Sunrise T & D Pty Ltd v Le - [2012] NSWWCCPD 47

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sunrise T & D Pty Ltd v Le [2012] NSWWCCPD 47
APPELLANT:		Sunrise T & D Pty Ltd
RESPONDENT:		Van Hai Le
INSURER:		Xchanging
FILE NUMBER:		A1-9227/11
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		3 May 2012
DATE OF APPEAL DECISION:		4 September 2012
SUBJECT MATTER OF DECISION:		Whether a particular surgical technique constitutes reasonably necessary treatment; s 60(1) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Goldbergs Lawyers
Respondent:	Santone Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 3 May 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

The respondent worker, Van Hai Le, was employed by the appellant, Sunrise T & D Pty Ltd, as a supervisor. He is 54 years of age.
Mr Le suffered two injuries in the course of his employment. On 17 July 2008, he fell off a ladder, injuring his neck and back. On 28 August 2008, he fell while descending stairs, resulting in injuries to his shoulder, neck and back. Liability has been accepted in respect of the injuries sustained.
The worker’s treating specialist, Dr Ashish Diwan, has recommended he undergo spinal surgery in the form of a posterior translumbar interbody fusion at L4/5 and L5/S1, with top-up dynamic stabilisation. A dispute has arisen as to whether the treatment is reasonably necessary (s 60 of the Workers Compensation Act 1987 (the 1987 Act)).
On 31 August 2010, Xchanging issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It declined liability for the recommended treatment based on the opinion of an independent medical examiner, Dr Robert Breit, that the proposed surgery was not reasonably necessary.
On 28 April 2011, Xchanging wrote to Mr Le, advising that it had reviewed all available information, but maintained its decision to decline liability for the costs associated with the proposed surgery.
On 18 October 2011, Mr Le lodged an Application to Resolve a Dispute in the Commission. He claimed the cost of medical, hospital and rehabilitation expenses in an unspecified amount with respect to the recommended surgery. He relied only on the injury he sustained on 17 July 2008. He alleged cervical and lumbar disc prolapse, and a left rotator cuff injury.
On 9 November 2011, the employer lodged a Reply to the Application to Resolve a Dispute. It confirmed the issue in dispute concerned whether the hospital and medical expenses claimed pursuant to s 60 of the 1987 Act are reasonable and necessary for the treatment of the worker’s injuries.
Pursuant to s 60(5) of the 1987 Act, a dispute, if concerning any proposed treatment or service, must be referred by the Registrar for assessment under Pt 7 (Medical Assessment) of Ch 7 of the 1987 Act.
On 15 November 2011, the Registrar, by her delegate, referred the dispute to Dr William Bye, an Approved Medical Specialist. Dr Bye was asked to assess whether the proposed treatment as recommended by Dr Diwan was reasonably necessary as a result of the injury.
On 12 December 2011, Dr Bye issued a Medical Assessment Certificate. He concluded that the proposed surgery was “doomed to failure on several accounts”. I shall come to his reasons for that conclusion in due course.
On Monday 23 April 2012, the matter was listed for a conciliation and arbitration hearing before a Commission Arbitrator. No oral evidence was given at the hearing. At the conclusion of the hearing, the Arbitrator provided an extempore decision. She found in favour of the worker.
On 3 May 2012, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
Findings and Orders
1. Surgery by way of posterior trans-lumbar interbody fusion at L4/5 and L5/S1 with a top-up dynamic stabilisation of L3/4 as recommended by the applicant’s treating specialist, Dr Ashish Diwan, is reasonably necessary treatment for the purposes of section 60(1) of the Workers Compensation Act 1987 as a result of the injury to the lumbar spine on 17 July 2008.
2. In accordance with section 60(5) of the Workers Compensation Act 1987 the matter has already been referred by the Registrar for assessment under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation 1998.
3. The respondent is to pay the costs of that proposed surgery as recommended by Dr Diwan.
4. The respondent is to pay applicant’s costs as agreed or assessed.
Certification
1. In light of the legal, medical and factual complexities in the case and for the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003 I certify this matter as complex with 20% increase in the costs otherwise available to both parties.”
The employer appeals the Arbitrator’s decision.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act 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.”
Both parties have submitted that the appeal can proceed on the papers, without a 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.

PRELIMINARY MATTERS

Section 352(3) is in the following terms:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, have been met.

FRESH EVIDENCE ON APPEAL

The appellant seeks to tender as fresh evidence on appeal an extract from the report of Dr Diwan received on 2 March 2011 concerning an estimate of the cost of the proposed surgery.
The application is misguided as the evidence sought to be admitted is already in evidence (Application to Resolve a Dispute (at page 21)) and was considered by the Arbitrator.
The reason for the application is said to establish that the amount of compensation in issue exceeds $5,000 and, accordingly, there is no bar to the appeal being brought on the basis of the quantum of the compensation awarded.
In the respondent worker’s written submissions lodged on 13 August 2012, the respondent conceded that the appeal meets the monetary threshold stipulated by s 352(3) of the 1998 Act.
In the circumstances, the application is refused.

THE EVIDENCE

Mr Le

Mr Le provided a signed statement of evidence dated 7 March 2012.
Mr Le states that he was injured on 17 July 2008, when a ladder collapsed, causing him to fall approximately two metres onto a concrete surface. He immediately felt pain in his lower back, radiating into his right leg. He also suffered pins and needles and numbness in the right leg.
He was treated conservatively by his general practitioner, Dr Luong, with acupuncture and physiotherapy. Subsequently, he was referred to Dr Teychenné (neurologist) and Dr Etherington (spinal surgeon).
On 4 March 2010, Mr Le submitted to a posterior L3–5 decompression of the lumbar spine.
After the surgery, Mr Le states that he had relief of leg pain for a few weeks, but then the pain returned, together with pins and needles. He underwent a series of further scans and nerve root blocks on 20 January 2011 and 2 February 2011.
Mr Le further states that, as the treatment was not working, he was referred to Dr Diwan, whom he first saw on 31 May 2010. Mr Le said that Dr Diwan informed him that he would not recommend surgery by decompressing the nerve roots, but indicated that a spinal fusion could work. Dr Diwan consulted with Dr Etherington and they both agreed that the only form of surgery that would assist Mr Le was the fusion and stabilisation as recommended by Dr Diwan. Mr Le states that he obtained opinions from other doctors, including Dr Teychenné, who agreed with the proposed surgery.
Mr Le said that he was satisfied that his doctors had been very careful about the treatment that had been recommended to assist him in overcoming his problems. He acknowledged that there was no guarantee that the surgery would be successful and was aware that it was associated with certain risks, including the risk that his condition would be worse after the surgery.
Mr Le takes significant amounts of medication, including Celebrex, OxyContin and medication for depression, including Lyrica, Avanza and Seroquel. As a result of the ingestion of the medication, he also takes Nexium “for stomach problems”.
Mr Le stated that he felt depressed, useless and an inability to contribute anything in terms of his family. He felt that his condition was deteriorating and that he couldn’t continue to take the amount of medication that he currently was. He was suffering from significant ongoing reflux problems. He stated that he was still having ongoing weekly physiotherapy, but it wasn’t helping.
Mr Le concluded his statement by saying:
“I have been told that the surgery advised by Dr Diwan is my last chance to try to turn my life around. I am aware of the risk, however, I am desperate to take the chance to improve my life. Even if my chances of success were less than half I would still take it.
I am hopeful that the surgery will allow me to retain some form of dignity and hopefully return to work, at the very least contribute to my family life, as opposed to being fully supported by my wife which is causing me ongoing embarrassment.”

MEDICAL EVIDENCE

Radiological investigations

The results of various radiological investigations are as follows:
17 September 2005 – MRI pelvis – normal.
18 July 2008 – Lumbar CT scan – at L3/4 there is a central disc bulge, somewhat larger at L4/5 indenting the thecal sac. At L5/S1 a posterocentral bulge causing indentation and displacement of the S1 nerve root on the left.
11 November 2008 – MRI cervical spine – there is a small left C6/7 lateral disc protusion.
11 November 2008 – MRI lumbar spine – there is a disc desiccation throughout the spine. At L2/3 there is a minor right paracentral protrusion, at L3/4 posterior protrusion with minor encroachment on the theca and at L4/5 a right posterolateral protrusion touching the right L5 nerve root and at L5/S1 there is a small left posterolateral disc protrusion but it does not appear to be compromising with any of the neural structures.
30 June 2009 – MRI lumbar spine – there is disc degeneration, disc bulging and annular tears at the lower four levels.
15 October 2009 – lumbar x-ray –desiccated and narrowed discs and annular tears are demonstrated from L2/3 to L5/S1.
20 April 2010 – MRI lumbar spine – persistent lateral recess stenosis at L4/5 bilaterally. Narrowing of the L5 nerve roots. L4 and L5 have been decompressed, small collection at this site narrows the posterior aspect of the canal.
12 May 2010 – lumbar CT – this is post decompression. This shows evidence of an extensive posterior decompression, the disc pathologies are as reported before and at L5/S1 there may still be some contact of S1 nerve roots and the sacroiliac joints are arthritic.
17 September 2010 – x-ray lumbar spine – There is a straightening of the lumbar spine. Vertebral body height and alignment is maintained. Anterior marginal osteophytes are present at L3 and L4. The intervertebral disc spaces from L1 toL4/5 appear preserved. There is mild L5/S1 disc space narrowing. There are facet joint degenerative changes at L5/S1. At L4/5 and L5/S1, there has been posterior decompression and laminectomy. No malalignment is demonstrated on the erect view.
24 November 2010 – MRI lumbar spine – mild enhancement in the lateral recesses at L4/5 in keeping with scarring (traversing L5 nerve roots). Resolution of the previous collection at the laminectomy site posterior to the thecal sac.

1 July 2011 – bone scan with SPECT – degenerative arthritis at the L3-4, L4-5 and L5-S1 levels of the lumbar spine.

Dr William Bye

Dr Bye is a specialist in orthopaedics and trauma surgery. He assessed Mr Le on 5 December 2011 upon referral from the Commission pursuant to s 60(5) of the 1987 Act.
Dr Bye recorded the history of injury and the initial treatment. He noted in particular the surgery to which Mr Le submitted on 4 March 2010, when he underwent a laminectomy decompression of the posterior lumbar spine involving complete laminectomy of the L4 level and partial laminectomy at the L5 level, as well as rhizolysis performed at the L4 and L5 levels. At the same time, there was a discectomy performed.
Dr Bye noted that Mr Le had been referred to an orthopaedic spinal surgeon, Dr Diwan, in May 2010. He commented on Dr Diwan’s opinion that the worker suffered from disc disease at four levels. In Dr Diwan’s view, decompressing the nerve roots alone had a very high likelihood of failure, hence, his recommendation for surgery involving posterior translumbar interbody fusion at the L4/5 and lumbosacral level, with a top-up dynamic stabilisation of his L3/4 level. He noted that Dr Etherington, who until that time had been Mr Le’s treating specialist, had ceased practising in Sydney and had moved to Melbourne.
Dr Bye took a detailed history of the worker’s present treatment, his symptoms, his previous health, and conducted a detailed physical examination. He had regard to the multiple radiological investigations, which are referred to at pages 5–7 of his report of 22 December 2011. Dr Bye concluded that Mr Le has evidence of multi-level lumbar disc and facet joint degeneration, with evidence of central canal narrowing at the L4/5 level, and evidence of general spondylosis at the lower four lumbar levels. He found no convincing evidence of objective radiculopathy. He also noted non-physical presentation associated with treated depression. Dr Bye concluded that the history was consistent with the presenting symptoms and physical findings, although he noted exaggeration and under-performance when requested to perform certain back and other movements.
In terms of the proposed surgery, Dr Bye said:
“It is my opinion that any proposition of spinal surgery, and in this case translumbar interbody fusion at L4/5 at the lumbosacral level with top-up dynamic stabilisation at L3/4 level is doomed to failure on several accounts.”
Dr Bye gave several reasons for his conclusion. First, the MRI study showed that there was clear evidence of multi-level annular tears, and internal disc derangement associated with disc bulges certainly at L2/3, L3/4 and L4/5, and at lumbosacral levels. Therefore, the worker’s pain could be coming from any one of those levels.
He opined that the nature of the dynamic stabilisation had not been defined, and indicated that there were various approaches that could be taken. Dr Bye referred to an analysis of recent reports on interspinous implants and pedicle screws in an article by “KCE Reports 116c 29 October 2009”. The conclusion from that report was that there is low quality evidence on clinical effectiveness of lumbar non-fusion dynamic stabilisation for treatment of degenerative pathologies of the lumbar spine.
Dr Bye also referred to a summary of a report prepared by “Trangh Nguyen in Spine 2011: 36: 320–331”, which analysed the results after two years of patients with and without fusions, and return to work rates. The report concluded that lumbar fusion for a diagnosis of disc degeneration, disc herniation and/or radiculopathy in a workers compensation setting is associated with significant increase in disability, opiate use, prolonged work loss, and poor return to work status. Dr Bye opined that, combined with a double-level lumbar fusion following decompression of the lumbar spine, and in association with dynamic stabilisation at the L3/4 level, would suggest that the outcome is very poor.
Dr Bye also referred to studies on lumbar fusions in “Washington State Workers Compensation in Spine, Volume 31, No 23 pages 2715–2723, 2006 by Sham Maghout-Juratli, et al”. That report examined overall disability rates post-fusion, re-operation rates, and other complications. It concluded that legal, work-related and psychological factors “predict worse disability”. Discography and multi-level fusions predicted greater re-operation risks.
Dr Bye considered the pain in the lower limb to be neuropathic. While Drs Etherington and Diwan suggested that the lower limb pain was emanating from L5, Dr Bye found a different pain distribution, being over the right outer thigh and right outer calf, concluding that the sensory disturbance was confusing as to the level it was emanating from. Dr Bye said:
“It was my view that the low backache was not a manifestation of a mechanical nature in so far as there is no current evidence of instability. However, if one was to decompress the lumbar 4 and lumbar 5 levels, then this would create an iatrogenic [caused by the medical intervention] instability.”
Dr Bye felt that the fusion, together with the dynamic stabilisation at L3/4, was not going to adequately cover the sources of the low back pain, hence his conclusion that the surgery was doomed to fail. He further concluded that the worker’s non-physical presentation, for which he was receiving antidepressant treatment, indicated that a satisfactory outcome was even more remote. He recommended that Mr Le would be better suited to have his problems managed with a multi-disciplinary rehabilitation and pain management program.
In concluding that the proposed treatment was not reasonable nor necessary as a result of the injuries, he summarised his views in this way:
“• The burning pain in the lower limbs, principally on the right side, is in the nature of causalgic pain and the radiology suggests that there is fibrotic scarring or chemical damage to the nerves which is irretrievable.
• The low back ache has low prospect of satisfactory outcome with a two level spinal fusion on its own, but as there are different areas of potential back ache throughout the lumbar spine and the dynamic stabilisation technique has unknown outcome, the prospects of success are remote.
• The non-physical element of depression, sleeplessness and mood change are all a combination which would make surgical outcomes with little prospect of improvement.”
In reference to Dr Diwan’s reports and conclusions, Dr Bye indicated that his interpretation of the MRI study of the lumbar spine of 20 April 2010 was at variance to that of Dr Diwan. Dr Bye’s impression was that there was scarring of a well-compressed lateral recess at L5 level and, in his view, no evidence of compression of the nerve roots at other levels. He formed the impression that the pain experienced as detailed by Mr Le himself was less than that indicated by Dr Diwan. He felt that, since there was evidence of degenerative processes at four lumbar levels, the proposed surgery would not satisfactorily immobilise all four levels, and hence the chance of relieving the back pain was negligible.
Dr Bye also commented on the opinions expressed by Dr Renata Bazina, neurosurgeon, on 28 July 2011, Dr Etherington, the worker’s former treating orthopaedic specialist, Dr Robert Breit, orthopaedic surgeon, and Dr Paul Teychenné (various reports). I have had regard to those comments.

Dr Greg Etherington

Dr Etherington prepared a report dated 23 June 2010 to Mr Le’s general practitioner. He detailed the history of injury and treatment to that point. He noted that, unfortunately, Mr Le did not progress as expected following the surgery on 4 March 2010. He said:
“The difficulty now is to say if further decompression at L5 bilaterally will lead to destabilisation of Mr Le’s lumbar spine, which is already slightly kyphotic [abnormal curvature of the spine]. This means that instrumentation would be needed to prevent deformity, as well as allowing further decompression. The next problem is on the multi-level degenerative changes and the kyphotic posture. It would imply that further degeneration/deformity is likely if only one segment is instrumented.
Mr Le has already had a second opinion from Dr Diwan, and he and I agree that only one level decompression/fusion is not ideal. However, a larger operation, such as a fusion and ‘dynamic stabilisation’ may be able to address the current issues, while trying to avoid a four-level lumbar fusion. This procedure is not ‘mainstream’ in Australia, although it has certainly been carried out in Europe in particular. It allows the distal lumbar spine to be decompressed without loss of stability, while allowing some constrained movement above the fusion.”

Dr Ashish Diwan

Dr Diwan is an orthopaedic surgeon. He was initially asked to provide a second opinion in respect of surgery recommended by Dr Etherington, the worker’s then treating specialist. After Dr Etherington moved interstate, Dr Diwan became the treating orthopaedic surgeon. He provided a series of reports: 31 May 2010, 2 February 2011 and 15 September 2011. He first saw the worker in May 2010. He noted the worker had trialled a number of non-operative options, which had been unsuccessful. He identified numerous structural problems in Mr Le’s spine, with the main issue being recurrent and persistent herniation at L4/5, predominantly on the right side. He said in his report of 2 February 2011:
“Weighing all the pros and cons, I think it is reasonable for him to undergo a revision spinal decompression and fusion at L4/5 by way of interbody fusion with a possible extension of the decompression and fusion to L5/S1.”
In his report of 31 May 2010, Dr Diwan stated that Mr Le had undergone a complete laminectomy of L4, decompressing the L4/5 nerve root on both sides. He did not get relief from the procedure and, on 12 May 2010, he had a right-sided L5 nerve root block, which completely abrogated his pain. After reporting on his physical examination and his review of the investigations both prior to and after the surgery, he concluded that, post-operatively, the MRI scan performed on 20 April 2010 showed a persistent contained herniation of the nucleus pulposus at L4/5 on the right side, which was gently compressing his L4 nerve root and possibly somewhat the L5 nerve root. He said:
“A complete abrogation of symptoms following an epidural steroid is a good indicator that Mr Le may respond to further decompressive surgery. The challenge, however, is in the presence of four-level disc disease is how best can this decompression be performed. Given the fact that he is a labourer by profession, I believe that decompressing his nerve root alone has a very high likelihood of failure. The surgery which is most likely to benefit him will be a posterior translumbar interbody fusion at L4/5 and L5/S1 with top-up dynamic stabilisation to his L3/4.”
He noted that he had discussed the “pros and cons” of proceeding with the surgery with Mr Le and his wife, and Mr Le was keen to proceed with surgical decompression-stabilisation due to the severe pain he was experiencing, which was the same as it was pre-operatively.
Dr Diwan noted that he had further discussed the case with Dr Etherington and discussed various other surgical options, including a simple decompression or other non-operative treatment. They concluded that the proposed surgery was the best option.
In a report of 15 September 2011, Dr Diwan noted that Mr Le’s pain in his low back and right leg was 9/10. Dr Diwan maintained his view that Mr Le would be best served by submitting to the surgery recommended. He accepted that Mr Le would not return to work as a labourer, but he said that the surgery was an important step towards his overall pain management and rehabilitation to some role in the community that may be economically gainful or, alternatively, lead to his medical retirement, but without ongoing pain.

Dr Paul Teychenné

Dr Teychenné is a consultant neurologist. Dr Teychenné prepared two reports, dated 3 February 2009 and 7 August 2009, to Mr Le’s then solicitors. He commented at length regarding the history and symptoms suffered by Mr Le prior to his spinal surgery.
Dr Teychenné reviewed Mr Le again on 1 February 2011. He noted at that point constant but less marked pain to the left buttock and down the left thigh, into the lateral aspect of the left lower leg. The history was consistent with spinal claudication and with functional lumbar spinal stenosis.
Dr Teychenné noted that Mr Le had not had any relief from the spinal surgery undertaken on 4 March 2010. Prior to the surgery, he had clear-cut annular tears at L2/3, L3/4 and L5/S1, with right foraminal stenosis at L4/5. Subsequent to the surgery, MRI scan on 20 April 2010 showed prolapse of the L4/5 disc on the right side, which was gently compressing the right L4 nerve root and possibly the L5 root. After reviewing a CT scan, he concluded that Mr Le had chronic contained disc prolapse at L4/5 and L5/S1, and internal disc disruption at L3/4 and L2/3. After commenting on the MRI scans of 15 October 2009 and 24 November 2010, Dr Teychenné said:
“Based on these results I would agree with Dr Diwan that it would be difficult to determine a site for decompressive surgery. I would also agree with Dr Diwan that decompression of the nerve root is likely to fail in view of the patient’s work as a labourer.”
He concluded that it was apparent that Mr Le had evidence of bilateral lumbosacral radiculopathy associated with disc prolapses at L4/5 and L5/S1. In particular, the disc prolapses had caused nerve root compression, with clinical evidence of compression of the S1 nerve root in both legs, and clinical evidence of compression of the L5 nerve root. He also had mild to moderate canal stenosis at L4/5. Dr Teychenné concluded that the patient’s presentation was consistent with the history of injury to the lumbar spine, resulting in lower lumbar disc prolapses and nerve root compression.
In a further report to Mr Le’s solicitors on 21 June 2011, Dr Teychenné said:
“I reviewed the report of Dr Ashish Diwan. I would agree with the fact that, as the patient was a labourer, decompression of the nerve root was not likely to succeed. Dr Diwan therefore recommended that the surgery most likely to succeed in stabilising the lumbar spine would be a posterior translumbar interbody fusion at L4/5 and L5/S1 with a top-up dynamic stabilisation at L3/4. That does seem on my assessment to be a reasonable surgical course. I do not, however, consider that this patient will be able to return to work as a labourer, but it does seem reasonable that he undergo the surgery to try to stabilise his lumbar spine.
The patient was assessed by the spine surgeon, Dr Greg Etherington, and he indicated that a fusion and dynamic stabilisation may be able to address the current issues. I would agree with that option.”

Dr Robert Breit

Dr Breit is an orthopaedic surgeon. He examined Mr Le at the request of Xchanging. After recording a detailed history, findings on examination and an assessment of the radiological investigations, Dr Breit was asked to answer a number of specific questions. In answer to a question concerning his fitness for suitable duties, Dr Breit said:
“That is a very difficult assessment given this man’s complaints, the abnormal illness findings and the solicitous manner in which he is treated by his wife. I believe this gentleman does have pain and he does have disability. Given his presentation, it is impossible to make a valid assessment of his work capabilities. He is certainly not fit for his pre-injury duties and will never be fit for anything other than a sedentary occupation, for which he has no skills or training. At present, given the extent of the surgery, spondylosis and his complaints, I would indicate he is not fit.”
Dr Breit was asked to comment on whether the surgery proposed by Drs Diwan and Etherington was appropriate and reasonable for the management of Mr Le’s injuries. He said:
“No. This gentleman’s presentation is unreasonable. Given that situation, any surgical intervention at this time is doomed to failure and the risk of a ‘non-mainstream’ procedure is even higher.”
Dr Breit expressed doubt that Mr Le would ever return to work, even after the proposed surgery, and thought that it was more likely than not to reinforce his “illness behaviour”. Instead of the surgical option, Dr Breit recommended that Mr Le be seen by a clinical psychologist, pain clinic, and commence a rehabilitation program for core-strengthening and hydrotherapy.
Dr Breit prepared a further report dated 15 April 2011. He did not reassess Mr Le, but commented on correspondence that had been forwarded to him for review. Precisely what correspondence he was forwarded is unclear. However, Dr Breit was asked to comment on whether he maintained his opinion regarding the proposed surgery discussed in his earlier report. He said:
“On the basis of the available information, yes. To provide a more thorough opinion I would need to reassess this gentleman but, as I have indicated above, it would seem the only treatment has been a single injection. There is also a report from a psychiatrist dated last year which says this man is depressed, is he still depressed and what effect does that have on his pain?
My opinion is not immutable, but it would really depend on provision of appropriate further information, such as whether he has had physiotherapy, by whom, the extent and the effect, as well as an opinion regarding his current psychiatric/psychological status.
The surgery, if it were to be undertaken, would be for pain relief, but it would have negligible effect on this gentleman’s prospects for returning to any form of work given the extent and duration of his pain and disability, as well as the extent of the pathology.”

Dr Renata Bazina

Dr Bazina is a neurosurgeon. She examined Mr Le at the request of Xchanging and prepared a report dated 28 July 2011. After detailing her findings on examination, Dr Bazina offered the following opinion in relation to the proposed surgery suggested by Dr Diwan:
“I do not think the surgery requested is appropriate. The patient’s current symptoms of bilateral leg pain and paraesthesia are most likely related to his L4/5 pathology and surgery above and below this level would not specifically address this. However, persistent low back pain may relate to any number of bulging discs and associated annular tears from L2/3–L5/S1 discs, but surgery for back pain is not associated with high degree of success.”
Dr Bazina recommended conservative treatment, including physiotherapy, hydrotherapy and analgesia. She commented on Mr Le’s poor motivation for home-based exercises and active physiotherapy treatments. She noted he used opiates and gabapentinoids for his pain syndrome without specialist guidance.

Dr Diwan’s reply to Dr Bye’s evidence

Dr Diwan prepared a further report dated 16 March 2012 for Mr Le’s solicitors. The report was essentially a comment on Dr Bye’s opinion. Dr Diwan acknowledged Dr Bye as a respected retired orthopaedic surgeon who, like him, found Mr Le’s case extremely challenging, but he noted that he failed to offer any reasonable treatment option.
Dr Diwan stressed that the surgery is a palliative option for Mr Le, and the only reasonable option that he can try as a therapeutic intervention that is likely to work. He added that, over the duration of his sufferings, he has tried pretty much every modality for managing his symptoms, without much success.
Dr Diwan did not accept the validity of the Nguyen studies. He added that Dr Bye failed to point out that the study to which he referred was not “level one evidence”, but was essentially a study of historical cohort in a retrospective manner. The patients who underwent fusion (725) were compared to 725 randomly selected patients from a pool of workers compensation subjects who did not undergo surgery. The selection of such a pool in a random manner retrospectively is unscientific and biased. He felt that, given the way the research had been undertaken, its scientific value is “zero”.
Dr Diwan was equally critical of the validity of the Maghout-Juratli et al studies. He noted that this was a retrospective study, looking at the efficacy of cage versus no-cage use in the workers compensation population during the years 1996–2001. This study predicted that the re-operation rates and disability were quite high in patients in whom cages (the surgical technique under consideration) were used. This study discounts the new developments that have occurred in spinal surgery over the past decade where, to avoid any nerve root injury, techniques like transforaminal interbody fusions have been developed and, to avoid the complications of using bone graft and auto graft, the use of bone graft substitutes has evolved.
Dr Diwan pointed to a Swedish study by Fritzell et al, evaluating lumbar fusion conducted using a randomised prospective controlled multicentric trial with a two-year follow-up of patients either receiving lumbar fusion surgery or undergoing non-surgical physical therapy treatment. This trial effectively concluded that, in a well-informed and selective group of patients, the diminution in pain and decrease in disability is more efficient in the surgical group than in the non-surgical group.
Having said that, Dr Diwan conceded that none of the studies can be applied to Mr Le’s individual situation. While Dr Diwan valued the opinion of Dr Bye, he felt that Mr Le would benefit from a modern posterior spinal fusion surgical procedure with or without an extension to top up the fusion with a dynamic device.
Dr Diwan concluded by referring to his own publications, which discuss how, with careful analysis of individual cases, one can avoid the “doomsday scenario”.

Dr Breit’s comments in reply

Due to the shortness of time, Dr Breit prepared an email dated 20 April 2012 to the employer’s solicitors. He attached some of the extracts to which Dr Diwan had referred and commented that they did not provide a compelling argument to fuse. He added that Dr Diwan was the only practitioner who had not found abnormal illness behaviour to be significant. He concluded by saying:
“As for the posterior dynamic stabilisation devices – they have a very bad reputation as indicated by Dr Bye and the literature he quotes.
There is nothing that would lead me to change my mind including the ‘scholarly articles’ by Dr Diwan.”

ARBITRATOR’S REASONS

At the conclusion of the hearing on 23 April 2012, the Arbitrator delivered an extempore decision. She analysed carefully and at length the medical evidence both for and against the proposed surgery.
In attempting to reconcile the different views, the Arbitrator was guided by the principles in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo). Consistent with those authorities, the question the Arbitrator posed for herself is: is it better that the worker have the surgery or should it be forborne? If the worker should not go without that surgery, then it’s open to conclude that it’s reasonably necessary. The Arbitrator then considered seriatim:
·   the relevance and appropriateness of the surgery
·   available alternatives
·   relative cost
·   potential effectiveness
·   the unusual nature of the surgery.
Briefly, her conclusions are these.

Relevance and appropriateness

The Arbitrator accepted that the outcome of the proposed surgery was not certain and, indeed, it almost never is. The worker had already undergone decompressive surgery and a host of other treatments that had been unsuccessful. She accepted that the opinions of Drs Diwan and Etherington were “well argued” and that they had given considerable consideration to the somewhat unusual surgery.

Available alternatives

The Arbitrator concluded that, other than the proposed surgery, there were no other viable alternative treatments available. Both Drs Diwan and Etherington considered decompressive surgery and whether or not another attempt at that would be beneficial. That approach was rejected for the reasons set out in their opinions. The only alternative open to the worker was to continue with his current treatment regime, which basically consisted of physiotherapy and a range of medications, which had not been particularly beneficial. It was noted that concern had been expressed that the amount of medication taken by Mr Le was causing reflux and other digestive tract problems.

Relative cost

The Arbitrator concluded that the overall cost of the treatment was in the order of $25,000–$30,000, but noted that there is no clear evidence of the actual costs. The expenditure to the date of the arbitration hearing on treatment costs in respect of Mr Le’s injuries was in the order of $230,000.
The Arbitrator rejected the submission that the additional expenditure was not justified.

Effectiveness

The Arbitrator accepted that the effectiveness of the treatment was difficult to evaluate. She noted Dr Bye’s evidence that, in his view at least, 30 per cent of people who have the surgery may benefit from it, and 68 per cent or so are still experiencing significant levels of disability two years post-surgery. The Arbitrator concluded that Dr Diwan had reached his opinion after exercising considerable caution, acknowledging that there are significant risks to a successful outcome following revision surgery. The Arbitrator concluded that the outcome may not mean that all of the symptoms will be relieved, particularly in view of the degenerative changes in Mr Le’s spine. However, it was reasonable to conclude that the research showed that there are positive outcomes for some of the patients who had submitted to revision surgery.

The unusual nature of the surgery

It is acknowledged that the proposed surgery is somewhat unusual in this country, and is more commonly used overseas. The Arbitrator accepted that it is by no means clear that the surgery would resolve all of Mr Le’s pain. However, if the surgery will alleviate the worker’s pain, then the Arbitrator concluded it was reasonable to allow him to have it. She accepted that, following the proposed treatment, Mr Le is unlikely to be in a position to return to his former employment, but it may lead to a position where he could find alternative work.
For the foregoing reasons, the Arbitrator concluded that, although it was a finely-balanced case, there was sufficient evidence in favour of the treatment to conclude that it was reasonably necessary.

GROUNDS OF APPEAL

The appellant alleges the Arbitrator erred:
(a)     In failing to properly consider the opinions of Dr Robert Breit and Dr William Bye in so far as the opinion of those doctors expressed the view that the proposed surgery was doomed to fail, and that the result of the surgery would be likely to lead to a deterioration of the respondent’s medical condition;
(b)     In failing to give sufficient weight to the likelihood of the proposed treatment resulting in failure and leading to a worse outcome than the worker’s present condition;
(c)     In failing to give sufficient weight to the fact that the surgery proposed by Dr Diwan was not mainstream and more likely to result in an adverse outcome;
(d)     In failing to take into account the probable risks of the operation and the consequences to the respondent, thereby misusing her discretion;
(e)     In finding as a fact that the difference in the medical opinions of the various medical assessors as to the appropriateness of the proposed treatment was the consequence of a different view of the pathology in the worker’s spine.

Discussion

Failure to properly consider the opinions of Dr Robert Breit and Dr William Bye

The appellant submits that the Arbitrator failed to properly consider the opinions of Dr Breit and Dr Bye in so far as the opinion of those doctors expressed the view that the proposed surgery was doomed to fail and that the result of the surgery would be likely to lead to a deterioration of the respondent’s medical condition.
The Arbitrator’s analysis of Dr Breit’s opinion is recorded in the transcript from T36.35 to T39.2. The Arbitrator recorded Dr Breit’s general view that the worker’s presentation was unreasonable and that surgical intervention was doomed to fail, particularly due to the “non-mainstream” nature of the procedure.
The Arbitrator noted that, in his report of 15 April 2011, Dr Breit was more circumspect in his opinion. She noted that he said that, in order to provide a more thorough opinion, he would need to reassess the worker. He used the expression, “my opinion is not immutable”, stating that it would depend on the provision of appropriate further information as to whether the worker had received physiotherapy, by whom, the extent, and the effect, as well as an opinion regarding his current psychological status. The Arbitrator went on to note that Dr Breit had not reassessed the worker. She noted that the worker had participated in a physiotherapy program and expressed uncertainty as to what Dr Breit’s opinion might have been had he been made aware of that. The Arbitrator accepted that he maintained the view that he did not support the proposed surgery.
The Arbitrator analysed Dr Bye’s evidence carefully and in detail, and her findings are recorded from T39.15 to T41.25. The Arbitrator noted Dr Bye’s diagnosis of multi-level disc and facet joint degeneration, with evidence of central canal narrowing, together with evidence of general spondylosis at the lower four lumbar levels. She noted his finding concerning the absence of radiculopathy, but noted that he accepted a complaint of irradiation of pain into both legs. She noted that Dr Bye considered the worker had overstated his symptoms and exaggerated his pain. Despite that, he accepted that the worker suffered a significant degree of pain. She noted the doctor’s views as to the possibility of the worker’s pain emanating from one of several levels of the lumbar spine. She noted his reference to the research materials and the recorded statistical outcome of the success rate of lumbar fusion operations.
The Arbitrator recorded correctly Dr Bye’s conclusion that the fusion, together with the dynamic stabilisation, is unlikely to adequately resolve the sources of low back pain, hence his view that the surgery was doomed to fail.
The Arbitrator’s analysis included an evaluation of Dr Diwan’s critique of Dr Bye’s opinion and the comparison opinions of Drs Teychenné and Etherington. It can be seen from the Arbitrator’s decision as a whole that she carefully weighed all of the medical evidence and preferred that of Drs Diwan, Etherington and Teychenné to that of Drs Breit and Bye. I am not persuaded that the Arbitrator’s approach suggests any error. No proper foundation has been laid to support the submission that she failed to properly consider the opinions of Dr Breit and Dr Bye.

Failure to give sufficient weight to the likelihood of the proposed treatment failing

The appellant alleges that the Arbitrator erred in failing to identify exactly what the proposed medical treatment was intended to achieve, which was relevant to the issue of whether the treatment was appropriate.
The appellant submits that all of the doctors reported the worker complaining of pain in the back, and leg symptoms, again noting a difference of opinion as to the significance of the leg pain and whether true radiculopathy was present.
After referring to the various medical opinions expressed in summary form, the appellant submitted that the Arbitrator failed to adequately consider the likely outcome of the surgery in terms of treatment even if successful and, in particular, whether there would be any improvement in the worker’s lumbar back pain.
The respondent submits that the Arbitrator specifically considered the likely outcome. She stated that the “potential for effectiveness” is “very difficult to evaluate” (T43.21). She noted Dr Bye’s “concerns” whereas “at least 30 per cent of people who have surgery may be okay, 68 per cent or something aren’t two years later and still have significant levels of disability or other problems”. The respondent contends that that is no evidence to support the assertion that there is a likelihood of a worse outcome.
Although Dr Breit’s reservations concerning the effectiveness of the surgery were qualified by the worker’s alleged “illness behaviour”, he accepted that the surgery would be undertaken for pain relief.
Dr Bazina did not suggest that the worker would be worse off if he were to undergo the surgery.
The respondent submits that the highest the appellant’s case reaches is Dr Bye’s reference to the statistical studies. Extracts of the studies were produced on the day of the hearing. The full studies were not admitted into evidence and their reliability or applicability to the current case cannot be examined or tested. In any event, aggregated outcomes cannot offer any reliable prediction of how the respondent would fare if the surgery proposed proceeds.
In Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41, Deputy President Roche said at [67]:
“Whether any particular treatment is reasonably necessary as a result of an injury must be assessed on a case by case basis with the Commission exercising ‘prudence, sound judgment and good sense’ (Rose). It is not solely a matter for statistical analysis, though that will often be relevant.”
I agree with and adopt the Deputy President’s remarks.
To test the appropriateness of the proposed surgery, the Arbitrator applied the test articulated in Bartolo. As his Honour Burke J said:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
The Arbitrator applied that test and it has not been suggested she erred in doing so.
The Arbitrator acknowledged that the outcome may not mean that all of the symptoms will be relieved, mainly due to the fact that Mr Le has degenerative changes at various levels throughout the spine. The Arbitrator concluded at T44.44 that the intention of the surgery was to alleviate some of the symptoms, decrease some of the pain and, hopefully, decrease Mr Le’s level of disability, perhaps returning him to a situation where he could return to some form of alternative work, although it was unlikely he would be capable of returning to his former employment.
She properly weighed the fact that the worker had undergone decompressive surgery and a host of other treatments which had not been successful. She concluded, on balance, that there is a reasonable chance of a successful outcome from the proposed surgery and that it is better for Mr Le to have the surgery than to go without it. That conclusion was open on the evidence and discloses no error.
For those reasons, there is no substance to the argument that the Arbitrator erred by failing to identify what the proposed treatment was intended to achieve.

The treatment was not mainstream

The appellant submits that the Arbitrator failed to give due weight to the fact that the proposed procedure was unusual and abnormal, with studies indicating the use of dynamic stabilisation had bad outcomes. The appellant drew attention to the evidence of Dr Bye and Dr Breit in this regard. It submitted that Drs Diwan and Etherington acknowledged that the proposed treatment is rarely carried out in Australia, but is more commonly performed in Europe.
The respondent submits that this ground of appeal rests on the assumption that developments in medical science and the identification of new procedures involve the likelihood of an adverse outcome. It overlooks the reality that procedures which are currently commonplace in 2012 may not have been considered “mainstream” five or 10 years ago. Such a conservative approach should not deprive the respondent worker of being the beneficiary of progress.
The respondent submits that the worker has, as Dr Diwan noted, “tried pretty much every modality for managing his symptoms, without much success”. Dr Diwan considered the proposed surgery as “modern”, but thought that it was the only reasonable option that he could try as a therapeutic intervention which was likely to work.
The respondent submits that the fact that the procedure is not mainstream is no reason to dismiss it as being not reasonably necessary. Every case must be considered on its own merits and Dr Diwan, with knowledge of the respondent worker’s history, has explained why the proposed surgery offers an appropriate palliative option. Further, the respondent submits that the appellant’s assertion that the treatment is not mainstream and is likely to result in an adverse outcome is made without any evidentiary basis.
The appellant’s submissions have failed to identify the manner in which the Arbitrator is alleged to have erred. The submission that she failed to give due weight to the surgery being unusual and abnormal is, in reality, a thinly-veiled attempt to re-argue the case on its merits. The Arbitrator accepted that the surgery was somewhat unusual (T42.19 and 44.22). The Arbitrator expressly acknowledged that the proposed surgery is not usual in this country and is more commonly performed overseas. She considered the research materials that had been presented and acknowledged that the outcome of the proposed surgery was uncertain. The Arbitrator approached the issue by acknowledging that the treatment was unlikely to cure the worker’s symptoms, but considered that, if its effect was to alleviate – that is, to lessen the worker’s pain – then, in her view, it was reasonable that he be allowed to have it.
The Arbitrator acknowledged the non-mainstream nature of the procedure (at T41.10). She had regard to the risk that a two-level fusion could lead to progressive instability in the spine. That risk is enhanced in someone who has widespread degenerative changes in the spine. Hence, the need to take preventative measures, that is, by the dynamic stabilisation procedure, to protect the worker from further instability in the spine caused by the fusion surgery undertaken to relieve the pain caused by the nerve compression of the S1 nerve root.
For these reasons, I reject the submission that the Arbitrator failed to give due weight to the fact that the procedure was unusual.

The alleged discretionary error

The appellant’s grounds of appeal allege that the Arbitrator misused her discretion in failing to take into account the probable risks of the operation and the consequences to the respondent. The appellant’s written submissions do not address this ground of appeal.
The respondent submits that this ground is unfounded. He submits that it was reasonable and correct for the Arbitrator to rely on treating specialists with knowledge of the worker’s history, his condition and the precise medical intervention to be undertaken, as well as the professional responsibility for the proposed surgery. She was entitled to prefer that evidence to the tentative opinion of Dr Breit (who did not refer to any risks) and Dr Bye’s reliance on reports which cannot be said to be based upon case studies which match Mr Le’s medical history.
The respondent further submits that it is relevant that Dr Bazina did not suggest that the proposed surgery carried with it any particular risks.
The medical evidence has failed to reveal any particular risks associated with the surgery, other than the fact that it may be unsuccessful in relieving the worker’s pain.
The Arbitrator acknowledged that the particular surgical approach recommended was concerned with managing, in the most effective way, any instability in Mr Le’s spine that might arise from decompression of the spine at two levels in the absence of dynamic stabilisation to the level above (T31.23).
The Arbitrator’s reasons included a consideration that Dr Diwan discussed the “pros and cons” of the surgery and the various risks involved with Mr Le, his family and an interpreter (T32.8). The Arbitrator then took into account the various other surgical options that might be available (T32.22).
From those extracts of the transcript and from a reading of the Arbitrator’s reasons as a whole, I am satisfied that she had due regard to the probable risks and consequences of the proposed surgery.

The alleged error of fact

The appellant submits that the Arbitrator made an error of fact in finding that the difference of opinions of the various medical assessors as to the appropriateness of the proposed treatment was the consequence of a different view of the pathology in the worker’s spine.
The appellant submits that there is no real difference in view of the various medical practitioners as to the pathology in the worker’s spine, and that he is suffering from significant degeneration throughout the lumbar spine.
The appellant submitted:
“Further, all of the medical assessors accept that to some degree or other the worker suffers from particular problems emanating from the L4/5 nerve root although it is also the case that a number of practitioners feel that the symptoms are also being generated from more than one level.”
It is submitted that the only difference in the view of the pathology identified in the various medical reports is the extent to which degeneration at other levels of the spine is contributing to the symptomatology.
The appellant therefore submits that, in so far as the Arbitrator’s decisions is based on a view that the difference in the medical opinions arises out of a different view of the pathology, that opinion is not supported by an analysis of the medical evidence in the case, and involves an error of fact.
The respondent submits that the Arbitrator’s remarks with respect to the pathology are an aside and not material to the determination of whether the surgery in question was reasonably necessary.
The respondent submits that the Arbitrator accepted that the worker had widespread degenerative changes (T44.6 and 17) and her determination was made with that knowledge. The respondent submits that there is no dispute that the worker suffered a compensable injury to his lumbar spine, or that the pathology affecting the L2/3, the L3/4, the L4/5 and the L5/S1 were caused by the subject injury.
I agree with the respondent’s submission. The Arbitrator did accept that the worker suffered from widespread degenerative changes. Accepting that to be the fact, the Arbitrator proceeded to analyse the cause of the divergence of medical opinion as to the effectiveness of the proposed treatment. She considered (at T39.25) the differences in the clinical findings of the various medical assessors and noted that Dr Bye failed to elicit evidence of objective radiculopathy, although he accepted that there was evidence of a central narrowing at L4/5. However, Dr Bazina, Dr Diwan and Dr Etherington all found evidence of radiculopathy.
The Arbitrator observed (at T40.9) that the different clinical findings as to the presence (or absence) of radiculopathy were at the core of the differences of medical opinion. Whereas, on one view of the medical evidence, the worker’s pain could be coming from any one of a number of levels in his lumbar spine, Dr Etherington and Dr Diwan were satisfied that it emanated from the L4/5 and L5/S1 levels, due to the prolapsed discs at that level and the compressed S1 nerve root. Their view of the radiology was confirmed by the presence of the clinical finding of radiculopathy. Those findings were significant factors relevant to their opinions on the need for surgery, and the Arbitrator was correct to identify them as relevant.
The appellant’s submission is based on the premise that the Arbitrator found as a fact that there were differing views of the pathology affecting the worker’s back. The Arbitrator did not make that finding. She concluded that the difference of medical opinion was influenced not by a difference of opinion about the radiology, which it was agreed showed evidence of degenerative and other changes, but by the significance the various doctors placed on the radiological findings when coupled with their own clinical findings on examination.
Although neither party directed me to any particular passages of the Arbitrator’s reasons to support their arguments, I note that there are several passages in the Arbitrator’s reasons where she referred to the nature of the pathology in the worker’s spine (T28.56, T34.23 T36.20, T40.43, and T41.48). However, I am satisfied that, when read in context with the whole of the Arbitrator’s reasons, those comments do not reflect a finding that there is a difference of opinion regarding the pathology, but, as I indicated in the preceding paragraph, they reflect differing views of the significance of the accepted pathology.
No error of fact has been established; consequently, this ground of appeal fails.

SUBMISSIONS NOT REFERRED TO IN THE GROUNDS OF APPEAL

Alternative treatment

Although it was not referred to in the appellant’s grounds of appeal, in its written submissions, the appellant argued that Mr Le’s submission concerning the failure to identify alternative treatments was misconceived. Dr Bye expressed the view that alternative treatment would involve a multidisciplinary rehabilitation and pain management program.
The appellant submitted that the fact that non-invasive procedures had not been successful in the worker’s treatment does not indicate that they are inappropriate modalities for treatment. The appellant submitted that the Arbitrator failed to give any weight to the fact that there was an available alternative treatment that had been recommended by the Approved Medical Specialist (AMS) as being most appropriate in the circumstances.
The respondent submits that, in the hearing before the Arbitrator, counsel for the appellant stated that, “There isn’t an available alternative to point to” (T8.49) and he “couldn’t put forward any alternative” (T19.44). The respondent submits therefore that the appellant abandoned any case for alternative treatment at the hearing before the Arbitrator. In any event, the evidence does not provide a basis for a finding that there was a viable alternative.
The respondent further submits that the AMS did not explain what “a multidisciplinary rehabilitation and pain management program” would involve, or why such a program would succeed in providing relief. No costing of such a program was put forward, and the appellant is therefore unable to show that it constitutes a more cost-effective option to the proposed surgery.
The respondent submits that, having considered the viability of such a program, Dr Bazina considered that the worker’s language barrier would be likely to limit its success and benefit to him.
I reject the submission that the Arbitrator failed to give weight to available alternatives for the following reasons. In analysing the reasonableness of the proposed treatment, the Arbitrator referred to the alternative of continuing with pain management and rehabilitation techniques. She noted that this had been discussed at lengeth with Mr Le and his family (T32.8).
The Arbitrator also weighed the fact that the worker was taking significant levels of prescription medication, which was having side effects including reflux and other digestive tract problems (T42.53).
The Arbitrator also acknowledged that other forms of decompressive surgery were not viable options and that, although the worker had received extensive physiotherapy, it had not been successful in relieving his discomfort.

Abnormal illness behaviour

The appellant submits that the Arbitrator “failed to properly consider” and failed to give any weight to the views of Drs Breit and Bye that the worker suffered abnormal illness behaviour that would significantly affect the potential outcome of the surgery. This, it was submitted, was a relevant issue to determining the effectiveness of the proposed treatment.
The respondent submits that the view that the worker engages in abnormal illness behaviour is shared by two of the forensic specialists, who each saw the worker on a single occasion. The treating specialists, Dr Etherington and Dr Diwan, did not mention such a feature. Thus, it was submitted that the treating doctors accepted that the respondent worker had genuine complaints.
Further, the respondent submits that, notwithstanding Dr Breit’s comments regarding abnormal illness behaviour, he accepted that the worker had pain to such a degree that he recommended he be seen by a pain clinic.
The respondent submits that, whether or not the worker engaged in exaggeration of his complaints, it is common ground that he has significant pathology. He does not forfeit the right to relief of his symptoms because Dr Breit and Dr Bye think that he is overstating his symptoms.
The submission that the Arbitrator failed to give any weight to the views of Dr Breit and Dr Bye cannot be sustained. She said at T38.31 that Dr Diwan seems to be the only practitioner who had not found abnormal illness behaviour to be significant. The Arbitrator again referred to Dr Bye’s remarks at T39.48, noting his views that the worker overstated his symptoms. The Arbitrator also commented at T39.52 that Dr Breit was concerned about the same issue. Having weighed those opinions with the balance of the medical evidence, the Arbitrator concluded at T39.57 that, accepting that there is some evidence of exaggeration, in her view, looking at the evidence overall, she accepted that Mr Le suffered from a significant degree of pain.
The Arbitrator’s reasons demonstrate that she accepted that there was some evidence of exaggeration or abnormal illness behaviour, but that evidence did not abrogate the weight she attached to the clear evidence of the worker’s ongoing significant symptomatology in terms of the pain he experienced in his back and leg. Her conclusion, on balance, was that, notwithstanding the evidence of exaggeration or illness behaviour, the proposed treatment was reasonably necessary.

General submissions

The appellant made a number of general submissions regarding the appropriateness of the proposed treatment. The submissions go to the merit of the matter and do not raise any allegation of error.

CONCLUSION

The Arbitrator’s conclusion that the proposed medical treatment is reasonably necessary treatment for the purposes of s 60(1) of the 1987 Act is not affected by error.
The Arbitrator carefully weighed all of the available medical evidence and applied the correct legal principles in determining whether the treatment was reasonably necessary.

DECISION

The Arbitrator’s determination of 3 May 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal.

Judge Keating

President
4 September 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE