatrist; no evidence as to effect of applicant’s psychological state whether suitable candidate for surgery; evidence unsatisfactory as to the cost of the proposed treatment; observations on purpose of section 60(5); award respondent.
DETERMINATIONS MADE:	1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Jason Bryant Reed, the applicant brings an action against National Contracting Services Pty Ltd (formerly Quarry Transport Solutions), the respondent, for a declaration that the proposed surgery for a L5/S1 anterior lumbar fusion, anaesthetist fees and post-surgery medication is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) is the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE COMMISSION

The matter was heard in teleconference arbitration hearing on 8 November 2021. The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Medea Hanna from Messrs PK Simpson & Co. The respondent was represented by Mr Ross Hanrahan of counsel instructed by Ms Phoebe Singer from Messrs Gair Legal. 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 Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    document entitled GIO G168886K157 Jason Reed Estimate Cost of Surgery 11 November 2020, (the Cost of Surgery document), and
(d)    Application to Admit Late Documents (ALD) and attached documents from the respondent.

Oral Evidence

Mr Hanrahan made an application to cross-examine Mr Reed which was refused for the reasons appearing on the transcript.

FINDINGS AND REASONS

Preliminary matters

Mr Stanton objected to the inclusion of one of Dr Courtenay’s reports dated 2 November 2021 (there were three of that date) as Dr Courtenay discussed the question of injury, which Mr Stanton assumed had been admitted. Mr Hanrahan submitted that the question of injury was still at large, referring to the dispute notices in support. Argument then ensued as to whether it had been agreed at the teleconference that the only issue was whether the proposed surgery was reasonably necessary. In an ex tempore decision, I found that the issue in dispute related to the question of whether the proposed surgery was reasonably necessary. I also permitted the admission of Dr Courtenay’s reports.
There followed some discussion as to what the nature of the injury was and after hearing from the parties, in a further ex tempore decision I permitted, over objection, an amendment to the “injury description” claimed in the ARD form. The amendment consisted of the words “lower back” being deleted from the injury description and the words “right ankle and a consequentially related condition to the low back as a result of altered gait” being substituted therefore. My reasons appear in the transcript.
Mr Hanrahan made an application to cross-examine the applicant, but after discussion as to the basis of that application, I declined to give such leave.
The transcript will also show that during Mr Stanton’s submissions he called for a document described by the treating neurosurgeon, Dr Peter Khong, on 16 June 2020 as a “surgery costs estimate”[1].
[1] ARD page 10.
Mr Stanton’s call for the document, which had been served on the respondent, was answered “not produced” and after a short discussion with his solicitor, Mr Stanton advised that the document had been found and sought to admit it to the proceedings.
I permitted the admission of that document, the Cost of Surgery document, to the proceedings over objection by the respondent, for reasons that appear in the transcript.

The evidence

The history of Mr Reed’s condition was not in dispute and was described consistently in the evidence.
In his statement dated 2 September 2021 Mr Reed advised that he started work on 1 September 2016 as a truck driver. On or about 22 June 2017 he suffered an injury when he slipped whilst washing his truck. As he fell flat on his back, he heard and felt his right ankle snap. He was taken to First Care Medical Centre where he was placed in a moon boot which he wore for about 12 weeks. He had to employ the use of crutches, which he said placed a lot of strain on his lumbar spine.
He did not improve and was referred for an MRI scan which showed a complete tear of the anterior talar fibular ligament.
He came to a right ankle ligament reconstruction on 4 September 2017. He returned to work after further immobilisation in plaster. However, he found that the pain in his leg continued and he developed a “limp and altered gait”, which started causing “significant pain” in the lumbar spine. Eventually, Mr Reed said he was referred to Dr Manohar, Interventional Pain Physician.
Dr Manohar performed a lumbar spine injection at Waratah Private Hospital, which unfortunately had the effect of causing the applicant to fall and thus come to further surgery on his right ankle. This event occurred at some indeterminate time which may have been in December 2019, as reported by Dr Khong on 13 November 2020[2], or November 2019, as recorded by Dr Courtenay on 20 January 2021.[3]
[2] ARD page 245.
[3] Reply page 41
Mr Reed did not say where or when the further surgery occurred. Dr Courtenay thought it might have occurred in mid 2020 at Westmead Hospital. Mr Reed said he had been on crutches again for around six to eight weeks, causing further problem to his back.
He was referred to Dr Khong who recommended fusion surgery. Mr Reed said that he did not want to have any further cortisone injections in view of his experience with Dr Manohar.
He said that he was in constant pain due to his lower back. His legs would go completely numb if he sat for more than one hour. He related an occasion about one month earlier when he experienced excruciating pain when he was walking and collapsed.
He said he wished his injuries to improve so that he would have an opportunity to return to work.
He noted that he was currently on Lyrica and Cyrical for pain reduction. He said he put on some 24 kg of weight since his injury. He said that he rarely gets out of the house. His personal relations and social life have been affected drastically. He felt depressed and dejected and become withdrawn and distant.
He said[4]:
“I am moody and find it difficult to control my emotions and often lash out in anger.
[4] ARD page 4 [46].
I now suffer from anxiety and depression.”
Mr Reed advised that he had “recently” been referred to see a psychologist, Kim Dung.

CLINICAL NOTES

The clinical notes from two medical practices, Lurnea Medical Centre and Wyong Doctors were lodged. The notes from Lurnea Medical Centre covered the period from 4 October 2017 to 19 June 2019, during which time Mr Reed’s treatment was managed by Dr John Holt.[5] The notes from Wyong Doctors (whose address I note in passing was in Parramatta) covered the period from 17 February 2020 to 21 June 2021.
[5] ARD page 56.

Lurnea Medical Centre

Dr Holt first saw Mr Reed on 4 October 2017. He noted that Mr Reed had suffered a right ankle fracture, and he reproduced the results of the MRI scan that was then before him. He stated:[6]
“An ultrasound was done, followed by an MRI which showed an avulsion fracture and complete rupture of the ATFL, complete rupture of the CFL, partial tear of the PTFL, partial tear of the deltoid ligament, partial tear of the spring ligament, a longitudinal split of the peroneus longus tendon, tendinosis of the tibialis posterior and associated tenosynovitis (reports were sourced from Southwest Radiology with Jason's consent).”
[6] ARD page 163.
Dr Holt’s entry of 26 October 2017 was positive as to Mr Reed’s improvement. Mr Reed was noted to have been doing well with physiotherapy, and was advised to stop wearing the moon boot. Discussions were noted about a return to work. By 4 December 2017 the entry noted that Mr Reed was planning his return to work, and subsequent entries demonstrated the difficulty caused by the continued limitation in the right foot. On 1 February 2018 Dr Holt noted that Mr Reed’s mood was not good as he was still having difficulties with his range of movement in the ankle and he had to move house because his landlord had sold his dwelling.
The entry on 7 May 2018 noted Mr Reed’s continuing problems with his right ankle, and
Dr Holt saw a video Mr Reed had taken of his cramping and tremors which Dr Holt described as “fasciculations of the intrinsic foot muscles”. By 18 May 2018 Dr Holt noted that
Mr Reed’s mood had worsened as he had not been paid and could not pay his rent. He was on the verge of eviction and worried about his son moving back with his ex-wife. Dr Holt noted that Mr Reed was going further into debt and had thoughts of suicide. Dr Holt noted that Mr Reed’s mood persisted in his entry of 21 May 2018.
Mr Reed’s mood had improved by 28 May 2018 and he was commenced on Lyrica. It was noted on 13 June 2018 that Mr Reed was jobseeking, and on 10 July 2018 Dr Holt recorded that Mr Reed had managed a couple of truck driving shifts. On 30 July 2018 Dr Holt noted that Mr Reed was very sore after a week of work, but that he had a chance to recover as there had been no work for him in the previous week.
Dr Holt’s clinical notes showed regular contact with Mr Reed, and that he was always having problems with swelling and spasm in his foot. It would appear that Mr Reed stayed in some form of employment going through to 2019, as various entries referred to problems he encountered whilst truck driving.
On 6 May 2019 Dr Holt noted complaints of cramps in the right calf which Dr Holt thought were probably due to overworking the muscles because of a change in his gait after he had been administered Botox for his right ankle symptoms. It was noted on 19 June 2019 that
Mr Reed’s truck driving should be reduced to three days per week because of the difficulties with his right leg.
On 15 July 2019 Dr Holt referred Mr Reed to Ms Kim Dang, psychologist. Dr Holt recorded that Mr Reed had become very depressed because the condition of his leg had prevented him from doing any work. This created financial stress because he was unable to pay his bills and he was about to be evicted. Dr Holt noted Mr Reed’s past suicidal thoughts. The last entry in the notes of the Lumea Medical Centre was dated 13 August 2019 where Dr Holt noted that Mr Reed had missed his “psych appt” as he had been in hospital.

Wyong Doctors

It appears that the rooms of Wyong Doctors were used by a variety of specialists. Dr Peter Khong, Neurosurgeon, assessed the applicant on:
1.     20 March 2020;
2.     22 May 2020;
3.     3 July 2020;
4.     11 September 2020;
5.     14 October 2020;
6.     13 November 2020;
7.     29 January 2021, and
8.     20 April 2021.
Dr Kumagaya, Psychiatrist, assessed the applicant on:
1.     19 October 2020;
2.     19 November 2020;
3.     27 November 2020;
4.     8 December 2020;
5.     9 December 2020;
6.     19 January 2021;
7.     16 February 2021, and
8.     23 March 2021 (consultation noted, but appointment rescheduled).
Consultations with different psychologists, some of whom were named, occurred on:
1.     20 April 2020 (Mr Matek);
2.     24 August 2020 (unnamed);
3.     8 September 2020 (unnamed);
4.     22 September 2020 (unnamed);
5.     6 October 2020 (unnamed);
6.     13 November 2020 (unnamed);
7.     20 November 2020 (unnamed);
8.     3 December 2020 (unnamed);
9.     28 January 2021 (unnamed);
10.   11 February 2021 (unnamed);
11.   25 February 2021 (unnamed);
12.   11 March 2021 (unnamed);
13.   25 March 2021 (unnamed);
14.   9 April 2021 (unnamed);
15.   7 May 2021 (unnamed), and
16.   4 June 2021 (unnamed).

Dr David Manohar

The applicant did not lodge any material from Dr Manohar. The respondent lodged reports dated 14 October 2019, 21 October 2019 and 9 December 2019, all of which were addressed to a Dr Hossain in Macquarie Fields. On 21 October 2019 Dr Manohar made the recommendation for a sympathetic neural blockade and blockade to the L5/S1 perineural tissue[7]. Dr Manohar reported on 9 December 2019 that the fall at Waratah Hospital had by then occurred, presumably after Dr Manohar had performed the nerve block procedure.
[7] Reply page 86.
Dr Manohar advised the applicant to wear a moon boot, not to weight bear and to use two crutches.

Dr Peter Khong

Dr Peter Khong, Neurosurgeon, issued two reports. The first was dated 13 November 2020, and headed “Request for Surgery[8]. Dr Khong noted that the applicant had been a truck driver for almost 20 years and related a history of the gradual onset of Mr Reed’s back pain culminating in the nerve block around Christmas 2019.
[8] ARD page 245.
Dr Khong had first seen Mr Reed on 20 March 2020. On 22 May 2020 Dr Khong reported complaints from Mr Reed of an aching lower back on standing for longer than 45 minutes, of the bottoms of both feet becoming sore, and of feeling bruised in the heels and the balls of both feet. Tingling in the arches of the feet were also reported.
On 3 July 2020 Dr Khong noted that Mr Reed was due for further ankle surgery. The lower back pain was then worse for standing over half an hour. It radiated to his groin bilaterally as well as to the bottom of both feet, which continued to feel bruised.
On 11 September 2020 Dr Khong reported that the right ankle surgery had happened two months prior, and Mr Reed had just come out of his moon boot. It appears therefore that the further ankle surgery following a fall at Waratah Private Hospital did not occur possibly for seven months.
On 14 October 2020 Dr Khong noted a complaint of worsening lower back pain with pins and needles. Mr Reed complained that his legs became “like jelly” after standing around 15 minutes. He had burning in both feet after taking a few steps, it was painful to lie down and he had a band-like lower back pain radiating into both buttocks which, whilst being previously worse on the right, was now of equal intensity bilaterally.
On 13 November 2020 Dr Khong reviewed Mr Reed again and noted that he was depressed by his lower back pain. The pain would start in the lower back but would radiate up to his interscapular region and his neck. The pain radiating down both legs again felt like jelly and sometimes they would shake uncontrollably, especially when Mr Reed was in bed.
Dr Khong’s opinion was that on seeing the most recent MRI scan which showed the degenerative disc disease with some end plate changes at the L5/S1, it was likely that the fall triggered an exacerbation of those pre-existing changes, but this was made worse by the altered weight bearing due to the ankle injury and subsequent injury. He noted that the MRI scan of 21 October 2020 showed no significant neural compression. His examination findings also revealed no neurological involvement.
He thought that reasonable treatment options at that point included analgesia, physiotherapy and surgery. He said:
“Mr Reed has failed no-operative management to date. For the treatment of his back pain surgery is reasonable.
Surgery is also necessary because Mr Reed is debilitated by worsening lower back pain. It is unlikely to improve, and he is unlikely to return to work, without surgery.
I have recommended L5/S1 anterior lumbar interbody fusion.”
Dr Khong issued a further report on 16 June 2021. When asked whether surgery would benefit Mr Reed, Dr Khong said that Mr Reed had severe and progressive lower back pain which significantly interfered with most activities and the quality of his life. Dr Khong noted the pathology in the lower back, being degenerative disc disease at L5/S1 with an annular tear and end plate changes. He thought that the disc disease was the likely cause of
Mr Reed’s pain. He thought that surgery was reasonable because nonoperative management had failed whilst Mr Reed’s pain had persisted and worsened over two years.
When asked for his opinion about Dr Courtenay’s advice that there would be no significant improvement from the proposed surgery, Dr Khong did not agree. He again mentioned the progressive lower back pain over two years and that nonoperative management had failed. Without surgery, Dr Khong thought Mr Reed might stay the same or might get worse. Surgical intervention had a good chance of reducing a component of his pain.

Dr Bhisham Singh

Dr Bhisham Singh, Spine Specialist, was retained as the applicant’s medico-legal expert and reported on 10 August 2021. He took a consistent history of the injury to the ankle in 2017, noting that there was also a complaint of pain in the calf, lower back and buttock at the time of the fall.
Dr Singh recorded that after reconstruction of the ATFL and immobilisation in plaster,
Mr Reed returned to work driving a trailer but was unable to maintain his employment because of his ongoing pain in his leg.
He was referred to Dr Manohar and a history was taken of a further fall after a lumbar spine injection had been administered with the further disruption to his right ankle as a result.
Dr Singh recorded that there was a further reconstruction of the right ankle, although no dates for the surgery were given.
Dr Singh noted a long period of rehabilitation. He noted the complaints of ongoing pain in shin and the calf which progressed to run up and down the back of Mr Reed’s thigh and into his buttock and back.
Dr Singh examined the investigations. He noted that the first MRI scan in February 2020 showed an annular tear and disc bulging on the right side at L5/S1. He noted that the “more recent scan” showed progression of that pathology. I assume that Dr Singh was referring to the MRIs of the lumbar spine firstly taken on 26 February 2020 and then on 21 October 2020.
Dr Singh advised that Mr Reed “has got right leg pain secondary to the neurological impingement at L4/S1”. He said:[9]
“….He feels that the prolonged immobilisation of the ankle and subsequent gait abnormality has contributed to exacerbation of his back.”
[9] ARD page 6.
Dr Singh noted that Mr Reed was also a smoker and that fusion success rates in smokers could be suboptimal and he noted Mr Reed’s promise to give up smoking.
Dr Singh noted the request for L5/S1 anterior lumbar interbody fusion recommended by
Dr Khong. He said he agreed with the recommendation. He said:
“[Mr Reed] has had symptoms for three years, and recent scans revealed that the disc bulging and annular tear at L5/S1 has progressed to the current condition.”
In considering the question of causation Dr Singh advised that there had been a lower back injury at the time of the original accident in 2017.

Dr Singh thought that the symptoms were overshadowed to a certain extent by the ankle condition. He noted “..a clear history of anterior shin pain and calf tightness immediately after the injury (in addition to back pain)” which Dr Singh thought “represents sciatica”.[10]
[10] ARD page 7.
When asked whether the proposed surgery was reasonably necessary, Dr Singh said:
“His back and leg pain has failed to respond over the last 3 to 4 years. He has trialled conservative treatment including injections. An injection to the lumbar spine gave him short-term relief of symptoms during the anaesthetic phase, but the pain soon returned. This is of diagnostic importance.
I believe this gentleman has failed conservative treatment and has been unable to return to the workforce. Surgery therefore is likely to benefit him. The aim of surgery is to decompress the impingement of the S1 nerve root at L5/S1 disc, and also stabilise this dysfunctional motion segment. Surgery will therefore help his leg pain and his back pain and will improve his function. I believe that surgery is reasonably necessary and is the result of his workplace injury.”
In considering Dr Courtenay’s opinion, Dr Singh disagreed with Dr Courtenay’s advice that the mechanism of injury was the altered gait pattern following the limping. Dr Singh said:
“I believe that he had an injury to the L5/S1 disc because he complains of back pain and shin and calf pain immediately after the accident. This symptom of sciatica was likely overlooked because of the overwhelming symptoms of ankle instability.”
Dr Singh also acknowledged that after several weeks of immobilisation, an altered gait pattern was likely to have aggravated the disc injury.
Dr Singh also disagreed with Dr Courtenay that Mr Reed’s back injury had stabilised.
Dr Singh concluded by saying:[11]
“I would do this as a staged procedure with anterior fusion followed by a posterior fixation and fusion. The purpose of a staged surgery is to perform a 360° fusion, provide more rigid fixation and better anterior column support, which is in turn more likely to give him a better chance of success.”
[11] ARD page 7.

Dispute notices

There were four dispute notices issued dated 16 December 2019, 7 December 2020, 23 February 2021 and 31 August 2021. Relevantly, the s 78 notice of 23 February referred to the recommendation by Dr Khong for surgery.
The insurer had by then obtained an opinion from Dr Brett Courtenay who advised that the proposed surgery was not reasonably necessary and liability was declined on that basis.
A s 287A notice issued on 31 August 2021 confirming that the insurer preferred the opinion of Dr Courtenay of 20 January 2021.

Dr David Kumagaya

Mr Reed was referred to Dr Kumagaya, Consultant Psychiatrist, who reported back to Dr Lim on 16 February 2021.[12]
[12] Reply page 41
The report was clearly one of a series, as Dr Kumagaya referred to a previous review, the date of which he had not indicated. Under a heading entitled “Medications”, Dr Kumagaya indicated that there had been medication prescribed on 19 November 2020, 27 November 2020, 19 January 2021 and 16 February 2021, the date of his report.
I assume therefore that Dr Kumagaya had been treating the applicant and had reviewed him on those dates.
Dr Kumagaya noted that the following medications were prescribed Fluoxetine 40mg, PO Mane, Quetiapine 75mg, PO Nocte PRN for insomnia, Gabapentin 300-600 mg PO Nocte PRN for Pain. This report also noted that the psychotropic medications of Melatonin SR 2mg PO Nocte PRN for insomnia, Norspan Patch 5mcg/h Top once a week.
Dr Kumagaya’s history was concerned with the applicant’s sleep problems attributed by
Mr Reed to his ongoing pain.
Dr Kumagaya diagnosed a Major Depressive Disorder and made the following recommendations[13]:
“1. Psychoeducation was provided with respect to the treatment avenues available to Mr. Reed.
2. Discussed maintenance of fluoxetine 40mg PO Mane. 14 day supply only to be dispensed at any one time. GP and psychiatrist to please share prescribing to ensure against over supply.
3. Discussed increase of quetiapine to 75mg PO Nocte PRN for insomnia. 14 day supply only to be dispensed at any one time. GP and psychiatrist to please share prescribing to ensure against over supply.
4. Recommended ongoing engagement with psychological therapy.
5. Follow-up appointment in 4-6 weeks' time to assess mental state, response to treatment, and to monitor for side effects to psychotropic medications.”
[13] Reply page 49

Mr David Elvish

The insurer arranged for a report from Mr David Elvish, Independent Physiotherapy Consultant, who reported on 19 July 2019. Mr Elvish took a consistent history of the onset of Mr Reed’s condition. He noted that the first date of surgery following the subject injury was on 4 September 2017 and that it was carried out by Dr O’Carrigan. He noted that a course of exercise physiology followed commencing on 8 March 2018. The report of Mr Elvish was in dot point form and contained more detail of Mr Reed’s treatment. The following is a short precis.
Mr Elvish referred, amongst other documentation, to a report from Exercise Physiology Allied Health Recovery, indicating that 44 consultations had been provided and that there had been no indication of a progression of clinical and work related outcome measures since 21 January 2019. Mr Elvish noted a physiotherapy report from Macarthur Sports Focus Physiotherapy of 10 March 2020, and that Mr Reed commenced a course of physiotherapy on 24 April 2020 with Infinity Allied Health Care.[14]
[14] Reply page 50.
Mr Elvish noted a report from Physiotherapy Allied Health Recovery dated 8 June 2021 which advised that 67 consultations had been provided. It also indicated no clear progression of clinical and work-related outcome measures since 20 April 2021.
Mr Elvish said he spoke with the treating physiotherapist Mr Jake McLoom.
The post-operative physiotherapy had commenced in late August 2020 following the most recent ankle surgery and the physiotherapy intervention had been associated with a graduated level of restoration of ankle mobility and function.
Mr McLoom advised that in addition to a persisting level of neuropathic signs and symptoms (presumably in the ankle) the applicant was suffering low back symptoms “and radiculopathy” which was producing dermatomal and myotomal consequences to the right lower limb.
Mr Elvish, on reviewing the documentation and discussing the applicant’s condition with
Mr McLoom, advised that the applicant was now over four years post work related incident, that he had now undertaken an extended course of post operative physiotherapy with several providers, including exercise physiology, with the most recent course of physiotherapy commencing in August 2020.
Mr Elvish said that he had arranged with Mr McLoom that there would be four further consultants of physiotherapy to achieve “optimal gains”, and that Mr Reed should then be suitable for discharge from physiotherapy.

Mrs Chantelle Turner, Pharmacist

Mrs Turner provided a report dated 23 April 2020 the purpose of which appeared to be to discuss the effects of the medication prescribed to the applicant over the course of his treatment.
She listed 16 occasions between 17 March 2020 and 21 April 2020 when she tried to telephone the applicant’s general practitioner, Dr Lim to discuss the medication that he was prescribing but her attempts were unsuccessful.
She spoke with Dr Manohar on 21 April 2020. Dr Manohar could not assist on the question of medication however as she said “he was unaware and takes a dichotomy with all insurance cases”. [15]
[15] Reply page 36.
Mrs Turner said that Dr Manohar does not undertake medication prescription and leaves that in the hands of the treating doctor.
The two drugs identified that the applicant was taking were Gabapentin and Fluoxetine. With regard to Gabapentin Mrs Turner said that the documented dose in the file notes was 300 – 600mg at night and when required. Gabapentin is prescribed “for a myriad of conditions including but not limited to epilepsy and neuropathic pain”, Mrs Turner said.
She stated that she was unaware why the prescription was given “as required” as for optimal benefit Gabapentin should be taken regularly.
Mrs Turner noted that the case manager’s referral highlighted that before the applicant came into Dr Lim’s care he was prescribed Pregavalin. This was preventing Mr Reed from functioning in a number of ways and was also causing lethargy. Mrs Turner noted that it was the catalyst for medication change to Gabapentin by Dr Lim.
The applicant was currently on Gabapentin and Lovan, active ingredient Fluoxetine.
Mrs Turner noted that it has been prescribed by Dr Lim notwithstanding that there had been a referral to a psychiatrist. She noted also that medication had been prescribed by Dr Fahmy whose involvement in Mr Reed’s treatment she was not aware of. I note in passing that
Dr Fahmy was not otherwise mentioned in the evidence.

Dr Courtenay

Dr Brett Courtenay, Consultant Orthopaedic Surgeon was retained as the medico-legal expert by the respondent. He supplied one report dated 20 January 2021[16] and three reports dated 2 November 2021[17].
[16] Reply page 40.
[17] Respondent’s ALD from page 121.
In his report of 20 January 2021 Dr Courtenay took a consistent history, although he was not sure of the exact nature of the ankle injury following the fall on 22 June 2017. He took a history that following the first nerve block (presumably by Dr Manohar) Mr Reed got a good result for about one and a half months and Dr Courtenay took a history that the second nerve block occurred in November 2019 at which time he re-injured his right ankle when he fell. He noted that there was a repair of the ankle by Dr Sutherson without being aware of the exact date. He noted that it occurred at Westmead Private Hospital and that Mr Reed was in a boot for about nine months following that surgery.
Dr Courtenay noted the report of the “recent MRI” which I take to be that of October 2020.
Dr Courtenay noted the recommendation for surgery made by Dr Khong and said[18]:
“The claimant during the same period of time has been under the care of a Consultant Psychiatrist and there certainly has been some significant concerns and problems in that area.”
[18] Reply page 42.
Dr Courtenay noted that there had also been medication prescribed.
Dr Courtenay had available a further report from Dr David Kumagaya dated 19 November 2020 about which he said:[19]
“…. [It] flags that the patient is having significant problems with major depressive disorder and a work-related psychological/psychiatric injury. In particular he relates that the claimant had taken an intentional overdose of his medications on 11 November 2020 and that included a significant amount of Tramadol, Gabapentin and Targin. He was taken to hospital and observed for 24 hours and was discharged to Community Mental Health follow-up. He stated he was quite impulsive, but it was not taken with any lethal intent. He was just trying to go to sleep.”
[19] Ibid.
Dr Courtenay noted that when he saw him in June 2021 Mr Reed was on Gabapentin and taking a sleeping medication together with an antidepressant. However, Dr Courtenay noted that he was not off his major pain killers.
In his diagnosis Dr Courtenay said there was an original ankle injury that led to some problems with the low back. He noted the annular tear in the lumbar spine and noted that the applicant still walked with a slight limp and had limitation as to how far he could walk.
Dr Courtenay said:[20]
“I think this claimant has a real problem with his injury. He hasn't done any other work other than driving trucks and it is his right ankle that is the major cause of concern. He has limited educational capacity and there does not appear to be any vocational review of this claimant and a lot of this has been delayed because of COVID and also because of his ongoing clinical situation.”
[20] Reply page 45.
Dr Courtenay noted that liability for the lower back had been accepted and as to the proposal for surgery, he said[21]:
“…I noted the recommendation for the surgery on his spine, but I would flag a huge concern as this claimant had problems with medication, he has got a major depressive disorder and I do not believe that surgery of his spine is going to offer him any great changes. I note that he is currently not on any analgesic pain medication and I think that to try and suggest that he would be significantly improved with spinal surgery is not possible.”
[21] Ibid.
Dr Courtenay expressed some doubts as to whether the limp would have caused the annual tear in the MRI. He noted that the applicant was a “very light man” and the limping would have put less load on the back. Dr Courtenay however quite properly allowed that he was not involved at the time of the development of those symptoms.
Dr Courtenay thought that the low back had stabilised and would not benefit from any additional treatment.
He repeated that, given the applicant’s psychological condition and mental health problems, Mr Reed would not benefit from complex surgery to his lower back. He said also that he would be concerned due to the psychological and psychiatric major depressive disorder, and also the fact that there had been no real deterioration in the last year, that spinal surgery would have less than satisfactory results.
In making that comment, Dr Courtenay said that he had “not been involved with spinal surgery for a very long period of time”[22].
[22] Reply page 46.
Dr Courtenay also attached two articles about annual tears and surgery. He summed up the affect of the articles by saying “even though one does advocate surgery, the results show the disability score only goes from 89% to 59%. Not a great result”.
Dr Courtenay repeated his view saying that he did not think surgery was going to be the “silver bullet” that the applicant might think it was.
Dr Courtenay re-examined Mr Reed on 26 October 2021. This resulted in three reports dated 2 November 2021.
The first of those reports followed the re-examination and Dr Courtenay reported that the applicant was complaining of swelling of his ankles, cramping in the legs and trouble sleeping. He was at a point where he could not stand for long periods of time. He had to have a plastic chair in the shower. He had two falls in the last two months as a result of sharp spasm or pain in the right leg which caused him to drop to the ground. He described his legs as having “jelly type sensation”. He could not hold himself steady because of the leg weakness. He had no benefit from any physiotherapy and had undergone some acupuncture.
He had been treated by a consultant psychiatrist and psychologist but advised Dr Courtenay that such treatment had made no change as well.
Dr Courtenay observed that although the applicant told him that he could not do anything since he was last reviewed by Dr Courtenay, Mr Reed had lost no apparent bulk in the shape or contour of muscles either in the upper body or in either lower leg.
Dr Courtenay thought on the examination that there was “gross exaggeration” in presentation. Mr Reed could not bend forward, but was able to sit for lengthy periods in a chair which Dr Courtenay contrasted as being, as I understood him, inconsistent as the applicant was unable to get close to a 90° bend on formal examination.
Dr Courtenay said:[23]
“In fact his restriction is so limited, it would be impossible for him to get in or out of chair and he clearly did that during the course of the examination.”
[23] Respondent ALD page 122.
Dr Courtenay noted some signs of osteoarthritic change in the lower back on MRI but for a man who is 49 years old and had not worked in heavy work, that equated with essentially a normal x-ray.
Dr Courtenay said:[24]
“This man does not have any clinical evidence of disc prolapse. He has no
neurological deficit in either lower limb. He has no changes confirmed on MRI. There are some signs of some mild osteoarthritic changes in his low back, but for a man who at 49 who has worked in heavy work that is essentially normal X-rays. The major concern with having spinal surgery is that there will be further pressure put on adjacent discs and they will then have accelerated development of osteoarthritis and basically, he will not get any benefit from that surgery….
Unfortunately, I believe there is significant psychological and functional overlays for this gentleman. I believe he truly believes that surgery is going to cure him, whereas I think he will not get that result and in fact is highly likely to be worse off.”
[24] Respondent ALD page 124.
Dr Courtenay thought the applicant needed extensive psychological support rather than physical support.
Due to the muscle bulk on examination Dr Courtenay suspected that Mr Reed’s physical activity was more than was related by Mr Reed.
In his second report Dr Courtenay discussed whole person impairment assessment which was not relevant for the present purposes.
In his third report, Dr Courtenay repeated that he did not accept that the limping on the right leg in a man of the applicant’s age would have caused the applicant any problem with the lower back
He repeated that the MRI and CT scans were essentially normal for a man of his age. He said “evidence of annular tear does not mean that there is significant disc injury. It is a degenerative process and comes on not due to an injury but due to a slow process”.[25]
[25] Respondent ALD page 129.
There was no evidence of any nerve compression at any level, Dr Courtenay said. He thought the surgery would make Mr Reed worse.
As to the opinions of Dr Khong and Dr Singh, Dr Courtenay said:[26]
“In my opinion I believe that they have given the symptomatology that this man has, which is an exaggeration of what the MRI shows, to suspect that surgery is going to give an improvement is unrealistic. I suspect that they have been more focused on the apparent symptoms of the patient who suffers significant psychological overlay than they are influenced by the MRI findings and that, I find, is a wish to help the worker, however is flawed in the sense that it is likely to make him worse.”

SUBMISSIONS
Mr Hanrahan
[26] Ibid.

Mr Hanrahan submitted that the opinions obtained on behalf of the applicant all came from the same source. The psychiatrist Dr Kumagaya and Dr Khong the treating neurosurgeon had used the same premises as the GP, Dr Lim. Opinions were coming from the same source, Mr Hanrahan submitted, being the surgery of Dr Lim.
Mr Hanrahan referred to the medication regime that had been prescribed to Mr Reed. He noted that the principal medication was Lyrica. Mr Hanrahan noted Mr Reed’s statement that he had been referred to a psychologist, Ms Dang, however no opinion had been provided to the Commission as to the applicant’s psychological state - in particular as to whether
Mr Reed was an appropriate candidate for surgery in view of his mental state.

Mr Hanrahan submitted that the only basis upon which this application was made was that the applicant continued to complain of pain, and the apparent failure of the nerve block injections to provide continuous relief.

Mr Hanrahan submitted that there was an absence of psychological support in favour of the proposed surgery. He referred to the clinical notes from Lurnea Medical Centre, which practice appeared to be treating Mr Reed until 13 August 2019, principally under the aegis of Dr John Holt. The entry of 23 June 2018 indicated that Mr Reed was referred to Ms Dang, so that Mr Hanrahan questioned whether Mr Reed had been accurate in saying in his statement of 2 September 2021 that the referral to Mr Dung had been “recent”.
In any event, Mr Hanrahan submitted, the absence of any opinion from either the psychologist Ms Dang or the psychiatrist Dr Kumagaya, any application for the approval of the proposed surgery was premature. It was not clear whether there were any procedures or medications that could be applied in relation to the pain that was clearly described in the notes.

Mr Hanrahan referred to the opinion of Dr Courtenay that it was highly unlikely that the proposed surgery would provide any benefit and indeed that coming to surgery at this stage might worsen Mr Reed’s condition.

Mr Hanrahan submitted in any event that there appeared to be some confusion about the nature of the surgery that had been recommended. It transpired that the evidence tended by the applicant was deficient in that it identified only the equipment to be used in the surgical procedure.

Whilst conceding that a person in the applicant’s position, having been limping as a result of the necessity to wear either a moon boot or to use crutches would experience some back pain, Mr Hanrahan nonetheless observed that Mr Reed’s denial of any prior back problems to his medical practitioners was not correct. I was referred to earlier compensation claims relating to back pain in2002 and 2013.

Mr Hanrahan concluded by submitting that in all the circumstances, having regard to the reliability of the information I had been provided with, it would not be reasonable at the present time to proceed to major two-stage spinal surgery where there was no guarantee of a better outcome.

Mr Stanton

Mr Stanton submitted that it was quite clear what Dr Khong was recommending and that in the event that this application was successful, Mr Reed would re-attend on Dr Khong for the detail of that procedure.
It was at this point, following discussion, that the actual quote relied on was eventually introduced by the applicant as I have indicated at the outset of these reasons, over
Mr Hanrahan’s objection.
Mr Stanton submitted that Mr Reed's case was quite unusual, in that it had been necessary for him to undergo two bouts of surgery to the right ankle which had prolonged the period in which Mr Reed was either in a moon boot or on crutches.

I was referred to the reports of Dr Manohar. The treatment supplied by Dr Manohar was an illustration of one of the more conservative forms of treatment that had been attempted,
Mr Stanton argued.
Mr Stanton then referred to the reports of Dr Khong, noting that Dr Khong initially recommended nonoperative treatment, which Mr Stanton submitted was further evidence of a conservative approach. Further, it could be seen that Dr Khong maintained his conservative approach by recommending ongoing physiotherapy as late as September 2020, and it was not until towards the end of the year that the conservative measures adopted in treating Mr Reed’s condition had not been successful.
The cause of the symptoms was established by the MRI scan of 26 February 2020, being a posterior tear of the annulus at L5/S1, and it was after the repeat MRI scan was taken which confirmed the continuing presence of the causal pathology that the decision was taken to proceed to surgery. Mr Stanton referred to Dr Khong’s final view in his report of 16 June 2021 that the proposed surgery was the most reasonable for treatment, and that Mr Reed’s condition was unlikely to improve without that surgery.
Mr Stanton submitted that the opinion of the medico-legal expert, Dr Singh, encapsulated the history of Mr Reed’s deteriorating symptoms despite the treatment accorded to him.
Mr Stanton acknowledged that the operative procedure proposed by Dr Singh differed from that recommended by Dr Khong. However, he submitted that criticism made by
Mr Hanrahan was not germane, in that the variation on the recommended procedure implicit in Dr Singh’s alternative did not detract from the initial recommendation made by Dr Khong.
Mr Stanton then considered the reports by Dr Courtenay. Mr Stanton acknowledged that a consistent history taken by Dr Courtenay, including the reference to Dr Kumagaya and the presence of a depressive disorder that had affected Mr Reed. However, Mr Stanton said, those problems could be traced to the physical injury, the pathology for which was apparent in the two MRI scans. Mr Stanton referred to Dr Courtenay’s concession that he had not been involved with spinal surgery for a long time, noting that Dr Khong was actively involved. Mr Stanton submitted that on balance the more up-to-date expertise of Dr Khong should be accepted against the opinion of an expert who was out of date.

Mr Stanton submitted that the reference by Dr Courtenay to articles concerned with the outcome of surgical procedures for treatment of annular had the opposite effect to that advanced by Dr Courtenay. The outcome of the reduction in the disability score of 30%
Mr Stanton submitted was a significant improvement as a result of surgery. This in turn tended to contradict Dr Courtenay’s view that Mr Reed would not get any benefit from the proposed surgery, and indeed would in all likelihood worsen.
Mr Reed’s psychological condition, Mr Stanton submitted, was a secondary issue arising from the subject injury and consequential involvement of the lumbar spine. It was not suggested that Mr Reed was suffering from functional overlay, and the reasons for the onset of his psychological condition demonstrated that they were allied to Mr Reed’s inability to return to work because of his physical condition.
Mr Stanton submitted that Dr Courtenay gave a diagnosis that was inconsistent with the objective evidence of the annular tear at L5/S1, and Dr Courtenay had not given proper weight to the proposition that the surgery might have the potential to alleviate Mr Reed’s suffering.

Mr Stanton referred to the submissions by Mr Hanrahan about the amount of medication prescribed to Mr Reed. Mr Stanton acknowledged that there had been various trials of different medication but he submitted that in the final analysis it was proof that a further conservative mode of treatment had not succeeded.
Mr Stanton submitted that the question of whether Mr Reed had suffered from prior back problems did not affect the issue before the Commission. The earlier incidents of back problems concerned the upper back and was thus an irrelevant consideration in any event.
Mr Stanton concluded by referring to the principles set out by Roche DP in Diab v NRMA Ltd[27]. Mr Stanton submitted that Mr Reed had shown that conservative treatment had been exhausted unsuccessfully, that the proposed treatment was customary to treat this particular symptom complex, and that whilst there had been some difficulty with establishing the cost of the proposed treatment, the treatment itself was typical and no suggestion had been made that the cost therefore had been inflated or was unreasonable. Mr Stanton submitted that
[27] [2014] NSWWCCPD 72 (Diab).
Mr Reed had shown that it was not reasonable to hold him out of the treatment he sought, and that the respondent had not established that there was no potential benefit to Mr Reed if he proceeded with the treatment.

Mr Hanrahan in reply

Mr Hanrahan noted that the applicant acknowledged the significance of the psychological condition suffered by Mr Reed, which Mr Hanrahan submitted was the real issue in the case. He submitted further that the applicant had not shown that all other treatments had been exhausted as there had been no evidence from the psychological treating medical practitioners as to whether the proposed surgery was compatible with Mr Reed’s psychological condition.
Mr Hanrahan also submitted that, notwithstanding the admission into evidence of the Cost of Surgery document the applicant had nonetheless still failed to establish whether the cost of the proposed treatment was reasonable.

DISCUSSION

The principles to be applied when an applicant seeks a declaration of this nature are well-known, and conveniently set out in Diab. From [88] the learned Deputy President said:
“88.    In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.   With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. 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.
90.   While the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression “no reasonable prospect” should be understood, “[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.”
As I intimated during discussion with counsel, the power to make declarations within this jurisdiction is limited to this one legislative provision of s 60 (5) of the 1987 Act. The purpose of this power would appear to be to ensure that an applicant’s proposed treatment is properly scrutinised by the Commission, presumably to protect a claimant from either unreasonable refusal by insurers, or from unscrupulous overservicing by those medical practitioners advocating the treatment.
I make that observation as a generality, and hasten to add that I am not making such accusations against the current providers. The practice of Wyong Doctors of having its experts assess the practice’s patients on site has the advantage of convenience for an injured person and enables there to be a scrutiny as to the various modalities that have become involved in any particular patient’s management.
In seeking such a declaration however it accordingly behoves an applicant to establish the elements of the entitlement to the same civil standard of proof that applies elsewhere within the Commission. It requires an applicant to establish his/her claim on the balance of probabilities, which is to say that I must feel an actual persuasion of an applicant’s case based on a common sense evaluation of the causal chain.[28]
[28] See for example Hosgorur v Esko Property Services (Aust) Pty Ltd [2021] NSWPIC 428 from [111].

I am not so persuaded in this case. Mr Stanton had to fight a rearguard action on many occasions to make his case arguable, but despite his best efforts I do not accept that the applicant has met his onus, for the following reasons.

The appropriateness of the particular treatment

The applicant sustained a consequential condition to his lumbar spine following the subject injury of 22 June 2017. The contemporaneous clinical notes show that the injury sustained that event was the fracture of the right ankle. The evidence of the clinical notes show that the back symptoms did not occur whilst Mr Reed was being treated by Dr Holt, who ceased treatment on 13 August 2019. The first suggestion of the involvement of back symptoms came when Dr Mahohar administered his ill-fated neural block sometime towards the end of 2019, when Mr Reed had gone to Dr Hossain for management of his condition. The reasons why he did so were not explained – indeed Mr Reed failed to give any history of his treatment and management at the hands of four different general practitioners.

I do not accept Dr Singh’s opinion that Mr Reed’s lumbar spine was injured in the injurious event of 22 June 2017. Dr Singh relied on the presence of complaints of calf tightening and shin pain in the right leg as the basis for his opinion. However a perusal of the contemporaneous notes made by Dr Holt show that the symptoms were more probably associated with the fracture.

Mr Reed went to the trouble of videoing the cramping and the tremors he was experiencing in his foot and ankle on 7 May 2018, which Dr Holt described as fasciculations of the intrinsic foot muscles. A further video was seen by Dr Holt on 15 July 2019 in which Dr Holt noted fasciculations in the thigh and buttock.

Dr Holt was sufficiently concerned by the symptoms that he ordered a CT scan of the lumbar spine, but he reported on 30 July 2019 that the scan was essentially normal with no nerve root contact or foraminal narrowing that would give neurological signs. The report of that scan dated 26 July 2019 was lodged, the conclusion to which was as follows:[29]
“There is no focal canal or neural exit foramen narrowing or evident nerve impingement.
[29] ARD page 83.
Mild L4-5 and L5-S 1 facet joint OA.”

Dr Khong did not suggest there was any disc prolapse, finding that no significant neural compression had been found on MRI scanning.
Dr Courtenay’s diagnosis was perhaps the clearest of the opinions given. There was no suggestion that Mr Reed had a disc prolapse, neither was there any neurological deficit in either leg. Both Dr Khong and Dr Courtenay were satisfied that the pathological cause of
Mr Reed’s symptoms was the presence of degenerative disc disease at L5/S1, and the annular tear.
In considering the appropriateness of the recommended treatment, Dr Khong’s opinion raises some concerns. The basis of his proposal was that Mr Reed was complaining of back symptoms and that those back symptoms had not been successfully treated by non-operative management. As indicated, there was no clear pathological evidence of any neurological involvement, apart from Dr Singh’s opinion which as I have said, I do not accept. There was no disc prolapse detected by the investigations, neither was there any nerve root involvement. Dr Khong’s opinion relied on the complaints made by Mr Reed, and therein lies a difficulty in establishing whether this particular treatment is appropriate.
It is apparent that Mr Reed suffers from a Major Depressive Disorder, which was diagnosed by a consultant psychiatrist, Dr David Kumagaya. No evidence was tendered by the applicant as to this condition, and Dr Kumagaya’s diagnosis was contained in a report addressed to
Dr Lim but tendered by the respondent. As I noted in discussing Dr Kumagaya’s report, it appeared to be one of a series, and I note that Dr Courtenay had access to another of
Dr Kumagaya’s reports. Mr Reed’s Major Depressive Disorder was clearly a matter of concern to those charged with the management of his case.
Mr Stanton speculated during submissions that Mr Reed’s Major Depressive Disorder was a secondary psychological condition caused by the subject injury and consequential condition. There was no expert evidence to substantiate such a submission, and Mr Stanton’s contention that it was not suggested that Mr Reed was feigning his symptoms in a functional overlay, I am unable to accept without such evidence.
It is difficult to come to any other conclusion but that Mr Reed was suffering from a significant psychiatric problem in view of the intensive treatment he received not only from
Dr Kumagaya in the eight consultations recorded in the clinical notes between 19 October 2020 and 16 February 2021, but from the 16 consultations with the unnamed psychologists (except for Mr Matek) between 20 April 2020 and 4 June 2021. These consultations suggest that Mr Reed’s psychological state was of some concern, and required constant treatment and monitoring.
Dr Kumagaya’s one report to Dr Lim did not discuss the question of causation in any detail. Neither did it discuss whether the continual treatment for Mr Reed’s psychological condition had the potential to be effective in managing Mr Reed’s perception of his pain. Moreover, it left open the question as to whether Mr Reed was an appropriate candidate for surgery because of what would appear to be his deteriorating mental state.
I am accordingly not persuaded that the recommended surgery is appropriate. It may well be that Mr Reed developed a significant psychiatric injury which was secondary to the unfortunate set of events that befell him. On the other hand, it may equally well be that the significance of his Major Depressive Disorder, whether secondary or not, might have made the surgery inadvisable in any event.
I also bear in mind Dr Courtenay’s finding on examination in one of his reports of 2 November 2021. Although Mr Stanton submitted that there was no suggestion of a functional overlay, Dr Courtenay, to the contrary, suggested that there was a significant psychological and functional overlay. Dr Courtenay thought Mr Reed was grossly exaggerating his limitation in examination both from Mr Reed’s limitation on tested range of motion, and from what Dr Courtenay thought was no loss of bulk in the shape or contour of the muscles either in the upper body or in either lower leg.
It is not unknown in this jurisdiction forapplicants to overreact when being assessed by doctors retained by the insurers, nor is it unknown for those medical practitioners to place perhaps too much reliance on such exaggeration in their reports. It also needs to be borne in mind that Dr Courtenay’s specialty is orthopaedics, but having examined Mr Reed on more than one occasion some weight can be given to Dr Courtenay’s observation that Mr Reed had come to “truly believe” that surgery was a “silver bullet” that was going to cure him.
Dr Courtenay’s opinion of 20 January 2021 was before the applicant, as it was contained within the documents attached to the reply. Dr Courtenay made it plain that Mr Reed’s psychological condition and mental health problems flagged a “huge concern”. No effort was made by the applicant to meet that concern. His failure to do so is a further matter which
I take into account in finding that he has failed to meet his onus.

The availability of alternative treatment, and its potential effectiveness

The failure by the applicant to engage with Mr Reed’s psychological condition also leaves me unpersuaded that there is no alternative treatment available which has the potential to be effective in the management of Mr Reed’s back pain.
I have read with interest the report of Mrs Turner as to the medication regime being applied at the time Mr Reed was being managed by Wyong Doctors. In view of my findings, it is not necessary to make any comment apart from observing that it was unfortunate indeed that in her 16 attempts to speak to Dr Lim by telephone, she received no response. This made it difficult for her to give any meaningful insights into Mr Reed’s medication, but I do not accept Mr Stanton’s gloss on her report, that it went to show that medication had not succeeded.

Similarly, the extensive report of Dr Elvish I found to be of some interest, particularly the statement by Mr Reed’s physiotherapist that Mr Reed was suffering from radiculopathy which was producing dermatomal and myotomal consequences to the right lower limb. In the light of the opinions of Dr Khong and Dr Courtenay that there was no such radiculopathy I am unpersuaded that Mr Reed was being treated by physiotherapy correctly.

The cost of the treatment

Until I permitted the tender of the Cost of Surgery document during Mr Stanton’s submissions, the only information before me as to the proposed cost was a quote from “Evolution Surgical”, which quoted the cost of the technical instruments required for the surgery, that is to say, the provision of an “Altus ALIF 13° Cage” and “ALIF Dual Thread Screws”. The cost of the surgery was claimed in the ARD form as being $9,500. The quote from Evolution Surgical alone was quoted as $8,091.60.[30]
[30] ARD page 9.

When Mr Hanrahan submitted that in effect the case must fail because the cost of the surgery had not been proven, Mr Stanton initially answered during his submissions by saying that it was expected that once the Commission had upheld the application, Mr Reed would then attend Dr Khong for a final recommendation, and that because the Commission was a specialist tribunal, I could in effect make a determination as to what that cost might be, and in doing so make a further determination as to whether the costs were reasonable. When
I suggested that Mr Stanton’s submission was somewhat ambitious, he then sought to solve the problem by tendering, over objection, the Cost of Surgery document.
Mr Hanrahan’s objection to the admission of this document had some substance as it turns out. The document gave an estimate cost for the Surgeons’ fee together with the item number for two amounts, totalling $9,127.50. To that was added the estimated cost of the assistant of $1,825.50. As I indicated on the transcript, I would admit the document and ascribe to it such weight as it deserved.
Analysis showed the document to be deficient in a number of respects. Next to the item regarding the Vascular Surgeon’s fee was an invitation to contact a Dr Lubomyr Lemech, complete with address and phone numbers, together with an item number. Moreover, next to the item regarding the Anaesthetist fee was an injunction to contact “Dr TBC”. Similarly, no fee was indicated in relation to the Theatre fee, nor for five nights stay at St George Private Hospital.
Thus the cost of the proposed treatment could not be ascertained. I note that the total cost associated with the proposed surgery, once the Cost of Surgery document quotes were added to those of “Evolution Surgery” came to $19,044.60. To that sum had to be added the unknown further amounts for the Vascular Surgeon, Anaesthetist, Theatre fee and five days hospitalisation. The applicant has not met his onus in this regard either.

The actual or potential effectiveness of the treatment

This aspect of Mr Reed’s claim is also a matter I am not persuaded of. There was no significant pathology revealed in the investigations, and Dr Khong’s main reason for recommending the surgery was that it was necessary because of Mr Reed’s complaints.
I have already discussed the shortcomings of that approach when discussing Mr Reed’s psychiatric condition.

Other evidentiary matters

I found Mr Reed’s statement to be unhelpful. The best evidence as to the progression of
Mr Reed’s injury I find to be the contemporaneous clinical notes that are before me. The clinical notes from the Lumea Medical Centre show that the slow recovery from Mr Reed’s fractured ankle led to the onset of a psychological condition which included the prospect of suicide. It is consistent with the subsequent psychological treatment administered by Wyong Doctors that the first referral to a psychologist came from Dr Holt. This referral, on 15 July 2019, pre-dated the onset of any back symptoms and it is possible that the subsequent re-fracture whilst in Dr Manohar’s care, which in turn led to Mr Reed’s consequential back condition, may have been a relevant factor in both Mr Reed’s perception of his symptomatology, and in any treatment directed to that perception. In any event it is clear that Mr Reed’s psychological condition deteriorated to the point where he required constant treatment and monitoring from both the unnamed psychologists and indeed the consultant Psychiatrist, Dr Kumagaya.
As indicated, there is a lacuna in the clinical notes from Mr Reed’s general practitioners. The applicant has not established when he noticed the onset of his back pain. He referred in his statement to a medical centre called “First Care Medical Centre” in Bradbury where he was placed in a moon boot. No evidence was obtained from that Medical Centre but the first MRI scan of the right ankle, taken on 10 August 2017, was addressed to Dr Islam at an address in Bradbury, so that may have been the relevant Medical Centre. [31] The last record of attendance at the Lumea Medical Centre was 13 August 2019, and the first attendance with Wyong Doctors appears to have been 17 February 2020. The reports of Dr Manohar indicate that Mr Reed’s condition was being managed by a Dr Hossain at Macquarie Fields at the end of 2019, and indeed at the time of his ill-fated neural block.
[31] ARD page 33.
There was no suggestion in the clinical notes from the Lumea Medical Centre of any involvement in the back at the time Mr Reed ceased attending the practice, and it is not clear from Dr Manohar’s reports whether he had been referred for treatment to the right leg initially, or whether the back symptoms had by then become apparent.
In his report of 14 October 2019 Dr Manohar referred to a CT scan of the lumbar spine, the date for which he did not give, which he said showed pathology in the form of facet joint changes at L4/L5 and L5/S1. It was the administration of the sympathetic neural blockade to L5/S1 that led to Mr Reed’s subsequent fall, which in turn led to the further surgery on some unidentified date in mid or late 2020.
As indicated, Dr Holt obtained the CT scan because he was concerned that there might have been some involvement in the back indicated by the symptoms Mr Reed was complaining about in his right leg. However he discounted that theory on receipt of the pathologist’s report of 26 July 2019. It is thus not clear as to when Mr Reed first suffered his back symptoms. His statement was so general and so lacking in detail that it did not assist me.
Thus, the applicant has established that he suffered a significant injury to his right ankle on 22 June 2017, as a result of which he came to surgery on 4 September 2017. Whilst he was in the care of Dr Holt there was no complaint made by Mr Reed regarding his back. However, the seriousness of his injury led to a prolonged period of recovery which in turn concerned
Dr Holt to the point that he noted Mr Reed’s financial and emotional problems, including suicidal thoughts. Dr Holt accordingly referred Mr Reed to Ms Dang.
I bear in mind the danger of making conclusions of fact based on the appearance of the clinical notes[32], but I think it is reasonable to assume that a competent general practitioner would identify the reason for being consulted. The clinical notes from Dr Holt show that there was no complaint of the involvement of the back during the time he was consulted by
Mr Reed. It follows that the onset of the back symptoms must have occurred at the time
Mr Reed was being treated by Dr Manohar, at which time Mr Reed had consulted
[32] See Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.
Dr Hossain.
Whilst the occurrence of the consequential back condition is not in question, the circumstances under which it arose have not been the subject of any evidence from
Dr Hossain, and the reports tendered by the respondent of Dr Manohar do not assist in identifying just how or when the onset of the back condition occurred.
There is an award in favour of the respondent.

[2022] NSWPIC 18

14 January 2022