Steven Sandford and Linfox Australia Pty Ltd
[2014] AATA 375
•16 June 2014
[2014] AATA 375
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4680
Re
Steven Sandford
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 16 June 2014 Place Sydney 1. The Tribunal sets aside the decision under review and substitutes the following decision:
(a) The Respondent continues to be liable to pay compensation to Mr Sandford for the effects of the injury to his back sustained on 17 December 2010.
(b) Mr Sandford continues to be incapacitated for work as a result of the injury.
(c) The fusion of Mr Sandford’s lumbar spine at L4/5 recommended by his treating Spinal Surgeon, Associate Professor Peter Papantoniou should be considered ‘reasonable treatment’ for the purposes of s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provided the reasonable concerns of the other expert witnesses in these proceedings are first addressed, namely that appropriate further investigations and assessments are undertaken with satisfactory outcomes.
2. The Respondent is to pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
.........................[sgd]...............................................
Deputy President RP Handley
Catchwords
WORKERS COMPENSATION – back injury – whether continues to suffer the effects of the injury – whether frank injury or aggravation of a pre-existing degenerative condition
WORKERS COMPENSATION – treatment reasonable for an employee to obtain in the circumstances- spinal fusion – need for further investigations and assessments
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 16, 19
Secondary Materials
Jens Ivar Brox et al, ‘Four-year follow-up of surgical versus non-surgical therapy for chronic back pain’ (2010) 69 Ann Rheum Dis 1643
REASONS FOR DECISION
Deputy President RP Handley
Mr Sandford (the Applicant) has applied to the Tribunal for the review of a decision made by a delegate of Linfox Australia Pty Ltd (‘Linfox’, the Respondent) that the Respondent is no longer liable to pay compensation to Mr Sandford because the effects of his compensable condition have now ceased.
BACKGROUND
Mr Sandford was born in 1962 and is aged 52. He has worked in the trucking industry since leaving school at the age of 16. He began work for Linfox in 1998 as a truck driver. He typically worked 6 days a week on normal duties up until 2011 when he was moved to light office duties. These light duties ceased on 31 July 2013 and he has not worked since. He currently lives with his wife and four grandchildren for whom he and his wife care. Having exhausted his accrued leave entitlements, Mr Sandford has been receiving Newstart Allowance since February 2014.
During the period in which he was employed by Linfox, Mr Sandford first complained to his GP of back pain in 2004. Subsequently, on 19 May 2008, he suffered a ‘low back strain’ whilst pulling a pallet off the back of a truck. After undergoing physiotherapy, Mr Sandford was certified fit to return to his normal duties from 12 June 2008.
On 17 December 2010, Mr Sandford sustained an injury to his back. He stated that the injury occurred whilst bending over the chassis of his prime mover in order to disconnect the air hoses between the trailer and his prime mover. Mr Sandford described the injury in his WorkCover claim form as “sore lower back + hip + right shoulder”. The Respondent accepted liability for ‘mechanical back pain’ in a decision of 9 February 2011.
A series of medical certificates provided by Mr Sandford’s treating doctors, Dr Danny Tang and Dr Tas G Fermanis, certified Mr Sandford as fit to work suitable duties from 3 February 2011 through to 6 February 2013.
Dr Fermanis referred Mr Sandford to Associate Professor Peter J Papantoniou, Orthopaedic and Spinal Surgeon, who first saw Mr Sandford on 4 September 2012. Professor Papantoniou referred Mr Sandford for an MRI and CT scan. On the basis of those results, in a report dated 2 October 2012, Professor Papantoniou diagnosed Mr Sandford with a disc prolapse at L4/5 level and an annular tear. He also stated that Mr Sandford had “disc desiccation and facet degeneration at the L4/5 level”. Professor Papantoniou recommended a steroid injection and stated that, if the injection failed, he would recommend a fusion.
In a report dated 19 November 2012, Professor Papantoniou noted that the steroid injection administered on 30 October 2012 only provided pain relief for approximately two days. As a result, he recommended that Mr Sandford undertake an L4/5 instrumented fusion. After an incident on 1 January 2013, when Mr Sandford experienced a significant increase in pain while leaning forward to brush his teeth, Professor Papantoniou provided a further report dated 29 January 2013 again recommending a fusion.
CGU Insurance, acting for the Respondent, subsequently arranged for Mr Sandford to be reviewed by Associate Professor Paul Myers, General and Vascular Surgeon, and Dr Robin Chase, Occupational Physician. Dr Myers, in a report dated 5 February 2013, stated that the sequestrated disc fragment sustained in the 2010 incident appeared to have settled, and there was no justification for a surgical fusion. Dr Chase, in a report dated 8 February 2013, also expressed his reservations about surgical intervention, and emphasised that Mr Sandford should be made aware that it is unlikely that he would be completely pain free following surgery and of “a risk that he will be worse”.
On 26 February 2013, relying on reports of Dr Myers, Dr Charles New, Orthopaedic and Spinal Surgeon, and Dr Raymond Wallace, Orthopaedic Surgeon, a delegate of the Respondent found that there was no liability on the Respondent to pay compensation in respect of the fusion surgery recommended by Professor Papantoniou and any further physiotherapy. This decision was affirmed by a delegate of the Respondent on 7 July 2013.
On 15 May 2013, CGU had arranged for Mr Sandford to attend a further assessment by Dr Wallace. In a report dated 24 May 2013, Dr Wallace stated that Mr Sandford’s injury of 17 December 2010 had resolved. He reported that:
His current lumbar spinal disability is due to multilevel degenerative disc disease at his lumbar spine which is constitutional in origin and not work-related.
In a decision dated 19 July 2013, a delegate of the Respondent found that the Respondent was not then liable to pay compensation to Mr Sandford for medical expenses or incapacity for work pursuant to s 16 and s 19 of the SRC Act because he was no longer suffering the effects of his compensable condition: the delegate found that Mr Sandford’s ongoing symptoms and incapacity were the result of his pre-existing degenerative condition. This decision was affirmed in a determination dated 23 August 2013. On 16 September 2013, Mr Sandford applied to the Tribunal for a review of this decision.
LEGISLATION AND ISSUES
Claims for workers’ compensation by employees of Linfox are governed by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that the Respondent is liable to pay compensation under the Act for an ‘injury’ (as defined in s 5A) suffered by an employee which results in incapacity for work.
On 9 February 2011, the Respondent accepted liability for “mechanical back pain” under s 14 of the SRC Act. Pursuant to s 16 and s 19, the Respondent paid Mr Sandford compensation for medical treatment and incapacity for work in respect of the injury. Section 16(1) states:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 provides relevantly:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …
The issue for the Tribunal to decide is whether Mr Sandford continues to suffer the effects of the injury to his back sustained on 17 December 2010 or whether this has resolved and his current symptoms are the result of a degenerative condition. A related issue is whether the injury Mr Sandford suffered on 17 December 2010 should be characterised as an ‘injury’ pursuant to s 5A(1)(b) of the SRC Act, or, in this instance, whether Mr Sandford suffered an aggravation of a ‘disease’ in accordance with the definition of a ‘disease’ in s 5B(1).
If Mr Sandford’s 2010 injury has not resolved and he continues to suffer the effects of that injury, the Tribunal must determine whether he has a continuing incapacity for work and, in particular, whether the fusion surgery recommended by Dr Papantoniou is reasonable treatment for the purposes of s 16(1) of the SRC Act.
MR SANDFORD’S EVIDENCE
Mr Sandford agreed that prior to December 2010, he had other accidents. In 1983, when he was riding a motorcycle, he was hit by a semitrailer which ran over his legs. He recovered completely from this accident, being able to walk again without difficulty and resume work. In 1993, he had an accident while driving a truck and jarred his back. He was off work for a week and then returned to his normal work duties. He does not remember making a claim for compensation in respect of this accident. In February 1995, Dr Bodel told him that his back injury had completely resolved.
Mr Sandford commenced work as a truck driver for Linfox in 1998, having previously been employed as a truck driver by TNT, Interlink and Toll. His usual duties with Linfox did not involve lifting, although about once a week or once a fortnight he would need to stack milk crates. Mr Sandford said he was physically active in the first 10 years of employment with Linfox: he would go fishing, water skiing, and motorbike riding.
Mr Sandford said he cannot recall having any problems with his back until 19 May 2008 when he injured his back while bending down to lift a pallet. He could not recall complaining to his GP, Dr Fermanis of back pain in October 2004. After the incident in May 2008, Mr Sandford felt pain on the left side of his lower back for which he had physiotherapy for about three weeks before returning to normal duties. He did not experience any numbness or radiating pain. Mr Sandford also could not recall complaining to Dr Fermanis of lower back pain on 27 April 2009.
On 11 November 2008, Mr Sandford suffered a myocardial infarction. He said that following an angiogram which showed blood vessels that were 75% blocked, he had a stent inserted. After recovering from this, he resumed his normal work.
On 17 December 2010 at about 2.10 am, Mr Sandford was bending beneath a trailer to disconnect the air lines from the prime mover he was driving. This involved bending to 90 degrees, pushing himself off the ground over the refrigeration motor, and twisting and applying pressure to release the connection to the bayonet fitting. Mr Sandford said he felt a sharp pain across his lower back reaching to about eight centimetres either side of his spine. He had never experienced such a level of pain before. At the time, his mobile phone was in the cabin of the prime mover and, being early in the morning, there was nobody else around. He was stuck for about 10 minutes until he managed to wriggle back so that his feet were on the ground. He then walked painfully back to the office to notify his supervisor of the accident. The accident occurred on a Friday morning and, at that time, Mr Sandford thought he had probably just pulled a muscle. He took paracetamol and rested over the weekend hoping that he would recover.
Mr Sandford said the following Wednesday (22 December 2010), he was driving to Penrith when he felt a “shocking pain” in his chest. He was taken to Nepean Hospital at about 5.00 am. He underwent tests including an angiogram that showed blood vessels which were 95% blocked. In about January/February 2011, he had another stent inserted.
Mr Sandford saw Dr Tang in early February 2011 who certified him fit for suitable duties on normal working hours. He was driving shorter journeys from Hexham to Baulkham Hills on Tuesdays and Thursdays – he was “OK” for the first half hour of driving but after two and a half hours had significant pain. On other days he was doing clerical work in the small office in Hexham. At that time, he had constant lower back pain, a burning sensation in his left thigh, and pain radiating from the right side of his back around the right buttock to his right thigh and extending down his right leg with numbness in his right foot.
In April 2011, Mr Sandford consulted Dr Charles New, Orthopaedic and Spinal Surgeon, who advised him that surgery was the best option. Mr Sandford said this scared him at first but he was reassured when he read the literature and watched the YouTube video to which Dr New referred him. However, when Mr Sandford saw his Cardiologist, Dr Hill, he was advised not to undergo surgery at that time because he was still taking blood thinners.
Mr Sandford said that by 2012, he was no longer suffering numbness in his right foot or other symptoms in his right leg. From time to time, he still experienced pain radiating around his buttock to this right thigh but no symptoms below the knee. However, he had constant lower back pain and an ongoing burning sensation in his left thigh. In September 2012, Mr Sandford saw Associate Professor Papantoniou on referral from Dr Fermanis. On Professor Papantoniou’s recommendation, on 30 October 2012, Mr Sandford had a CT guided L4/5 epidural injection carried out by Dr Sean Khoury. Mr Sandford said he felt good for about half a day after the injection but then the pain started to return and after two days there was no further benefit. When Mr Sandford saw Professor Papantoniou on 19 November 2012 he recommended a spinal fusion (a L4/5 laminectomy decompression instrumented fusion) and they discussed the pluses and minuses of this. Professor Papantoniou gave him some literature to read and, after Mr Sandford had reviewed this, he decided to proceed with the fusion. At the time, Mr Sandford was still working light duties.
On 1 January 2013, when leaning over while brushing his teeth, Mr Sandford suffered severe back pain. His legs gave way causing him to fall to a kneeling position. He was taken to Wyong Hospital where he was put on Panadeine Forte, which meant he could not drive. He saw Professor Papantoniou again on 29 January 2013. Mr Sandford subsequently saw a number of specialists at the request of the Respondent and also had a pain management assessment. On 29 February 2013, the Respondent decided not to pay compensation under s 16 of the SRC Act in respect of the fusion surgery recommended by Professor Papantoniou, a decision that was affirmed on 7 July 2013 after a review. Mr Sandford said that on 31 July 2013, he was told that there was no further light duty work available for him and, because he could no longer undertake his pre-injury duties, his employment with Linfox would cease. Thereafter, Mr Sandford relied for income on accrued leave and other benefits until these ceased on 2 February 2014.
Mr Sandford described the lower back pain as extending from the middle of his back at the belt line to about eight cms either side of his spine. Both the back pain and the burning sensation in his left thigh are constant. This has remained largely unchanged since the accident in December 2010. However, he only experiences pain radiating around the top of his right buttock to his right thigh occasionally. It no longer radiates to his right knee. The right thigh pain has happened on only three occasions since the beginning of January this year, when he has been more physically active or has been required to stand for a long period. If he experiences the right thigh pain, he lies down on the lounge room floor until the pain settles, usually after about 30 minutes.
Mr Sandford said that for exercise he walks about 800 m around the block from his home, and he can walk the 600 m to the local shops where he might buy milk and bread. He can carry a three litre carton of milk and two loaves of bread home with him. He can still mow the lawn but it takes him about three times as long. His sons usually do the whipper-snippering for him. He and his wife are now looking after four of their grandchildren, a fifth grandchild having recently returned to his mother. Mr Sandford is unable to play sport with them, such as kicking around a ball. He would like to work if he could and wants to have surgery despite the risks, having been advised that his back pain can only get worse. He has confidence in Professor Papantoniou, who was highly recommended by Dr Fermanis, and in Professor Papantoniou’s advice. Mr Sandford said he had physiotherapy until early 2013 but while he had relief for about the first hour, there was no lasting benefit.
MEDICAL EVIDENCE FOR THESE PROCEEDINGS
Associate Professor Peter J Papantoniou, Orthopaedic and Spinal Surgeon
Professor Papantoniou is a Clinical Associate Professor of Surgery at Sydney Medical School (University of Sydney) and specialises in spinal surgery, which accounts for 50 to 60% of his practice. He works at a number of Sydney hospitals, principally St George Private Hospital in Kogarah. He said he sub-specialises in the lumbar spine including posterior lumbar interbody fusions. Professor Papantoniou is Mr Sandford’s treating specialist. He first examined Mr Sandford on 4 September 2012 and has seen him regularly since then, providing numerous reports. Professor Papantoniou gave evidence by telephone at the hearing.
In a report for Dr Fermanis dated 3 December 2013, Professor Papantoniou said Mr Sandford continues to have L4/5 level lower back pain as a result of a disc bulge and annular tear. At the hearing, he said that annular tears are the greatest source of ongoing back pain. He said the small inferior sequestered disc fragment at L4/5 evident in the MRI dated 3 February 2011, which was responsible for the paraesthesia and numbness down Mr Sandford’s right leg, was not evident in the MRI performed on 20 September 2012, and was probably absorbed. This would explain the right lower limb condition resolving to some degree, although the fragment might still have caused scarring around the nerves.
In a report dated 4 December 2013 for Mr Sandford’s solicitors, Professor Papantoniou stated:
I note Dr Wallace lists Mr Sandford’s condition as constitutional in origin and not work related. Nowhere would an annular tear, a disc bulge or disc protrusion be described as constitutional. These are traumatic incidents and in a normal uninjured person would not be present.
In his report dated 3 December 2013, Professor Papantoniou “reiterated my recommendations that Mr Stanford have an L4/5 laminectomy, decompression, discectomy, and instrumented fusion”. In his report dated 4 December 2013, he noted that notwithstanding that Mr Stanford has private health insurance, “the cost in performing this surgery privately would be prohibitive to Mr Sandford given his precarious financial state at present.”
At the hearing, Professor Papantoniou said a discectomy involves de-bulking the centre of the disc to reduce pressure on the nerves, which would have the effect of relieving leg pain but not back pain. However, an instrumented fusion has the benefit of immobilising the painful segment to relieve a person’s back pain, which in his opinion is the ideal treatment for Mr Sandford. Since more than two years have passed since the injury in December 2010, his condition is as good as it is likely to get with non-operative treatment. While Professor Papantoniou said he is not expecting miracles from a spinal fusion, and Mr Sandford will not be able to return to truck driving, like the majority of patients Professor Papantoniou sees who are manual workers, he should be able to return to gainful full-time suitable light duties. Most studies show that patients who undergo a spinal fusion experience an improvement.
Professor Papantoniou was asked about the incident on 1 January 2013 when Mr Sandford suffered a sharp pain when he was cleaning his teeth. He said such pain from an ordinary movement is not uncommon and would have resulted from Mr Sandford putting pressure on the existing annular tear, probably causing a couple of additional fibres of the annulus, which is made of cartilage-type material, to tear.
Professor Papantoniou was critical of the opinions expressed by a number of the expert witnesses whom he doubted had relevant experience in performing instrumented fusions. In his opinion, Mr Sandford’s condition is not of constitutional origin. If this was the case, one would expect to see widespread degenerative changes in the spine and not just at the three levels found in Mr Sandford’s case. These changes were referred to in the report of an X-ray dated 12 October 2004, which records “mild spur formation seen at the anterior body margin of L3, L4 and L5 due to osteoarthritic type changes”. Professor Papantoniou said that in the case of constitutional pre-disposition, one would expect to see spurs all the way up the spine. The spurs seen in the X-ray could, however, be related to Mr Sandford’s work as a truck driver.
Professor Papantoniou said there are no inconsistencies in Mr Sandford’s presentation. The annular tear and disc bulge are the primary problem. The intermittent right thigh pain is discogenic in origin and the constant burning sensation in the left thigh is also probably discogenic although there may be some irritation of the nerve root.
Dr James Bodel and Dr Raymond Wallace, Orthopaedic Surgeons
Dr Bodel examined Mr Sandford at the request of the Applicant and Dr Wallace examined him at the request of the Respondent. Both provided written reports and gave evidence concurrently at the hearing. Dr Bodel said he last performed a spinal fusion in the 1990s. Dr Wallace said he has no experience of spinal surgery but treats patients for lumbar spinal conditions all the time, often seeing the results of spinal surgery. He also keeps abreast of current literature.
In a report dated 21 February 2014, Dr Bodel, who had previously assessed Mr Sandford in February 1995, diagnosed a disc injury at the L4/5 level. He said:
This appears to have been caused by the injury that occurred on 17 December 2010.
At the very least it is an aggravation of an underlying pre-existing pathology and the aggravation is ongoing.
With regard to treatment, Dr Bodel expressed the opinion that:
In the absence of any objective sign of neurological abnormality in the lower limbs I would be reluctant to consider spinal fusion purely for the management of back pain.
I would be reluctant to recommend the fusion as recommended by Professor Papantoniou.
Dr Bodel concluded:
This gentleman’s ongoing complaints have been significantly aggravated by the event at work.
He has ongoing mechanical symptoms in the back caused by an aggravation, acceleration, exacerbation and deterioration of a disease process of gradual onset which is the degenerative disease seen on the MRI scans at the L4/5 level.
At the hearing, Dr Bodel said the injury in December 2010 caused structural damage to Mr Sandford’s spine to which his ongoing symptoms are still causally related. The structural damage having occurred, it would not have resolved, although the symptoms may have waxed and waned. In terms of treatment, he said a surgical fusion is an option in Mr Sandford’s case but whether it is reasonable would ultimately be for the treating specialist to decide in conjunction with Mr Sandford. However, Dr Bodel said he would not recommend a fusion at this stage, preferring more conservative management, for example, a pain management program, a fitness program and a program to address Mr Sandford’s obesity.
Dr Wallace examined Mr Sandford on three occasions for the Respondent and provided reports dated 23 May 2011, 26 June 2012 and 24 May 2013. In his report dated 24 May 2013, Dr Wallace diagnosed the work injury on 17 December 2010 as:
1. Musculoligamentous strain lumbar spine – now resolved.
2. Right-sided disc protrusion L4/5 level with irritative right L5 radiculopathy – now resolved.
3. Temporary aggravation of pre-existing degenerative disc disease lumbar spine – now resolved.
Dr Wallace said the December 2010 injury:
… was minor in nature and not consistent with being the cause of significant lumbar spinal pathology.
…
He underwent recent MRI investigation of the lumbar spine which shows evidence of multilevel degenerative disc disease at the lumbar spine which pre-dated his work incident in December 2010 and is the main contributing factor to his current lumbar spinal disability.
His employment with Linfox Australia Pty Ltd is no longer the main contributing factor to his lumbar spinal condition.
At the hearing, Dr Wallace said Mr Sandford appears to have a significant history of back pain including several episodes requiring assessment and review. He said Mr Sandford has multilevel disc pathology, apparent over four levels; the December 2010 incident caused a minor aggravation of that pathology.
With regard to whether a spinal fusion is reasonable treatment, Dr Wallace expressed doubt about whether the disc at L4/5 is “the pain generator”. In his view, it would be unreasonable for a spinal fusion to be performed in the absence of further investigations, for example, a new MRI. Dr Wallace also referred to a Norwegian study examining the long-term effectiveness of surgical and non-surgical treatment in patients with low back pain over a period of four years, one group of patients having undergone surgery and the other group having been treated with cognitive intervention and exercises. The study concluded that the long-term improvement for patients who had undergone a spinal fusion was no better than for those who had the non-surgical treatment.
Dr Simon McKechnie, Neurosurgeon
Dr McKechnie assessed Mr Sandford at the request of the Applicant’s solicitors, provided a report dated 12 February 2014, and gave evidence by telephone at the hearing. In his report, Dr McKechnie stated:
In my opinion the patient’s condition still remains aggravated by the 2010 work related incident. It is true that he has some degenerative changes on his MRI scan but the patient was completely asymptomatic prior to the work related injury. His condition remains work related.
Dr McKechnie said he has practised as a neurosurgeon for the past 10 years and 85 to 90% of his work involves spinal surgery. Generally, having a past cardiac history is not an issue unless the person has current cardiac symptoms. Normally, a person with a cardiac history would have a cardiac assessment within three months of proposed spinal surgery to eliminate any risk. Dr McKechnie said that in Mr Sandford’s case, his two cardiac stents and obesity are “not really a counter indication for surgery” given that candidates for spinal surgery with these conditions are common. From Mr Sandford’s presentation, there were also no “red flags” concerning Mr Sandford’s mental state. Dr McKechnie considered that a spinal fusion is reasonable treatment in Mr Sandford’s case because of the chronic back pain and intermittent right leg pain he is suffering. Even if Mr Sandford no longer suffers intermittent right leg pain, spinal fusion would still be an option. Dr McKechnie said the risk of complications from surgery is about 5% and about 80% of patients experience an improvement in their condition after surgery, although he acknowledged that Mr Sandford is still likely to have some low back pain.
With regard to the cortisone injection Mr Sandford had at L4/5 on 30 October 2012, Dr McKechnie said that the fact Mr Sandford experienced some pain relief for a day or two suggested that this is the site of the pain. He noted that the results of the CT scan dated 20 September 2012 suggest anterolisthesis at L4/5, implying that the disc at that level is damaged.
Associate Professor Neil McGill, Rheumatologist
Professor McGill assessed Mr Sandford and provided a report dated 2 December 2013. He also gave evidence in person at the hearing. In his report, Professor McGill stated:
CT scan and MRI of the lumbar spine performed 20 September 2012 confirmed the degenerative changes previously seen. There was no evidence of disc sequestration. There was no compression of right L4 nerve root. There was a left L2/3 disc protrusion but with no evidence of nerve compression. The findings were predominantly those of multilevel degenerative spinal disease including disc degeneration and facet joint osteoarthritis.
Professor McGill concluded:
I think his current symptoms and complaints are a reflection of the natural progression of constitutional degenerative back disease, aggravated by his obesity and lack of physical fitness.
I would not support the plan for him to have a fusion procedure of the low back. He does not have evidence of radiculopathy or other neurological compromise. The use of fusion for the relief of back pain is unreliable and in the setting of severe obesity and ischaemic heart disease I think the risks of complication or lack of benefit outweigh the chance of benefit.
At the hearing, Professor McGill said that he routinely treats patients with spinal injuries, including after spinal surgery, and he keeps abreast of the current literature. He disagrees with Professor Papantoniou about the levels of disc disease. In Professor McGill’s view, the MRI of 3 February 2011 shows desiccation of the discs at multiple levels, indicating degenerative disc disease. Back pain relates to changes in the discs and facet joints and it is difficult to pinpoint a particular disc as causing low back pain. He noted there is no explanation for the burning sensation in Mr Sandford’s left thigh. Professor McGill disagreed with Professor Papantoniou’s opinion that disc bulges and annular tears are caused by trauma. He said they are commonly found in people with no history of trauma: a lot is genetically determined, age being an important factor, but the environment makes only a small contribution.
Professor McGill said there is no evidence that the incident on 17 December 2010 caused any substantial structural change. In his opinion, the incident caused an exacerbation of Mr Sandford’s pre-existing condition. How long this lasted is unclear but it is unlikely that the incident is the cause of Mr Sandford’s current symptoms. He acknowledged that this opinion is based on probability and he was unable to identify any point in time when the exacerbation caused by the incident ceased and Mr Sandford’s degenerative condition became responsible for his symptoms.
With regard to treatment, Professor McGill noted that Mr Sandford is no longer experiencing radiculopathy and surgery is of questionable benefit for back pain. There are more risks and complications with surgery and, in Mr Sandford’s case, his health – in particular his cardiac disease and obesity – puts him at higher risk. Professor McGill said that having reviewed the evidence, while it is understandable that Mr Sandford wants treatment to fix his back pain, there are risks involved with surgery and, in his view, surgery is not the appropriate treatment. He also referred to the Norwegian study discussed by Dr Wallace (see above).
DOES MR SANDFORD CONTINUE TO SUFFER THE EFFECTS OF THE INJURY TO HIS BACK ON 17 DECEMBER 2010?
Submissions
The first issue for the Tribunal is whether the December 2010 injury to Mr Sandford’s back has resolved and whether his current symptoms are the result of a degenerative condition. Mr Grey, for the Applicant, submitted that Mr Sandford suffered a frank injury on 17 December 2010. While he had previously suffered occasional back pain, as Professor Papantoniou stated, most people suffer back pain from time to time. In Mr Sandford’s case, on each occasion the back pain resolved after a short time and he resumed his normal work which included, from time to time, some lifting and bending. After the traumatic incident on 17 December 2010, Mr Sandford was unable to resume his normal work and has since had unrelenting lower back and thigh pain.
Mr Grey said that while the MRI of 3 February 2011 showed minor disc degeneration at a number of levels, it was not significant. However, at L4/5, there was pathological change including disc sequestration and an annular tear.
Mr Grey submitted that while there is no onus of proof in Tribunal proceedings, as a matter of practical reality, the Respondent should be able to produce evidence to show a change in Mr Sandford’s symptoms such that they could be attributed to degenerative changes in his spine rather than the December 2010 injury. The Respondent has not done so. It is impossible to identify any point in time when Mr Sandford’s condition changed such that a rational person could conclude that the effects of the injury had ceased and Mr Sandford’s constitutional condition had become responsible for his ongoing symptoms. Questions of causation should be decided on the basis of evidence and not on assertions of expert opinion which are essentially speculative.
Mr Kelly, for the Respondent, contended that there is no onus on the Respondent of the kind suggested by the Applicant. He noted, in particular, the specialist opinions of Dr Wallace and Professor McGill that Mr Sandford no longer suffers the effects of injury on 17 December 2010 and that his ongoing condition is the result of constitutional degeneration of the lumbar spine.
Consideration
In the course of the hearing, both parties referred to the MRI scan dated 3 February 2011, taken approximately six weeks after the accident on 17 December 2010. The report on the scan by Radiologist Dr Melvin Chew notes “Disc desiccation without significant loss of disc height present at L2/3m L4/5 and L5/S1 with relative spurring of L3/4”. Dr Chew identified:
·a “mild posterior bulge” at L2/3, with no facet joint degenerative changes.
·a “mild posterior annulus bulging” at L3/4 and early facet joint degenerative changes.
·“a broad-based posterior disc bulging with a subtle right par central annulus tear characterised by a tiny hyper intense focus” at L4/5 together with a “sequestered disc fragment”, also “a right foramina disc bulge which is partially impinging the right L4 nerve root exiting the foramen”, and early facet joint degenerative changes.
·at L5/S1, a “mild posterior disc bulge” and “facet joints demonstrate early degenerative changes”.
Dr Chew concluded that the findings were primarily those at L4/5.
The Tribunal was presented with a range of expert opinion about these findings. In his report dated 4 December 2013, Professor Papantoniou, Mr Sandford’s treating specialist and expert in the field of lumbar surgery, stated:
Nowhere would an annular tear, a disc bulge or disc protrusion be described as constitutional. These are traumatic incidents and in a normal person would not be present.
Professor Papantoniou referred to a report of an x-ray of the lumbar spine dated 12 October 2004 by Radiologist Dr A Dutt who found “mild spur formation at the anterior body margin of L3, L4 and L5 due to mild osteoarthritic type changes”. Professor Papantoniou said that in the case of a constitutional disposition to degenerative change, one would expect to see spurs all the way up the spine. He noted that there is no available MRI scan of Mr Sandford’s lumbar spine dating from before the accident on 17 December 2010.
Professor Papantoniou is a spinal surgeon specialising in the lumbar spine. He said spinal surgery accounts for approximately 50 to 60% of his practise. In my view, I should, give particular attention to his opinion because of this specialisation and of the fact that he has been treating Mr Sandford since 4 September 2012.
Dr Bodel expressed the opinion that the December 2010 incident had caused structural damage to Mr Sandford’s spine which would not have resolved, although the symptoms might have waxed and waned. Dr Wallace and Professor McGill expressed a contrary view. Dr Wallace considered that the December 2010 incident had caused a temporary aggravation of pre-existing degenerative disc disease. Professor McGill expressed the opinion that the incident had not caused any substantial structural damage but rather had caused an exacerbation of Mr Sandford’s pre-existing degenerative condition which had now resolved. He was, however, unable to satisfactorily explain Mr Sandford’s back pain and the burning sensation in his left thigh having remained largely unchanged since the incident, and how and when the cause of those symptoms ceased to be the incident on 17 December 2010 and became the constitutional degenerative condition. Professor McGill acknowledged that his opinion was based on probability.
In my view, there is sufficient evidence from the MRI scan dated 3 February 2011 – the damage to the disc at L4/5 and the annular tear - to support a finding that Mr Sandford suffered a frank injury on 17 December 2010. This is consistent with Professor Papantoniou’s evidence and that of Dr Bodel. Even if, as Dr Wallace and Professor McGill opined, the incident merely caused the aggravation of a constitutional degenerative spinal condition, I do not find Professor McGill’s explanation for the cause of Mr Sandford’s ongoing symptoms having somehow shifted at some unidentifiable point in time from the aggravation caused by the incident to the constitutional degenerative condition to be satisfactory.
Thus, I find there is insufficient evidence to support a finding that the effects of the injury to Mr Sandford’s back have now ceased. While the paraesthesia and numbness affecting his right leg have resolved - it would seem as a result of the small sequestered fragment of the L4/5 disc being absorbed - the symptoms affecting his lower back and left thigh have remained largely constant since the incident on 17 December 2010. This suggests that his current symptoms are the result of the December 2010 incident.
DOES MR SANDFORD HAVE A CONTINUING INCAPACITY FOR WORK (s 19)?
All the experts agree, and the Respondent does not dispute, that Mr Sandford is no longer capable of working as a truck driver. Mr Kelly noted that the Respondent ceased to make light duty work available for Mr Sandford from 31 July 2013. The Respondent does not dispute that Mr Sandford is incapacitated for work.
IS THE RECOMMENDED SPINAL FUSION ‘REASONABLE TREATMENT’ (s 16)?
Submissions
Mr Grey submitted that whether the spinal fusion recommended by Professor Papantoniou is reasonable treatment is a question of clinical judgement, particularly that of the treating specialist, as Dr Bodel acknowledged. Professor Papantoniou said there are good indications for a spinal fusion in Mr Sandford’s case. Both he and Dr McKechnie agreed that after surgery, Mr Sandford would have a good chance of returning to some form of light work, albeit that he is likely to continue to suffer some back pain. The fact that other specialists disagree is not a basis for saying that treatment is unreasonable. It is notable here that the two spinal surgeons recommended a spinal fusion and thought there was a good probability of a return to work. Mr Sandford knows the risks associated with surgery and is prepared to accept these.
Mr Kelly noted the concern expressed by, for example, Dr Wallace and Dr Bodel about the need to clarify the responsible pain generator before embarking on surgery given that Mr Sandford is no longer suffering from radiculopathy – the pain formerly radiating into his right leg. Dr Wallace and Professor McGill expressed different opinions about whether the L4/5 disc was the pain generator. Mr Sandford’s evidence and that of most of the specialists is that he derives little benefit from physiotherapy or hydrotherapy, and that there is no need for further therapy of this kind. However, many of the specialists recommended a home exercise program and, for example, Dr Bodel suggested a pain management program including the use of appropriate medication, and a weight loss program. Mr Kelly noted that an intensive multidisciplinary rehabilitation program of the kind referred to in the ‘Policy Statement on Lumbar Spinal Fusion Surgery’ published by the International Society for the Advancement of Spine Surgery, referred to by Dr Wallace, has not been undertaken in Mr Sandford’s case.
Both counsel accepted that it would be open to the Tribunal to find spinal fusion surgery to be reasonable treatment only if other tests or investigations were undertaken first to address valid concerns expressed by the expert witnesses.
Consideration
Professor Papantoniou is a spinal surgeon, for whom the lumbar spine is a particular speciality, and Mr Sandford’s treating specialist. As Dr Bodel recognised, particular weight should be given to the opinion of a treating specialist on what is reasonable treatment. Dr McKechnie is a Neurosurgeon, who said 85 to 90% of his work involves spinal surgery. None of the other specialists who gave evidence perform spinal surgery. Professor Papantoniou considered an instrumented fusion at L4/5 the ideal treatment to relieve Mr Sandford’s back pain given the passage of more than two years since the injury and no further improvement in his level of pain. Dr McKechnie, who also considered that L4/5 was probably the site of Mr Sandford’s back pain, said that about 80% of patients experience an improvement in symptoms after an instrumented fusion. Both Professor Papantoniou and Dr McKechnie considered a spinal fusion to be appropriate treatment in Mr Sandford’s case.
I am inclined to rely on Professor Papantoniou and Dr McKechnie’s opinion rather than the contrary opinion of Dr Wallace and Professor McGill because of Professor Papantoniou and Dr McKechnie’s expertise in this field. I do not intend to attempt an assessment of the Norwegian study referred to by Dr Wallace and Professor McGill comparing the outcomes of spinal surgery and more conservative treatment given the lack of notice of this study being relied on prior to the hearing, the resulting lack of any opportunity for the Applicant to put on other related evidence, and the evidence given by Professor Papantoniou and Dr McKechnie as to the benefits of spinal fusion surgery.
Dr Bodel considered more conservative treatment appropriate. However, it appears that Mr Sandford has had at least some conservative treatment, including a cortisone injection and physiotherapy. The parties accept that ongoing physiotherapy will provide no lasting benefit. The cortisone injection provided a very short term benefit only. Mr Sandford has been assessed for a pain management program following a recommendation by Dr Marc Russo, Specialist Pain Medicine Physician (report dated 23 July 2012) on a referral from Mr Sandford’s GP, Dr Fermanis. Mr Sandford reported to his solicitors that the multidisciplinary pain assessment (carried out by Dr Michael Shelley, Health Psychologist, and Lauren Hutton, Exercise Physiologist – report dated 29 April 2013) resulted in severe pain and discomfort for the following two days and he declined to further participate. It may be that a carefully planned pain management program would benefit Mr Sandford but this is not something that was pursued at the hearing. As Dr Bodel suggested, it may also be that a fitness and weight loss program would be of some benefit.
A number of experts raised concern about the risk of a surgical fusion. Professor McGill, for example, considered that Mr Sandford’s health, in particular his cardiac disease and obesity, put him at a higher risk of experiencing complications from spinal fusion surgery. This was disputed by Dr McKechnie who said that such conditions are common in candidates for spinal surgery.
Dr Wallace said that it would be unreasonable to perform a spinal fusion unless further investigations, in particular a new MRI scan, were undertaken, given that the last MRI scan was performed on 21 September 2012. As Dr McKechnie acknowledged, a further cardiac assessment will also be required. In my view, further investigations and/or assessments will be required before surgery, noting that the last investigations/assessments appear to have been undertaken prior to Professor Papantoniou’s having sought approval from CGU on 19 November 2012 to undertake the surgery. Since that time, Mr Sandford has been the subject of the ongoing decision-making and review process.
In conclusion, I am satisfied that a spinal fusion is reasonable treatment for Mr Sandford’s back condition following satisfactory results from further investigations, such as a new MRI of the lumbar spine, and once any further assessments, such as a new cardiac assessment, have been undertaken to minimise the risk of complications. It would also seem sensible for Mr Sandford to undertake a fitness and weight loss program prior to surgery in line with Dr Bodel’s opinion, albeit that I have chosen not to make this a pre-condition to spinal surgery being considered reasonable treatment.
DECISION
The Tribunal sets aside the decision under review and substitutes the following decision:
(d)The Respondent continues to be liable to pay compensation to Mr Sandford for the effects of the injury to his back sustained on 17 December 2010.
(e)Mr Sandford continues to be incapacitated for work as a result of the injury.
(f)The fusion of Mr Sandford’s lumbar spine at L4/5 recommended by his treating Spinal Surgeon, Professor Papantoniou should be considered ‘reasonable treatment’ for the purposes of s 16 of the SRC Act provided the reasonable concerns of the other expert witnesses in these proceedings are first addressed, namely that appropriate further investigations and assessments are undertaken with satisfactory outcomes.
The Respondent is to pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ............................[sgd]............................................
Associate
Dated 16 June 2014
Date(s) of hearing 26-28 May 2014 Date final submissions received 28 May 2014 Counsel for the Applicant Leo Grey Solicitors for the Applicant Carroll and O'Dea Lawyers Counsel for the Respondent Brendan Kelly Solicitors for the Respondent HBA Legal
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