Thomson v Civforce Traffic Management Pty Ltd
[2024] NSWPICPD 69
•31 October 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Thomson v Civforce Traffic Management Pty Ltd [2024] NSWPICPD 69 |
APPELLANT: | Kerrie Thomson |
RESPONDENT: | Civforce Traffic Management Pty Ltd |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W4790/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 31 October 2024 |
ORDERS MADE ON APPEAL: | 1. The appellant is directed to advise the Commission in writing that the Election to Discontinue the proceedings dated 10 July 2024 is withdrawn. 2. The time for the respondent to lodge submissions in respect of Ground Six of the appeal is extended to 18 October 2024. 3. The Member’s Certificate of Determination dated 9 November 2023 is revoked. 4. The respondent is to pay the costs of and incidental to the surgery proposed by Dr Brian Hsu in the form of an L5/S1 spinal decompression and fusion in accordance with section 60(1) of the Workers Compensation Act 1987 |
CATCHWORDS: | WORKERS COMPENSATION – Procedural fairness – where the dispute is determined on a basis not put by the parties and not drawn to the attention of the parties the determination is erroneous unless the error could not possibly have affected the outcome – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17; Toll Pty Ltd v Morrissey [2008] NSWCA 197 applied – whether proposed surgery is reasonably necessary – Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr C Tanner, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr D Adhikary, counsel | |
| SMK Lawyers | |
DECISION UNDER APPEAL: | Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602 |
MEMBER: | Mr J Wynyard |
DATE OF MEMBER’S DECISION: | 9 November 2023 |
INTRODUCTION AND BACKGROUND
Ms Kerrie Thomson (the appellant) was employed by Civforce Traffic Management Pty Ltd (the respondent) as a traffic controller. On 2 May 2020, the appellant suffered an avulsion injury to her right ankle when she stepped out of her vehicle onto a piece of pavement that gave way, and she fell.
The appellant subsequently developed a complex regional pain syndrome (CRPS) and as a consequence of altered gait suffered a lumbar spine condition.
These proceedings concern a claim brought by the appellant for the proposed cost of surgery in the form of an L5/S1 decompression and fusion of the lumbar spine, recommended by Dr Brian Hsu, orthopaedic surgeon. The respondent declined the claim on the basis that the surgery was not reasonably necessary in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The appellant brought proceedings in the Personal Injury Commission (the Commission), seeking an order that the respondent meet the costs of the proposed surgery. The dispute came before a Member of the Commission who issued a Certificate of Determination dated 9 November 2023 in which he found that the surgery was not reasonably necessary and entered an award in favour of the respondent.
The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Both parties are of the view that the appeal can be determined on the available written material and an oral hearing is not required. I have had regard to Procedural Directions PIC2 and WC3; 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
OTHER MATTERS
The Member’s Certificate of Determination was issued on 9 November 2023. The compliant appeal was lodged on 8 December 2023. At the time of allocation of the appeal to a Presidential Member, it became apparent that the appellant had lodged an Election to Discontinue in the proceedings below on 10 July 2024, which was accepted by the Commission’s Registry. As the appeal had been allocated to me for determination, the Presidential Unit communicated with the appellant’s legal representatives in order to ascertain how the appeal could proceed when the finalised proceedings below had purportedly been discontinued. The appellant indicated that she wished the appeal to proceed. I then issued a Direction to the parties to provide their availability to attend an oral hearing in order to give them an opportunity to make submissions in respect of how the appeal could proceed when the finalised proceedings below were the subject of an Election to Discontinue.
The appellant responded, advising that the Election to Discontinue had been mistakenly lodged in this matter, nominating the matter number for the proceedings below rather than a different matter number involving the same parties. The appellant advised that a preliminary conference was held in the other matter, during which the appellant discontinued those proceedings. There is nothing on the face of the record in these proceedings below that discloses that the appellant has withdrawn the Election to Discontinue those proceedings in this matter. The appellant is therefore directed to communicate in writing with the Commission’s Registry and advise that the Election to Discontinue is withdrawn.
THE EVIDENCE
The Application to Resolve a Dispute (ARD) consisted of 809 pages, many of which were multiple copies of the same document or were not relevant to the issues in dispute. That practice does not assist in the timely resolution of the dispute and should not be pursued. Nor is it appropriate to include documents irrelevant to the issues in dispute that disclose medical issues of a personal nature. Practitioners are reminded that the “500 page limit” rule will commence on 25 November 2024 and an attempt to lodge evidence that exceeds the rule will be rejected.
The appellant’s statement evidence
The appellant provided a statement dated 4 July 2023.[1] She gave a description of the injury to her ankle and referred to her ongoing difficulties, including the development of CRPS in her right ankle. She advised that when she returned to work on alternate duties, she was required to rely on her upper body because of the ankle injury and soon began to experience pain and restrictions in her lower back. She described constant pain in the lower back, radiating into the hips and both legs down to her heels, accompanied by the presence of “pins and needles”.
[1] ARD, pp 1–6.
The appellant advised that, in respect of the lumbar symptoms, she was under the care of Dr Brian Hsu, orthopaedic surgeon, who she had first consulted in about September or October 2022. She said that Dr Hsu organised a CT scan and an MRI scan and recommended a cortisone injection, which was approved by the respondent. She stated that the injection caused an extreme flare-up of her back pain and she was bed-ridden for almost six weeks.
The appellant said that she then consulted Dr Hsu and informed him of the reaction to the injection and Dr Hsu advised her that the next option was a lumbar spine fusion. However, because she was a smoker, he said she would need to complete a nicotine detoxification program and cease smoking. The appellant indicated that the respondent readily agreed to pay for the detoxification program, but declined to pay for the surgery. She advised that she had attended Dr Hale at the respondent’s request, who took the view that rather than surgery, conservative treatment such as hydrotherapy, was the best option. She said that she attended hydrotherapy, but obtained no benefit.
The appellant described her ongoing limitations socially, personally and domestically and said that the only medication of assistance was Panadeine Forte.
The radiological evidence
An MRI scan of the appellant’s spine and right hip was performed on 20 September 2022.[2] The scan disclosed minimal disc bulges from the T11/12 down to the L4/5 level with an annular tear at the T11/12 level, mild facet arthrosis at the L2/3 and L3/4 levels, facet arthrosis at the L4/5 level, and a left paracentral disc protrusion and mild facet arthrosis with mild right foraminal narrowing and minimal left foraminal narrowing at the L5/S1 level. The radiologist’s comments were that there was “Mild lumbar spondylotic change with no evidence of neural impingement. Mild lumbar facet arthropathy.”
[2] ARD, pp 182–183.
A bone scan of the appellant’s back and hips was performed on 9 December 2022. It revealed low grade facet arthritis and maximal disco-vertebral arthritis at the right L5/S1 level.[3]
[3] Appellant’s Application to Admit Late Documents (AALD), p 7.
Dr Jane Standen, pain physician specialist
On 4 August 2023, Dr Standen wrote to Dr Xiaolin Li, general practitioner, following a review by her of the appellant’s condition.[4] She advised that the appellant was making no medical progress. She said that the appellant reported a significant flare up of her pain following a test injection into the right lower facet joints and right sided cluneal nerves performed by Dr Standen two days earlier.
[4] AALD, pp 3–4.
Dr Standen wrote:
“Following consultation I have made the following suggestions to [the appellant].
• I have suggested [the appellant] trial compounded analgaesic cream to lumbosacral quadrant. This does contain topical antiinflammatories.
• I have provided prescription for Norgesic two tablets twice daily to assist with paraspinal muscle spasms.
• [the appellant] will continue to consider her options, particularly to whether or not she wishes to pursue posterior lumbar spinal fusion surgery.
• I have suggested to [the appellant] that she continue active physiotherapy with her physiotherapist and consider undertaking hydrotherapy at Lakeview Private Hospital. [The appellant] states that her consultant orthopaedic surgeon has stated this is not appropriate in the context [of] current right sided knee pathology.
• I will seek approval to readmit [the appellant] to Mater Hospital for inpatient ketamine infusion for better management of pain in association with complex regional pain syndrome.”
Dr Brian Hsu, spinal surgeon
The appellant was referred to Dr Hsu by Dr Eric Lim, general practitioner, in order to investigate the appellant’s back and leg pain. Dr Hsu arranged for a bone scan, and on the basis that there was some facet joint pathology, he recommended an L5/S1 bilateral facet joint injection.[5] On 15 February 2022, Dr Hsu advised Dr Lim that the appellant had undergone the facet joint injection but only experienced temporary relief of her symptoms. Dr Hsu recommended surgery, likely to be in the form of an L5/S1 decompression and fusion, and said that the appellant was keen to proceed. Dr Hsu advised Dr Lim that he had asked the appellant to attend Dr Lim in order to discuss the option of surgical intervention or other non-operable options.[6]
[5] Report to Dr Lim dated 14 December 2022, ARD, p 87.
[6] ARD, p 88.
On 1 March 2023, Dr Hsu confirmed with Dr Lim that the surgery was to proceed. He said that the fusion had a better chance of succeeding if the appellant ceased smoking.[7]
[7] ARD, p 90.
Dr Hsu reported to the appellant’s legal representatives on 31 May 2023.[8] He confirmed that the appellant was suffering from significant back pain with associated leg pain. He advised that the appellant had received non-operative treatment, including bed rest, physiotherapy, medication, the application of a TENS machine, hot and cold packs, and a spinal injection. He said he had recommended the L5/S1 facet joint injection. He confirmed that the appellant’s symptoms were consistent with the findings on examination and the injuries sustained. He said that surgery was required due to the repetitive movements of bending, lifting and twisting involved in her job, but with early intervention, the prognosis was good.
[8] ARD, pp 56–58.
Dr Hsu advised that the surgery would involve an L5/S1 decompression and posterior fusion or potentially a combined anterior and posterior fusion, which would have a higher fusion rate. He indicated that if the appellant ceased tobacco use, there would be a reasonable chance of a successful fusion. He said that the appellant had exhausted non-operative treatment, and the aim of the surgery was to improve her functioning in respect of the activities of daily living and a return to pre-injury duties within six to twelve months of the surgery.
On 4 July 2023, Dr Hsu again reported to the appellant’s legal representatives in response to a request for further information.[9] He disagreed with the opinion of Dr Hale (summarised below) that the appellant’s lumbar symptoms could be managed conservatively and that the lumbar symptoms were unlikely to be ongoing. He confirmed that the appellant was suffering from significant symptoms which affected her function and well-being, and non-operative treatment was exhausted. He said that the surgery was now required because timely intervention would likely lead to a good prognosis, with improved function within six to twelve months of the surgery.
[9] ARD, pp 59–60.
Dr Eugene Gehr, orthopaedic surgeon
Dr Gehr examined the appellant and provided a report dated 29 May 2023 at the request of the appellant’s legal representatives.[10] He recorded an exhaustive summary of the medical evidence from the appellant’s treating medical providers. Relevant to the issues on appeal, Dr Gehr said that the appellant developed lower back pain in 2021 and complained of radiating pain down the right leg that appeared to him to be pain radiating up the leg from the foot and ankle region. He noted that the MRI scan of the lumbar spine and right hip dated 22 September 2022 showed mild lumbar spondylotic change with no evidence of neural impingement and that Dr Hsu proposed performing an L5/S1 decompression and fusion.
[10] ARD, pp 19–49.
Dr Gehr was of the opinion that the CRPS was not fully controlled and the appellant’s prognosis with respect to that condition was poor. He said that he had read the notes of Dr Hsu, in particular his notes dated 1 March 2023 and 31 May 2023, and expressed the view that he agreed with Dr Hsu’s “rationale and recommendations” for the decompression and fusion and that the surgery was reasonably necessary.
Dr Gehr reasoned that the proposed surgery was appropriate because all other non-operative alternate treatment had failed, the surgery had a 60 to 80% potential to be effective and was cost beneficial. Further, the proposed surgery was generally accepted by the medical profession. He considered that the appellant had no prospects of ever returning to work.
Dr David Hale, orthopaedic surgeon
Dr Hale was asked by the respondent to examine the appellant and provide an opinion as to whether the proposed surgery was reasonably necessary. He reported on 30 January 2023.[11] He took a detailed history of the right ankle injury and subsequent treatment. Dr Hale reviewed the report of Dr Calvin Chien, orthopaedic surgeon, and noted Dr Chien’s observations of the radiological investigations of the right ankle, the knee and the right hip, the development of a CRPS, and Dr Chien’s view that surgery to the right ankle should not be contemplated because of the presence of CRPS.[12]
[11] Reply to Application to Resolve a Dispute (reply), pp 34–43.
[12] Dr Chien’s report dated 10 October 2022, reply, pp 26–27.
Dr Hale reviewed the evidence of Dr Chow, who he noted was also reluctant to recommend surgery in the presence of CRPS, and who additionally considered that there may be a psychological component to the appellant’s chronic pain. Dr Hale assessed the appellant’s ongoing symptoms in the right ankle, the right wrist (which Dr Hale recorded as occurring when the appellant returned to alternate duties following the ankle injury) and lower back symptoms occasionally radiating into the buttock without “true” sciatica.
Dr Hale performed a physical examination. In relation to the lower back, he was of the view that the appellant’s lower back pain was, on the balance of probabilities, attributable to her altered gait. He added that the right hip pain was likely to have arisen from the lumbar spine.
Dr Hale provided a supplementary opinion dated 18 April 2023 in relation to the proposed lumbar surgery at the request of the respondent.[13] Dr Hale expressed the view that the proposed surgery was “not considered reasonable or necessary”.[14] He explained that the appellant had some lower back pain without evidence of sciatica or spinal canal stenosis, and that while the appellant received physiotherapy for her ankle, there had been no such treatment for her lumbar spine, and she did not have a home exercise program. He was of the view that non-operative treatment measures should be put in place before operative intervention and observed that there was no clinical indication for surgery, or any evidence that the surgery would offer the appellant considerable relief of her symptoms, it was likely that surgery would make the symptoms worse and could cause worsening of her CRPS.
[13] Reply, pp 44–46.
[14] Reply, p 44.
Dr Hale considered that physiotherapy, as well as other rehabilitation such as hydrotherapy, for a period of three to six months was indicated.
THE MEMBER’S REASONS
The Member noted that the sole issue in dispute was whether the proposed surgery was reasonably necessary. He reviewed the appellant’s statement evidence and summarised the medical evidence provided by Dr Hsu and Dr Gehr. He reproduced the findings on the MRI scan dated 20 September 2022 and summarised the submissions of both parties.
The Member referred to the decision of Roche DP in Diab v NRMA Ltd,[15] in which the Deputy President listed a number of heads for consideration in determining whether surgery is reasonably necessary. He noted that Dr Gehr had addressed those considerations, however, the Member observed that Dr Gehr had not based his conclusions on “any facts or reasons of his own, but rather on an adoption of Dr Hsu’s opinion.”[16]
[15] [2014] NSWWCCPD 72 (Diab).
[16] Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602 (reasons), [52].
The Member remarked that the history recorded by Dr Hsu as to the appellant’s lower back condition having resulted from the ankle injury was “parred down to the bare outline.”[17] He noted, however, the list of non-operative interventions that had been offered to the appellant.
[17] Reasons, [53].
The Member discussed the results of the bone scan performed on 9 December 2022 and Dr Hsu’s comments about the scan. The Member provided his own explanation of the medical terms used, including the diagnosis of arthritis. The Member said that he enquired of the appellant’s counsel as to how surgery would assist the condition of arthritis and that the appellant’s counsel indicated that the appellant relied upon the expert evidence. The Member pointed out that in Hancock v East Coast Timber Products Pty Ltd,[18] Beazley JA (as her Honour then was) observed (with Giles and Tobias JJA agreeing) that it was necessary for a party to establish that the expert evidence provides a satisfactory basis for the opinion reached. The Member quoted from the decision of the Court of Appeal in Brown v Lewis,[19] in which the Court of Appeal said that, while the plaintiff bears the onus of proof, in some cases, there can be a shifting of the evidentiary onus. The Member further quoted from my decision in Hernandez v State Rail Authority of NSW,[20] in which I observed that, where a party has failed to establish a prima facie case, it is not necessary for the respondent to adduce evidence to contradict the assertions made.
[18] [2011] NSWCA 11 (Hancock).
[19] [2006] NSWCA 87 (Brown v Lewis).
[20] [2022] NSWPICPD 5 (Hernandez).
The Member observed that Dr Hsu’s opinion on causation “did not appear to bear any relationship to the facts”,[21] in that Dr Hsu was of the view that the nature of the duties performed by the appellant was a substantial contributing factor to the lumbar condition, which was not the case brought by the appellant and was irrelevant to the question of the nature of the injury. The Member reasoned that:
“More significant, however, was Dr Hsu’s opinion that [the appellant’s] condition, subsequent incapacity and need for further surgical intervention was ‘due to the repetitive movements of bending, twisting and lifting’. This conclusion was not further developed, and no basis for it appears in the evidence. Firstly, [the appellant] was employed as a traffic controller, and there was no suggestion in the extensive evidence before me that it had anything to do with repetitive movements of bending twisting and lifting. Secondly, [the appellant’s] subsequent incapacity, as has been seen, was caused by a multitude of conditions that attended her ankle injury. They were referred to by Dr Gehr, and included CRPS around the right ankle, the onset of a psychological condition, and the restrictions caused by the ankle injury itself. Thirdly, the need for surgical intervention, as Dr Hsu said himself earlier in his report, was caused by the ‘significant back pain’ which had been caused by her ‘altered gait.’
There is thus an inconsistency within Dr Hsu’s opinion that cannot be resolved.”[22]
[21] Reasons, [62].
[22] Reasons, [63]–[64].
The Member referred to Dr Hsu’s report dated 4 July 2023, in which Dr Hsu advised that non-operative treatment had been exhausted and the purpose of the surgery was to alleviate the appellant’s significant symptoms which affected the appellant’s function and her “holistic well-being.”[23] The Member observed that Dr Hsu had not explained how the surgery would improve the appellant’s holistic well-being, when the lumbar condition was a consequence of the appellant’s right ankle injury and the development of CRPS.
[23] Reasons, [65].
The Member referred to the opinion of Dr Gehr, in which he noted that Dr Gehr simply agreed with the opinion of Dr Hsu. The Member reasoned that the unexplained rationale and “contradictions” in Dr Hsu’s opinion accordingly infected the opinion of Dr Gehr, so that Dr Gehr’s opinion should be afforded little probative weight. The Member added that Dr Gehr was clearly aware of the diagnosis of CRPS and that Dr Gehr was also aware of the opinion of Dr Chien dated 10 October 2022 that surgery should be avoided in the presence of CRPS. The Member said that Dr Gehr did not engage with that opinion, nor with the other co-morbid conditions present.
The Member referred to Dr Gehr’s response to the considerations set out in Diab and to Dr Gehr’s recommendation that the appellant discuss with Dr Hsu the indications for surgery, the likely outcome and potential risks. The Member considered that that evidence did not provide a wholehearted endorsement of Dr Hsu’s recommendation for surgery.
The Member concluded that he was not satisfied that the appellant had made out a prima facie case that the proposed surgery was reasonably necessary.
The Member indicated that, if that conclusion was wrong, he was in any event unpersuaded that the appellant had satisfied her onus of proof. He referred to the appellant’s evidence that she worked alternate duties over a period of four months on and off, working four hours per day, twice per week in or around May 2021 (a year after the injury), which was inconsistent with the history recorded by the appellant’s general practitioners, as well as her psychologist, Mr Carl Neilson, that following the injury, she continued to work on suitable duties. He said that the appellant’s evidence was also inconsistent with the list of compensation payments provided by the respondent. The Member observed that there was no contemporaneous expert evidence to support the appellant’s assertion, he would hesitate to accept her recall of events because it was unreliable.
The Member added that he was not persuaded that Dr Hsu’s list of the non-operative treatment was treatment offered in respect of the appellant’s lumbar spine condition. He referred to the opinion of Dr Assem dated 30 June 2022, in which the appellant requested Dr Assem to assess the appellant’s whole person impairment of the lumbar spine, but Dr Assem did not perform that assessment. The Member noted that there was a substantive report from Dr Assem that was not in evidence but was summarised by Dr Gehr in his report and made no mention of the lumbar spine condition, and described only the treatment offered in the context of the ankle injury and pain management.
The Member observed that in July 2020 Dr Standen noted the provision of the TENS machine, which was prior to the development of the lumbar condition and the appellant underwent an ultrasound on 26 August 2021, which was also unrelated to the lumbar condition. The Member added that he could not identify any evidence of the appellant undergoing an ultrasound or being provided with a TENS machine in respect of the lumbar condition. He also considered that there was a contradiction between the opinions of Dr Gehr and Dr Hsu in respect of the likely outcome of the surgery. That is, that Dr Hsu advised that the aim of the surgery was to achieve a return to pre-injury duties and improve her daily functioning, while Dr Gehr was of the view that the appellant’s working life was over.
The Member concluded that the appellant had failed to discharge the onus of proof and that there would be an award in favour of the respondent.
The Certificate of Determination issued on 9 November 2023 records:
“The Commission determines:
1. There is an award for the respondent.”
GROUNDS OF APPEAL
The appellant asserts that the Member’s decision was affected by error, as identified in the following grounds of appeal:
(a) Ground One: an error of mixed fact and law in that he misdirected himself by engaging in an unnecessary critical analysis of immaterial features of Dr Hsu’s report, instead of proceeding to determine the question of reasonably necessary surgery on the basis that there was no dispute that the appellant had a consequential condition affecting her back, and that the limited question for determination was whether surgery was reasonably necessary (i.e. whether it would provide relief for the appellant);
(b) Ground Two: an error of mixed fact and law in proceeding to reject the opinion of Dr Hsu on a basis not raised by the respondent, and not raised by the Member himself, thereby resulting in an outcome based upon an issue that was not brought to the attention of the parties, not ventilated, and having the effect that the appellant was deprived of the ability to address the undisclosed basis upon which the matter would be determined;
(c) Ground Three: an error of mixed fact and law in that he failed to find that the opinions relied upon by the appellant did establish a prima facie case in support of the need for surgery, thus requiring the Member to consider the merit, if any, of countervailing evidence tendered by the appellant;
(d) Ground Four: an error of mixed fact and law in failing to address and accept Dr Hsu’s opinion that the appellant had exhausted non-operative treatment, that the prognosis for surgery was good, and that the need for surgical intervention was to relieve her significant back pain, and to return her to pre-injury duties and improve function for activities of daily living;
(e) Ground Five: an error of mixed fact and law in dismissing Dr Gehr’s opinion as doing no more than agreeing with Dr Hsu’s “rationale and recommendations”;
(f) Ground Six: an error of mixed fact and law in failing to find that the weight of medical evidence, as constituted by the opinions of Dr Hsu and Dr Gehr, and the absence of any objective countervailing opinion, clearly supported the need for surgery, and
(g) Ground Seven: an error of mixed fact and law in failing to find that the L5/S1 surgery proposed by Dr Hsu was reasonably necessary as a result that the subject injury, and in failing to order the respondent to pay the costs of and incidental to such surgery.
LEGISLATION
Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
SUBMISSIONS
The appellant makes a raft of submissions “in reply” to the respondent’s submissions that raise further arguments to show that the Member was wrong and repeats her primary submissions made. Some of the submissions suggest that the appellant raises new grounds of appeal, namely that the Member erred by failing to take into account the evidence of Dr Standen. The opportunity to reply to submissions made is limited to addressing the respondent’s reply to the grounds of appeal raised. Only those submissions that fall within those parameters are therefore included in this summary.
The respondent did not address Ground Six of this appeal in its opposition, likely because of the confused manner in which the grounds of appeal were presented. The respondent was therefore given a further opportunity to make submissions in response to this ground. The respondent’s submissions were lodged on the day after they were due, citing administrative error as the reason for being out of time. In many circumstances, administrative error will not be an acceptable excuse for failing to comply with a timetable. However, given that the submissions were lodged only one day late, and in order to provide procedural fairness to the respondent, the time for lodgment of the submissions is extended to 18 October 2024.
As to Ground One
The appellant’s submissions
The appellant submits that there was no dispute that the appellant’s lumbar symptoms developed as a consequence of the altered gait caused by the right ankle injury, and it was accepted that the lumbar spine condition was therefore work-related. The appellant points out that the only issue for determination was whether the proposed surgery was reasonably necessary. The appellant submits that the factors to be considered are those set out by Roche DP in Diab, that is:
(a) whether the treatment was appropriate;
(b) the availability of alternate treatment and the effectiveness of that treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the proposed treatment, and
(e) the acceptance by medical experts that the treatment is appropriate and likely to be effective.
The appellant contends that the enquiry as to causation of the condition was irrelevant to those factors and was not warranted. The appellant says that because no such enquiry was necessary, the parties made no submissions going to the question of causation.
The appellant submits that the Member’s criticism of the evidence of Dr Hsu was based upon his consideration that “Dr Hsu’s opinion as to causation did not appear to bear any relationship to the facts”[24] and that Dr Hsu’s conclusion that the appellant’s duties were a substantial contributing factor to the development of the lumbar condition was irrelevant. The appellant asserts that, while the Member’s observations were correct, those matters bore no relevance to the question he was required to determine, which was whether the proposed surgery was reasonably necessary and would be effective in alleviating the appellant’s symptoms.
[24] Reasons, [62].
The appellant adds that, however the lumbar condition was caused, liability for it was accepted by the respondent, and the Member was required to determine whether the appellant’s lumbar condition could be relieved by the proposed treatment. The appellant says that Dr Hsu was aware that the lumbar condition was causally related to the right ankle injury when he noted that the appellant “was experiencing significant back pain due to altered gait” but the Member, while acknowledging that evidence, simply regarded Dr Hsu’s evidence as inconsistent. The appellant says that, in the context of the factors identified in Diab, any inconsistency is immaterial to the issue the Member was required to determine.
The appellant submits that the Member’s critical evaluation of the evidence of Dr Hsu was unnecessary and misdirected and resulted in a failure to provide a fair and objective determination of the issue before him. The appellant asserts that the Member’s observation that there were other conditions that were in play also had no relevance to the question for determination.
The respondent’s submissions
The respondent refers to Shellharbour City Council v Rigby[25] to say that, unless it can be shown that the Member’s finding was so against the weight of the evidence that it discloses error, the weight to be afforded to the evidence is a matter for the Member to decide.
[25] [2006] NSWCA 308.
The respondent asserts that the appellant does not suggest that the Member’s findings about the evidence of Dr Hsu were erroneous, so that those findings are not in issue. The respondent contends that, in any event, the Member did determine the ultimate question as to whether the proposed surgery was reasonably necessary in accordance with the factors to be considered as set out in Diab.
The respondent submits that the Member’s reasons should be read as a whole, without an over-zealous scrutiny searching for error.[26] The respondent points to the Member’s reasons at [72] to [85] and [66], which the respondent submits demonstrate that the Member did turn his mind to the ultimate issue, that is whether the surgery was reasonably necessary. The respondent says that, when the reasons are considered together, the Member’s observation that Dr Hsu did not explain how the proposed surgery would improve the appellant’s “holistic well-being”, shows that the Member was aware of what was ultimately required in determining the issue, in the context of the appellant’s symptoms being a consequence of the ankle injury and that she suffered from CRPS.
[26] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Department of Corrective Services v Bowditch [2007] NSWWCCPD 244.
The respondent adds that the Member’s analysis of the evidence of Dr Gehr and his reasons for rejecting Dr Gehr’s opinion at [67] further show that the Member gave consideration to the ultimate question he was required to determine. The respondent says that Dr Chien’s opinion that surgery should be avoided while the appellant suffered from symptoms of CRPS was a relevant consideration when determining whether the claimed surgery to the lumbar spine was reasonably necessary, even though Dr Chien was treating other areas of the appellant’s body. The respondent contends that it is relevant to consider the appellant’s other medical issues when determining whether the surgery to the lumbar spine was reasonably necessary.
The respondent submits that the Member’s analysis of Dr Gehr’s opinion at [68] to [70] of his reasons shows that the Member turned his mind to the ultimate question and was not satisfied that the surgery was reasonably necessary.
The respondent concludes that for those reasons, the Member’s analysis of Dr Hsu’s evidence does not show that the Member misdirected himself in the relevant manner.
The appellant’s submissions in reply
The appellant contends that the respondent’s assertion that the Member did reach a conclusion about the ultimate question for determination fails to recognise that the Member misunderstood the non-operative treatment that the appellant received, which had failed, and thus erred in his ultimate conclusion. The appellant relies upon her submissions already made that Dr Hsu’s opinion on causation was irrelevant to the issue in dispute.
The appellant submits that:
(a) the Member’s reasons at [72] to [80] involved no consideration of the appellant’s medical treatment;
(b) Dr Assem’s opinion, which was not in evidence but referred to by the Member at [72] of his reasons, did not contribute to the question of whether the proposed surgery would benefit the appellant;
(c) the reference to the evidence of Dr Gehr at [72] did not concern the need for surgery;
(d) the Member’s observation at [73] that Dr Standen had noted the use of a TENS machine in July 2020, which was “before any lumbar spine condition had developed,” and
(e) Dr Gehr’s evaluation of the evidence of Dr Standen was that Dr Standen had reported that:
(i)on 1 July 2020 that the appellant had approval for three lumbar sympathetic blocks;
(ii)on 8 July 2020, the appellant was given a right sided lumbar sympathetic block that morning;
(iii)on 29 July 2020, the appellant was given a second right sided lumbar sympathetic block, and
(iv)on 30 July 2020, the appellant was provided with a high-fidelity TENS machine,
all indicate that the respondent’s submissions and the Member’s conclusion were wrong.
The appellant asserts that the Member’s failure to understand the non-operative treatment the appellant received, and the limited opinion of Dr Hale that non-operative measures should be pursued before contemplating surgery, shows that the Member erred in concluding that the proposed surgery was not reasonably necessary.
As To Ground Two
The appellant’s submissions
The appellant asserts that the Member did not raise with the parties the relevance of the matters he included at [62] and [63] of his reasons or put the parties on notice that he intended to reject the opinion of the treating specialist because of the reasons given by him at [64] of his reasons. That is, that Dr Hsu’s evidence was inconsistent, and the inconsistency was incapable of being resolved. The appellant points out that the respondent did not advance that case, so that the Member determined the issue on a basis that was not raised in the hearing and not considered by the parties, resulting in a clear failure to afford procedural fairness.
The respondent’s submissions
The respondent submits that any error made by the Member is immaterial to the outcome of the appeal, and the appellant has failed to establish that the matters complained of, if set aside, would result in a different outcome.[27] The respondent asserts that the Member ultimately addressed the issue he was required to determine. The respondent says that even if the Member’s findings leading up to [72] of his reasons were erroneous, from then the Member provided an alternate basis for finding against the appellant which was not dependent upon the Member’s conclusions in respect of Dr Hsu’s evidence.
[27] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, [45] and Stead v State Government Insurance Commission [1986] HCA 54.
The respondent further submits that, in her submissions on the appeal, the appellant conceded that the Member’s rejection of Dr Hsu’s opinion was not erroneous.
The appellant’s submissions in reply
The appellant asserts that the respondent did not, at any time, submit that:
(a) the records relied upon by the appellant were so inconsistent in respect of the causation of the injury that the evidence should be rejected, or
(b) the inconsistency called into question the appellant’s credibility so that the whole of her evidence should be rejected.
The appellant submits that the “rejection [of the appellant’s case] offends the appellant’s right to procedural fairness.”[28] The appellant extensively quotes from my decision in Zurawski v Remondis Australia Pty Ltd,[29] and submits that the error in this appeal is identical to the error in that case and indicates that the Member’s decision should be revoked.
As to Ground Three
[28] Appellant’ submissions in reply, [37].
[29] [2022] NSWPICPD 28.
The appellant’s submissions
The appellant refers to the Member’s conclusion as to the “inconsistency” of Dr Hsu’s evidence and the Member’s further criticism of Dr Hsu’s reference to the expression “holistic well-being”, which the Member considered was unexplained in the context of the lumbar spine being a consequence of the ankle injury and the presence of CRPS. The appellant submits that the Member’s criticism presents a further misdirection in that Dr Hsu observed that the appellant had significant symptoms affecting her function and holistic well-being, which the appellant says is an uncontroversial observation in the context of the appellant’s ankle condition, CRPS, psychological issues and lumbar pain. The appellant asserts that it is obvious that, if the appellant’s lumbar pain is relieved, it would improve her “holistic well-being.” The appellant contends that it could not be suggested that the surgery to the appellant’s lumbar spine would relieve the ankle symptoms or the CRPS so that comprehensive well-being would be achieved.
The appellant submits that the Member’s conclusion that Dr Hsu had not explained his rationale and that the rationale was contradictory was unfounded. The appellant says that it is unclear whether that conclusion was reached on the basis of the Member’s misdirected reasoning in relation to the questions of causation or his comments in relation to the expression “holistic well-being.” The appellant says that, either way, those matters do not contribute to whether there was a good prognosis for the surgery.
The appellant asserts that the Member failed to explain whether, or why, he did not accept that there would be a good outcome.
The appellant points out that Dr Hsu reported that the appellant had exhausted non-operative treatment, and that Dr Hsu advised that the aim of the surgery was to assist the appellant in returning to pre-injury duties and improve function and submits that the Member did not acknowledge or address that evidence and failed to make any findings that the surgery would not be beneficial. The appellant asserts that it is very relevant that the Member did not reach his conclusion on an evaluation of the medical evidence of both parties, and simply dismissed the appellant’s claim on the erroneous and misconceived basis that no weight could be afforded to the opinion of Dr Hsu. The appellant contends that the Member rejected the evidence of Dr Hsu for reasons not related to the factors identified in Diab that are to be taken into account, and then proceeded to reject Dr Gehr’s evidence because Dr Gehr had simply agreed with Dr Hsu’s “rationale and recommendations”. The appellant submits that the Member’s rejection of Dr Hsu’s evidence was unfounded, so that his reasons for rejecting the opinion of Dr Gehr compounded that error.
The appellant asserts that on a fair reading of the evidence of Dr Hsu and of Dr Gehr, the appellant clearly has established a prima facie case, and whether the case could be sustained on the balance of probabilities required a consideration of all of the countervailing evidence. The appellant submits that the Member failed to engage in any evaluation of the respondent’s evidence and it was erroneous for the Member to consider that he could determine the matter by concluding that he was satisfied that the appellant had failed to establish a prima facie case.
The respondent’s submissions
The respondent adopts his submissions already made that the appeal should fail because the Member’s alternate finding is not subject to challenge, and provides a proper basis for the Member’s conclusions. The respondent asserts that, taking into account the Member’s reasons as a whole, the Member addressed the ultimate issue of whether the proposed surgery was reasonably necessary. The respondent says that the appellant’s submissions in relation to the Member’s consideration of the expression “holistic well-being” ought not to be accepted and the Member’s reasons do not disclose that he misdirected himself.
The respondent reproduces [66] of the Member’s reasons, in which the Member observed that Dr Hsu did not explain the phrase “holistic well-being” in the context of the appellant’s right ankle injury and her CRPS. The respondent submits that that reasoning shows that the Member was alive to the issue before him, what the surgery was aiming to treat and what it would ultimately achieve, which were issues relevant to whether the Member reached a state of satisfaction that the proposed surgery was reasonably necessary.
The respondent submits that the Member explained why he did not accept that non-operative treatment options were exhausted and says that the appellant’s submissions that the Member failed to consider whether the surgery would achieve the outcome described by Dr Hsu should be rejected. The respondent contends that:
(a) the Member’s failure to find in favour of the appellant was not entirely based on the reasons complained about by the appellant;
(b) the Member did not reject Dr Gehr’s opinion solely because Dr Gehr agreed with Dr Hsu’s “rationale and recommendations”, and
(c) when reading the actual reasons for the Member’s conclusion that the appellant had not established a prima facie case, the reasons disclose that the Member’s finding was not erroneous.
The appellant’s submissions in reply
The appellant says her complaint is that the Member erred by focussing on parts of the report of Dr Hsu that were not relevant to the issue to be determined and by rejecting the opinion of Dr Gehr.
The appellant refers to the respondent’s argument that the Member did ultimately determine the issue of the proposed surgery and submits that that argument fails to acknowledge that the Member did not understand the non-operative options that were provided to the appellant. The appellant submits that the Member’s failure to accept Dr Hsu’s evidence that non-operative options were exhausted was erroneous.
The appellant refers to the respondent’s allegation that the alternate findings of the Member are not challenged in the appeal and provide an adequate basis for the Member’s conclusions reached. The appellant submits that she has alleged error on the part of the Member in his finding at [71] that she had not made out a prima facie case, which is a clear challenge to the Member’s conclusion.
The appellant further refers to her allegations of error on the part of the Member in respect of his consideration of the phrase “holistic well-being” and submits that the challenge is made that the Member failed to engage with the evidence of Dr Hsu, and there was no evidence that the surgery would not contribute to the improvement of the appellant’s function.
As to Ground Four
The appellant’s submissions
The appellant relies upon her submissions made under Ground Three.
The respondent’s submissions
The respondent indicates that it also relies on submissions made under Ground Three. The respondent contends that the Member did address Dr Hsu’s opinion and did address all of the matters referred to by the appellant and if any parts of the Member’s determination were erroneous, the errors were immaterial to the outcome of the matter.
The appellant’s submissions in reply
The appellant repeats her submissions as to the Member’s misunderstanding and rejection of Dr Hsu’s opinion and failure to refer to the evidence of the various non-operative treatment undertaken in respect of the appellant’s lumbar spine. The appellant reiterates that those matters indicate that the Member erred and submits that there was no evidentiary basis to conclude other than that the proposed surgery would relieve the appellant’s back symptoms.
As to Ground Five
The appellant’s submissions
The appellant submits that it is apparent from Dr Gehr’s report that Dr Gehr, who held the requisite training and expertise as a specialist, reviewed all of the available evidence, and particularly the evidence of Dr Hsu. The appellant contends that, in those circumstances, it was open for Dr Gehr to express agreement with Dr Hsu’s “rationale and recommendations”. The appellant points out that Dr Gehr specifically addressed the factors set out in Diab, so that the Member was in error to dismiss the opinion of Dr Gehr on the basis that he simply agreed with Dr Hsu. The appellant says that the Member did not consider Dr Gehr’s conclusions as a whole.
The appellant adds that the Member misdirected himself when he criticised Dr Gehr for failing to take into account that Dr Chien opined that surgery should be avoided. She says that a proper evaluation of Dr Chien’s report and opinion shows that he was treating the appellant for her ankle injury and the CRPS, he made no mention of the lumbar spine and, when expressing that view, he was referring to surgery to the ankle.
The appellant asserts that the conclusion reached by the Member that she had not made out a prima facie case shows that the Member failed to take into account the proper expert medical foundation provided by both Dr Hsu and Dr Gehr. The appellant refers to the authorities of:
(a) Beale v Government Insurance Office,[30] in which Meagher JA said that the decision-maker’s reasons should expose a consideration of all the evidence and why the relevant factual findings were made;
(b) Whiteley Muir & Zwanenberg Ltd v Kerr,[31] where Barwick CJ observed that a factual error will be made out in circumstances where material facts were overlooked, or given too little weight, or the available inference in the opposite sense to that arrived at by the decision-maker is so preponderant that the appellate court is of the opinion that the decision is wrong;
(c) Craig v The State of South Australia,[32] in which the High Court noted that an administrative tribunal will fall into an error of law if it identifies a wrong issue, asks itself the wrong question or ignores relevant material, and
(d) Minister for Immigration and Multicultural Affairs v Yusuf,[33] where the plurality confirmed that if the decision-maker identifies a wrong issue, asks a wrong question, or relies upon irrelevant material, if it affects the exercise of power it constitutes an error of law.
[30] (1997) 48 NSWLR 430.
[31] (1966) 39 ALJR 505 (Whiteley Muir).
[32] [1995] HCA 58.
[33] [2001] HCA 30.
The respondent’s submissions
The respondent submits that the Member did grapple with Dr Gehr’s opinion and provided reasons for his conclusions. The respondent says that the Member did not simply base his findings on the fact that Dr Gehr agreed with Dr Hsu and submits that the appellant’s allegation of error should not be accepted.
The respondent submits that Dr Chien’s opinion that surgery should be avoided in the context of the presence of CRPS was a relevant consideration in the determination of whether the surgery to the lumbar spine was reasonably necessary. The respondent says that the fact that the surgery referred to by Dr Chien related to the appellant’s right ankle is beside the point because it questioned the advisability of surgery where CRPS was present.
The respondent indicates that, even if Dr Chien’s evidence was not accepted, there was an absence of any consideration by a medico-legal specialist addressing whether the presence of CRPS would impede a successful outcome for the proposed surgery, when such evidence would have been expected.
The respondent asserts that the appellant’s submission that, when finding that the appellant had not established a prima facie case, the Member failed to acknowledge the evidence of Dr Hsu and Dr Gehr should be rejected, as well as the other allegations of error made under this ground.
The appellant’s submissions in reply
The appellant submits that Dr Gehr’s conclusions that he agreed with Dr Hsu and considered the surgery was reasonably necessary were reached after Dr Gehr provided an exhaustive review of the history recorded and of the records of the treating practitioners, and there was no substantive basis upon which to reject the opinion of Dr Gehr. The appellant asserts that the respondent’s reliance upon the evidence of Dr Chien was misplaced, given that Dr Chien did not treat the appellant’s lumbar spine and did not make any reference to the appellant’s lumbar symptoms.
As to Ground Six
The appellant’s submissions
The appellant submits that the Member failed to give regard to the evidence of the respondent’s medical expert, Dr Hale. The appellant says that in those circumstances the weight of the evidence considered by the Member wholly supported her claim and ought to have been accepted.
The appellant asserts that, had the Member considered the evidence of Dr Hale, he should have found that evidence deficient for the reasons given by the appellant in her submissions to the Member at the arbitration hearing, and ought to have preferred the opinions of Dr Hsu and Dr Gehr. The appellant contends that there was no objective medical evidence to support the notion that the proposed surgery was not reasonably necessary.
The respondent’s submissions
The respondent submits that because the appellant has not made out a prima facie case, it is not necessary for it to adduce evidence to contradict the appellant’s assertions, citing Hernandez. The respondent says that the Member was therefore not required to consider the evidence of Dr Hale, however, maintains that the Member did consider Dr Hale’s evidence, which was not favourable to the appellant’s case. The respondent reiterates that in any event, the Member found against the appellant on an alternate basis which was not dependent upon the Member’s treatment of the evidence from Dr Gehr and Dr Hsu. The respondent asserts that the Member was not required to take into account Dr Hale’s opinion or to make a finding that he preferred that evidence over the evidence of Dr Hsu and Dr Gehr in circumstances where the appellant failed to establish her onus of proof. The respondent refers to [73] to [82] of the Member’s reasons, and submits that, in any event, those reasons show that the Member took into account a broader consideration of the medical evidence, including the evidence of Dr Assem, and not the limited approach asserted by the appellant.
The appellant’s submissions in reply
I considered that it was not necessary to delay the matter by entertaining further submissions from the appellant. The appellant has therefore not responded to the respondent’s submissions.
As to Ground Seven
The appellant’s submissions
The appellant asserts that the error relied upon is the culmination of the errors the subject of Grounds One to Ground Five.
The respondent’s submissions
The respondent assumes that this ground of appeal alleges error on the part of the Member on the basis of the purported errors identified in the five grounds already addressed. The respondent indicates that it therefore relies upon its submissions already made in respect of those grounds.
The appellant’s submissions in reply
The appellant reiterates that the submissions made in respect of the first five grounds of appeal disclose error on the part of the Member, culminating in his failure to find that the proposed surgery was reasonably necessary as a result of the injury and in his failure to order the respondent to pay the costs of the surgery.
THE RELIEF SOUGHT
The appellant seeks:
(a) an order that the Member’s Certificate of Determination dated 9 November 2023 is set aside;
(b) a finding that the surgery proposed by Dr Hsu is reasonably necessary as a result of the right ankle injury dated 2 May 2020 and the development of the lumbar symptoms as a consequence of the right ankle injury, and
(c) an order that the respondent pay the costs of and incidental to the surgery proposed by Dr Hsu pursuant to s 60 of the 1987 Act.
The respondent submits that the Member’s decision should be confirmed, but if the appeal succeeds then the Presidential Member should in any event find against the appellant on the basis of the alternate findings made by the Member.
CONSIDERATION
It is convenient to deal firstly with the second and third grounds of appeal, which rely upon an allegation that the appellant was denied procedural fairness by the Member deciding the matter on a different basis than on the issues raised and addressed during the proceedings, without providing the parties with the opportunity to make submissions about that evidence, leading to the Member’s conclusion that the appellant had not made out a prima facie case.
Ground Two: an error of mixed fact and law in proceeding to reject the opinion of Dr Hsu on a basis not raised by the respondent, and not raised by the Member himself, thereby resulting in an outcome based upon an issue that was not brought to the attention of the parties, not ventilated, and having the effect that the appellant was deprived of the ability to address the undisclosed basis upon which the matter would be determined, and
Ground Three: an error of mixed fact and law in that he failed to find that the opinions relied upon by the appellant did establish a prima facie case in support of the need for surgery, thus requiring the Member to consider the merit, if any, of countervailing evidence tendered by the appellant
The Member summarised the evidence of Dr Hsu[34] and the appellant’s submissions about Dr Hsu’s evidence.[35] He further summarised the respondent’s submissions.[36] His summaries of the submissions accorded with the submissions recorded in the transcript of proceedings. The basis upon which the Member rejected the opinion of Dr Hsu was that Dr Hsu gave an inconsistent history of the causation of the lumbar spine. In doing so the Member quoted from Brown v Lewis and Hernandez, in which the onus of proof and the necessity to establish a prima facie case were respectively discussed. The Member also quoted from Hancock, in which Beazley JA (Giles and Tobias JJA agreeing) said:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence …”.[37]
[34] Reasons, [14]–[19].
[35] Reasons, [39]–[43].
[36] Reasons, [47]–[49].
[37] Hancock, [82].
The Member observed that the conclusion reached by Dr Hsu as to causation of the lumbar symptoms and as to whether the employment was a substantial contributing factor to the symptoms bore no relationship to the facts, and that inconsistency could not be resolved.
The prospect that the Member would reject the opinion of Dr Hsu on the basis that his opinion on causation was inconsistent was not raised by the respondent and was not the subject of submissions made. In those circumstances, it was a matter that should have been raised by the Member in order for the parties to make submissions. In Seltsam Pty Ltd v Ghaleb,[38] Ipp JA (with Mason P agreeing) reviewed the relevant authorities as to the obligations of a decision-maker in such circumstances and said:
“These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis, he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.”[39]
[38] [2005] NSWCA 208 (Ghaleb).
[39] Ghaleb, [78].
Deputy President Roche applied the same principles in Inghams Enterprises Pty Ltd v Jones,[40] observing that while the Member was not required to decide a case solely on the basis of the submissions put, if the Member decided the case on a basis that was never argued by a party and without giving the party the opportunity to be heard, it was a breach of the basic rules of fairness and could amount to an error of law.
[40] [2012] NSWWCCPD 17, [82]–[84].
An error in the form of a denial of procedural fairness constitutes an error of law and must be corrected unless it could not possibly have affected the outcome.[41] It is readily apparent that the appellant was denied procedural fairness by the Member failing to draw the attention of the parties to the likelihood that he would reject the evidence of both Dr Hsu and Dr Gehr on the basis expressed by him and thus the appellant had not made out a prima facie case. It is therefore necessary to consider whether the erroneous findings could not possibly have affected the outcome of the appellant’s case.
[41] Toll Pty Ltd v Morrissey [2008] NSWCA 197, [10].
The respondent argues that even if the Member’s rejection of the evidence because it was based on an incorrect history of causation was wrong, it would make no difference to the outcome because the Member proceeded to determine the matter on an alternate basis, which was the issue the Member was required to determine. It is necessary therefore to consider whether the Member’s alternate determination that the evidence was insufficient to show that the treatment was reasonably necessary was erroneous. That exercise requires a consideration of Grounds Four and Five of the appeal.
Ground Four: an error of mixed fact and law in failing to address and accept Dr Hsu’s opinion that the appellant had exhausted non-operative treatment, that the prognosis for surgery was good, and that the need for surgical intervention was to relieve her significant back pain, and to return her to pre-injury duties and improve function for activities of daily living
The Member’s finding that he was not satisfied that the surgery was reasonably necessary was a finding of fact. The principles that apply in respect of establishing an error in the fact-finding process of a primary decision maker are well settled. Those principles, stated by Barwick CJ in Whiteley Muir, have been consistently applied in the Commission. Applying those principles, the Member’s preference for some evidence over the other cannot be disturbed unless other probabilities so outweigh those chosen by the Member that the decision must be wrong. As Allsop J (as his Honour then was) observed in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[42]
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
[42] [2001] FCA 1833, [28].
The Member acknowledged Dr Hsu’s evidence as to the non-operative treatment provided to the appellant, including physiotherapy, the use of a TENS machine and previous spinal injections. As the Member pointed out, Dr Hsu advised that non-operative treatment had been exhausted and the intention of the surgery was to improve the appellant’s functioning and the appellant’s “holistic well-being”. The Member considered that it was unexplained how such proposed surgery would benefit the appellant in the context of her ankle injury and consequent CRPS. Clearly, Dr Hsu was of the view that the surgery had the potential to be beneficial by alleviating the lumbar symptoms. He did not assert that it would alleviate the symptoms in the right ankle or those flowing from the CRPS. Any impact that the “context” had was not clarified by the Member.
In rejecting Dr Hsu’s opinion, the Member was not satisfied that the non-operative treatment referred to by Dr Hsu related to the appellant’s lumbar spine condition. The Member referred at length to a summary by Dr Gehr of Dr Assem’s substantive report dated 3 June 2022, which apparently did not address the lumbar symptoms and was not in evidence. Dr Assem’s assessment of the appellant’s whole person impairment of the same date was in evidence, but did not refer to the lumbar spine. The Member noted that the summary of Dr Assem’s opinion referred to the provision of physiotherapy and psychological counselling. Presumably the Member was of the view that because the lumbar symptoms were not mentioned, those treatment regimes were not referrable to the lumbar spine. In the absence of direct evidence from Dr Assem, I do not accept that that conclusion could be reached. In any event, there was uncontroversial evidence from Dr Gehr that Dr Standen had reported that:
(a) on 1 July 2020 the appellant had approval for three lumbar sympathetic blocks;
(b) on 8 July 2020, the appellant was given a right sided lumbar sympathetic block that morning;
(c) on 29 July 2020, the appellant was given a second right sided lumbar sympathetic block, and
(d) on 30 July 2020, the appellant was provided with a high-fidelity TENS machine.
In addition, the evidence shows that the appellant had undergone a bone scan, was treated by a pain management specialist (Dr Standen), the lumbar injections in July 2020 caused a flare of her lumbar symptoms and the appellant was receiving physiotherapy for her lumbar symptoms. According to Dr Standen, despite that treatment, the appellant was making no medical progress.
The Member rejected the notion that the TENS machine was intended to treat the lumbar spine because the TENS machine was prescribed prior to the complaints of lumbar symptoms. In the light of the summary by Dr Gehr of Dr Standen’s evidence, that conclusion was clearly wrong. Dr Hsu, as the appellant’s treating specialist, was in a good position to be able to advise of the treatment that was provided. However, even if the Member was correct in his conclusion that the TENS machine was not offered to treat the lumbar symptoms, that does not provide a proper basis for the Member to conclude that he “was not persuaded that the non-operative treatment listed by Dr Hsu was in relation to [the appellant’s] lumbar spine condition.”[43] A number of other treatment modalities were described by Dr Hsu, which were plainly provided for treatment of the lumbar spine, and Dr Standen confirmed that the appellant was making no medical progress.
[43] Reasons, [81].
The only medical opinion contrary to that of Dr Hsu was Dr Hale, who considered that non-operative treatment should be pursued. He nominated pain management, physiotherapy, and hydrotherapy. The appellant gave evidence that she did trial hydrotherapy. The appellant was already consulting Dr Standen, the pain management specialist, who confirmed that the appellant should “continue” with physiotherapy and noted that the appellant’s treating orthopaedic surgeon for her right knee symptoms had advised against hydrotherapy because of those symptoms.
The Member further observed that the phrase “holistic well-being” used by Dr Hsu was not explained, so that the benefit of the surgery was unclear, and Dr Hsu’s opinion that the surgery would enable the appellant to return to work was inconsistent with that of Dr Gehr. The “inconsistency” was that Dr Hsu was of the view that the surgery could enable the appellant to return to pre-injury duties whereas Dr Gehr opined that the appellant would never return to her pre-injury work. Differing views as to whether the appellant could or could not resume pre-injury duties post-surgery is not a determinative factor in assessing whether the surgery is reasonably necessary. Medical specialists may differ in their opinions as to why the surgery is reasonably necessary but that does not suggest that their evidence is “inconsistent” or that the evidence as a whole is insufficient to satisfy the test of “reasonably necessary” required by s 60 of the 1987 Act. In Diab, after listing the factors identified by Burke CCJ in Rose v Health Commission (NSW)[44] as relevant to the question, Roche DP observed:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’.”[45]
[44] [1986] NSWCC 2.
[45] Diab, [89]–[90].
When considered together, the evidence of Dr Hsu, Dr Gehr, Dr Standen and the appellant, when weighed against the evidence of Dr Hale, provided overwhelming evidence that the appellant had exhausted non-operative treatment options, and the proposed surgery was reasonably necessary. On that basis there was no foundation for dismissing Dr Hsu’s view that non-operative treatments had been exhausted and the surgery was reasonably necessary. The Member erred in so doing
It follows that the Member’s rejection of Dr Hsu’s evidence on the basis set out by the Member was erroneous, and Ground Four of the appeal is made out.
Ground Five: an error of mixed fact and law in dismissing Dr Gehr’s opinion as doing no more than agreeing with Dr Hsu’s “rationale and recommendations”
The appellant asserts that the Member erred in rejecting Dr Gehr’s opinion. The appellant submits that Dr Gehr, as a qualified specialist with the requisite training and experience, gave thorough consideration to all of the available evidence and considered the factors identified in Diab, before he expressed agreement with Dr Hsu’s reasons for recommending surgery. She submits that Dr Gehr was entitled to arrive at his opinion that he agreed with Dr Hsu in those circumstances. The appellant further asserts that the Member misdirected himself when he criticised Dr Gehr for failing to take into account Dr Chien’s view that surgery was contraindicated.
As the appellant submits, Dr Chien’s view that surgery should be avoided was in respect of any proposed surgery to the right ankle, which was compromised by the CRPS condition. Dr Gehr reviewed the evidence of Dr Chien. If the Member was of the belief that the surgery the subject of Dr Chien’s opinion was the proposed lumbar surgery, or any surgery other than surgery to the right ankle, then, on a proper reading of Dr Chien’s report, he was clearly mistaken. If the Member thought that Dr Chien’s observation that the CRPS condition would impact the potential benefit of any ankle surgery was relevant to the consideration of the lumbar surgery, there was no medical evidence to explain that notion, other than Dr Hale’s vague unexplained assertion that the lumbar surgery may affect the CRPS. In the absence of such medical explanation, it was not open to the Member to reject Dr Gehr’s opinion on the basis that Dr Gehr failed to take Dr Chien’s evidence into account.
In the context of Dr Gehr’s thorough consideration of the evidence, including the radiological evidence, the history recorded by him and his examination of the appellant, it cannot be said that Dr Gehr “did no more than agree”[46] with the opinion of Dr Hsu.
[46] Reasons, [67].
It follows that Ground Five of the appeal succeeds.
CONCLUSION
Ground Two of the appeal establishes that the Member failed to provide the appellant with procedural fairness by determining that Dr Hsu’s evidence could not be accepted, without having given the parties an opportunity to address any new or changed issues that may arise. Had the Member provided that opportunity, no doubt the appellant would have raised the very valid submissions she makes on appeal. That is, that Dr Hsu’s opinion that the lumbar condition resulted from the nature of the appellant’s work, which must be taken in the context of Dr Hsu’s later observation that the lumbar condition resulted from her altered gait, was not at all relevant to the question of whether the proposed surgery to the lumbar spine was reasonably necessary. Dr Hsu’s opinion as to whether the surgery was reasonably necessary is material evidence in the appellant’s case. Thus, the Member deprived the appellant of the possibility of a successful outcome. It follows that Grounds Two and Three of the appeal succeed.
The Member’s alternate reasons for rejecting both Dr Hsu’s evidence and that of Dr Gehr, discussed under Grounds Four and Five, are erroneous, so that those conclusions are also infected with error. The respondent’s argument that the failure to provide procedural fairness could not possibly result in a different outcome because there were other reasons to support the Member’s determination is defeated. Given the errors identified under Grounds Two, Three, Four and Five, it is not necessary to consider the remaining grounds of appeal. The Member’s determination that there be an award for the respondent is revoked and the dispute requires re-determination.
Section 352(6A) of the 1998 Act provides that the decision may be revoked, and a new decision can be made in its place. Section 352(5) of the 1998 Act limits the capacity of the Presidential Member to correction of the error. The re-determination of this dispute requires a consideration of the evidence and the weight to be afforded to the available evidence. While these are matters that generally fall within the scope of a primary decision-maker, in the circumstances of this dispute, I consider it appropriate that I re-determine the dispute rather than remit the dispute to a different non-Presidential Member for re-determination.
RE-DETERMINATION
The determination of the dispute involves a consideration of the medical evidence, which is summarised by me above in the appeal. I have read the transcript of proceedings and noted the submissions made by the parties.
The single issue for determination is whether the surgery proposed by Dr Hsu was reasonably necessary. It is convenient to again identify the factors to be considered as summarised by Roche DP in Diab, as follows:
(a) whether the treatment was appropriate;
(b) the availability of alternate treatment and the effectiveness of that treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the proposed treatment, and
(e) the acceptance by medical experts that the treatment is appropriate and likely to be effective.
It is important to note that those factors are not exhaustive. Roche DP added that although the effectiveness of treatment is relevant, it is not determinative and that while all surgery carries a risk, a poor outcome does not necessarily mean that the treatment was not reasonably necessary.
The appellant relied upon the evidence of Dr Hsu contained in his various reports, in which Dr Hsu explained that the appellant had exhausted conservative treatment, which included bed rest, physiotherapy, medication, the application of a TENS machine, hot and cold packs, and a spinal injection. Dr Hsu opined that there was a reasonable chance of a successful fusion, and the aim was to improve the appellant’s function and well-being.
The appellant also relied upon the evidence of Dr Gehr, who thoroughly reviewed the available medical evidence, including the radiological evidence, before expressing the view that he agreed with Dr Hsu’s “rationale and recommendations.” Dr Gehr also addressed the relevant factors set out in Diab, and concluded as follows:
(a) the proposed surgery was appropriate because all other treatment measures had failed;
(b) the surgery had a 60% to 80% potential to be effective;
(c) the surgery was cost beneficial, and
(d) the surgery was generally accepted by the medical profession.
As the appellant pointed out, both Dr Gehr and Dr Hsu considered the MRI scan results and those of the bone scan.
The respondent relied upon the evidence of Dr Hale, pointing out that Dr Hale was of the view that the appellant should be treated by way of conservative measures, nominating physiotherapy and hydrotherapy, and that Dr Hale said that surgery was not appropriate and not within the “range of treatments that would be classified as being reasonably necessary”.[47] The respondent submitted that while it was evident that the appellant was provided with physiotherapy, the evidence did not disclose that the physiotherapy was in respect of lumbar symptoms. The respondent pointed to an entry in Dr Lim’s clinical notes recorded by Ms Parcio-Cook, physiotherapist, who noted on 12 September 2022 that the appellant complained of lumbar symptoms, however, the respondent said, the treatment provided consisted of nerve blocks and ketamine injections, which were not treatment for the lumbar spine.
[47] Transcript of proceedings (T), Thomson v Civforce Traffic Management Pty Ltd [2023] NSWPIC 602, T12.24–28.
The respondent conceded that Dr Standen’s evidence suggested that the appellant had undergone “some similar form of treatment with respect to the lumbar spine as well.”[48]
[48] T13.30–32.
The respondent also referred to a letter from Dr Hsu to Dr Lim dated 15 February 2023 in which Dr Hsu wrote:
“I have reviewed [the appellant] in follow-up today via telehealth conference (February 15, 2023) regarding her radiographic and clinical findings.
[The appellant] has undergone the L5-S1 injection which only gave her temporary relief and she is now very keen to proceed with surgical intervention. The surgery will likely be in the form of an L5-S1 decompression and fusion.
I have asked [the appellant] to return to see yourself to discuss the option of surgical intervention or trial of any further non-operative treatment options. Once the decision has been made that she has exhausted non-operative treatment then I would like to review her for a face to face consultation to discuss surgery in more detail.
I will keep you informed of her progress.”[49]
[49] ARD, p 88.
I note that Dr Hale’s rationale for concluding that the surgery was not “reasonable or necessary” (which was conceded to be the wrong test), was that:
(a) conservative treatment of pain management, physiotherapy and hydrotherapy should be pursued for a period of three to six months before surgery should be considered;
(b) there was no evidence that the surgery would provide “considerable” relief;
(c) there was no clinical indication for surgery, and
(d) surgery was likely to make her symptoms worse and could aggravate her CRPS.
The appellant had attended a pain management specialist, Dr Standen, for a considerable period of time and it is clear from her report dated 4 August 2023 that she was treating the appellant in respect of her lumbar spine and that, in that context, she advised that the appellant should continue physiotherapy. Her evidence also provides a reason as to why hydrotherapy was not suitable. Surprisingly, the appellant relied upon only that one report from Dr Standen. In a letter from the respondent dated 15 June 2023 in which the respondent reviewed its decision to deny liability for the proposed surgery, the respondent referred to reports from Dr Standen dated 13 February 2023 and 17 April 2023. The respondent indicated that Dr Standen expressed the view that the “spinal pathology [was] amenable for lumbar fusion surgery” and reported that a number of non-operative treatment strategies were offered to assist with improvement in symptoms “whilst spinal surgery is pending.”[50] Neither of those reports, which may have provided direct evidence relevant to the issue in this case, were in evidence. In any event, Dr Standen’s evidence in her report dated 4 August 2023 is sufficient to show that the non-operative treatments recommended by Dr Hale, as well as other treatment regimes directed to her lumbar symptoms, were either already in place or not suitable.
[50] AALD, pp 14–18.
I do not accept the respondent’s argument that the conservative treatment identified by the respondent and referred to by Dr Hsu was not treatment directed to the lumbar spine. Dr Hsu, who was the appellant’s treating specialist dealing solely with the lumbar complaints, was in the best place to identify the treatment provided and there was no probative evidence, other than a vague history recorded by Dr Hale at consultation on 23 January 2023 that physiotherapy for lumbar symptoms had not been provided, which was clearly incorrect. It can be inferred that Dr Standen, when referring to the lumbar symptoms, confirmed that physiotherapy should continue. Further, Dr Gehr, who had exhaustively considered the medical material available, also was of the view that conservative treatment options had failed to provide relief.
The benefit of undergoing surgery does not have to reach the bar of “considerable” relief, as Dr Hale expressed it. While Dr Hale considered that there was no clinical indication for surgery and that surgery could cause worsening of the condition, Dr Hale did not explain his position and expressed that view without the benefit of an evaluation of the radiological evidence, which both Dr Hsu and Dr Gehr had both considered. Dr Hale further did not explain how surgery to the lumbar spine might exacerbate the appellant’s CRPS. Dr Hale’s opinion rested on the premise that in his view, the lumbar symptoms would resolve. That opinion was contrary to the predominant medical opinion that the recommended surgery is the appellant’s best option, and particularly the evidence of Dr Standen that the appellant was making no medical progress with conservative measures.
On the basis of the above, and the evidence of Dr Hsu, Dr Gehr and Dr Standen, I conclude that the opinion of Dr Hale is against the weight of the evidence in favour of the appellant having the opportunity to undergo the proposed surgical intervention and, on the balance of probabilities, the proposed surgery is reasonably necessary as a result of the injury.
DECISION
The appellant is directed to advise the Commission in writing that the Election to Discontinue the proceedings dated 10 July 2024 is withdrawn.
The time for the respondent to lodge submissions in respect of Ground Six of the appeal is extended to 18 October 2024.
The Member’s Certificate of Determination dated 9 November 2023 is revoked.
The respondent is to pay the costs of and incidental to the surgery proposed by Dr Brian Hsu in the form of an L5/S1 spinal decompression and fusion in accordance with s 60(1) of the Workers Compensation Act 1987.
Elizabeth Wood
DEPUTY PRESIDENT
31 October 2024
0
18
0