Stanley v Lachlan Shire Council - [2015] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Stanley v Lachlan Shire Council [2015] NSWWCCPD 69
APPELLANT:	Jammie Michael Stanley
RESPONDENT:	Lachlan Shire Council
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-1492/15
ARBITRATOR:	Mr T Wardell
DATE OF ARBITRATOR’S DECISION:	17 August 2015
DATE OF APPEAL DECISION:	7 December 2015
SUBJECT MATTER OF DECISION:	Claim for cost of proposed hospital and medical expenses under s 60 of the Workers Compensation Act 1987; whether proposed treatment reasonably necessary; assessment of evidence; reasons
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 17 August 2015 is confirmed.

INTRODUCTION

In this matter, the worker has appealed against an Arbitrator’s determination that the cost of proposed spinal surgery is not reasonably necessary as a result of an accepted work injury (s 60 of the Workers Compensation Act 1987 (the 1987 Act)). For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

The appellant worker, Jammie Stanley, worked for the respondent employer, Lachlan Shire Council as a plant operator/labourer. He injured his back on or about 17 February 2014 when he drove a roller over uneven ground. He reported the injury the next day, stopped work and saw his general practitioner. He claimed compensation and the insurer accepted liability. It paid, and continues to pay, weekly compensation.
Mr Stanley remained off work until about May 2014 when he returned to work on part-time duties for five weeks. He was unable to continue those duties and ceased work in June 2014, and has not returned since. His symptoms, as at March 2015, included ongoing low back pain and “fluctuating pain to both lower limbs”. The leg pain was always there “to some extent”, the right leg “affected worse than the left” and the pain “seem[ed] to vary between the pain in the buttock to pain going all the way down the leg or just to the knee”.
In July 2014, Mr Stanley was referred to Dr David Bell, orthopaedic surgeon, who arranged for a CT guided L5/S1 epidural injection, which was performed on 11 July 2014. That procedure relieved Mr Stanley’s symptoms for about 24 hours, but they gradually returned.
On 4 August 2014, Dr Bell recommended that Mr Stanley have a right L5/S1 discectomy.
On 5 August 2014, Dr Bosanquet, orthopaedic surgeon, examined Mr Stanley at the request of the respondent’s insurer. Dr Bosanquet concluded that the incident on 17 February 2014 had “aggravated some degenerative disc changes at [the] L5/S1 level and caused some right leg pain”.
In a supplementary report, dated 5 September 2014, Dr Bosanquet stated that the CT report of 18 February 2014, which showed a broad based posterior disc protrusion at L5/S1 with no nerve root impingement, combined with the clinical picture, which showed no sign of radiculopathy, led him to conclude that surgery was “certainly not an option”.
Based on Dr Bosanquet’s report, the insurer denied liability for the proposed surgery on the ground that it was not reasonably necessary as a result of the accepted injury.
In an Application to Resolve a Dispute registered with the Commission on 17 March 2015, Mr Stanley sought a declaration that the proposed surgery was reasonably necessary as a result of the accepted injury to his back. As required by s 60(5) of the 1987 Act, the Commission referred the matter to an Approved Medical Specialist (AMS) for a non-binding opinion.
On 18 May 2015, the AMS, Dr Breit, issued a Medical Assessment Certificate, in which he agreed with Dr Bosanquet that the proposed surgery was not reasonably necessary because there was “no evidence of a compressive lesion that will benefit” from surgery.
The matter was heard before a Commission Arbitrator on 13 August 2015 when both parties were represented by counsel. After hearing submissions, the Arbitrator delivered an extempore decision in which he concluded that Mr Stanley had not discharged the onus of establishing that the proposed surgery was reasonably necessary.
Consistent with the Arbitrator’s decision, the Commission issued a Certificate of Determination on 17 August 2015 in the following terms:
“1.I am not satisfied that the proposed treatment as claimed in the Application to Resolve a Dispute, namely L5/S1 discectomy surgery, is reasonably necessary within the meaning of s60 of the Workers Compensation Act 1987 and therefore decline to order that the Respondent is liable for it.
2. The proceedings are dismissed.”
Mr Stanley has appealed.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     misdirecting himself with respect to the test for whether medical treatment is reasonably necessary (the test);
(b)     failing to give proper reasons as to his rejection of the evidence of Dr Bell (reasons for rejecting Dr Bell’s evidence);
(c)     failing to take into account relevant evidence and having regard to irrelevant evidence in concluding that Mr Stanley had not discharged his onus of establishing that the proposed surgery is reasonably necessary medical treatment (relevant and irrelevant evidence), and
(d)     expressing his own quasi-medical opinion as to the significance of the pathology identified in the MRI reports of 23 June 2014 and 25 June 2015 (quasi-medical opinion).

THE TEST

The Arbitrator’s reasons

The Arbitrator stated, at T12.6:
“Mr Levick, for [Mr Stanley], has properly drawn my attention to the test regarding reasonable necessity for medical treatment as enunciated by Judge Burke and in essence it is that treatment will be reasonably necessary, if there are sound reasons for thinking that the proposed treatment will have the desired outcome. And that outcome can include the relief of symptoms, without necessarily providing a complete cure to the problem which ails an injured worker.” (The reference to the test enunciated by Burke CCJ was a reference to his Honour’s decisions in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo) and Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose).)

Submissions

Though experienced counsel appeared for Mr Stanley at the arbitration, his solicitor, Mr Lleonart, has prepared the submissions on appeal. Mr Lleonart submitted that the formulation of the test by the Arbitrator did not fully encompass the matters to be considered and led the Arbitrator into error. He said that the error was compounded by the Arbitrator saying that the “principal factual matter in issue is whether in fact [Mr Stanley] does have genuine radiculopathy, such as to make it likely that it will be relieved by the proposed surgery” (T12.1).
Mr Lleonart contended that, by formulating the test and issue for determination in this way, the Arbitrator failed to carry out the balancing test of “reasonableness” having regard to other factors. He should have considered the factors in Rose; Bartolo; Clampett v WorkCover Authority (NSW) [2003] NSWCA 52; 25 NSWCCR 99 and Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab).
Mr Stanley gave evidence of unremitting leg pain since his injury, which the Arbitrator accepted. The purpose of the surgery was to relieve that leg pain. Had the Arbitrator considered the factors identified in Diab, he would have weighed the following:
(a)     Mr Stanley’s unremitting pain in his right leg since the injury;
(b)     the fact that an epidural injection relieved Mr Stanley’s symptoms for a day, though it gradually returned;
(c)     that it was Dr Bell’s opinion that Mr Stanley’s symptoms largely related to the right L5/S1 disc prolapse and the transient relief from the epidural injection implied that that was the cause of his problems;
(d)     the opinion of Dr Bell that, in the absence of Mr Stanley’s symptoms settling spontaneously, he would benefit from the proposed surgery;
(e)     the appropriateness of the proposed surgery (in light of the above) against the evidence of Drs Breit and Bosanquet;
(f)      whether there was alternative treatment and its potential effectiveness (noting that Mr Stanley had had a long period of conservative treatment without benefit and the epidural injection had provided only temporary relief), and
(g)     the cost of the treatment.
By limiting himself in the way he did, it was contended that the Arbitrator failed to carry out the balancing exercise required by the term “reasonable” in reaching his conclusion. He seemed to form an assessment as to whether, in his view, the surgery could be capable of providing relief and determined that issue against Mr Stanley. In doing so he “elevated that consideration to a determinative one without balancing it against the other criteria which he should have considered”.

Discussion and findings

It is first appropriate to look at how Mr Stanley’s counsel, Mr Levick, argued the case before the Arbitrator. He submitted (at T2.14) that the starting position was the law stated by Burke CCJ in Bartolo, namely:
“The test is of reasonable necessity and whether the surgery is reasonably necessary, should the patient have the treatment or not. If it is better that he have it, then it is necessary and should not be forlorn [sic]. If in reason, it should be said that the patient should not do without the treatment, then it satisfies the test of being reasonably necessary. And whether it’s appropriate treatment, includes alternatives to it, cost effectiveness and acceptance by the medical profession of the surgery as being appropriate.”
In that “framework of the law” (T2.26), Mr Levick then took the Arbitrator to Mr Stanley’s evidence of his back and leg symptoms. He submitted that Dr Bell, as the treating doctor, was in the best position to determine whether or not Mr Stanley suffers from radiculopathy, which would justify surgery, and whether the surgery is reasonably necessary to treat those symptoms.
Mr Levick referred to the conservative treatment Mr Stanley had received (the epidural injection, which gave transient relief of his symptoms) and to Dr Bell’s opinion that Mr Stanley may benefit from a right L5/S1 discectomy. Mr Levick drew attention to Dr Bell’s explanation for Mr Stanley’s symptoms and why Dr Bell thought the proposed surgery was reasonably necessary. He contended that there was no reason for departing from Dr Bell’s opinion.
Mr Levick pointed out that Dr Bell’s findings of radiculopathy and the need for surgery was supported by Dr O’Keefe, orthopaedic surgeon, qualified by Mr Stanley. He contended that the Arbitrator would prefer the opinions of Dr O’Keefe and Dr Bell to those of Dr Bosanquet and Dr Breit.
In answer to a question from the Arbitrator, Mr Levick said that his understanding of the object of the proposed discectomy was to relieve Mr Stanley’s right leg pain. The Arbitrator then took Mr Levick to Dr Bell’s findings on examination, which were “grade 5 power in all muscle groups, present and symmetrical knee and ankle reflexes, and no detectable sensory disturbance”, and asked on what basis Dr Bell diagnosed radiculopathy. Mr Levick responded “[p]ain” (T6.13), and added that the pain was relieved by an epidural injection, which was no doubt a relevant consideration to Dr Bell (in recommending the surgery) and it was “clear that the purpose of the surgery, as predicated by Dr Bell, is to give relief to that radiculopathy” (T6.23).
Mr Levick then quoted the following passage from Dr Bell’s report of 21 July 2015:
“Given that his symptoms are consistent with an S1 radiculopathy, and that the local anaesthetic and steroid injection improved his symptoms, albeit temporarily, I think that an L5/S1 discectomy is reasonably necessary.”
Dr Bell continued:
“I believe that this operation may give [Mr Stanley] excellent relief from his symptoms. Conversely, I don’t believe that his symptoms will resolve unless he has the surgery. Non-operative measures including pain management and steroid injections have failed to resolve his symptoms.”
Mr Levick submitted, at T7.1:
“What he’s clearly saying is, because the anaesthetic had its effect of relieving the right leg pain, that was temporary. But if he removes the source of the aggravation, that is the disc, then that will relieve the pain. That’s the inescapable conclusion from – or inference to be drawn from that paragraph.”
Counsel for the respondent, Mr Rickard, noted that there were differing opinions as to whether Mr Stanley has radiculopathy and whether he would benefit from any surgery. He pointed out that the objective material in the CT and MRI scans made it “pretty clear” (T8.2) that the normal objective factors that would lead to the need for surgery did not appear to be found radiologically. He pointed out that Dr Breit’s view was that the indication for surgery is radiculopathy, which was not present, there being no evidence of neuropathy or of sciatic nerve root irritability.
Mr Rickard took the Arbitrator to Dr Bosanquet’s evidence in his report of 5 September 2014, which was that, based on the CT scan, there was no evidence of central canal stenosis or any nerve root impingement. Dr Bosanquet added, referring to the CT scan:
“These findings, combined with the clinical picture where there is no sign of radiculopathy, leads me to the conclusion that surgery is certainly not an option. Surgery in the form of a laminectomy is effective only for relieving leg pain, not for back pain. As Mr Stanley does not have a radiculopathy, I see no point in surgery. Given Mr Stanley’s morbid obesity, and the lack of clinical signs or convincing radiology, surgery would not produce the results and would be fraught with potential complications. I would strongly recommend however that Mr Stanley have an MRI scan performed to ensure that there is no evidence, radiologically, of nerve root involvement.”
An MRI scan on 23 June 2014 revealed, among other things, a “mild broad based protrusion” at L5/S1, which was “not causing any significant neural compromise” or compression. There was no foraminal or canal compromise. (A second MRI scan, dated 25 June 2015, was reported on by Dr Bell as stating that there was disc desiccation “with broad-based posterior disc bulge” at L5/S1 but “no sac compromise or S1 nerve root compromise and no foraminal L5 root compression”.)
Mr Rickard noted that Dr Bell agreed that there was no obvious neural compensation and that his explanation for the radiculopathy was couched in terms such as it “is therefore possible that chemical irritation from the herniated disc, rather than the mechanical compression, is the cause of the radiculopathy” and that “it is conceivable that the L5/S1 disc herniation seen on MRI scanning is the cause”. Mr Rickard argued that, in the absence of obvious neural compression, the proposed surgery would not be reasonable medical treatment and that one would need more to tip the balance in favour of the reasonable necessity that Mr Stanley has to make out.
In reply, Mr Levick pointed out that Dr Bell also said that an MRI scan is done while the patient is in the supine position and that “mechanical compression may possibly occur whilst upright”.
It was in this context that the Arbitrator identified the test I have quoted at [17] above. His statement was not intended to be a definitive or comprehensive statement of the “test” in cases of this kind. It was no more than a brief statement of the “essence” of the test. Once that is properly understood, it was unobjectionable.
Though it might have been more helpful if the Arbitrator had referred to Diab, nothing turns on his failure to do so. In Diab, it was held that, in the context of s 60, the relevant matters to consider, according to the criteria of reasonableness, include, but are not 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 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.
However, as explained in Diab, while the above matters are useful heads for consideration, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, and as Mr Levick submitted to the Arbitrator, is it better that the worker have the treatment or not. The Arbitrator did not approach the matter on that narrow basis. He was well aware of the “essential question” and he directed himself to it. This is confirmed by his reference to Mr Stanley having the onus of establishing “that the proposed treatment is reasonably necessary” (T12.17).
Given the parties’ submissions at the arbitration, the Arbitrator was correct to identify the “principal factual matter in issue” to be whether Mr Stanley has genuine radiculopathy, such as to make it likely that it would be relieved by the proposed surgery. In other words, would the proposed treatment be likely to relieve Mr Stanley’s right leg pain. That was the issue identified in the expert evidence and on which the parties addressed. The Arbitrator was right to focus on that issue.

In considering that issue, the Arbitrator had regard to:
(a)     Mr Stanley’s evidence of low back pain and fluctuating pain in both lower limbs (T12.29);
(b)     the fact that the radicular symptoms, such as they were, seemed to fluctuate in intensity and the particular parts of the legs affected, and that Mr Stanley had similar pain in his left leg (T13.4);
(c)     the evidence from Dr Bell, which the Arbitrator comprehensively summarised from T13.13 to T15.32 and which included the history that the epidural injection gave transient relief of Mr Stanley’s leg symptoms;
(d)     the evidence in the first MRI scan, which revealed an L5/S1 disc protrusion with no significant neural compensation and no foraminal or canal compromise (T13.20);
(e)     the evidence in the second MRI scan, dated 25 June 2015, which recorded a broad-based posterior disc bulge at L5/S1 but no thecal sac compression or S1 nerve root compromise and no foraminal L5 root compression (T13.24);
(f)      the evidence from Dr O’Keefe, who, unlike any of the other doctors, found evidence of decreased ankle jerks and decreased sensation to pin prick in the right S1 nerve root distribution and agreed with Dr Bell that the proposed surgery is reasonably necessary (T16.1), and
(g)     the evidence from Dr Bosanquet and Dr Breit, which was essentially that there were no signs of radiculopathy and that, therefore, the surgery was not reasonably necessary (T17.5 to T19.31).
The Arbitrator then explained why he did not accept the evidence from Dr Bell, which explanation is discussed below.
It follows from this analysis that Mr Lleonart’s submission that the Arbitrator erred in failing to apply the proper test cannot be accepted. Save for the cost of the proposed surgery, the Arbitrator was aware of and considered all of the matters identified by Mr Lleonart. The cost of the proposed treatment was not a relevant consideration in the case. It was not argued that the cost of the proposed surgery was unreasonable, or that the same outcome could be achieved with a cheaper alternative. The Arbitrator’s failure to refer to the cost of the proposed surgery involved no error.

The issue of whether the proposed surgery is reasonably necessary turned on whether it is likely to relieve Mr Stanley’s symptoms. That turned on whether Mr Stanley has genuine radiculopathy. Accepting the evidence in the radiology and from Dr Breit and Dr Bosanquet, the Arbitrator determined that Mr Stanley does not have genuine radiculopathy and that, therefore, the treatment is not reasonably necessary. That finding was open on the evidence and did not involve the application of the wrong “test”.
This ground of appeal is not made out.

REASONS FOR REJECTING DR BELL’S EVIDENCE

Submissions

Mr Lleonart contended that nowhere in his decision did the Arbitrator consider the “precise evidence given by Dr Bell as to his reasoning for the need for surgery”. He said that the Arbitrator did not address Dr Bell’s opinion (set out at [27] and [28] above) and he gave “no reasons as to why he rejected the proposition that the local anaesthetic and steroid improving the symptoms was a significant component of Dr Bell’s opinion”. The absence of that reasoning is even more significant, it was submitted, as neither Dr Bosanquet nor Dr Breit considered the relevance of the epidural injection.
Mr Lleonart argued that the Arbitrator did not give adequate reasons for rejecting Dr Bell’s explanations for the absence of compressive pathology on the MRI scans. (Those explanations were that it was “possible” that chemical irritation from the herniated disc, rather than mechanical compression, was the cause of the radiculopathy, and that the MRI is performed in the supine position, and mechanical compression “may possibly” only occur whilst upright.) He said that the Arbitrator’s statement that Dr Bell’s alternative explanations would have been referred to by Dr Breit and Dr Bosanquet had they been “powerful and well accepted reasons for discounting the MRI scan” (T20.27) was speculation and not available on the evidence.
Mr Lleonart submitted that the reasons for rejecting Dr Bell’s opinion as a whole were “not proper” in that the Arbitrator failed to have proper regard to the doctor’s opinion with respect to the reasoning for the need for surgery. Having concluded that it was on clinical grounds that Dr Bell said that Mr Stanley suffers from radiculopathy, the Arbitrator failed to explain why he did not give weight to the treating orthopaedic surgeon’s preferred position in that regard.
Dealing with Dr Bell’s explanation as to why the absence of pathology on MRI scanning was not determinative of the question of radiculopathy, the Arbitrator did not explain why it was that Dr Bell’s opinion should not have been preferred on that issue, given his advantage of being able to assess Mr Stanley clinically on at least three occasions.

Discussion and findings

It is convenient to set out the Arbitrator’s summary of Dr Bell’s evidence in full. That summary started at T13.11:
“In essence, the resolution of this case will depend upon the medical evidence and it is appropriate to start with the treating orthopaedic surgeon, Dr Bell. He provided a report dated 4 August 2014 in which he recorded a consistent history of injury, noted on examination that the applicant walks with an antalgic gait, but also that lower limb neurological examination revealed grade 5 power in all muscle groups, symmetrical reflexes and no sensory disturbances. Dr Bell also noted CT and MRI scans, the latter of which took place on 11 July 2014 [sic, the first MRI is dated 23 June 2014], which revealed an L5/S1 disc protrusion, although the report of that MRI scan also went on to say that there was no significant neural compression and no foraminal or canal compromise.
I would interpolate at this point that a further MRI scan was undertaken on 25 June 2015, which has not apparently been available to any doctor but Dr Bell, but he referred to that MRI scan in his report of 21 July 2015 and recorded it as showing a broad-based posterior disc bulge at L5/S1, this being of course different, at least in terms of degree, to a protrusion. He then went on to note that the MRI scan showed no thecal sac compression or S1 nerve root compromise and no foraminal L5 root compression.
Nevertheless and returning to Dr Bell’s first report, he noted that an epidural injection had been undertaken on 11 July 2014 and that that had provided [Mr Stanley] with relief for some 24 hours, but then the pain gradually returned. He notes that [Mr Stanley] reports pain still continuing down the back of the right leg, which was causing him significant problems.
Dr Bell then concluded that report, I think perhaps with a typographical error, saying that ‘As his symptoms are settling spontaneously, I think that Jammie may in fact benefit from a right L5/S1 discectomy.’ I suspect the doctor meant to say, based on [Mr Stanley’s] own history, as recorded by other doctors, that his symptoms were not in fact improving and have remained relatively constant. In any event, Dr Bell expressed the opinion, ‘I would hope that he would get good relief from this and it would allow him to return to work.’
That report was somewhat brief, not surprisingly perhaps, coming from a treating doctor. But Dr Bell provided some more detailed evidence in his report of 21 July 2015. It’s not entirely clear, however, whether a further examination had taken place for the purposes of that report, although given that a further MRI scan was arranged for 25 June 2015, I would be inclined to infer that perhaps a further examination had taken place.
In any event, Dr Bell again confirmed the history of injury and the brief relief from pain achieved by the epidural injection. His findings on examination were identical to those in his previous report and again, specifically Dr Bell noted ‘Grade 5 paranal muscle groups present and symmetrical knee and ankle reflexes and no detectable sensory disturbance.’ He then described, as I have noted the MRI scan of 25 June 2015, and conceded:
‘Although there is no obvious neural compression on the MRI scan, it is possible that a disc herniation can cause radicular type pains from chemical irritation of the nerve root.’
He refers to an article, which counsel for the respondent has pointed out, is some nine years old. But in any event, I note that the doctor spoke only in terms of a possibility. The doctor also suggested, as a possibility, that chemical irritation was causing the radiculopathy and further he considered it possible that the MRI scans, which had been undertaken, had failed to identify mechanical compression by reason of the fact that such scans were conducted in the supine position and that the compression could occur whilst the applicant was standing upright.
Dr Bell concluded that the patient has symptoms consistent with a right L5 radiculopathy and he then says it is conceivable that the disc herniation seen on MRI scanning is the cause. Noting the clinical examination findings and the radiological findings, it would appear that Dr Bell’s opinion that there is right L5/S1 radiculopathy present, is based on his clinical impression of [Mr Stanley’s] complaints.”
As the above summary demonstrates, the Arbitrator referred to:
(a)     Dr Bell’s neurological examination, which revealed grade five power in all muscle groups, symmetrical reflexes and no sensory disturbances;
(b)     Dr Bell’s acknowledgment that the CT and first MRI scan showed no significant neural compression and no foraminal or canal compromise;
(c)     the transient improvement from the epidural and that Mr Stanley still had pain down the back of his right leg;
(d)     Dr Bell’s opinion that, as Mr Stanley’s symptoms were (not) settling spontaneously, he may benefit from a right L5/S1 discectomy, which Dr Bell hoped would give good relief and allow Mr Stanley to return to work;
(e)     Dr Bell’s concession that the second MRI scan showed no obvious neural compression;
(f)      Dr Bell’s opinion that, notwithstanding the lack of obvious neural compression on the MRI scan, it was “possible” that a disc herniation can cause radicular type pains from chemical irritation of the nerve root;
(g)     Dr Bell’s opinion that the MRI scans may have failed to reveal mechanical compression because they were conducted with Mr Stanley in the supine position and compression could occur while he was standing;
(h)     Dr Bell’s conclusion that Mr Stanley’s symptoms were consistent with a right L5 radiculopathy and that it was “conceivable” that the disc herniation was the cause (of the radiculopathy);
(i)      the clinical examination findings and the radiological findings, and
(j)      Dr Bell’s opinion that there is right L5/S1 radiculopathy present was based on his clinical impression of Mr Stanley’s complaints.
This summary fairly encapsulated Dr Bell’s evidence in support of the claim. After summarising the other medical evidence in the case, the Arbitrator acknowledged that “considerable weight should be given to the evidence of the treating specialist” (T19.34). Nevertheless, the Arbitrator was not satisfied that the evidence of Dr Bell convinced him that the proposed surgery is reasonably necessary. His reasons were:
(a)     Dr Bell seemed to be speaking in hope that some relief “may” be obtained by the surgery, with that opinion not being expressed with any particular degree of confidence (T20.8);
(b)     Dr Bell used words like it is “possible” that this may happen (T20.14) and, in relation to the surgery itself, he said that it “may provide some relief” (T20.16);
(c)     the real issue was whether Mr Stanley has nerve root compromise, which the surgery is intended to cure (T20.17);
(d)     Dr O’Keefe was in a minority of one in expressing the view that there was any hard (that is, objective) evidence of radiculopathy (T20.19);
(e)     the two MRI scans had not been able to identify any nerve root compromise and he was not convinced by Dr Bell’s two explanations (see [45] above) as to why that may be (T20.25). (I note that both explanations were expressed as possible explanations.) Moreover, if those explanations were powerful and well accepted reasons for discounting an MRI scan, he would have thought that Dr Breit, the AMS, and Dr Bosanquet, would have noted that and taken it into consideration;
(f)      the second MRI scan seemed to be “less dramatic” (T20.34) than the earlier one, in that it spoke of only a disc bulge. In addition, while the first MRI scan spoke of no “significant” (neural) compromise, the second MRI specifically said there was no “nerve root compromise” (T21.1);
(g)     neither Dr Breit nor Dr Bosanquet had been able to identify any objective signs of radiculopathy following or correlating to a particular nerve root distribution (T21.4);
(h)     Dr Bell based his conclusions only on Mr Stanley’s history and his clinical impression of that history (T21.8), and, therefore,
(i)      Mr Stanley had not discharged the onus of establishing that the proposed surgery was reasonably necessary (T21.11).
It follows that the submission that the Arbitrator did not consider the “precise evidence given by Dr Bell as to his reasoning for the need for surgery” is plainly wrong and is rejected. The Arbitrator was well aware of Dr Bell’s reasoning. For the reasons stated, he did not accept that reasoning. That conclusion discloses no error.
The complaint that the Arbitrator gave “no reasons as to why he rejected the proposition that the local anaesthetic and steroid improving the symptoms was a significant component of Dr Bell’s opinion” is without substance. The Arbitrator did not reject the “proposition” that the epidural was a “significant component” of Dr Bell’s opinion. He was well aware of Dr Bell’s reasoning and that the result of the epidural injection was a significant component of his opinion. For the reasons identified above, the Arbitrator did not accept Dr Bell’s opinion. That conclusion was open and disclosed no error.
The assertion that Dr Breit and Dr Bosanquet did not consider the relevance of the epidural injection is incorrect. Under “Reasons for Assessment”, Dr Breit recorded:
“There is a letter from Dr Bell of 4 August 2014. He states the pain radiates into the ankle but not its distribution and there are no neurological abnormalities, stating that following the injection there was twenty four hours of complete pain relief and then symptoms gradually returned. On that basis he felt surgery was warranted.” (emphasis added)
Dr Breit explained that the indication for surgery is radiculopathy, that is, a compressive lesion and neuropathy. He said that there was no evidence of neuropathy and no evidence of sciatic nerve root irritability. He added that Mr Stanley’s complaints of leg pain, on face value, were “not verifiable radicular in nature” (I assume that Dr Breit meant to say “not verifiably radicular in nature”, or “not verifiable radiculopathy in nature”, but nothing turns on this). Dr Breit agreed with Dr Bosanquet that the proposed surgery was not reasonably necessary, as there is “no evidence of a compressive lesion that will benefit” (from surgery). This evidence, to which the Arbitrator referred in his summary of the evidence and in his analysis of that evidence, provided a sound basis for not accepting Dr Bell’s opinions.
In his report of 7 August 2014, Dr Bosanquet recorded under “History of Injury” that Dr Bell performed a “cortisone injection 3 weeks ago which gave a lot of relief of [Mr Stanley’s] leg pain” (it is clear from the context that this was a reference to the epidural injection given on 11 July 2014). Mr Stanley told Dr Bosanquet that Dr Bell had recommended surgery. In his supplementary report of 5 September 2014, Dr Bosanquet said that the findings on the CT scan “combined with the clinical picture where there is no sign of a radiculopathy” led him to conclude that surgery was “certainly not an option”.
The reasonable inference is that, though he did not expressly say so, Dr Bosanquet did not consider the relief from the epidural injection to be of significance. (In a further supplementary report, dated 5 November 2014, Dr Bosanquet commented on the MRI scan, stating that it confirmed his opinion that surgery was “certainly not indicated in Mr Stanley and would not relieve his symptoms” and that he would “strongly advise that surgery does not proceed” as it may in fact make Mr Stanley’s pain worse.)
The contention that the Arbitrator did not give adequate reasons for rejecting Dr Bell’s explanations for the absence of compressive pathology on the MRI scans is also without substance. The Arbitrator did not accept Dr Bell’s explanations because, “if they were powerful and well accepted reasons for discounting an MRI scan, one would have thought that the AMS doctor and Dr Bosanquet would have noted that and taken that into consideration” (T20.27).
Given the reliance that Dr Breit and Dr Bosanquet placed on the first MRI scan, and given their unequivocal statements that they were unable to identify any objective signs of radiculopathy, which followed or correlated to a particular nerve root distribution, the Arbitrator’s statement was open and involved no error. Moreover, Dr Bell’s “explanations” were expressed as being merely “possible”. In light of the other evidence that there was no objective sign of radiculopathy (apart from Dr O’Keefe), the Arbitrator did not err in not accepting those explanations.
It did not matter that Dr Breit and Dr Bosanquet did not expressly deal with these explanations. Their opinions were unequivocal that, in the absence of evidence of a compressive lesion and neuropathy, the proposed surgery was not reasonably necessary. In his assessment of the claim, the Arbitrator was entitled to accept, and did accept, their evidence in preference to the evidence from Dr Bell.
I reject the submission that the reasons for “rejecting Dr Bell’s opinion as a whole were not proper” and that the Arbitrator failed to have proper regard to the doctor’s opinion with respect to the reasoning for the need for surgery. In essence, the Arbitrator found Dr Bell’s evidence unpersuasive because it was expressed in the hope that some relief “may” be obtained from the surgery and the “real issue” was whether Mr Stanley has nerve root compromise, which the surgery is intended to cure.
Based on the MRI scans, and the opinions of Dr Breit and Dr Bosanquet, who were unable to find any evidence of radiculopathy (that is, nerve root compromise), the Arbitrator was not persuaded that Mr Stanley has radiculopathy that is amenable to surgery. The Arbitrator’s reasons, when read in their entirety, exposed his reasoning process and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). He did not have to give any further reasons for not accepting Dr Bell’s evidence.
The submission that the Arbitrator did not explain why he did not accept Dr Bell’s explanation for the absence of pathology on MRI scanning has been considered above at [57]–[58] and is rejected for the reasons given in those paragraphs. The fact that Dr Bell saw Mr Stanley on three occasions adds nothing to his explanations for the absence of any evidence of radiculopathy in the scans.

RELEVANT AND IRRELEVANT EVIDENCE

Submissions

Mr Lleonart said that Mr Stanley gave evidence of unremitting right leg pain from the date of his injury and there was no explanation in the medical material for the cause of the pain if it was not radiculopathy. He said that the Arbitrator failed to have regard to evidence from Dr Bell, identified in ground two of the appeal, relating to the significance of pain relief from the epidural injection and the clinical findings by Dr Bell. Further, the Arbitrator failed to have regard to the opinion of Dr Bell that Mr Stanley’s complaints of right leg symptoms were consistent with radiculopathy.
Mr Lleonart contended that the Arbitrator did not take into account the following evidence:
(a)     the evidence of Mr Stanley of his unremitting right leg pain;
(b)     the fact that Dr Bell had an accurate history;
(c)     the fact that Dr Bell was well aware that there were no positive findings on MRI scan;
(d)     the fact that Dr Bell was aware that there were no hard neurological signs, and
(e)     the consistency of reporting of Mr Stanley’s symptoms.
He submitted that the Arbitrator placed undue weight on Dr Bell’s statements such as “may” and “possible”. Clearly, so it was submitted, there can be no guarantees with respect to surgery and Dr Bell’s qualifications were directed to that, rather than to the question of reasonableness.
Mr Lleonart argued that the inference to be drawn from Dr Breit’s statement that “if one takes [Mr Stanley’s] complaints of leg pain on face value they are not verifiable radicular in nature either”, is that Dr Breit did not accept Mr Stanley as a witness of truth as to his own symptoms. Dr Bell saw Mr Stanley on three occasions and accepted that Mr Stanley’s complaints were consistent with radicular pain and the Arbitrator failed to have regard to the evidence from Dr Bell and Mr Stanley.
Further, the doubting of Mr Stanley’s symptoms was inconsistent with the Arbitrator’s finding that he accepted Mr Stanley as undoubtedly experiencing the symptoms of which he complained.
Last, Mr Lleonart submitted that the Arbitrator’s reference to Dr Bosanquet’s evidence that the surgery may create more problems for Mr Stanley than it is likely to solve involved taking into account an irrelevant consideration.

Discussion and findings

Mr Lleonart’s submissions cannot be accepted.
The submission that there was no explanation for the cause of Mr Stanley’s leg pain, other than it being radiculopathy, is incorrect. Dr Bosanquet said that the injury aggravated some degenerative disc changes at L5/S1 and “caused some right leg pain”. However, Dr Bosanquet added that as Mr Stanley did not have radiculopathy, and given his morbid obesity and the lack of clinical signs or convincing radiology, surgery would not produce the (desired) results and would be fraught with potential complications.

The submission that the Arbitrator failed to have regard to the evidence from Dr Bell relating to the significance of the pain relief from the epidural injection has been dealt with above at [49]–[52] and is rejected for the reasons there stated.
The submission that the Arbitrator failed to have regard to Dr Bell’s opinion that Mr Stanley’s complaints of right leg pain were consistent with radiculopathy is wrong. The Arbitrator said that Dr Bell “concluded that the patient has symptoms consistent with a right L5 radiculopathy” (T15.25). However, as explained earlier in this decision, after reviewing the whole of the evidence, the Arbitrator did not accept Dr Bell’s opinion. That conclusion involved no error.
The submission that the Arbitrator did not take into account the matters listed at [64] above is incorrect. Dealing with the evidence of right leg pain, the Arbitrator quoted (at T12.29) the following passage from Mr Stanley’s statement:
“My ongoing symptoms include pain in my lower back, together with fluctuating pain in both lower limbs. The pain is always there in my legs to some extent. However, commonly the right leg is affected worse than the left and the pain seems to vary between the pain in the buttock to pain going all the way down the leg or just to the knee.”
The Arbitrator added (at T13.4) that the radicular symptoms, such as they are, seemed to fluctuate in terms of their intensity and the particular parts of the legs affected and that there was a suggestion that Mr Stanley had similar pain in his left leg. These statements were consistent with the evidence and involved no error.
The Arbitrator added that he did not denigrate or minimise the symptoms Mr Stanley “does undoubtedly experience” (T21.17) and that he accepted his evidence “in that regard”. This was a clear reference to Mr Stanley’s back and right leg symptoms. However, that evidence did not establish that Mr Stanley’s right leg symptoms were radiculopathy that would be relieved by the surgery proposed by Dr Bell.
The fact that Dr Bell had an accurate history was not in dispute and was not a matter the Arbitrator had to expressly consider. Approaching the matter on the basis that Dr Bell’s history was accurate, the Arbitrator was not satisfied that Mr Stanley had made out his case.
The submission that the Arbitrator did not take into account the fact that Dr Bell was aware that there were no positive findings on MRI scan and that there were no hard neurological signs is plainly wrong. The Arbitrator was well aware of those matters and expressly referred to them when he summarised Dr Bell’s evidence (see [48]–[49] above). As previously discussed, he preferred the evidence of Dr Breit and Dr Bosanquet, which was consistent with the findings in the MRI scans.
The submission that the Arbitrator did not take into account the consistency of reporting of Mr Stanley’s symptoms is based on the assumption that such a consistency exists and is determinative. As previously noted, the Arbitrator said (at T13.4) that the radicular symptoms, such as they are, seemed to fluctuate in terms of their intensity and the particular parts of the legs affected and that there was a suggestion that Mr Stanley has similar pain in his left leg. Thus, the Arbitrator did not accept there was an entirely consistent reporting of leg symptoms. This observation, though not critical to the outcome, was open on the evidence.
The submission that the Arbitrator placed undue weight on Dr Bell’s statements such as “may” and “possible” is unpersuasive. The potential effectiveness of the proposed treatment was an appropriate matter for the Arbitrator to consider (see [36] above). Moreover, it was only one of several reasons the Arbitrator gave for finding that Mr Stanley had not discharged the onus of proving that the proposed surgery is reasonably necessary as a result of the accepted work injury. The Arbitrator did not give undue weight to this point.
It is difficult to understand the relevance of the submission that the inference from Dr Breit’s statement (quoted at [66] above) is that Dr Breit did not accept Mr Stanley as a witness of truth as to his own symptoms. No such submission, or anything like it, was put at the arbitration and it is not open to argue on appeal that an Arbitrator has erred in not dealing with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111).
In any event, the submission is without substance and involves a misunderstanding of Dr Breit’s statement. The full quote from Dr Breit is:
“As I indicated above the indication for surgery is a compressive lesion and neuropathy. There is no evidence of neuropathy, there is no evidence of sciatic nerve root irritability and if one takes [Mr Stanley’s] complaints of leg pain on face value they are not verifiable radicular in nature either.”
It is tolerably clear that Dr Breit was saying the exact opposite of Mr Lleonart’s contention. He was saying that even accepting Mr Stanley’s complaints of leg pain, those complaints are “not verifiab[ly] radicular in nature either”. This statement supports the Arbitrator’s conclusion (at T21.4) that Dr Breit had not been able to identify any objective signs of radiculopathy following or correlating to a particular nerve root distribution. This conclusion is not affected by the fact that Dr Bell saw Mr Stanley on three occasions.
For the reasons previously given in this decision, it is plainly wrong to submit that the Arbitrator failed to have regard to the evidence from Dr Bell and Mr Stanley. The Arbitrator did not doubt that Mr Stanley has leg symptoms. He was not satisfied that Mr Stanley has radiculopathy and, therefore, accepting the evidence of Dr Breit and Dr Bosanquet, was not satisfied that the proposed surgery is reasonably necessary. That finding was open on the evidence.
Last, I do not accept the submission that the Arbitrator took into account irrelevant matters when he referred to Dr Bosanquet’s evidence that the surgery may create more problems for Mr Stanley than it is likely to solve. The Arbitrator’s statement came after he had already concluded that Mr Stanley had not discharged the onus of proof and was clearly an afterthought or additional observation that was not critical to the outcome.
In any event, as previously explained, the potential effectiveness of the proposed treatment is a matter an Arbitrator is entitled to consider in determining if the treatment is reasonably necessary. Therefore, had the statement formed part of the Arbitrator’s essential reasons, it would have been unobjectionable, given Dr Bosanquet’s evidence.

QUASI-MEDICAL OPINION

The Arbitrator’s reasons

It is convenient to repeat some of the Arbitrator’s reasons. After stating that the case depended on the medical evidence and after summarising Dr Bell’s evidence, the Arbitrator said, at T13.26:
“I would interpolate at this point that a further MRI scan was undertaken on 25 June 2015, which has not apparently been available to any doctor but Dr Bell, but he referred to that MRI scan in his report of 21 July 2015 and recorded it as showing a broad-based posterior disc bulge at L5/S1, this being of course different, at least in terms of degree, to a protrusion. He then went on to note that the MRI scan showed no thecal sac compression or S1 nerve root compromise and no foraminal L5 root compression.”
He added, at T20.32:
“There is no sign of radiology or nerve root compression on the MRI scans and indeed, the more recent MRI scan seems to be less dramatic than the earlier one, in that it now speaks only of a disc bulge. While the first one spoke of no significant compromise, the more recent MRI scan specifically says there is no nerve root compromise. More importantly, neither Dr Bell, Dr Breit or Dr Bosanquet have, as I have said, been able to identify any objective signs of radiculopathy, following or correlating to a particular nerve root distribution. Dr Bell has based his conclusions only on the applicant's history and his clinical impression of that history.”

Submissions

Mr Lleonart submitted that there was no medical evidence of the significance, if any, of the change on scanning and, by considering the MRI scans in the way he has done, the “question arises as to whether [the Arbitrator’s] conclusion has been infected by his reading of the MRI reports”. By drawing apparent inferences from the change in the MRI scanning, in the absence of expert evidence to explain it, the Arbitrator erred.

Discussion and findings

This challenge is without merit.
As previously noted, based on the MRI scans, and the opinions of Dr Breit and Dr Bosanquet, who were unable to find any evidence of radiculopathy, the Arbitrator was not persuaded that Mr Stanley had made out his case. To the extent that it was relevant at all, the second MRI merely confirmed the first scan and the opinions of Dr Breit and Dr Bosanquet, which the Arbitrator accepted. It spoke for itself and did not need any explanation from a medical expert. It confirmed the findings in the first MRI, namely, the absence of nerve root compromise and, therefore, the absence of radiculopathy, but expressed it in slightly more definitive terms. It was a further piece of evidence that supported the Arbitrator’s conclusion and his reference to it involved no error.

CONCLUSION

The appeal is unsuccessful. The Arbitrator’s findings were open on the evidence and involved no relevant error.

DECISION

The Arbitrator’s determination of 17 August 2015 is confirmed.

Bill Roche
Acting President

7 December 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.