Smith v Liberty OneSteel now Infra Build

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Liberty OneSteel now Infra Build [2023] NSWPIC 27
APPLICANT:	Dylan Smith
RESPONDENT:	Liberty OneSteel now Infra Build
MEMBER:	Gaius Whiffin
DATE OF DECISION:	23 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injuries to thoracic spine; claim for proposed future treatment expenses pursuant to section 60; posterior thoracic pedicle screw fixation and kyphotic deformity correction; consideration of applicant’s statement, medical reports and other treatment records and claim correspondence; respondent concedes injury on 28 March 2019; consideration of whether the proposed surgery is reasonably necessary medical treatment as a result of the injury; Rose v Health Commission (NSW), Diab v NRMA Limited and Murphy v Allity Management Services Pty Limited considered; Held – the surgery proposed for the applicant (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) referred to in the Medical Assessor’s 2 June 2022 report, is reasonably necessary medical treatment as a result of the injury to the applicant on 28 March 2019; the respondent is to pay for the costs of and incidental to the surgery pursuant to section 60.
DETERMINATIONS MADE:	1. The surgery proposed for the applicant by Associate Professor Seex (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) as referred to in his 2 June 2022 report, is reasonably necessary medical treatment as a result of the injury to the applicant on 28 March 2019.
ORDERS MADE:	1. The respondent is to pay for the costs of and incidental to the surgery (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) proposed for the applicant by Associate Professor Seex in his 2 June 2022 report, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Dylan Gregory Smith (the applicant) is 30-years-old. He was employed by Liberty OneSteel (the respondent), when an accident occurred on 28 March 2019. A large piece of steel fell from a height onto his head. He has not worked since.
The respondent has accepted liability to pay compensation in relation to the injuries that the applicant then sustained to his cervical spine, thoracic spine, and skull. It has made various workers compensation payments to him over the years in this regard.
The applicant’s treating neurosurgeon, Associate Professor Seex, has recommended to him that he undergo surgery to treat the thoracic spine injuries. The doctor sought that the respondent approve the costs involved in this surgery.
However, the respondent issued a notice denying liability for the costs involved in the surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and dated 27 September 2020. It then reviewed the decision made by this notice, but maintained its denial of liability in a further dispute notice dated
18 May 2022.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Associate Professor Seex in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUE FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) whether the surgery proposed by Associate Professor Seex (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) as referred to in his
2 June 2022 report, is reasonably necessary medical treatment as a result of the injury to the applicant on 28 March 2019.

PROCEDURE BEFORE THE 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.
A conciliation conference was held in the dispute on 11 November 2022. On that occasion, Ms Lyn Goodman of counsel appeared for the applicant, instructed by Mr Loveridge; and Mr Tom Grimes of counsel appeared for the respondent, instructed by Ms Raiman. The applicant was present, as was a representative from the respondent’s insurer, Ms Mitchell.
As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
During the applicant’s oral submissions on 11 November 2022, issues arose as to whether the description of the surgery proposed by Associate Professor Seex in his 2 June 2022 report correlated with the doctor’s previous descriptions of his proposed surgery for the applicant; and if not, whether a claim had been properly made upon the respondent in relation to the costs involved in the surgery proposed by the 2 June 2022 report; and if a claim had been properly made in this regard, whether the respondent was able to dispute that claim having not issued a liability notice with respect to it pursuant to s 78 of the 1998 Act.
The applicant confirmed that it was costs of and incidental to the surgery referred to in the
2 June 2022 report that was being claimed, and that the applicant wished to proceed with.
The arbitration hearing was suspended while the applicant attempted to contact Associate Professor Seex, but he was unsuccessful in this regard.
There ensued a lengthy discussion between the parties and myself regarding both the evidentiary and the procedural issues referred to in paragraph 10 above. That discussion was recorded and I do not intend to refer to it in detail, as it was essentially a discussion in order to conciliate a path forward for the dispute.
As a result of the discussion, the parties agreed on a path forward for the dispute and I also agreed to that path. In my opinion, the agreed path forward was the most appropriate course having regard to the guiding principle of the Commission (under s 42 of the Personal Injury Commission Act 2020) to facilitate the just, quick and cost-effective resolution of the real issues in the dispute. The agreed path forward required me to exercise my discretion under
s 289A(4) of the 1998 Act to allow the respondent in the interests of justice to dispute the applicant’s specific claim for the costs of and incidental to the surgery recommended by Associate Professor Seex in his 2 June 2022 report. I determined to exercise my discretion in this regard, particularly in circumstances where the applicant agreed to that exercise of my discretion.
The agreed path forward was then noted in a direction which I made on 11 November 2022, as follows:
“1. It is noted that the parties have agreed that the applicant has served and made a claim for the costs associated with the posterior thoracic pedicle screw fixation and kyphotic deformity correction at T5-7 as recommended by Associate Professor Seex by his 2 June 2022 letter (page 19 of the application to resolve dispute).
2. The respondent has leave to deny the claim referred to at direction 1 pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998.
3. The applicant is to lodge and serve an application to admit late documents prior to 2 December 2022, with a supplementary report from Associate Professor Seex clarifying that the surgery claimed at direction 1 is the same as the previously recommended fusion surgery, or otherwise.
4. The respondent has liberty to apply to the Commission if it wishes to obtain further evidence in answer to the applicant’s application to admit late documents - that liberty is to be exercised prior to 9 December 2022.
5. The applicant is to lodge and serve any further submissions in writing by 9 December 2022.
6. The respondent is to lodge and serve by 19 December 2022 written submissions.
7. The applicant is to lodge and serve by 23 December 2022 written submissions in reply, if desired.
8. At the conclusion of the time allowed for submissions, the dispute will be determined ‘on the papers’.
9. The parties are to be given access to the recording made of the proceedings today, if requested.”
Following the direction, the applicant lodged an Application to Admit Late Documents (applicant’s AALD) on 24 November 2022, attaching two further reports from Associate Professor Seex, as well as a quotation from him. The applicant also lodged some additional submissions (in writing) on 9 December 2022 (erroneously dated 9 November 2022).
The respondent did not exercise the liberty to apply to the Commission referred to at paragraph 4 of the 11 November 2022 direction. Instead, it lodged written submissions (dated 17 December 2022) on 19 December 2022. In those circumstances and considering the content of those written submissions, I admit into evidence the applicant’s AALD on the basis that the respondent has been able to deal with the attachments to it, is therefore not prejudiced by those attachments, and did not object to any of those attachments being admitted into evidence. The interests of justice allow me to admit the applicant’s AALD pursuant to cl 67(4) of the Personal Injury Commission Rules 2021, and in this regard, I have also considered the matters referred to in Procedural Direction PIC3, specifically the prejudice to the applicant if the application was not admitted and the guiding principle of the Commission (under s 42 of the Personal Injury Commission Act 2020) to facilitate the just, quick and cost-effective resolution of the real issues in the dispute .
It is to be noted that the applicant did not desire to lodge any written submissions in reply to the respondent’s written submissions, in accordance with paragraph 7 of the
11 November 2022 direction.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents – except for the report of Dr Sheehy dated 5 March 2020 (pages 3-8) and the report of Dr Shahzad dated 12 August 2021 (pages 19-22) - which were both withdrawn from the Reply by the respondent during the preliminary conference in the dispute on
21 October 2022 following my determination that prior to their withdrawal, the respondent was in breach of cl 44 of the Workers Compensation Regulation 2016, and
(c)    the applicant’s AALD and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided a statement dated 1 June 2022 (page 3 of the ARD).
He has no independent recollection of his accident on 28 March 2019 or his immediate treatment. He says that he suffered injuries in the accident to his face, skull, spine, and potentially his brain.
He says that he recalls being told initially that “the fracture in my back should heal in time and that I should patiently manage my injury with conservative treatments”. He remembers having approximately 60 physiotherapy sessions in the six months after the accident, which did not provide him with “any prolonged or permanent relief in my neck and back pain”.
He initially consulted with Associate Professor Seex on 14 May 2019, but has also consulted with other specialists including Drs Watson, Li and Dutta. The pain management treatment which he received from Dr Dutta “provided me some pain relief however, as I understand it, the treatment he provided will not fix my spinal injury”. He has further continuously consulted with his general practitioner, Dr Sipeli.
Associate Professor Seex initially recommended conservative treatment, but has since recommended spinal surgery since a consultation on 2 June 2020.
He says that the doctor has explained the possible complications and outcomes of the surgery, and he also says Dr Li explained those complications and outcomes as well. He has discussed the surgery with his family, and wishes to proceed with it.
He says:
“Since the date of the injury, I have not recovered from my back injury, I have ongoing pain in my neck and back and significant disabilities as a result….The pain has significantly inhibited me playing an active role in my family’s daily lives and continues to impact my general health and psychological wellbeing.”
Associate Professor Seex’ clinical file is found from page 30 of the ARD. The file produced contains some radiological reports, as well as reports from the doctor to the applicant’s general practitioner dated 14 May 2019, 9 July 2019, 8 October 2019, 5 November 2019,
29 April 2020, 2 June 2020, and 1 June 2021. There are also reports from the doctor to the respondent’s insurer dated 2 June 2020 and 1 June 2021.
When the doctor initially consulted with the applicant, he summarised the relevant radiological findings as follows:
“We can see from the xray cervical spine images we have today that there is an anterior inferior corner fracture of C2 which appears to be healing and remodelling well. The CT of the thoracic spine which was performed last week shows there is at T5, T6 and T7 fractures with anterior wedging with betweeen 30% to 40% loss of vertebral body height at these levels along with some slight endplate depression changes noted at T5 and T7. T8 superior endplate depression is present as well. The fractures look like stable injuries.”
He did not recommend any surgical intervention, opining that the applicant’s thoracic fractures should heal with time, although expressing a concern regarding the development of kyphosis.
On 8 October 2019, the applicant reported constant pain and thoracic discomfort to the doctor. The doctor found “slight thoracic kyphosis but overall his spine, looking at him, looks reasonably balanced”. The doctor recommended further radiology.
On reviewing that radiology on 5 November 2019, the doctor found “bony healing but there is obvious endplate injury around the discs, a vacuum signal in the disc and wedge fracturing of two vertebrae and I think this is consistent with his ongoing pain”. The doctor recommended ongoing exercises and a review in six months.
On 29 April 2020, the doctor recorded that the applicant had been undertaking physiotherapy, but was still complaining of pain while sitting or standing, and was unable to lie on his back for more than a couple of minutes or lift anything. The doctor recommended a bone scan be undertaken.
On reviewing that bone scan on 2 June 2020, the doctor found “increased uptake in the T5/6 vertebral bodies and around the T5/6 endplate”, explaining the applicant’s ongoing pain despite apparent fusion of his fractures. The doctor recommended surgery, which he described in his report of that date to the applicant’s general practitioner as:
“I think the surgical treatment here is pedicle screw fixation to unload the anterior column, we would probably do this as well by applying a little bit of correction of the kyphosis”,
and which he described in his report of that date to the respondent’s insurer as:
“I think there is a place here at this point for some correction of the kyphotic deformity with grafting and fusion and hopefully unloading the spine in this region and thereby relieving his pain.”
After the respondent refused to pay for the recommended surgery, the doctor wrote to its insurer on 1 June 2021 requesting that it review that decision. This report contains unhelpful comments regarding Dr Casikar, but it confirms the doctor’s opinion as to the applicant’s need for surgery despite any lack of neurological symptoms as he “has a positive bone scan, his MRI shows that while the bones have healed there is a vacuum signal in the disc space consistent with significant disc disruption or injury and he remains symptomatic with this”.
On page 19 of the ARD, there is a further report from Associate Professor Seex to the respondent’s insurer dated 2 June 2022, which reads:
“Dylan has been diagnosed with T5-7 vertebral body collapse from Thoracic spine fracture causing kyphotic deformity. The proposed surgery is a posterior thoracic pedicle screw fixation and kyphotic deformity correction. We seek approval for this procedure and look forward to hearing back from you.”
The applicant has confirmed that it is the surgery described in this report that he wishes to undertake. He has also provided a report from the doctor dated 16 November 2022 (at page 2 of the applicant’s AALD) confirming that despite the doctor’s earlier reports describing the proposed surgery in slightly different terms,
“The nature of the surgical procedure has not changed between those two time periods in that it is still a correction of kyphotic deformity and posterior pedicle screw fixation and grafting. This requires a two level thoracic corpectomy for correction of kyphotic deformity and posterior pedicle screw fixation and fusion from approximately T4 to T8.”
The doctor provides his account for this surgery, in the total amount of $18,565.50, at page 3 of the applicant’s AALD.
Finally, the applicant relies on a report from Associate Professor Seex dated
20 September 2022 (at page 1 of the applicant’s AALD), which was prepared in relation to a superannuation claim being pursued by him. The report is relevant in providing a helpful summary of the doctor’s diagnosis, surgery recommendation, and hopeful surgery outcome:
“1) Dylan had sustained a T5-7 post-traumatic fracture in March 2019 at his workplace and still has mid-thoracic pain along with kyphotic deformity, which is disabling and causing limitations in his daily activities. He has undergone conservative management in the form of physiotherapy but it has not helped him to alleviate the pain.
2) Recent bone scan shows an uptake at T5-7 which correlates to his pain, so we have advised surgery in the form of pedicle screw instrumentation and stabilisation with deformity correction. The approval is still pending.
3) With this surgery we are hoping to unload the spine and reduce his pain and improve his functions. There are no guarantees with this and some degree of uncertainty still remains. It's difficult to comment at present how much manual work he will be able to do after surgery. But without surgery there are definitely less chances of him to improve.”
The applicant’s solicitors arranged for him to be assessed by Dr New. Following the assessment, the doctor provided a report dated 31 March 2022 (page 20 of the ARD). The doctor took a history of the applicant’s accident on 28 March 2019 and his immediate treatment. On examination, he found tenderness over the T5, T6 and T7 vertebrae, as well as a 25% loss of rotation of the thoracic spine. He also found cervical spine tenderness and pain with rotation. The applicant reported to him that his sleeping patterns were disrupted, as were his sexual relations and his social life. He could only lift weights up to 5 kg, he could only walk 500 m, and he could only stand or sit for 10 minutes at a time. He considered “the pain in his thoracic spine and neck to be fairly severe at present”.
The doctor summarised the applicant’s injuries and disabilities as:
“The injuries noted are a probable fracture to C2 anteriorly as well as T5, T6 and T7 with a 70-75% crush of T6. He has had significant skull fractures and probable base of skull fractures however there are no images to review that and no reports from the neurosurgeon at Westmead.”
The doctor opined that the injuries were sustained in the accident on 28 March 2019.
The doctor noted that Associate Professor Seex had recommended that the applicant undergo a spinal fusion. He opined that surgery was “reasonable and necessary” and that Associate Professor Seex was “an experienced spinal surgeon and well capable of doing this surgery”. He disagreed that:
(a)    without surgery, the applicant’s symptoms would settle over a period of time;
(b)    exercise physiology would “transition his injuries”, and
(c)    “injuries with a 70% compression do not require surgery”.

Dr New was later provided with, and asked to review, a report obtained by the respondent’s solicitors from Professor Harris. Dr New then prepared a further report dated 9 August 2022 (page 25 of the ARD). The doctor noted that Professor Harris was a trauma surgeon, and:
“I am sure the treating doctors have developed a line of treatment which supports the individual clinical presentation of the patient. I am aware that Dr Seex has extensive experience in spinal pathology and, as I have stated, I am unsure as to what training Professor Harris has had specifically in spinal pathology.”
The doctor confirmed that he was comfortable with the opinions expressed in his earlier report, and that he considered the recommended surgery to be reasonably necessary. He also confirmed that in assessing the applicant’s range of motion, he assessed the applicant “externally” rather than “what was happening at a spinal level” as limitation of movement “can be structural, muscular, neurological or can be an issue regarding pain”.
The applicant was recently referred to a neurologist, Dr Mobbs. The ARD contains a report from her dated 17 August 2022 at page 27.
Dr Mobbs concentrated on reviewing the moderate traumatic brain injury that the applicant sustained on 28 March 2019, and the ongoing severe headaches that he was continuing to experience in this regard. However, she also noted the applicant’s ongoing pain in his mid-thoracic spine, and she advised:
“There is flattening of the spinal cord anteriorly in particular in the midthoracic spine, his other regions look within normal and the crush fractures in the midthoracic region are notably severe with kyphotic deformity. One wonders if this may lead to a worsened deformity over time and persistent postural abnormality with chronic pain as has been demonstrated.”
Dr Mobbs’ recommendation for treatment is as follows:
“My recommendation for the care of Dylan would be to trial ajovy for chronic migraine which may hopefully reduce his fatigue and head and neck pain. There can be a heightened sense of pain in migraine and maybe this will improve him overall, however, it would seem evident that he has severe crush fractures with flattening of the spinal cord and evidence of a degree of cord irritation that may benefit from surgical intervention.”
The applicant had also been referred to a neurologist (Dr Watson) earlier, and the ARD contains a report from him dated 9 June 2020 at page 29.
This report details the doctor’s treatment of the applicant for his migraines and vertigo, but it does also note:
“He is having major ongoing problems with his back and the current plan with his neurosurgeon, Kevin Seex is to go ahead with a T5-T6 fusion and they are awaiting approval.”
The ARD also contains some clinical records from Dr Li (neurosurgeon and spinal surgeon), including a report from him to the applicant’s general practitioner dated 3 November 2020 (at page 45).
Dr Li considered the applicant’s ongoing pain to be “very much mechanical in nature in that it gets worse with activity”. He was taking medication and had undertaken physiotherapy, but his pain level had “remained at approximately 8/10 and is not improving”.
The doctor noted that the applicant had previously seen Associate Professor Seex and
Dr Casikar, and was seeing him for an independent opinion. He reviewed radiological investigations and conducted a physical examination, at which he found focal kyphosis. He recommended:
“In summary, Mr Smith is a 28 year old gentleman with persistent disabling mechanical thoracic back pain in the context of significant compression fractures, particularly of T5/6 with focal kyphotic deformity who has exhausted essentially all reasonable conservative measures. I think that it would reasonable if he can’t tolerate his symptoms anymore to consider surgery. In my hands this would probably entail a minimally invasive percutaneous pedicle screw fixation spanning T4-T7 with posterolateral fusion. Prior to surgery, I think performing some erect x-rays to assess for dynamic change in alignment may be useful.”
The ARD further contains some clinical records (being reports dated 22 June 2021,
1 June 2021, and 4 May 2021) from Dr Dutta (from page 53). The applicant had been referred to the doctor for pain management.
In his initial report, the doctor noted that the applicant had “mainly pain in his thoracic spine on both sides as well as his neck and he has got elements of migraines as well as occipital and cervicogenic headaches”. The pain was described to the doctor as “sharp, throbbing, aching, stabbing, burning, hot” - it was continuous, made worse by general activity, and it disturbed sleep.
The doctor also noted that the applicant’s then treatment involved medication and appointments with a psychologist, and that he had discussed a fusion procedure for his thoracic spine with Associate Professor Seex.
The doctor’s recommendation to the applicant is summarised as follows:
“I had a detailed discussion with Dylan about the management that we offer from the Pain Clinic including medicines management for longstanding pain and for flare-ups, clinical psychology, pain-directed physiotherapy, pain management programme, ongoing clinical consultation, as well as some interventions.
So, plan for him is:
1. To continue Targin.
2. I have given him a script for Norflex to be taken one tablet one to two times a day when he gets a flare-up for his pain.
3. He would benefit from pain-directed physiotherapy.
4. He would benefit from pain-directed individual psychology.
5. He would benefit from attending the Kick Start pain management programme.
6. We would need to do a case conferencing on him.
7. For his mainly thoracic and lumbar distribution pain, he would benefit from diagnostic injections, which include paravertebral injections CV241, thoracic facet injections LN045, epidural injection, CV140 under x-ray guidance OF952 to be done at Sydney Surgical Unit under anaesthesia as a day surgery procedure at AMA gazetted rates.
Six to eight weeks later after this injection mainly for his occipital and cervicogenic headache and bilateral neck pain, he would benefit from bilateral cervical facet joint injection LN045, greater occipital nerve blocks CV205 under x-ray guidance again under sedation at Sydney Day Surgery Unit under AMA rates.”
In the doctor’s second report, he notes that the applicant found Targin and Norflex to be helpful.
In the doctor’s third report, he notes that the respondent had not approved his treatment plan, and therefore, the applicant should continue with the Targin and Norflex. The respondent’s notice in this regard under s 78 of the 1998 Act declining liability for the relevant treatment can be found at page 9 of the ARD.
Finally, the ARD contains:
(a) various radiological reports – these have been considered and interpreted by the various specialists who have examined the applicant, and I have also considered them in detail – I will refer to them further if directed to them specifically during the parties’ submissions, and
(b) clinical records from Dr Sipeli (the applicant’s general practitioner), Hawkesbury Hospital, and Westmead Hospital – I have also considered these records in detail and I will refer to them further if directed to them specifically during the parties’ submissions.

Respondent’s evidence

The respondent relies primarily upon the opinions expressed by Dr Casikar and
Professor Harris.
Dr Casikar initially provided a report dated 18 September 2020 (page 9 of the Reply).
The doctor took a history from the applicant as to his accident on 28 March 2019 and his subsequent treatment. The doctor conducted a physical examination of the applicant, and he reviewed CT scan thoracic spine investigations. He diagnosed “multiorgan injuries following the accident at work”, including thoracic fractures at T5, T6 and T7, which were wedge fractures and which were stable. He was unable to verify any neurological symptoms. He opined:
“The prognoses for Mr Smith’s injuries are very good. There are undisplaced fractures. In my opinion, these have healed….Mr Smith does not have any neurological symptoms related to the fractures, or to any probable instability as a result of the fractures. His back pain is a common problem following the kind of injury, but this should settle.”
The doctor then expressed quite a strong opinion that the surgery recommended by Associate Professor Seex (which he understands to be “fusion of the three vertebrae”) is “completely unnecessary and not acceptable”. There is only a slight deformity in the spine, the applicant’s fractures are stable, and the applicant has no neurological symptoms. As a result, the acceptable treatment for the applicant is pain management.
The doctor provided a second report dated 17 June 2021 (page 14 of the Reply), in which he responded to a number of questions posed by the respondent’s insurer in relation to the vocational capacity of the applicant.
The doctor then provided a third report dated 5 July 2021 (page 16 of the Reply), in which he responded to a number of further questions posed by the respondent’s insurer regarding the applicant’s ongoing treatment needs. The doctor opined that the applicant would not get any benefit from any further physiotherapy sessions, and that diagnostic injections (as suggested by Dr Dutta) were not necessary. He concluded:
“There are no alternative treatments that are necessary. I think the sooner Mr Smith gets back into the workforce and a suitable job, he would recover faster. As long as he is getting treatment physiotherapy and other invasive measures, he would be convinced that he is not getting better, and his symptoms will continue. Therefore, in my opinion these treatments are of no use at this stage. They should be stopped, and he should be encouraged to get back to the alternative jobs identified, which I have mentioned in my previous report.”
Professor Harris provided a report dated 17 June 2022 (page 23 of the Reply).
The doctor obtained a history of right-sided skull fractures and wedge compression fractures of T5, T6 and T7, in the applicant’s accident on 28 March 2019. He recorded that the applicant complained to him of ongoing chronic mid-thoracic spine pain, constant in nature but varying in severity. The pain had not significantly changed since the accident. The applicant was being treated at the time with strong analgesic medication, physiotherapy having not assisted his symptoms in the past.
On examination, the doctor did not find neurological symptoms. In relation to the mid-thoracic spine, the doctor found increased kyphosis, 50% limited range of motion in all directions, and mild tenderness. He reviewed multiple radiological tests up to 5 November 2021 which all revealed (the anatomy of the applicant’s fractures having remained unchanged) “a wedge compression fracture with 70% loss of anterior height at T6, a less severe wedge fracture at T5, and evidence of a minimally displaced fracture in T7”.
The doctor confirmed that the applicant’s employment was both a substantial contracting factor and the main contributing factor to the fractures of his T5, T6 and T7 vertebrae.
The doctor recommended a pain management program for the applicant’s pain. In relation to the surgery proposed by Associate Professor Seex, he opined:
“I believe that since the fractures have united, the only way of correcting the kyphosis is to perform an osteotomy. In essence, Dr Seex is recommending an in situ fusion as he would be unable to produce any material correction to the kyphosis as the deformity is bony in nature and correction would therefore require bony correction (i.e. an osteotomy). Because of the increased uptake on the bone scan Dr Seex feels that fusing this level of the spine would remove the pain hypothetically originating from the damaged disc space. I feel that there is little evidence for this.”
The doctor does not believe that a fusion is likely to produce a favourable outcome for the applicant on the following bases:
(a)    “fusing the spine in the position it is already in is unlikely to correct his pain”;
(b)    he has a significant psychological component to his pain;
(c)    “the fact that the injury is being treated under workers’ compensation also means that the probability of a clinical improvement after fusion would be very low”, and
(d)    there is no supportive comparative evidence in the literature that fusing kyphotic thoracic spines in situ provides more relief than not fusing them.
The doctor then agreed that fusing the applicant’s spine was a treatment option, but he disagreed that it would improve the applicant’s clinical condition.
The doctor finally opined that he did not expect the applicant’s symptoms to significantly change in the next 12 months.
The Reply also contains:
(a) a report from a physiotherapist dated 31 March 2020 (page 30) which describes the applicant’s thoracic pain as constant (7/10 to 10/10), outlines the applicant’s restrictions with regard to activities and movement, and recommends continuing supervised exercise physiology, and
(b) a report from Dr Lonie (neuropsychologist) dated 18 August 2022 (page 34) which concludes that the applicant suffered a mild traumatic brain injury in his
28 March 2019 accident, but which also notes that he continues to experience pain in his neck and back.
I have considered these two reports in detail and do not find them to be particularly relevant to the issue central to the dispute that I need to determine. I will refer to them further if I am directed to them specifically during the parties’ submissions.

Applicant’s submissions

The applicant made oral submissions on 11 November 2022, and then pursuant to my direction on that date, he also made further brief submissions in writing. The oral submissions have been recorded, and the written submissions form part of the Commission’s record. I will therefore not repeat the submissions in detail.
In the oral submissions, the applicant pointed out that it has been well over three years since his accident and he has constantly complained of pain during that time. He has had over 60 sessions of physiotherapy, and he has been left with an anatomical variant in that he now has kyphosis in his mid-thoracic region. Associate Professor Seex has offered a procedure that may assist the applicant with relief, and the applicant should have the benefit of that assistance. The doctor provides the basis for his surgery recommendation in that he believes that he can relieve the applicant’s pain by unloading the spine in his mid-thoracic region. The applicant submits that the possibility of relief in this regard is enough to justify the surgery being found to be reasonably necessary.
Dr New is comfortable in supporting the surgery proposed by Associate Professor Seex, describing him as an experienced spinal surgeon with appropriate training. Dr New specifically disagrees that injuries with a 70% compression do not require surgery, and that the applicant’s symptoms will settle over a period of time.
The applicant submits that when properly viewed, Professor Harris “agrees with every aspect of Dr Seex’ opinion other than … the surgery to be undertaken”. He agrees with the extent of the applicant’s symptoms, but does not sufficiently take into account the applicant’s pain in his mid-thoracic region. He does not opine that Associate Professor Seex’ proposed fusion surgery will not provide the applicant with relief, only that there is no supportive comparative evidence in the literature (which he does not provide or otherwise reference) suggesting that the surgery will provide relief.
The applicant submits that Dr Mobbs supports the applicant’s ongoing complaints of mid-thoracic pain as well as the possibility of a worsened kyphotic deformity over time. She recommends surgical intervention.
The applicant submits that Dr Li also supports the need for the applicant to undergo surgery. The surgery she recommends is described in very similar terms to the surgery proposed by Associate Professor Seex.
The applicant does not particularly address the opinions provided by Dr Casikar on the basis that (unlike the other doctors who have provided opinions in the dispute) he is not a spinal specialist and is not currently in practice.
In the applicant’s brief written submissions, the applicant confirms that Associate Professor Seex has advised that the surgery that he is referring to in both his 2 June 2020 reports and his 2 June 2022 report is the same surgery. “They both involve correction of the kyphotic deformity together with posterior pedicle screw fixation and grafting”.

Respondent’s submissions

The respondent’s submissions have been reduced to writing and I will not repeat them in detail.

The respondent concedes that the surgery referred to in Associate Professor Seex’ 2 June 2020 reports and his 2 June 2022 report is the same surgery.
The respondent submits however that the surgery is not appropriate and relies upon the following evidence:
(a)    Associate Professor Seex did not initially recommend any form of surgical intervention for the applicant’s thoracic fractures;
(b)    Professor Harris believes that the only way to correct the applicant’s kyphosis is through an osteotomy, as a “bony correction” is required;
(c)    Professor Harris believes that fusion surgery would not improve the applicant’s condition and pain;
(d)    there is radiological evidence to support that the applicant’s fractures at T5, T6 and T7 have united;
(e)    there is no evidence of any neurological involvement in the applicant’s condition, and
(f)    there is evidence supporting the use of alternative treatment such as pain management.

FINDINGS AND REASONS

Whether the surgery proposed by Associate Professor Seex (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) as referred to in his 2 June 2022 report, is reasonably necessary medical treatment as a result of the injury to the applicant on
28 March 2019

Section 60 (1) of the 1987 Act provides as follows:
“(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).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment.”
The first question to therefore determine is whether the surgery proposed by Associate Professor Seex is reasonably necessary treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 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 injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, 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 the particular condition.”

In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary 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 is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I accept the statement evidence of the applicant. The respondent has not suggested otherwise. He has had ongoing pain and symptoms since his 28 March 2019 accident (see paragraph 27 above) which still significantly inhibit his lifestyle.
He has been under the care of Associate Professor Seex since 14 May 2019. In those circumstances, I am of the opinion that that doctor is in the best position to recommend treatment, unless there is reliable evidence to question his treatment recommendations.
Associate Professor Seex initially (see paragraph 30 above) recommended conservative treatment, expecting the applicant’s fractures to heal with time. Even at his first consultation with the applicant however, the doctor expressed concern regarding the development of kyphosis.
By 2 June 2020, the doctor was recommending surgery because of the applicant’s ongoing mid-thoracic pain. The doctor has continued to recommend surgery, as confirmed by his
2 June 2022, 20 September 2022 and 16 November 2022 reports.
The 20 September 2022 report (see paragraph 39 above) provides a concise summary of the doctor’s opinion. Conservative treatment has not alleviated the applicant’s pain, and the proposed surgery will hopefully “unload the spine and reduce his pain and improve his functions”. The doctor concedes that there are no guarantees with the surgery, but without it, there are “definitely less chances of him to improve”.
The doctor has used slightly different wording in his various reports to describe his recommended surgery, but he has confirmed that the nature of the surgical procedure described in the various reports is the same. The respondent has accepted as such. The surgery (see paragraph 37 above) requires a two level thoracic corpectomy for correction of kyphotic deformity and posterior pedicle screw fixation and fusion from approximately T4 to T8.
The doctor concedes that the applicant does not exhibit any neurological symptoms and that his fractures seem to have healed, but he finds radiological evidence of significant disc disruption (see paragraph 35 above), which is producing symptoms.
Drs New, Li and Mobbs all provide some support for the surgery proposed by Associate Professor Seex, while not describing their surgery recommendations in precisely the same manner.
Dr New (see paragraph 43 above) agrees with Associate Professor Seex’ recommendation that the applicant undergo a “spinal fusion”. Although Dr New could have described the surgery more precisely, in the context of his reports (and especially his criticism of Professor Harris’ opinions), I accept that he defers to Associate Professor Seex in relation to the applicant’s treatment recommendations. He certainly considers Associate Professor Seex to be highly experienced in spinal surgery and in the treatment of spinal pathology. Further, the surgery described by Associate Professor Seex does involve a fusion procedure.
Dr Li’s proposed surgery (see paragraph 53 above) is worded in very similar terms to Associate Professor Seex’, and I am willing to accept that it is essentially the same surgery, although it does not specifically mention the correction of the applicant’s kyphotic deformity.
Dr Mobbs (see paragraph 48 above) does not recommend a specific surgical procedure, but does suggest that the applicant would benefit from “surgical intervention” to deal with his severe crush fractures and spinal cord irritation.
In relation to Professor Harris’ opinion, I accept the applicant’s submission that he largely agrees with Associate Professor Seex as to the applicant’s ongoing chronic mid-thoracic pain, the applicant’s kyphotic deformity, the applicant’s lack of neurological symptoms, and the applicant’s radiological findings (which showed united wedge fractures at T5, T6 and T7). Professor Harris however disagrees with Associate Professor Seex’ treatment recommendations. He does not suggest that the applicant does not require treatment, but he mentions an osteotomy and pain management. He does not rule out fusion as a treatment option (see paragraph 73 above), but he disagrees that it would improve the applicant’s clinical condition. However, he then opines that the condition is not likely to significantly change in the next 12 months.
In circumstances where Professor Harris cannot foresee any significant change in the applicant’s condition, I believe that the surgical treatment option offered to the applicant by Associate Professor Seex is reasonable. The doctor acknowledges that there are no guarantees with the surgical treatment, and he expresses on more than one occasion derivatives of the word ‘hope’ to describe what the surgical treatment may achieve. However, the doctor opines that there is less chance of any improvement without the surgical treatment, and I am therefore of the opinion that the treatment should be afforded to and not forborne by the applicant.
In accepting the opinion of Associate Professor Seex over Professor Harris in this regard, I also note:
(a)    Professor Harris only had the benefit of one consultation with the applicant, whereas Associate Professor Seex has treated the applicant for over three years;
(b)    Associate Professor Seex’ treatment proposal receives general support from
Drs New, Li and Mobbs (two of these doctors being treating doctors rather than independent medical examiners), who all recommend surgery;
(c)    Professor Harris’ view that the only way to correct the applicant’s kyphosis is through an osteotomy (as a “bony correction” is required) is not shared by either Dr New or Dr Li (as well as Associate Professor Seex), considering the fusion surgery that they all recommend;
(d)    Professor Harris has offered a treatment option (pain management) that has already been refused by the respondent (see paragraph 59 above);
(e)    I find Professor Harris’ view that the surgery proposed by Associate Professor Seex is unlikely to improve the applicant’s clinical condition to be overly speculative;
(f)    Professor Harris in my opinion does not sufficiently explain (see paragraph 71 above) his rejection of Associate Professor Seex’ view that because of the increased uptake shown in the applicant’s bone scan, fusion surgery may remove the applicant’s pain originating from his damaged disc space – Professor Harris only opining “there is little evidence for this”, and
(g)    Professor Harris in my opinion does not sufficiently explain (see paragraph 72 above) the significance of the applicant’s psychological condition as well as the significance of his condition being the subject of a workers compensation claim.
I do not intend to afford much weight to the opinions expressed by Dr Casikar. Indeed, any reliance upon his opinions is missing from the respondent’s written submissions.
He does not properly consider the level of the applicant’s pain. He refers to the applicant’s fractures as being stable, and him being only left with a slight deformity in his spine. He then (see paragraph 66 above) provides the rather patronising and unhelpful suggestion that all treatment should be withdrawn from the applicant and he should return to work as he will otherwise convince himself that he is not getting better.
Dr Casikar’s views in this regard do not correlate with the views of any of the other doctors who have examined the applicant, including Professor Harris. Dr Casikar has significantly downplayed the extent and seriousness of the applicant’s ongoing condition, which is properly described by Dr Li (see paragraph 53 above) as significant compression fractures with focal kyphotic deformity, and most recently by Dr Mobbs (see paragraph 47 above) as notably severe crush fractures in the mid-thoracic region with kyphotic deformity. None of the other doctors who have examined the applicant suggest a cessation of treatment.
In all the circumstances, I do not find reliable evidence to question the treatment recommendations for the applicant made by Associate Professor Seex. I find that doctor’s opinions to be consistent with the opinions expressed by Drs New, Li and Mobbs, and I prefer those opinions to the opinions expressed by Professor Harris and Dr Casikar.
Having considered the whole of the evidence presented, I am comfortably satisfied that the applicant has discharged his onus of proving on the balance of probabilities that Associate Professor Seex’ proposed surgery is reasonably necessary treatment for his long-standing mid-thoracic pain and symptoms.
In considering the matters referred to in Rose and Diab, I find:
(a)    the surgery proposed by Associate Professor Seex is appropriate treatment for the applicant’s mid-thoracic pain and symptoms – the doctor has been consistent in his recommendation to the applicant in this regard for over two years, and the recommendation is supported by Dr New - I have also found that Dr Li essentially recommends the same surgery, and I note that even Professor Harris considers the surgery to be a treatment option (albeit one which he would not recommend);
(b)    in relation to the alternative treatment available to the applicant, only pain management is suggested as a non—surgical option but the respondent has refused to approve that treatment – otherwise, I have accepted that the applicant’s symptoms have remained essentially unchanged for over three years despite conservative treatment such as medication and physiotherapy – the applicant therefore requires some form of surgical treatment according to Associate Professor Seex, Dr New, Dr Li, and Dr Mobbs - although the particular form of surgical treatment is not clarified by Dr Mobbs, I believe that both
Drs New and Li support the treatment recommended by Associate Professor Seex;
(c)    the costs of the proposed surgery (see paragraph 38 above) are reasonable considering its nature - the costs are not excessive for the type of surgery proposed and the respondent has led no evidence nor made any submission regarding the unreasonableness of the costs - although the costs are significant, they need to be considered in the context that the proposed surgery is aimed at relieving the constant pain experienced by the applicant for over three years;
(d)    in relation to the potential effectiveness of the proposed surgery, there is a significant difference of opinion between Associate Professor Seex and Professor Harris, but as earlier explained, I am willing to accept the opinion of Associate Professor Seex in this regard – the doctor has treated the applicant for over three years and he understands the applicant’s pain and symptoms – although he is only hopeful (rather than positive) in relation to his proposed surgery relieving that pain and those symptoms, I am willing to accept that he has considered the applicant’s position over many years and determined that his proposed surgery is the treatment option for the applicant that is likely to have the best effect – importantly, I also note his opinion, as well as the opinions of Drs New and Mobbs, that the applicant’s symptoms are likely to worsen (or at least not improve) over time without surgery, and
(e)    considering the opinions of Associate Professor Seex as well as Drs New and Li, I find that the proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective - Professor Harris also refers to the surgery as a treatment option.
It is now necessary to consider whether there is a material contribution between the injury to the applicant on 28 March 2019 and the surgery proposed by Associate Professor Seex.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense 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 (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
The respondent does not dispute that the applicant sustained thoracic fractures leading to kyphosis, as a result of his injury on 28 March 2019. Its submissions did not address the material contribution between that injury and the need for the surgery proposed by Associate Professor Seex, but instead concentrated upon whether that surgery was reasonably necessary. Indeed, the respondent may have conceded the ‘material contribution’ point prior to the applicant commencing his oral submissions, although the recording in this regard is not entirely clear.
In any case, I have no difficulty in finding a material contribution between the applicant's
28 March 2019 injury and the surgery proposed by Associate Professor Seex. I have accepted that the proposed surgery is reasonably necessary in order to treat his mid-thoracic pain and kyphosis. These symptoms arise from the fractures which he sustained on
28 March 2019, according to Associate Professor Seex (see paragraph 39 above), Dr New (see paragraph 42 above), Dr Li (see paragraph 53 above), as well as Professor Harris (see paragraph 70 above).

SUMMARY

Considering the whole of the medical evidence presented, I find that the surgery proposed for the applicant by Associate Professor Seex (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) as referred to in his 2 June 2022 report, is reasonably necessary medical treatment as a result of the injury to the applicant on 28 March 2019.
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and the respondent will be ordered to pay for the costs of and incidental to the surgery (a posterior thoracic pedicle screw fixation and kyphotic deformity correction) proposed for the applicant by Associate Professor Seex in his 2 June 2022 report.

[2023] NSWPIC 27

23 January 2023