Simoes v De Martin & Gasparini
[2021] NSWPIC 252
•19 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Simoes v De Martin & Gasparini [2021] NSWPIC 252 |
| APPLICANT: | Carlos Simoes |
| RESPONDENT: | De Martin & Gasparini |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 19 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for medical expenses; whether proposed surgery reasonably necessary as a result of accepted injury; whether travel costs to general practitioner and a gym membership are reasonably necessary medical expenses; Held- the proposed surgery is reasonably necessary as a result of the workplace injury; Kooragang Cement Pty Ltd v Bates and Diab v NRMA Ltd followed; the respondent is to pay the applicant’s travel costs for visits to his nominated treating doctor; the respondent is to pay the past costs of the applicant’s gym membership. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 15 March 2018. 2. As a result of the injury referred to in (1) above, the applicant requires lumbar spine surgery as recommended by treating surgeon Dr Mobbs. 3. The surgery recommended by Dr Mobbs is reasonably necessary as a result of the applicant’s workplace injury. 4. The respondent is to pay the costs of and incidental to the propose surgery. 5. The respondent is to pay the applicant’s travel expenses for consultations with his nominated treating general practitioner. 6. The respondent is to pay the past costs of the applicant’s gym membership as claimed in the Application. |
STATEMENT OF REASONS
BACKGROUND
Carlos Simoes (the applicant) brings proceedings seeking orders that the cost of a 3D printed bio model L4/5 – L5 S1 PARS defect repair and disc replacement surgery be met by De Martin and Gasparini (the respondent). He also seeks the costs of past medical and treatment expenses.
There is no issue the applicant suffered an injury to his lumbar spine in the course of his employment as a concreter with the respondent on 15 March 2018. After his injury, the applicant attended on his general practitioner, and an MRI of his lumbar spine was arranged. He was then certified fit for light duties for eight hours per day, five days per week.
The MRI revealed some disc pathology and the applicant was referred to Dr Maxwell, orthopaedic surgeon and underwent some conservative treatment, including physiotherapy.
The applicant states he has continued to experience ongoing pain and symptoms in his lower back, which is aggravated when walking, standing or sitting for prolonged periods of time. He currently takes Endep, 10 mg for pain relief. Additionally, the applicant has undergone three rounds of injections into his back which he states have provided him with some relief for approximately a fortnight each time.
By dispute notices dated 23 October 2020 and 17 December 2020, the respondent disputed liability for the proposed L4/5 disc replacement and L5 PARS repair on the basis it is not reasonably necessary as a result of the injury suffered by the applicant on 15 March 2018. It also disputed liability for the cost of the applicant traveling to and from his general practitioner and for the cost of gym membership.
ISSUES FOR DETERMINATION
The parties agree that the only issues in dispute is whether the surgery proposed by Dr Mobbs is reasonably necessary and whether the respondent is liable for the costs associated with the applicant traveling to and from his general practitioner, and for the cost of gym membership.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 18 June 2021. 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.
At the hearing, Mr S Grant of Counsel instructed by Ms A Nair solicitor appeared for the applicant and Mr J Gaitanis of Counsel instructed by Mr T Mari solicitor appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence and taken into account by the Commission in making this determination:
(a) Application to Resolve a Dispute (the Application);
(b) Reply and attached document, and
(c) respondent’s Application to Admit Late Documents (AALD) dated 18 June 2021 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 has the onus of proving the surgery proposed by Dr Mobbs is reasonably necessary. The tests adopted in determining reasonable necessity of treatment is that set out by Burke CCJ in Rose v Health Commission (NSW) [1996] 2 NSW CCR 2 (Rose), where his Honour said:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of the injury.
4. For it is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgement and good sense, that it is so. But involves the Court in deciding, on the facts as it finds them, but the particular treatment is essential to, and should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for particular condition."
In Diab v NRMA Ltd [2014] NSWWCCPD72 (Diab), Deputy President Roche noted that the Court of Appeal considered the meaning of “reasonably necessary” in Clampett v Work Cover Authority (NSW) [2003] NSWCI52, all be it in the context of home renovation rather than medical treatment. The Court noted that the trial judge had sought guidance from the decision in Rose.
Grove J referred to the dictionary definition of necessary as being “indispensable, requisite, needful, that cannot be done without". At [23], his Honour stated:
"23. the essential issue is what affect flows from conditioning such qualities as ‘reasonably’. The consequences to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone.… "
In Diab, Roach DP then set out relevant matters to be taken into account in determining reasonable necessity. The Deputy President noted those factors include but are not necessarily limited to the matters noted by Burke CCJ in Rose, namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and it’s 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.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether it is reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by different treatment, but at a different 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. Each case will always depend on its own facts.
In determining whether the proposed surgery is reasonably necessary as a result of the work injury, it is necessary to examine the question of causation on a common sense basis, as set out in the oft-cited paragraph of His Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (at [810]). In that matter, his Honour stated that what is required is a common-sense evaluation of any causal chain.
In this matter, the respondent argued that Dr Mobbs’ opinion in support of the proposed surgery is not evidence-based and differs from the preponderance of the medical evidence. Mr Gaitanis referred to the opinion of Dr Poplawski, Independent Medical Examiner (IME) for the applicant dated 5 September 2018. In that report, Dr Poplawski said there was no evidence the applicant had any significant pre - existing condition prior to his injury, as evidenced by the preinjury MRIs undertaken on 4 October 2016.
By contrast, the MRI of 23 March 2018 (eight days after injury) noted disc prolapses at L4/5 on the left-hand side which Dr Poplawski considered consistent with the applicant’s report of mechanism of injury. In his second report dated 27 April 2020, Dr Poplawski expressed the opinion that the applicant should delay any consideration for surgery until such time as the results of a disc seal procedure and injection which he had undergone were available after several months. Mr Gaitanis submitted that for the Commission to accept the opinion of Dr Mobbs, there ought to be a reply from Dr Mobbs to the views of Dr Poplawski.
I do not accept that submission. Dr Mobbs is a treating doctor and provides his report outside the context of medicolegal opinion. It is not incumbent upon him to provide a rebuttal for the matters raised by an independent medical examiner (IME) for any party to a dispute. This, of course, does not mean that Dr Mobbs’ view will be preferred, merely that the absence of a specific report rebutting for the point made by Dr Poplawski is not fatal to Dr Mobbs' views being accepted.
In any event, in his report to the general practitioner Dr Tomka dated 1 October 2020, Dr Mobbs does provide an answer to the issue raised by Dr Poplawski, report as follows:
"I asked him how recent disc seal injection went. He tells me that it made him feel a little better for a short period of time however, his pain returned back to baseline level. I am unsure if this was a placebo effect, or indeed if it did alter some discogenic components of his back pain, but nonetheless he is back at his baseline.
The issue with Carlos is that his provocative discography was essentially negative. I am very reticent to perform a TDR or an ALIF if he had a negative provocative discography.
That being said, I would be happy to give Carlos the benefit of the doubt. I would like him to have a fresh CT scan of the lower back to have a look at the past defect in more detail. I note that in his previous imaging that he had no uptake of the past defects and therefore it makes this less likely it is a primary pain generator."
Mr Gaitanis noted the report of Dr Shetty, pain management specialist, dated 20 May 2020, in which he reported to Dr Tomka that the applicant was “progressing well heading in the right direction" while participating in pain management program. Dr Shetty noted the applicant had a follow-up MRI which showed a stable disc bulge at L4/5 with "no significant canal or foraminal stenosis."
Mr Gaitanis submitted that this report demonstrates the applicant has been progressing well while using conservative treatment to try to overcome his symptoms.
The applicant underwent a further CT examination on 29 October 2020, which demonstrated facet joint degeneration at all levels. He then returned to see Dr Mobbs on 4 November 2020, at which time Dr Mobbs noted the difficulty in identifying precise pain generators, though he stated the most likely are the L4/5 disc and the L5/S1 PARS defect. It was at this time Dr Mobbs recommended the surgery the subject of this claim.
In my view, the proposed surgery by Dr Mobbs is reasonably necessary. Examining this matter through the prism of relevant authorities such as Diab and Rose, it is apparent the applicant has undergone conservative treatment for a lengthy period of time, to no significant benefit. True it is he had some benefit from pain management courses and also from the disc seal treatment, however, these were transient benefits and the applicant's pain has, according to his evidence, not been helped on a long term basis by those treatment regimes.
In making this finding, I have taken into consideration the opinion not only of Drs Mobbs and Poplawski, but also of Dr Coroneos, IME for the respondent. In his report dated 31 December 2020, Dr Coroneos noted an absence of complaint of radiculopathy or “detailed causation analysis” in the report of Dr Mobbs. It should, however, be noted that Dr Mobbs is a treating surgeon not a medicolegal practitioner. In his critique of Dr Mobbs and indeed various other treating specialists, Dr Coroneos adopts what can be described as an advocate's enthusiasm for the proposition that the seat of the applicant’s pain is not work - related and that surgery is not necessary. He describes the reports of treating doctors as “barren and scant" and states “I cannot determine evidence for an injury to have occurred that would result in the need for surgery as proposed."
After analysing the reports of other practitioners, Dr Coroneos then noted Dr Mobbs had not explained why “the surgery is reasonable and necessary", citing the wrong test. He then proceeds to provide a test for Dr Mobbs to pass in terms of explaining each element of “reasonable and necessary.”
Dr Coroneos is the only doctor who indicates that the pathology on display is not referable to a workplace injury. His opinion stands in stark contrast to not only Dr Mobbs but also Dr Poplawski. I therefore reject it and find that the preponderance of the medical evidence supports a finding the pathology which is said to give rise a need for surgery does relate to the workplace injury.
I also note Dr Coroneos did not have the benefit of examining the applicant, instead basing his report upon a file review. Whilst there is no issue with a doctor providing an opinion based on such a review, in a matter where issues concerning the presence or otherwise of radiculopathy are an issue, it is always preferable for physical examination to have taken place.
I accept Mr Grant's submission that where the opinions in issue are based on an examination on the one part and the file review on the other, then absent some startling omission or error on the part of the physical examiner, their view would carry more weight. Mr Grant noted that doctors assess patients over time, and the fact that Dr Mobbs has changed his view from preferring conservative treatment to surgery is a completely reasonable approach.
Dr Mobbs first saw the applicant in June 2018. In the intervening period, there have been a number of different treatment modalities attempted. The applicant has had hydrotherapy, physiotherapy, analgesic medication and also the disc seal needle, to no permanent benefit.
Mr Grant also that the finding of the presence of a disc protrusion which was related to the work place injury was settled by Arbitrator Bachelor (as he then was) in the then Workers Compensation Commission, and it is this condition which is sought to be treated by Dr Mobbs.
I also note that in his supplementary statement, the applicant indicated the proposed pain management treatment recommended by Dr Yu has been declined by the respondent's insurer, and in any event when he attempted it in the past it did not effectively address his symptoms. In my view, the respondent cannot submit a preference for pain management therapy instead of the proposed surgery, having previously refused to pay for that treatment.
Mr Grant noted that over time, it has become apparent conservative treatment will not work for the applicant. He submitted Dr Mobbs has seen the applicant over the course of three years, has tried conservative treatment and now wishes to take the next step.
Although the respondent made much of the PARS defect as a potential source of the applicant’s pain, Dr Mobbs is attempting in carrying out the surgery to address the applicant's discogenic pain. The fact he also wishes to operate on the L4/5 PARS defect may well be an element of the surgery which is designed to avoid future problems, but in my view Dr Mobbs' opinion is clear and the focus of his proposed surgery is plainly the discogenic pain. This is particularly the case in light of Dr Mobbs' most recent reporting which he said “I note that on his previous imaging he had no uptake of PARS defect and therefore it makes this less likely that it is a primary pain generator.”
It is not necessary for a surgeon in the position of Dr Mobbs to be definite as to the likely outcome from the proposed surgery or indeed as to any impacts of the applicant’s PARS defect. Medicine is not always an exact science. There are risks associated with any surgical procedure, and the outcome is never certain. This does not mean that a proposed operation is anything other than reasonably necessary. Whether a proposed treatment regime satisfies the test in s 60 of the Workers Compensation Act 1987 (the 1987 Act) must invariably be decided on the facts of each case. In this matter, I am satisfied on the balance of probabilities that the proposed surgery is reasonably necessary.
GP travel costs and gym membership
The respondent has refused to pay for the applicant's cost of travel to and from his general practitioner. The applicant’s general practitioner is located some kilometres away from his home however, in my view the applicant is entitled to see a general practitioner of choice within reason, and the evidence does not indicate that his chosen general practitioner is so far removed from his locale as to render the cost of travelling to and from the surgery be anything other than reasonably necessary. Within reason, it is not the place of an insurer to dictate to an injured worker which general practitioner they must consult. The word ”nominated” in nominated treating doctor refers to a nomination by the applicant, not by the respondent.
In relation to the provision of gym membership in the past, I find the costs of such membership to be reasonably necessary, given the conservative treatment which the applicant has undergone. The respondent cannot have it both ways. On the one hand, it emphasises the benefits to the applicant of exercise and conservative treatment yet on the other does not wish to pay for the costs associated with such exercise. Accordingly, there will be an award in favour of the applicant in relation to the gym membership.
It should be emphasised, that the respondent will not be liable for paying the costs of and incidental to a gym membership during the period from the date of this decision up to applicant's surgery and during his recovery from that surgery, unless it is recommended as part of the post-surgery rehabilitation.
SUMMARY
For the above reasons, the commission will make the findings and orders as set out on page 1 of the certificate determination.
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