Ruaporo v Programmed Integrated Workforce Limited
[2021] NSWPIC 12
•9 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ruaporo v Programmed Integrated Workforce Limited [2021] NSWPIC 12 |
| APPLICANT: | Peter Kiato Ruaporo |
| RESPONDENT: | Programmed Integrated Workforce Limited |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 9 March |
| CATCHWORDS: | WORKERS COMPENSATION- section 60 of the 1987 Act; reasonable necessity of proposed L5/S1 laminectomy; discectomy; and posterior lumbar interbody fusion; Diab v NRMA Ltd [2014] NSWWCCPD 72 considered; Held- the proposed surgery is reasonably necessary medical treatment as a result of the injury; award for the applicant. |
| DETERMINATIONS MADE: | 1. That the proposed medical treatment, that is L5/S1 laminectomy; discectomy; and posterior lumbar interbody fusion is reasonably necessary treatment as a result of the injury on 15 August 2018. 2. That the respondent is to pay, pursuant to section 60 of the Workers Compensation Act1987, the cost of the proposed medical treatment. 3. That no order is made in respect of the claim for past medical expenses. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Peter Kiato Ruaporo (Mr Ruaporo) was employed by the respondent, Programmed Integrated Workforce Limited, as a warehouse labourer and forklift driver.
Mr Ruaporo sustained an injury to his lumbar spine on 15 August 2018. He was carrying a piece of double-glazed glass, weighing approximately 15 kilograms to 25 kilograms. He sustained the injury when he placed the glass on a framing board at approximately above knee height. The injury aggravated a pre-existing condition of his lumbar spine.
Liability for the injury has been accepted by the respondent’s insurer, Employers Mutual NSW Limited (EML).
On 26 August 2019, the applicant’s treating neurosurgeon, Dr Balsam Darwish, requested approval from EML for Mr Ruaporo to undergo L5/S1 laminectomy; discectomy; and PLIF (posterior lumbar interbody fusion)
On 19 November 2019, EML issued Mr Ruaporo with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998. It disputed liability for the proposed surgery on the grounds that it was not reasonably necessary as a result of the injury.
Dr Darwish again requested approval for the surgery from EML on 22 April 2020.
The applicant requested a review of EML’s decision on 1 May 2020.
On 18 May 2020, EML issued a further notice, in which it maintained its decision to dispute liability.
The applicant lodged an Application to Resolve a Dispute (the Application) on 12 November 2020.
The Application claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the amount of $1,114.70 in respect of past medical expenses (Medicare Notice of Charge); and future medical expenses of $20,947.50 in respect of L5/S1 laminectomy, discectomy and PLIF.
The respondent lodged its Reply on 27 November 2020.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Whether the surgery proposed by Dr Darwish is reasonably necessary medical treatment as a result of the injury.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing on 16 February 2021. Ms Nicole Compton of counsel appeared for the applicant, instructed by Ms Marie Bollins; and Mr Paul Rickard of counsel, instructed by Mr Michael Lee, appeared for the respondent.
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 taken into account in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 15 January 2021 and attached document, filed by the respondent.
The admission of the Application to Admit Late Documents and attached document was objected to by the applicant. The evidence was admitted, for reasons provided at the arbitration hearing, and which were recorded.
Oral evidence
There was no application to call oral evidence.
FINDINGS AND REASONS
Evidence of the applicant, Peter Kiato Ruaporo
Mr Ruaporo’s statement is dated 4 November 2020.
On 15 August 2018, the applicant was carrying a piece of double-glazed glass. He stated that it weighed approximately 15 kilograms, “with one piece up to 125kg with more pieces of glass together with another colleague”. As he bent over to lift the glass he twisted and experienced sudden sharp pain in his lower back, going into his left and right legs.
The applicant sought treatment from his general practitioner, Dr Chowdhury Akram-Uz-Zaman, who referred him to Dr Darwish. He underwent investigations; was referred to physiotherapy and hydrotherapy; and took medication.
Mr Ruaporo tried to return to light duties for four weeks, but stopped work in March 2019, due to persistent lower back pain, stiffness and pain down both legs. He had participated in a return to work program but on 30 November 2018 he contacted his rehabilitation provider to advise that he was unable to attend work due to persistent back pain.
Dr Darwish has recommended L5/S1 laminectomy, discectomy and fusion, which he had explained had a 60% chance of significantly improving the applicant’s back pain.
The insurer declined liability for the surgery, relying on Dr Vidyasagar Casikar’s report dated 8 October 2019, on the grounds that acceptable treatment would be microdiscectomy surgery.
The applicant had been assessed by Dr Peter Bentivoglio, who does not agree with Dr Casikar’s recommendation, but agrees that L5/S1 discectomy, decompression and fusion is appropriate.
The applicant sustained a back injury in the respondent’s employ in or about October 2013, when he lifted a heavy generator. He was treated with physiotherapy and a gym program and returned to his pre-injury duties in June 2014.
On or about 10 September 2014, the applicant injured his back while lifting and carrying bags of cement. He was employed by YML Recruitment Agency, whose insurer first accepted liability, but later referred the claim back to the respondent.
The applicant consulted Dr Darwish and had a cortisone injection. His last consultation with Dr Darwish, before the injury on 15 August 2018, was on 21 April 2015. He managed his lower back pain with conservative treatment for three years and continued to work his pre-injury duties.
The applicant’s treatment has included consultations with his general practitioner and specialist; physiotherapy twice a week; hydrotherapy; exercise physiology; gym program; Panadeine Forte; Mobic; and Lyrica (now ceased).
The applicant’s disabilities are constant sharp pain and ache in his lower back, radiating to his left and right legs; restricted range of movement when his back and legs are sore; difficulty and discomfort with pushing and pulling; inability to bend, twist or squat; inability to lift more than 10 kilograms; ability to drive only short distances or for 30 minutes at a time, with five minutes rest; inability to do prolonged walking; sitting and climbing; ability to do only light domestic duties; the necessity to avoid social activities; and trouble sleeping.
Mr Ruaporo is currently unfit to work. “There is no one area” of his life “my work-related injury has affected me” [sic].
Medical evidence
Dr Balsam Darwish – Neurosurgeon and Spinal Surgeon
Dr Darwish reported first on 23 October 2014.
The applicant had presented with lower back pain and sciatica that started after a work related injury on 10 September 2014. He had another injury in October 2013 and was treated conservatively.
Dr Darwish has referred to MRI scans on 8 October 2014 and 6 February 2014, which showed a similar appearance, that is L5/S1 disc dehydration and annular tear; and small disc fragment contacting the left S1 nerve root in the lateral recess.
Dr Darwish opined that the applicant’s symptoms were highly suggestive of L5/S1 discogenic pain and left S1 radicular pain. He was to organise left L5/S1 epidural injection; and referred the applicant for physiotherapy.
On 29 January 2015, Dr Darwish reported that the injection had helped the applicant’s back pain, “which lasted for only 10 days” (assumed to mean the effect of the injection lasted 10 days). The insurer had approved hydrotherapy and a gym program. Dr Darwish had explained to the applicant that management of discogenic pain is complex and often unsuccessful; and his best option was to continue with conservative treatment.
On 10 March 2015, Dr Darwish reported that the applicant continued to complain of lower back pain and stiffness. He was taking medication and had commenced a gym program.
Dr Darwish was to review the applicant in six weeks. If he failed to respond to conservative treatment, his last option was L5/S1 laminectomy, discectomy and fusion.
On 21 April 2015, Dr Darwish reported that the applicant continued to complain of mild lower back pain and stiffness. He had improved with physiotherapy, gym and hydrotherapy; and was taking medication. Dr Darwish advised him to continue physiotherapy and the gym program with the aim of losing weight. In the long term, his best option was to look for office type work.
The applicant then did not consult Dr Darwish until 17 September 2018. Dr Darwish recorded a history of the injury on 15 August 2018, when the applicant developed lower back pain radiating to both legs, associated with paraesthesia below both knees, more on the right. He organised MRI of the thoracolumbar spine; prescribed medication; and referred the applicant for physiotherapy.
On 15 October 2018, Dr Darwish reported that the MRI showed no spinal cord pathology. The applicant had L5/S1 disc dehydration and annular tear, but no obvious nerve root compression. Dr Darwish had advised the applicant that his best option was to continue with conservative treatment; and he recommended physiotherapy, hydrotherapy and gym program. The applicant was prescribed Mobic and Panadeine Forte.
Dr Darwish reviewed Mr Ruaporo and reported on 19 November 2018. The applicant continued to complain of lower back pain and stiffness, but no radicular leg symptoms. He had not commenced physiotherapy due to approval issues. Dr Darwish recommended that the applicant start physiotherapy and hydrotherapy; and progress to a gym program supervised by an exercise physiologist. He was also to continue his medication.
On 4 March 2019, Dr Darwish reported that the applicant continued to complain of lower back pain and stiffness, but no radicular leg symptoms. He was working six hours per day, three days per week, in work that aggravated his back pain. Dr Darwish encouraged him to continue the physiotherapy and gym program and changed his medications.
On 26 August 2019, Dr Darwish reported that the applicant could not cope with work. He discussed treatment options, including conservative treatment and surgery, with Mr Ruaporo. Dr Darwish recommended L5/S1 laminectomy, discectomy and fusion. He told the applicant this had 60% chance of significantly improving his back pain. The applicant was “happy to go ahead with the operation.”
On 9 September 2019, Dr Darwish reported that the applicant continued to complain of lower back pain radiating to both lower limbs. He had not heard from the insurer regarding the proposed surgery.
Dr Darwish reported on 2 December 2019 that the applicant continued to complain of lower back pain and pain in both lower limbs. He had been assessed by Dr Casikar, but Dr Darwish had not heard from the insurer.
Dr Darwish reported to the applicant’s solicitors on 13 July 2020. He reviewed the applicant’s history from October 2014.
MRI of the applicant’s thoraco-lumbar spine dated 19 September 2019 [sic: 2018] showed L5/S1 disc dehydration and annular tear, but no obvious nerve root compression. The applicant was advised to have physiotherapy and prescribed Mobic and Panadeine Forte.
The report of the MRI, by Dr Dinesh Yadav, is attached to the Application. It includes the clinical finding “low back pain radiating to both legs.” Dr Yadav has recorded “minor degenerative annular tearing at the L5/S1 disc. No significant central spinal canal or foraminal stenosis at any level”.
Dr Darwish confirmed that he had reviewed the applicant numerous times between September 2018 and 2 July 2020. He had tried all forms of conservative treatment, including physiotherapy; exercise program; pain management; and epidural injection, without improvement. As Mr Ruaporo had failed to respond, he was advised to have L5/S1 laminectomy, discectomy and fusion. Liability for the surgery was declined, based on a report from Dr Casikar.
Dr Darwish had diagnosed the applicant with L5/S1 discogenic pain, which started after a work injury. The initial injury was on 23 October 2014, with a subsequent injury on 15 August 2018.
The applicant had been advised to have surgery, which Dr Darwish considered had an 80% chance of improving his leg symptoms and a 60% chance of significantly improving his back pain. He opined that the management of discogenic pain is complex and often unsuccessful. The treatment the applicant had undergone was “reasonable and necessary”. Because he had failed to respond, he was advised to have surgery. The cost of the surgery is approximately $50,000.
Dr Darwish did not believe microdiscectomy would help the applicant’s back pain. His main problem was back pain and not nerve pain. The microdiscectomy would help with radicular leg pain but not back pain. Dr Darwish therefore disagreed with Dr Casikar’s recommendation.
While Dr Darwish agreed that seeing a pain specialist was a reasonable option, over the last few years the applicant had failed to respond to all forms of conservative treatment, including pain management. He did not believe Mr Ruaporo would benefit from radiofrequency ablation to the facet joint as his pain originated from the L5/S1 disc.
Dr Darwish believed the applicant would benefit from seeing another spinal surgeon for another opinion. He also believed the proposed surgery was a reasonable option, accepted by most practising neurosurgeons and spine surgeons.
Dr Vidyasagar Casikar - Neurosurgeon
Dr Casikar reported to EML first on 8 October 2019.
Dr Casikar noted that the applicant stopped work in March 2019. He had been involved in a road traffic accident on the way to the consultation but did not appear to have sustained any major injuries.
Dr Casikar recorded a history of the injury, the applicant’s injury in 2013, and treatment that is consistent with the applicant’s evidence. Mr Ruaporo complained of lower back pain; sometimes pain along the left leg; and pain along the right leg “on and off”.
The applicant had not brought any x-rays, but Dr Casikar reported that MRI in 2014 suggested a disc protrusion at L5/S1. Dr Anton’s [sic Antoun’s] report of June 2019 indicated that the MRI reported only degenerative changes. There is no mention of the disc prolapse. Dr Tony Antoun is apparently an injury management consultant who provided a report dated 17 June 2019. That report was provided to Dr Casikar but is not in evidence. There is no way of knowing the date of the MRI report to which Dr Antoun referred.
Dr Casikar diagnosed L5/S1 disc prolapse. He opined that the applicant probably had a discogenic injury following the injury on 15 August 2018. He based this on his clinical findings, but had no way to verify it, because he had not seen the radiological reports. There was inconsistency in the MRI report of 2018, which he needed to see.
Dr Casikar noted that there was evidence of moderate pre-existing degenerative disease, based on the MRI reports. The applicant’s condition appeared to be an aggravation of pre-existing pathology. His employment had been “the significant contributing factor”; and the aggravation had not ceased because he still complained of back pain. Dr Casikar found it difficult to indicate that employment was the main contributing factor, because the applicant had pre-existing degenerative disease.
The applicant was not exaggerating any symptoms and seemed to be very consistent. The main inconsistency was between the clinical examination and the radiological findings, as the recent MRI did not indicate evidence of a discogenic injury.
Dr Casikar opined that the surgery suggested by Dr Darwish seemed inconsistent with the pathology. The applicant had a disc prolapse at L5/S1, for which the acceptable treatment is microdiscectomy. Spinal fusion is “unnecessary and is excessive”, so Dr Casikar did not consider it reasonably necessary. The applicant may require advice on reducing his weight and regular home-based exercises. He may require discectomy if his symptoms did not get better.
On 23 December 2020, Dr Casikar provided a supplementary report. He had been asked to comment on Dr Bentivoglio’s report dated 16 March 2020, which is discussed below.
Dr Casikar confirmed that he had indicated, based on the MRI report, that Mr Ruaporo had a disc prolapse at L5/S1, for which the standard treatment would be a discectomy. He had opined that the spinal fusion suggested by Dr Darwish was excessive.
Dr Casikar noted that Dr Bentivoglio had reported there was no evidence of radiculopathy, except for neuropathic pain; and his assessment of the MRI was degenerative disease. Dr Casikar had previously indicated that he could not comment further because he had not seen the hard copies of the MRI.
Dr Casikar opined that it is possible for a disc prolapse to reabsorb; and they are known to do so over a period of time. It is “well recognised” that over 40% of disc protrusions resolve without surgery. The fact that there was evidence of disc prolapse (in 2014) and subsequently this was not recognised by Dr Bentivoglio is consistent with the natural pathology of disc prolapse. If the disc protrusion that was evident in 2014 was not seen in 2019, it is reasonable to assume it had resolved.
Dr Casikar further opined that if there are no signs of nerve root compression or radiculopathy, discectomy is not appropriate; and no surgery is required. In his opinion neither discectomy nor spinal fusion was necessary when there was no clinical evidence of a nerve root compression.
Dr Casikar noted that Dr Bentivoglio had indicated that neurological examination was normal. He was “still surprised” that Dr Bentivoglio recommended decompressive laminectomy, followed by spinal fusion. The basic principle of spinal surgery is that it is indicated only when there is verifiable evidence of nerve root involvement.
Dr Bentivoglio had opined there was only 60% chance of overall improvement, Dr Casikar referred to studies showing that any kind of spinal surgery, particularly spinal fusion, on a background of workers’ compensation, has a very poor result. The probability of the applicant going back to any kind of work after the surgery recommended by Dr Bentivoglio is very slim. The literature suggests that the outcome of spinal fusion on a background of degenerative disease is extremely poor.
Dr Casikar has reported that Dr Bentivoglio “does agree with microdiscectomy only”. This appears to be a typographical error for “does not agree”. He opined that the standard form of treatment with microdiscectomy would only be if there is a disc prolapse; and “spinal fusion is not acceptable”.
Dr Casikar indicated that he had not seen the applicant’s x-rays. His opinion was based on the radiologist’s reports. “In any case”, the applicant’s radiological symptoms had resolved. His disc prolapse had regressed. Dr Casikar opined that non-surgical management has a better outcome. He would be very concerned about surgery on a man whose neurological symptoms had resolved; who has only got back pain; and whose MRI shows resolution of disc prolapse.
Finally, Dr Casikar noted that Dr Bentivoglio had stated that the applicant had axial pain secondary to degenerative disease; and then confirmed there was no radiculopathy. This is consistent with Dr Casikar’s opinion. He begs to differ from Dr Bentivoglio’s opinion that a spinal fusion was necessary. If there is no nerve root compression, there is no need for any surgery as a consequence of this injury.
Dr Peter Bentivoglio – Neurosurgeon
The applicant has qualified Dr Bentivoglio, who reported first on 16 March 2020.
Dr Bentivoglio recorded a consistent history of the injury and the applicant’s symptoms. He noted a significant past history of low back pain going into the left leg; a heavy lifting injury in September 2014; and an injury in October 2013.
Dr Bentivoglio referred to CT scan dated 28 August 2018, which showed mild bulging from L1 to L5, no neurological compression, but a slight disc bulge at L5/S1, with slight left-sided preponderance with impingement on the dural sac. There were also mild facet joint changes at L5/S1. MRI scan dated 19 September 2018 (reported on by Dr Darwish) showed L5/S1 disc desiccation and an annular tear, but no neurological compromise. The other levels were not reported. Dr Bentivoglio noted that he had not seen the MRI scan or a report of the scan, as they had been lost.
The applicant had had physiotherapy and hydrotherapy for about eight weeks, which helped the pain but did not provide lasting benefit. His only current treatment was six to eight Panadeine Forte tablets a day; and one Mobic a day.
Dr Bentivoglio recorded that the applicant rated his low back pain as 7/10, deteriorating with increasing activity. He had had recent overnight admission to hospital for low back pain. He rated his leg pain, which was more numbness, at 6/10. His walking and sitting were restricted. He could drive. He could only do light domestic duties. His bladder revealed some hesitancy and his bowels were normal.
Dr Bentivoglio’s working diagnosis was discogenic low back pain caused by degenerative disc disease at L5/S1, with no significant neurological compression and no radiculopathy. The applicant appeared to have some neuropathic discomfort. He had lost 25 kilograms and weighed 118 kilograms.
Dr Bentivoglio opined that the injury on 15 August 2018 had exacerbated a pre-existing back problem. The applicant’s impairment was an aggravation of pre-existing problems that had been substantially caused by his employment. His current employment was the main contributing factor to the acceleration, exacerbation or aggravation of the disease. As regards treatment, Dr Bentivoglio favoured conservative treatment to any operative treatment, “as Dr Darwish has already stated”.
Dr Bentivoglio opined that if the applicant did not get any better with conservative treatment, he would have to consider a decompression and fusion at L5/S1 to see if it helped his mechanical axial back pain. Unfortunately, it is difficult to predict whether there would be a reasonable outcome of this procedure. However, Dr Bentivoglio did not believe further physiotherapy or hydrotherapy would benefit Mr Ruaporo.
Dr Bentivoglio believed decompressive laminectomy at L5/S1, followed by discectomy and fusion, was appropriate. He opined that the applicant required a fusion, not just a simple discectomy at L5/S1. He gave the applicant a 60% overall chance of some improvement. At that stage, the procedure was not absolutely necessary. It was not urgent. The applicant had no neurological deficit. It was purely to help manage his mechanical axial discogenic back pain. At that stage, the only other treatment Dr Bentivoglio could recommend was perhaps steroid injections at the lumbosacral level, or radiofrequency ablation at the L5/S1 facet joints (at a cost of from $5,000 to $10,000). These may afford temporary benefit, but in the long run the applicant would need the surgery.
The appropriateness of the proposed surgery was based on the fact that all conservative treatment had failed; and the applicant still had significant mechanical axial back pain. He had had appropriate alternative treatment but had not been referred to a pain clinic. It would be reasonable to refer him to a pain clinic to see if it could help him with cortisone injections or radiofrequency ablations, but if not, the surgical option was the only one available,
Dr Bentivoglio did not agree with Dr Casikar’s recommendation of microdiscectomy only. The applicant did not seem to have evidence of significant neurological compression on MRI done on 19 September 2018; and microdiscectomies only aim to decompress nerves and help sciatic pain. Discogenic pain affecting both limbs, neuropathic pain and significant back pain need a more radical procedure.
Dr Bentivoglio next reported on 5 August 2020. He reiterated that the applicant had had extensive conservative treatment, but noted he had not been referred to a pain clinic to see if cortisone injections or radiofrequency ablation would help him, even though he would probably only have a temporary effect. Dr Bentivoglio felt the applicant would need to eventually have decompressive surgery and fusion at L5/S1. He had not felt there was any urgency for this.
The applicant’s solicitors advised Dr Bentivoglio that Dr Darwish had opined that Mr Ruaporo had failed to respond to all conservative treatment, including seeing a pain specialist and pain management. He did not believe the applicant would benefit from radiofrequency ablation to the facet joint, as his pain originated from the L5/S1 disc. Dr Bentivoglio was asked whether he agreed.
Dr Bentivoglio responded that, if the applicant had seen a pain specialist and had pain management, and they did not feel he would benefit from radiofrequency ablation or facet joint injection, then he agreed it was probably reasonable to consider the surgery recommended by Dr Darwish. There was no urgency for the procedure. As all forms of conservative treatment had failed, the only chance the applicant had of getting any improvement was operative intervention, “or he lives as he is”. He therefore recommended the surgery.
SUBMISSIONS
Counsel’s submissions have been recorded, so I will summarise them only briefly.
Ms Compton, for the applicant, referred to his evidence of the treatment he has undergone; his attempts to return to work; and his disabilities.
Ms Compton submitted that Dr Darwish had seen the applicant 10 times between 2018 and 2020. The applicant had tried all conservative treatment and should have surgery. Pain management had failed.
Ms Compton submitted that Dr Casikar had missed that the applicant has axial back pain that is discogenic in nature. He did not take this into account in providing his opinion. She submitted that I would accept the opinion of Dr Darwish; and would not be persuaded by the opinion of Dr Casikar. I would place little weight on his opinion, when compared with that of Drs Darwish and Bentivoglio, who have considered all the evidence.
Ms Compton finally submitted that the proposed surgery is appropriate; one of the alternative treatments available; its cost is not excessive; and it has actual or potential effectiveness. She relied on the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). The treatment is accepted by medical experts. Both Dr Darwish and Dr Bentivoglio identify it as appropriate.
Mr Rickard, for the respondent, submitted that Dr Casikar’s opinion would be accepted. The applicant had an injury in 2015 and continued his duties for three years. He had no x-rays when examined by Dr Casikar. The MRI report in 2014 suggested a disc protrusion at L5/S1. Dr Anton’s x-ray report of June 2019 did not mention a prolapse.
Mr Rickard submitted that Dr Casikar had diagnosed L5/S1 disc prolapse and probable discogenic injury. These were his clinical findings. He had no way to verify them. In accordance with good medical practice, he wanted correlation of his clinical findings, especially the MRI. He noted the inconsistencies between his clinical examination and the recent MRI, which did not indicate evidence of a discogenic injury. He opined that the surgery suggested by Dr Darwish seemed inconsistent with the pathology; and spinal fusion was excessive. It was not reasonably necessary.
Mr Rickard submitted that Dr Bentivoglio supported the surgery to some extent, but his support was qualified and guarded; and there was a large caveat. He favoured conservative treatment. He opined that if the applicant did not get any better with conservative treatment, he would have to consider a fusion, but it is very difficult to predict whether there would be a reasonable outcome. In March 2020, when Dr Bentivoglio first reported, the surgery was not absolutely necessary. Mr Rickard submitted that this was de minimis support.
Mr Rickard submitted that Dr Casikar had responded in his report dated 23 December 2020 to Dr Bentivoglio’s opinion that he did not agree with the recommendation of microdiscectomy only. Dr Casikar noted that Dr Bentivoglio had found no evidence of radiculopathy, except for neuropathic pain. He could not comment further because he had not seen the MRI. Mr Rickard submitted that it was clear Dr Bentivoglio had not seen it either. The general consensus was that the L5/S1 impingement was no longer there.
Mr Rickard submitted that Dr Casikar has reported that a disc protrusion can reabsorb. It was not seen in 2019 so it was reasonable to assume it had resolved. The crucial part is that he had taken the view that there was a discogenic injury for which the acceptable treatment was microdiscectomy, but in his second report he opined that no surgery was required; and he provided his reasons.
The respondent finally submitted that it would not be in the applicant’s best interests to have the surgery and it is unlikely to assist him.
In reply, Ms Compton submitted that whether the surgery is in the applicant’s best interests is a matter for him. The purpose of the surgery is to deal with axial mechanical back pain. It is reasonably necessary in his particular circumstances.
SUMMARY
The issue to be determined is whether the proposed surgery is reasonably necessary as a result of the injury to the applicant’s lumbar spine on 15 August 2018.
The applicant has given evidence of the effect of the injury on him. It has affected most of his daily activities and he is unable to work. He has constant sharp pain in his lower back, radiating to both legs.
The applicant has the support of his treating specialist, Dr Darwish, and Dr Bentivoglio, who has been qualified in his case.
Dr Casikar, who was qualified by the respondent, initially provided some support for surgery, based on his clinical findings, but did not believe a fusion was necessary. Rather, he opined that, if surgery were to be performed, the appropriate procedure was microdiscectomy. He later opined that the applicant’s disc prolapse had resolved, so that no surgery at all was required.
The applicant relies on the decision of Roche DP in Diab.
Roche DP said in Diab [at 86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP cited with approval the decision of Judge Burke of the Compensation Court in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose), and 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…namely: 7 (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. 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 BleuCookware 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 Commonwealthof 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’”.
Dr Darwish has treated the applicant since 2014. In 2015, he opined that Mr Ruaporo’s best option was conservative treatment. Surgery, in the form of L5/S1 laminectomy, discectomy and fusion, was his last option.
A period of three years elapsed before Mr Ruaporo again consulted Dr Darwish in September 2018, having sustained the injury in respect of which this claim is brought.
The applicant’s MRI showed no spinal cord pathology. Dr Darwish reported that he had L5/S1 disc dehydration and annular tear, but no obvious nerve root compression. He once again advised the applicant that his best option was to continue with conservative treatment.
By November 2018, Dr Darwish recorded that the applicant had lower back pain and stiffness, but no radicular leg symptoms.
The applicant attempted to return to work but in August 2019 Dr Darwish reported that he could not cope and had been off work. He recommended that the applicant have surgery, which he opined had a 60% chance of significantly improving his back pain.
Dr Darwish reported on both 9 September 2019 and 2 December 2019 that the applicant had lower back pain and pain in both legs. He has confirmed that the applicant has tried all forms of conservative treatment, without improvement. His main problem was back pain, and not nerve pain. A microdiscectomy would help with radicular leg pain, but not back pain.
Dr Bentivoglio initially took the same conservative approach as Dr Darwish. He had not seen either the MRI scan of September 2018 or a report of the scan, as they had been lost. He therefore relied on Dr Darwish’s report of its findings. The report of the scan, at least, has since been located and is in evidence. Dr Bentivoglio’s diagnosis was discogenic low back pain caused by degenerative disc disease at L5/S1, with no significant neurological compression and no radiculopathy.
Dr Bentivoglio opined that if the applicant did not improve with conservative treatment, he would have to consider a decompression and fusion at L5/S1 to treat his mechanical axial back pain. The surgery was not absolutely necessary or urgent at that stage. Steroid injections or radiofrequency ablation may afford temporary benefit, but in the long run the applicant would need surgery.
Dr Bentivoglio disagreed with Dr Casikar’s recommendation of a microdiscectomy, because the applicant’s MRI in September 2018 did not show evidence of significant neurological compression.
By August 2020, Dr Bentivoglio opined that, if the applicant had seen a pain specialist and had pain management, and they did not feel he would benefit from radiofrequency ablation or facet joint injection, it was probably reasonable to consider the surgery recommended by Dr Darwish, although there was no urgency. As all forms of conservative treatment had failed, the only chance the applicant had of getting any improvement was operative intervention.
Dr Casikar was requested by the respondent’s solicitor to comment on Dr Bentivoglio’s opinion that the applicant required laminectomy at L5/S1, discectomy and fusion; and that microdiscectomy was not the appropriate form of surgery.
In his second report, Dr Casikar noted that he had diagnosed the applicant with a disc prolapse at L5/S1, based on the report of the MRI, while Dr Bentivoglio’s assessment of the report was that the applicant had degenerative disease. Dr Bentivoglio also diagnosed discogenic low back pain, caused by the degenerative disease, but Dr Casikar has not referred to this. He reiterated that he could not comment further because he had not seen the hard copies of the MRI.
Dr Casikar was asked if it was possible for a disc protrusion to be reabsorbed over time, such that a protrusion that was evident in 2014 would not be evident in 2019. He opined that it was. Because he found that the applicant’s radiological symptoms had resolved, and his disc prolapse had regressed, Dr Casikar opined that any form of surgery was not acceptable.
Dr Casikar’s reasoning for deciding that the applicant’s disc protrusion had reabsorbed is not entirely clear. He appears to have based his opinion on Dr Bentivoglio’s examination, as he has not re-examined the applicant. If he was basing it on what Dr Antoun reported in June 2019, that opinion was available to him when he examined the applicant, at which time he did not opine that the protrusion had been reabsorbed.
Dr Bentivoglio’s main diagnosis was axial back pain; and Dr Darwish reported that the applicant’s main problem was back pain, not nerve pain. They both therefore recommended that the applicant undergo laminectomy, discectomy and fusion. The purpose of the surgery is to alleviate his back pain. Dr Casikar referred to the applicant as a man “who has only got back pain”.
Dr Casikar disagreed with Dr Bentivoglio that the proposed surgery is necessary, in circumstances where the applicant has no nerve root compression. However, Dr Darwish and Dr Bentivoglio have both referred to the fact that the applicant has no obvious nerve root compression (Dr Darwish) and no evidence of significant neurological compression (Dr Bentivoglio), but still recommend the surgery, in order to treat his back pain.
Roche DP referred in Diab to the “useful heads for consideration” in Rose, while at the same time reiterating that the essential question remains whether the treatment is reasonably necessary. As Roche DP said, all treatment, especially surgery, carries a risk of a less than ideal result.
Dr Darwish and Dr Bentivoglio agree on the appropriateness of the treatment; and they agree that as conservative treatment has failed, the proposed surgery is reasonable. Dr Casikar is of the opinion that there is no need for surgery but offers no alternative treatment.
The cost of the proposed surgery is claimed to be almost $21,000, but Dr Darwish has estimated it as $50,000; and there will be associated costs. It has not been suggested that the cost of the treatment is excessive.
Dr Darwish and Dr Bentivoglio agreed on the potential effectiveness of the treatment, although they assessed the possibility that the applicant’s back pain will be alleviated as 60%. Dr Casikar did not agree that the treatment has potential effectiveness.
As for the acceptance by medical experts of the treatment, there is a difference of opinion between Drs Darwish and Bentivoglio and Dr Casikar as to the appropriateness and likely effectiveness of the treatment.
Dr Darwish has had the advantage of treating the applicant since 2015 and examining him many times between September 2018 and 2 July 2020. He did not rush to recommend surgery but took a conservative approach. He acknowledged that the management of discogenic pain is complex and often unsuccessful. However, he eventually concluded that the applicant had exhausted conservative treatment and advised him to undergo surgery.
Dr Darwish is well aware that the applicant’s major problem is back pain, and has explained his preference for laminectomy, discectomy and fusion over microdiscectomy.
Dr Bentivoglio was equally cautious in his approach to the applicant’s treatment. He favoured conservative treatment, but agreed that if the applicant did not improve, he would need to consider surgery. He acknowledged the difficulty of predicting the outcome of surgery; and still did not regard it as urgent but recommended it. As Roche DP observed in Diab, a poor outcome does not necessarily mean the treatment was not reasonably necessary.
I prefer the opinions of Dr Darwish and Dr Bentivoglio to those of Dr Casikar. I have given particular weight to the opinion of Dr Darwish, who has reviewed the applicant and monitored his treatment over several years. Dr Casikar originally supported microdiscectomy, rather than the proposed surgery. Dr Darwish and Dr Bentivoglio have explained why microdiscectomy is not their preferred option. Dr Casikar has not adequately explained why he has now come to the conclusion that the applicant no longer has a disc protrusion.
I therefore determine that the proposed medical treatment, that is L5/S1 laminectomy; discectomy; and posterior lumbar interbody fusion is reasonably necessary treatment as a result of injury on 15 August 2018.
The respondent is to pay, pursuant to section 60 of the 1987 Act, the cost of the proposed medical treatment.
Neither party made submissions about the claim for past medical expenses of $1,114.70 in accordance with a Medicare Notice of Past Benefits/Notice of Charge. The Notice expired on 2 January 2021. I therefore decline to make an order in respect of the claim for past medical expenses.
Kerry Haddock
MEMBER
9 March 2021
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