Shipp v Community First Development Ltd t/as Indigenous Community Volunteers - [2021] NSWPIC 2

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shipp v Community First Development Ltd t/as Indigenous Community Volunteers [2021] NSWPIC 2
APPLICANT:	Melissa Shipp
RESPONDENT:	Community First Development Ltd
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	4 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Undisputed injury to the lumbar spine; bariatric surgery sought on the basis that it would reduce the applicant’s pain; Held- bariatric surgery found to be reasonably necessary.
DETERMINATIONS MADE:	1. The proposed bariatric surgery is reasonably necessary.

STATEMENT OF REASONS

BACKGROUND

Melissa Shipp (the applicant) was employed as a regional coordinator for Community First Development Ltd t/as Indigenous Community Volunteers (the respondent). The applicant’s claim arises from the nature and conditions of her employment.
Whilst the applicant’s role was sedentary based, it also involved taking on the role of a regional coordinator at centres in Penrith, Lismore and Brisbane. This role involved various physical tasks including but not limited to, attending meetings, computer-based work, travel in small planes and long distances in cars whilst carrying heavy luggage. The applicant sometimes had four flights over a week.
On or about 17 November 2013 the applicant was travelling from Dubbo to Sydney and then from Sydney to Lismore by aeroplane. The applicant explains in her statement dated 14 September 2020[1] that this involved travelling in small planes and long distances in cars whilst carrying heavy luggage.
[1] Application to Resolve a Dispute (the Application) page 1.
The applicant developed pain in her lower back and right leg. There is no dispute that the applicant sustained an injury to her lumbar spine.
The applicant then consulted with her general practitioner, Dr David Gibson in relation to the onset of pain in her right calf approximately two weeks later. The applicant was diagnosed with deep vein thrombosis. The applicant also underwent a CT scan of her lumbar spine which demonstrated nerve root compression with an L5/S1 disc protrusion.
The applicant was referred to Dr Con Vasili (orthopaedic surgeon) in January 2014. Dr Vasili recommended an epidural injection into the applicant’s spine which the applicant underwent on 31 January 2014. Unfortunately, the epidural injection did not reduce the applicant’s pain.
In February 2014 the applicant was referred to Dr Michael Donnellan (neurosurgeon) who recommended an MRI of the applicant’s spine. The MRI scan confirmed a large disc prolapse in the applicant’s spine.
Dr Donnellan recommended a lumbar discectomy, which the applicant underwent in July 2014. The surgery improved the applicant’s pain in her back however she was left with residual pain in her right leg.
The applicant underwent a further MRI scan some three months after the discectomy which demonstrated an L5/S1 disc protrusion with impingement on the right S1 nerve root. There had been some improvement following surgery however the applicant was still left with some significant lumbar injury.
The applicant explains that she managed to continue with her pain and symptoms however the pain at that time was becoming excruciating.
A further MRI scan was undertaken in September 2015 demonstrated a central L5/S1 disc bulge with bilateral S1 nerve root impingement in the lateral recess and a minor L4/5 disc protrusion.
In or about November 2015 the applicant was referred for a perineural nerve block. The applicant once again underwent a further MRI scan at that time.
Between 5 September 2016 to 28 July 2020 the applicant underwent several spinal injections which provided the applicant with only temporary relief.
The applicant says in her statement that as a result of the injury sustained and various operative procedures, she has consumed a large amount of medication to suppress her constant pain as wellbeing inactive due to pain which has caused her to gain excessive weight.
In relation to the applicant’s weight she says at paragraph 39(c) that prior to the incident she was an active woman who weighed 80 kg. She has now gained 50-60 kg and now weighs around 150 kg. She requires assistance with some self-care needs however is generally independent in her activities of daily living
The applicant understands that Dr Donnellan has recommended further surgery however he has also recommended that the applicant undertake bariatric surgery for weight loss so that further surgical intervention to the lower back could be effective.
The applicant says that she is left with significant symptomatology in her back which impedes her day to day life. The pain often radiates down her legs which makes standing difficult and her sleep is disturbed. She also experienced a constant feeling of sharp shooting pain radiating down the leg into the toes.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the proposed surgery (gastric sleeve) reasonably necessary?

PROCEDURE BEFORE THE COMMISSION

The parties attended an arbitration on 29 January 2021. 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)    The Application and attached documents;
(b)    Reply to the Application, and
(c)    late documents dated 21 December 2020.

The applicant’s central argument

The applicant’s case framed at the Arbitration was that, whilst they did not resile that the injury had caused significant weight gain, the primary argument was that the surgery will alleviate pain from which the applicant is clearly suffering. That is the surgery will have an ameliorative effect to decrease the symptomatology of the applicant’s injuries.

Medical evidence

I will now discuss the medical evidence in this case.

Dr Michael Donnellan

Dr Michael Donnellan is the applicant’s treating neurosurgeon. He has provided a report to the general practitioner dated 19 February 2020.[2] Dr Donnellan opined that if it was not for the applicant’s weight, he would definitely recommend re-exploring her right L5/S1 nerve root to make sure further decompression could not help her with her pain syndrome. However, because of the applicant’s body mass, the risks were too prohibitive for that surgery.
[2] Application page 137.
Dr Donnellan’s opinion is very clear in that he suggests that the applicant pursue bariatric surgery to reduce her body mass so that surgery could be performed done safely. If the applicant experienced weight loss from the bariatric surgery, Dr Donnellan said that he would be able to perform the required decompression two to three months after the surgery is performed.

Dr Geoffrey Needham

Dr Geoffrey Needham is a pain management and rehabilitation specialist who has prepared a report dated 29 July 2020 addressed to the respondent insurer.[3] Dr Needham took a history of significant weight gain from 100 kg at the time of injury to 150 kg at the time of the report. Dr Needham understood the applicant had undergone lumbar spine surgery, initially a discectomy and subsequent lumbar fusion with some improvement however had residual persistent neuropathic right leg pain. The applicant had undertaken physiotherapy and hydrotherapy and interventional pain management procedures with temporary symptomatic benefit.
[3] Application page 417.
Dr Needham’s opinion was that the highest priority for effective treatment of the applicant’s condition was bariatric surgery for weight reduction. He did not believe that any other treatment was likely to be of significant benefit other than temporary symptom reduction. Dr Needham helpfully also commented that he did not believe the applicant would be able to reduce her weight without bariatric surgery however would recommend she commence dietician management prior to undertaking the treatment.
Dr Needham placed the need for surgery above all other suggested treatments such as a transforaminal block, a pulse radiofrequency ablation.

Dr James Chau

Dr James Chau has prepared a report which appears to be dated 16 May 2010 however clearly is mis-dated and should be 2020.[4] At the time of consultation Dr Chau observed the applicant’s weight was 141 kg. Dr Chau observed the applicant suffered from morbid obesity which in his opinion was a direct result of her not being able to mobilise due to back pain. He thought that without weight loss surgery she was two to three times at risk of developing metabolic syndrome.
[4] Application page 136.
Dr Chau also had a history that the applicant had been struggling with her weight for many years and had tried numerous weight loss programs with limited short-term success.

Dr Khan

Dr Khan has prepared a report dated 27 September 2019 to the respondent insurer.[5] Dr Khan understood that the applicant has not consulted a dietician for guidance for weight loss. Dr Khan also takes a history that prior to the injury the applicant’s weight was 70-80 kg. (This is clearly an incorrect assumption which will be discussed later)
[5] Application page 130.
Dr Khan held the opinion that if the work injury had not occurred the applicant would have had the physical capacity to continue her normal exercise routine and her weight and body mass index would have remained similar to what it was in her pre-injury state. That is the unmanageable weight gain was clinically deemed to be causally and consequently due to the effects of her back injury as sustained at work on 17 November 2013.
It was Dr Khan’s clinical opinion that all conservative measures to manage the applicant’s weight had failed and that she is unable to exercise effectively and therefore unable to manage her weight. Dr Khan therefore requested approval for bariatric surgery.

General Practitioner’s Notes

The clinical notes of the general practitioner demonstrate that the applicant’s weight was clearly not 80 kg at the time of injury. They demonstrate that the applicant’s weight was in the vicinity of 115-116 kg.
The applicant did not dispute the characterisation of her weight being at that level at the Arbitration.

FINDINGS AND REASONS

Section 60 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“60 COMPENSATION FOR COST OF MEDICAL OR HOSPITAL TREATMENT THAT REHABILITATION ETC
(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2). ”
Burke CCJ in Rose[6] considered what reasonably necessary treatment was. In the context of section 10 of the Workers Compensation Act 1926[7]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition on restoring health. If the ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense an employer can only be liable for the cost of reasonable treatment.”
[6] Rose v Health Commission NSW (1986) 2 NSWCCR 32 (Rose).
[7] Par 42.
In Diab v NRMA Ltd[8] Deputy President Roche cited Rose with approval. He summarised the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose namely: (a) the appropriateness of the particular treatment; (b) the availability of alternative treatment, and its potential effectiveness;
[8] [2004] NSWCCPD 72 (Diab).
(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.”
Of some assistance in determining disputes such as the present one, Deputy President Roche helpfully stated:
“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.”
It is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for surgery. This was confirmed by Deputy President Roche in Murphy v Allity Management Services Pty Ltd[9], where he stated:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have “multiple causes”…… The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury.”
[9] [2015] NSWCCPD 49 (Murphy).
When the medical evidence is considered as a whole, it is quite apparent that there is little evidence which supports a finding against the need for surgery. What is clear is the applicant experiences significant pain arising from the accepted the injury and all doctors place significant importance on the applicant losing weight.
The effect of the weight loss is primarily to ameliorate the pain the applicant is experiencing. This is the central argument the applicant relied upon at the arbitration.
The applicant has tried other methods to assist her in pain management including physiotherapy, hydrotherapy, interventional pain management procedures and surgery. There has been no significant effect on the applicant’s pain experience.
The respondent points out that the applicant has not pursued all alternative weight loss paths such as attendance upon a dietician, an exercise programme or other such less invasive treatments. I agree that the evidence does not support that the applicant has vigorously pursued these alternate paths.
The lack of evidence that the applicant has not pursued these alternative paths however is not fatal to the applicant’s claim, there are merely alternatives to the presently sought surgical treatment. There is no evidence from the respondent before to provide a platform as considering the efficacy of alternative treatment to the proposed surgery.
Indeed, the applicant’s weight is at a level now that all doctors that have provided evidence in this matter suggests that the appropriate way for the applicant to lose weight would be by the proposed surgery. This includes Dr Needham who prepared a report for the respondent in July 2020 when the applicant's weight was approximately 150 kg. It was his opinion at that stage that the applicant would be unlikely to lose weight without bariatric surgery however suggested seeking management of her diet prior to that date.
Dr Donnellan also provides support to reduce the applicant’s weight through bariatric surgery in that would assist further surgery if that is necessary. Likewise, Dr Chau and Dr Khan support bariatric surgery.
It is quite clear that the applicant in her statement has misrepresented her weight gain following the accepted injury. It is apparent from the general practitioners treating notes that at the time of the injury the applicant’s weight was approximately 115 to 116 kg. This is in direct contract to the applicant’s evidence that she has gained approximately 50 kilograms following the accepted injury.
After considering this misrepresentation, I feel it has little role to play in determining whether the surgery is reasonably necessary or not. The medical evidence supports a finding that the surgery will assist the applicant in both reducing her pain levels and providing a safe platform for surgery to be performed if required.
So far as the factors in Diab are concerned I will now address them directly.
There is significant support by all the medical experts in this case that the particular treatment that is bariatric surgery is appropriate. Indeed, there appears to be no voice proffering an opinion that the treatment is not appropriate.
The alternative treatment the applicant has that is available would include diet management through regular consultation with a dietician. There is no expert in this dispute who suggests that this pathway should be pursued as an alternative to the bariatric surgery. The cost of the treatment to my mind is not significant given the applicant’s pain levels. The cost appears to be $8235 for surgical fees with additional anaesthetic and hospital fees.[10] Whilst regular consultation with a dietician I assume would be of lower cost, in my mind the money spent on the proposed surgery is not too high given the applicants pain levels.
[10] Application page 138
So far as the actual or potential effectiveness of the treatment is concerned, there is no evidence before me that is likely to be ineffective however there is no direct evidence from a bariatric surgeon. Simultaneously there is no evidence that supports a finding that it will be effective. By inference, the fact that all the general medical evidence points to supporting the applicant having the surgery, it would be in error of me to make a finding that it will be ineffective.
Finally, so far as the acceptance of the treatment by medical experts, the evidence in this case all supports a finding that it is widely accepted in the medical fraternity.
After balancing all the evidence in this case, including the misrepresentation of the applicant’s weight gain, the lack of evidence so far as treatment by dietician and the lack of evidence from a bariatric surgeon as to the effectiveness of the treatment, I find that despite these matters the proposed surgery is reasonably necessary. I am persuaded by the medical experts who provided opinions in this matter as to the proposed benefits that the surgery could provide for the applicant, it seems to me appropriate that the surgery takes place and I therefore find that it is reasonably necessary. The evidence that the surgery will assist in ameliorating the applicant’s pain condition is significant in my findings that the surgery is reasonably necessary.

SUMMARY

The proposed surgery is reasonably necessary.

Elizabeth Beilby
MEMBER

4 March 2021