Teague v Remedial Building Services Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Teague v Remedial Building Services Australia Pty Ltd [2023] NSWPIC 511
APPLICANT:	Gregory Teague
RESPONDENT:	Remedial Building Services Australia Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	28 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lumbar fusion surgery; injury and causation not in issue; only dispute surrounds whether the proposed surgery is reasonably necessary; the respondent contends the applicant should undertake a further discogram before the proposed surgery, and also further conservative treatment; Held – the proposed surgery is reasonably necessary as a result of the injury at issue; the fact further conservative treatment is available does not preclude the proposed surgery from being reasonably necessary; Diab v NRMA Limited applied; the proposed surgery is reasonably necessary; the respondent is to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. Leave is granted to the applicant to amend the date of injury under the heading “Injury Details” in the Application to Resolve a Dispute from “11/02/2023” to “11/02/2021”. 2. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 11 February 2021. 3. The surgery proposed by Dr Abraszko in her quote dated 29 June 2022 is reasonably necessary as a result of the applicant's injury. 4. The respondent is to pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

There is no issue the applicant, Gregory Teague, suffered an injury to his lumbar spine on 11 February 2021 whilst in the course of his employment with Remedial Building Services Australia Pty Ltd (the respondent).
The applicant brings these proceedings seeking payment by the respondent of the costs of a proposed three level anterior L3-S1 discectomy and fusion. There is no question that any need for the proposed surgery has been brought about by the injury at issue. Rather, the dispute in these proceedings is purely whether the proposed surgery is reasonably necessary.

ISSUE FOR DETERMINATION

The parties agree that the only issue for determination is whether the proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the Application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 20 September 2023. At the hearing, the applicant was represented by Mr Stanton of counsel instructed by Mr Bechara. The respondent was represented by Mr Rickard of counsel instructed by Ms Lee.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply.

FINDINGS AND REASONS

Whether the proposed surgery is reasonably necessary

As the parties both submitted, the applicant has the onus of proving the proposed surgery recommended by Dr Abraszko is reasonably necessary. The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] to NSW CCR to (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of the injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgement and good sense, that it is so. That involves the Court in deciding on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
It is settled law that the presence of a pre-existing condition such as degenerative changes in a lumbar spine does not prevent the need for treatment being “as a result of an injury” pursuant to s 60: see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18. In this matter, however, the question of whether the need for any proposed treatment arises “as a result of” the injury at issue is not in question.
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted that the Court of Appeal considered the meaning of “reasonably necessary” in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52, albeit in the context of home renovations rather than medical treatment. In that matter, the Court noted the trial judge had sought guidance from the decision Rose. Grove JA referred to the dictionary definition of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Oxford Dictionary) and “that cannot be dispensed with” (Macquarie Dictionary). At [23] and [24], his Honour stated:
“23. The essential issue is what flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the workers incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the workers incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit inquiry as to what may be thought reasonable in all, or any particular circumstances, but its terms clearly point to predominant attention being paid to the nature of the workers incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant, is an elevation rather than a moderation of the meaning of ‘necessary’.”
In Diab, Roche DP noted the effect of the decision in Clampett and commented as follows:
86.    Reasonably necessary does not mean ‘absolutely necessary’. If something is ‘necessary’ in the sense of indispensable, it will be ‘reasonably necessary’. That is because ‘reasonably necessary’ is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply…
88.    In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at (5) Rose (C [76] above) namely:
a.The appropriateness of the particular treatment;
b.The availability of alternative treatment, and its potential effectiveness;
c.The cost of the treatment;
d.the actual or potential effectiveness of the treatment, and
e.Acceptance by medical experts of the treatment is being appropriate and likely to be effective.
89.    With respect to (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The respondent’s position in this matter is set out in the report of its independent medical examiner (IME) Dr Rowden dated 6 August 2022. In that report, Dr Rowden diagnosed the applicant as suffering from a “work-related aggravation of mild spondylosis”. In making that diagnosis, Dr Rowden had regard to a CT scan of the lumbar spine taken on
17 February 2021 and an MRI dated 1 July 2021.
As Mr Stanton observed, Dr Rowden did not have the benefit of viewing the report attached to a lumbar discogram which was undertaken on 18 February 2022. That examination revealed the following findings:
“L3-4 level:
The discogram was positive at this level;
Central back pain. Pain score: 6/10
The discogram demonstrates disc space narrowing at the L3-4 level.
There is circumferential annular fibre disruption with contrast extending to the outer third fibres.
There is also a posterior and left paracentral disc extrusion with some epidural spread of contrast media.
Mild facet joint arthropathy.
L4-5 level:
The discogram was convincingly positive at this level.
Paraesthesia down right leg. Pain score 8/10, more severe than L3/4.
There is also disc space narrowing at this level more prominent than the disc space narrowing at L3-4.
There is associated annular fibre disruption with contrast extending to the outer third fibres in a circumferential pattern.
There is a broad-based posterior disc protrusion with a left paracentral component. The patient experiences right side of paraesthesia, however.
This is concordant with daily symptoms.
L5-S1 level:
The discogram was positive at this level.
Central pain in the back. Pain score: 7/10, more severe than L3/4 but less than L4/5.
There is mild disc space narrowing at this level with degeneration of the posterior hemisphere of the disc annulus.
Contrast extends to the outer third with the posterior central disc protrusion with some contact of the faecal sac.
Anterior aspect of the disc remains intact.
Minor facet joint arthropathy.
Conclusion:
There are degenerative disc changes at each level with the most prominent clinical symptoms related to the L4-5 level.
At this level there are posterior disc herniations in the central and left paracentral position.
The annulus is disrupted at L3-4 and L4-5 with posterior annular thing noted at L5-S1.”
Mr Stanton submitted, and I accept, the results of that discogram reveal pathology far more serious than that diagnosed by Dr Rowden. That observation is not to be taken as a criticism of Dr Rowden, who did not have the benefit of the relevant report or scan, however, it is a factor which diminishes the weight I ascribe to his opinion.
Mr Rickard took the Commission to the report of Dr Bentivoglio, IME for the respondent, dated 19 October 2022. He noted Dr Bentivoglio had the benefit of the discogram when forming his opinion. Dr Bentivoglio noted the discogram did not report on the L2-3 disc space despite an earlier CT scan indicating damage at that level. I note, however, the MRI taken after the CT scan did not indicate discal damage at L2, despite the presence of an osteophyte.
Dr Bentivoglio opined that prior to the applicant undergoing the proposed surgery, he should have a further L2-3 discogram to ensure that level is normal. He stated if the L2-3 level was normal, the proposed surgery would be reasonably necessary.
Mr Rickard submitted that even if Dr Rowden’s opinion was not preferred, caution ought to prevail and the surgery not go ahead until the L2-3 discogram was undertaken as proposed by Dr Bentivoglio.
Mr Rickard also submitted the steps proposed by pain specialist, Dr Manohar by way of lumbar diagnostics and a pain management plan should be undertaken in lieu of the surgery. Mr Rickard submitted that opinion broadly accords with Dr Rowden’s view, the applicant should undergo further conservative treatment instead of the proposed surgery.
For the applicant, Mr Stanton submitted the conservative treatment undertaken by the applicant has been extensive and is set out in his evidence. The applicant's statement, which is uncontested, says:
“15. I visited my GP the day after the subject injury. My GP referred me to do a CT scan, and MRI of my back. The scans showed disc bulging from L3 to L1, disc abnormalities from L2 to S1 and other issues in my back.
16.    After the scans, I was referred to do physiotherapy. I started doing weekly physiotherapy sessions for a few months from the injury date before returning to work on light duties.
17.    My GP also referred me to see Dr Renata Abraszko, who I visited once per month regarding my back injury and treatment. Dr Renata Abraszko had first referred me to do a fusion surgery at three levels of my spine.
18.    To help with the pain, I was on pain relief medication for a while, but as it was making me drowsy, I had to stop heavy medications. At the time, I was taking Panadol, Nurofen and strong painkiller Palexia once a day to help with the pain.
19.    I returned to work on light duties about six months after the injury and duties involve general duties at the store, cleaning the storeroom, sweeping, putting things away, et cetera. After working for some time, I started to feel very sore in my back and stop working due to the pain.
20.    I have been on workers' compensation since then and around July 2022, I was made redundant by Remedial as I could no longer work.
21.    I currently do weekly sessions of physiotherapy and hydrotherapy to help with the pain and have been doing these since March 2023. The hydrotherapy and physiotherapy both help only for a short while, and at times only help an hour before the back pain kicks in again. The hydrotherapy helps as the water is warm but once the session is over, the pain comes back.
22.    I am currently taking Voltaren once a day and Panadol at least twice a day to help with the pain.”
Mr Stanton submitted the conservative treatment undertaken has been extensive and appropriate. He submitted the fact modalities other than the proposed surgery are available to the applicant does not render Dr Abraszko’s proposed operation unreasonable.
Mr Stanton noted the applicant had already undergone an epidural injection to no effect. He noted there will always be further conservative treatment available to a patient in the position of the applicant in this matter, however, that is not determinative of the reasonable necessity of the proposed surgery.
That submission is consistent with the comments of Deputy President Roche in Diab that there can be more than one treatment available which is reasonably necessary.
Mr Stanton submitted that when one applied the criteria in Diab, the proposed surgery is clearly reasonably necessary. He noted no attack was made as to its cost, that fusion surgery is widely practised for injuries of this kind and that the treating opinion suggests it is likely to alleviate the applicant's symptoms.
Mr Stanton noted the applicant had consulted Dr Di Mascio, vascular surgeon, who saw no contraindication to the operation.
The applicant also consulted Dr Nair, spinal surgeon, who provided a second opinion to Dr Abraszko in which he supported the proposed surgery.
On balance, I am of the view the proposed surgery is reasonably necessary. Two treating surgeons are of the view the applicant would benefit from it and I accept [BG1] those opinions.
As treating practitioners, Dr Abraszko and Dr Nair’s views carry considerable weight unless it can be shown their reasoning is significantly deficient. In my view, no such attack can be sustained. Rather, I prefer their views to those of Dr Rowden who did not have the benefit of the relevant discogram. For his part, Dr Bentivoglio hazards caution, however, he also provides no compelling reason to defer the operation beyond carrying out a discogram of the L2 vertebra.
On balance, I prefer the treating doctors’ views to those of Dr Bentivoglio. Each of Dr Abraszko and Dr Nair have the benefit of the totality of the radiological investigations and Dr Bentivoglio is the only practitioner who says the operation should await a further scan. On balance, I do not prefer his view.
Consistent with the indicia in Diab, I find the proposed surgery to be appropriate, potentially effective, and plainly widely accepted by medical practitioners as appropriate for injuries of the kind suffered by the applicant. There is no suggestion the cost of the surgery is prohibitive, and I do not accept the alternative conservative treatment is likely to be as potentially effective as the proposed surgery on a long-term basis.
For the above reasons I find the surgery proposed by Dr Abraszko to be reasonably necessary as a result of the injury sustained by the applicant in the course of his employment with the respondent on 11 February 2021.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

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[2023] NSWPIC 511

28 September 2023