Robards v Health Management & Administration Solutions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Robards v Health Management & Administration Solutions Pty Ltd [2024] NSWPIC 566
APPLICANT:	Janetta Robards
RESPONDENT:	Health Management & Administration Solutions Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	11 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses; applicant seeks payment of spinal fusion in relation to accepted injury; respondent alleges surgery not reasonably necessary as a result of the injury; applicant suffered an injury by way of aggravation to underlying pathology in her lumbar spine in May 2017; since that time, she has undertaken myriad of conservative treatment to little or no effect; her treating surgeon has indicated a spinal fusion is reasonably necessary as a result of the applicant’s injury; that view is supported by no fewer than two other treating neurosurgeons and an IME; the respondent relies on IME opinion to assert the surgery is not indicated, and finds support in the opinion of a further treating surgeon, whose view was provided in 2019; Held – the surgery is reasonably necessary as a result of the accepted injury; Diab v NRMA Limited applied, Bartolo v Western Sydney Area Health Service followed; the respondent is to pay the costs of, and incidental to, the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her lumbar spine in the course of her appointment with the respondent, with a deemed date of injury of 17 May 2017. 2. The proposed anterior lumbar interbody fusion and fixation proposed by Dr Kam is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of and incidental to the proposed surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

There is no issue Ms Janetta Robards (the applicant) suffered an injury in the course of her employment with the respondent, Health Management and Administrative Solutions Pty Ltd as a result of the nature and conditions of her employment with the respondent up to and including 17 May 2017. That injury is in the nature of an aggravation of underlying pathology to the lumbar spine.
The applicant was employed as a senior carer by the respondent, and as part of her duties, had to carry out care of disabled and infirm patients. There is no issue the applicant’s duties were repetitive and heavy in nature.
The applicant seeks payment for a proposed lumbar fusion surgery as recommended by her treating surgeon, Dr Kam. The respondent alleges the proposed surgery is not reasonably necessary as a result of the applicant’s accepted injury.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant’s proposed surgery is reasonably necessary as a result of her injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 8 October 2024. Mr Brown acted for the applicant.
Mr Stockley acted for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The reasonable necessity of the proposed surgery

The applicant carries the onus of proving that the medical treatment claimed is reasonably necessary. The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab). In that matter, the Deputy President cited with approval, the test articulated by his Honour, Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. That is, treatment will be considered reasonably necessary if the Commission finds it is preferable the worker should have it rather than it be forborne.
There are other considerations which are also relevant to deciding whether treatment is reasonably necessary. These include, but are not limited to:
(a)    the appropriateness of the treatment;
(b)    the availability of alternative treatment and the potential effectiveness of those alternatives;
(c)    the cost of the proposed treatment;
(d)    the actual potential effectiveness of the proposed treatment, and
(e)    the acceptance by medical experts that the treatment is appropriate and likely to be effective. (per Roche DP in Diab)
In Diab, Roche DP also noted that the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment is absolutely necessary. Additionally, more than one treatment modality can be simultaneously reasonable.
In addition to the treatment being reasonably necessary, the requirement for the treatment needs to have been brought about “as a result of” the injury at issue. In Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD18 (Schokman), Roche DP made it clear that in the context of medical treatment in a workers’ compensation case, what is required is a conclusion, as a matter of common sense, the injury was a material cause of the need for the proposed treatment, even if other factors were also present that may have also contributed to that need (at [54]).
In this matter, for the following reasons. I am of the view the proposed surgery is reasonably necessary.
There is no doubt the applicant has suffered the onset of serious lumbar spine injuries since the deemed date of injury. There is also no question the applicant has underlying pathology in the lumbar spine, but that it became symptomatic as a result of her duties. The applicant’s unchallenged evidence was that she, at no time, had significant back or leg pain prior to her employment with the respondent.
The applicant was diagnosed with mechanical lower back pain with disc prolapse and pain in her right thigh and knee by her general practitioner (GP) Dr Mowbray. Since the time of her injury, she has undergone extensive conservative treatment, details of which are set out later in these reasons.
The applicant was referred to Dr Kam, treating surgeon in June 2017, a month after the deemed date of injury. Dr Kam has seen the applicant on many occasions since the initial consultation, and his opinion is valuable in that it sets out in detail the applicant’s long history of conservative treatment. That treatment includes the following:
(a)    amitriptyline and Voltaren;
(b)    lyrica;
(c)    left sided L5/S1 interlaminar epidural block;
(d)    physiotherapy;
(e)    epidural steroidal injection;
(f)    neurotomy;
(g)    a further lumbar epidural injection;
(h)    provocative lumbar discogram;
(i)    various pain management specialty treatments, and
(j)    insertion of a spinal cord stimulator.
For the respondent, Mr Stockley noted independent medical examiner (IME), Dr Sheehy opined that, absent signs of nerve impingement caused by the injury, the proposed surgery was not indicated.
Mr Stockley criticised the applicant’s IME, Dr Khong, for failing to provide sufficient analysis as to how the proposed surgery would affect the symptomatic pathology in the L5/S1 disc space. However, Dr Sheehy’s opinion not only disagrees with that of Dr Khong as to the benefits to be derived from the proposed surgery, but also with the views of the applicant’s treating surgeons. Relevantly, Dr Sheehy saw the applicant on one occasion only, on
21 October 2021.
Each of Dr Kam and fellow treating surgeons, Dr McKechnie and Dr Coughlin opined the surgery is reasonably necessary to relieve the applicant’s mechanical back pain caused by the injury.
In other words, Dr Sheehy’s opinion stands in contrast to three treating spinal surgeons and the applicant’s IME in indicating the surgery would only be appropriate where there are signs of nerve impingement. That, of course, does not render Dr Sheehy’s opinion unsound. It is necessary to examine the totality of the evidence in determining whether the relevant test for payment of medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act) has been met.
Mr Stockley noted that in his initial report, Dr Kam stated surgery was not indicated and the applicant should continue with conservative treatment. However, Dr Kam’s views changed with time, something for which, in my view, he ought not be criticised.
Dr Kam had the benefit of seeing the applicant on no fewer than six occasions, and monitoring her condition as she proceeded through myriad conservative treatment options, all of which provided, at best, temporary and/or insignificant relief. As such, I am of the view Dr Kam is uniquely qualified in this matter to comment on the applicant’s condition and, absent some obvious error in either the history he has taken or in his method of assessment, his views are entitled to considerable weight as a longstanding treating neurosurgeon. This is particularly the case when the contrary view is put by an IME who only saw the applicant on one occasion some three years ago, since which time the applicant has undertaken a lot of conservative treatment to no avail as her condition has deteriorated or, at best, failed to improve.
Mr Stockley also noted the applicant had a history of some psychological issues following the injury and submitted those symptoms would provide a reason to be cautious before proceeding to surgery.
Mr Brown submitted the applicant’s GP would be in a position to determine whether her psychological health was sufficient to proceed with the proposed surgery.
The applicant, whilst plainly suffering from symptoms of depression and anxiety, is not the subject of medical opinion suggestive of such condition precluding her from undergoing the surgery. Moreover, a patient’s state of mind, as well as their physical wellbeing, are matters which are within the purview of a surgeon who proposes to carry out the surgery. That is, they will have their patient’s wellbeing in mind.
In terms of the potential effectiveness of the surgery, Dr Kam originally indicated the applicant would have a 75% chance of recovery with pain reduction down to a level of 2-3 out of 10. He was of the view the applicant had exhausted all other options and that the proposed operation was reasonably necessary.
Dr Kam disagreed with the view of Dr Sheehy, noting the provocative lumbar discogram undertaken at Dr Kam’s request produced pain in a similar pattern to that which the applicant had previously experienced. He stated the reduction of pain symptoms was a crucial part of the result to confirm that the pain generator was coming from the L5/S1 disc space. The fact this disc space of the source of the applicant’s pain is not in dispute.
Dr McKechnie, treating neurosurgeon, also provided a number of reports. He also agreed the applicant was a candidate for L5/S1 fusion surgery, however, he preferred a posterior approach as opposed to the anterior approach which fellow treating surgeons Dr Coughlin and Dr Kam had proposed.
The parties in these proceedings agreed that the approach being either posterior or anterior for the surgery is not a material consideration, as it is merely a different approach to carrying out the same procedure.
Mr Stockley submitted weight should be given to the view of former treating surgeon
Dr Biggs, who opined the applicant was not a candidate for surgery without the presence of nerve root compression. I note, however, that opinion was provided in April 2019, over five years ago. Dr Biggs does not have the benefit of having seen the applicant over many years or recently, as have Drs McKechnie, Khong, Kam and Coughlin. This being so, I am not minded to prefer his view to those of the more recent treating specialists.
By 7 February 2024, when he provided his last report, Dr Kam had increased the likelihood of the surgery being successful to 80-85%. In terms of the indication for the operation, Dr Kam stated:
“The clinical indication for surgery is one of mechanical back pain identified by the changes seen at the L5/S1 level on the MRI scan. Both Dr McKechnie and I have recommended surgery to treat her condition. There is, however, a difference as to how the operation is done. An L5/S1 fusion can be achieved by an anterior approach, posterior approach or in some cases, anterior and posterior combined. In Ms Robard’s case, I have recommended an anterior approach, mainly to preserve the musculature of the posterior part of the lumbar spine. This will minimise any collateral injury to her musculoskeletal structures as we perform the anterior column fusion procedure through the anterior approach.
The posterior approach recommended by Dr McKechnie is also a valid approach. We also perform that procedure but have chosen the anterior approach because of the shorter recovery period and the less postsurgical pain that the patient would experience. Both approaches will achieve the same outcome at 6-12 months. The anterior approach I propose will give her a more rapid recovery in order to start driving a motor vehicle as early as three weeks as well as office-based sedentary work by the 4–6-week mark. The alternative posterior approach will take a longer period of time to reach those particular milestones.”
In terms of the conservative treatment which the applicant has undergone, the respondent submitted a refusal on her part to undertake a final course of ADAPT pain therapy at Royal North Shore Hospital before the proposed surgery meant the latter was not reasonably necessary.
However, the applicant has attempted myriad conservative forms of treatment, including other pain therapy. In my view, her declinature of a specific pain management programme does not render the proposed surgery unreasonable.
As noted by her treating doctors, the applicant’s options are a trade-off between ongoing pain from which she suffers and the underlying risks of surgery, which are set out in the reports of Dr Kam and Dr McKechnie.
Whilst not in any way downplaying those risks, they may be appropriately described as the usual risks associated with any surgery, together with the risk of adjacent segment disease, itself a common risk associated with any spinal fusion. That is, no surgeon in this matter, treating or medicolegal, indicates there is a differential risk to the applicant from the proposed surgery over or above those which any patient undertaking the procedure must carry.
Dr Mowbray, GP was also of the opinion the applicant has exhausted all nonsurgical options and her condition had not substantially changed in five years. He was of the view that without surgery, the applicant’s condition was unlikely to improve and is more likely to deteriorate.
I find that opinion persuasive, consistent as it is with the views of Drs Coughlin, McKechnie, Khong and Kam.
In terms of causation, applying a commonsense evaluation of the evidence, I have little difficulty in finding the applicant’s employment is the cause of the requirement for the surgery.
As noted, the applicant had no symptoms in her lower back before undertaking the heavy course of work with the respondent over many years. There is no suggestion of any symptomology before that time, and it is vital to keep in mind it is symptomology rather than pathology which necessitates the requirement for any form of treatment.
A worker may have asymptomatic pathology, for example, in their knee; however, upon sustaining an injury in the workplace that pathology may be rendered symptomatic and require treatment. In those circumstances, it is readily apparent the requirement for surgery arose as a result of the applicant’s employment, in the sense the employment made a material contribution to the need for the treatment, even against a background of preexisting pathology. This is such a case.
On balance, I am comfortably satisfied on the balance of probabilities that the preponderance of the lay and medical evidence in this matter demonstrates the requirement for the proposed surgery is brought about by the applicant’s injury, and that such surgery is reasonably necessary.
For these reasons, the respondent will be ordered to pay the costs of and incidental to the proposed surgery.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 566

11 October 2024