Tiyce v R & B Steel Supplies

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tiyce v R & B Steel Supplies [2024] NSWPIC 578
APPLICANT:	Brett Tiyce
RESPONDENT:	R & B Steel Supplies
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	17 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim pursuant to section 60 for the costs of anterior cervical discectomy and fusion at C3/4, C4/5 and C5/6 levels, and ancillary expenses; respondent’s independent medical examiner supported surgery at C5/6 level only; respondent disputed that surgery was reasonably necessary and that alternative treatment had been considered or trialled; Diab V NRMA Ltd, and Rose v Health Commission (NSW) considered; Held – evidence of treating specialist and applicant’s independent medical examiner preferred over evidence of respondent’s independent medical examiner; award for the applicant for the costs of anterior cervical discectomy and fusion at C3/4, C4/5 and C5/6 levels, and ancillary expenses.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 for the cost of anterior cervical discectomy and fusion at C3/4, C4/5, and C5/6 levels, as proposed by Dr Sudipto Pal, plus the cost of assistant surgeon, anaesthetist, hospital expenses, and post-rehabilitation expenses. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Brett Tiyce (Mr Tiyce), was employed by the respondent, R & B Steel Supplies, as a welder.
Mr Tiyce has sustained injuries to his left shoulder, right shoulder, and cervical spine, deemed to have happened on 10 April 2017.
In these proceedings, the applicant claims pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), the cost of proposed surgery, that is anterior cervical discectomy and fusion (ACDF), at C3/4, C4/5 and C5/6 levels, together with ancillary expenses.
Dr Sudipto Pal, the applicant’s treating neurosurgeon, provided a quote, which is headed “Informed Financial Consent” for the proposed surgery. The quote is undated, although it appears that the last page has been omitted from the documents.
On 1 December 2023, the respondent’s insurer, AAI Limited trading as GIO (GIO), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed liability for the proposed treatment as it did not believe that it was reasonably necessary as a result of an injury, as required by s 60 of the 1987 Act. GIO also disputed that the applicant’s cervical condition was a consequential condition resulting from the accepted injury to his shoulders.
GIO issued the applicant with a further notice pursuant to s 78 of the 1998 Act on
26 February 2024.
GIO again disputed liability for the proposed treatment, relying on a report of Dr John Sheehy, neurosurgeon, dated 15 January 2024.
By letter dated 27 March 2024, Mr Tiyce’s solicitors made a claim on GIO for the cost of the proposed surgery, together with assistant surgeon, anaesthetist, hospital fees, post-rehabilitation expense, and consultations with GP (general practitioner) and Dr Pal.
The applicant’s solicitors requested that GIO review its decision to dispute liability for the surgery.
On 10 April 2024, Insurance & Care NSW (icare) issued the applicant with a further notice, having reviewed GIO’s decision.
Icare accepted that Mr Tiyce had sustained an injury to his neck. It also withdrew GIO’s dispute that Mr Tiyce had sustained a consequential condition of his neck. GIO’s decision to dispute liability for the proposed medical treatment was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 19 July 2024.
The applicant claimed that on 10 April 2017, he was required to repetitively lift heavy steel objects, weighing approximately 15kg to 30kg. As a result, he sustained injuries to his left shoulder, right shoulder, and an aggravation of degenerative changes in the cervical spine.
The applicant claimed the sum of $50,000 in respect of the cost of ACDF, as proposed by
Dr Pal, plus assistant surgeon, anaesthetist, hospital expenses, and post-rehabilitation expenses.
The respondent lodged its Reply on 9 August 2024.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the proposed medical treatment is reasonably necessary as a result of the injury, and
(b) whether alternative treatment has been considered or trialled.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing by the MS Teams platform on
15 October 2024. Ms Goodman of counsel, instructed by Ms Dien, appeared for the applicant, who was present. Ms Warren of counsel, instructed by Mr Rivett, appeared for the respondent. Mr Bennett of GIO also attended.
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.

EVIDENCE

Documentary evidence

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

Oral evidence

There was no application to cross-examine the applicant or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Brett Tiyce

The applicant’s first statement is dated 21 June 2022. It appears to have been made in support of a claim for permanent impairment compensation, pursuant to s 66 of the 1987 Act, in respect of the injury to the applicant’s shoulders. It is unnecessary that I refer to that evidence.
The applicant made a further statement dated 20 May 2024.
The applicant had had pain in his neck since 10 April 2017. His shoulder pain masked the symptoms in his neck.
In about 2018, the applicant started getting spasms in his neck. The pain would radiate from his shoulders to his elbows.
The applicant had tried various steroid injections during January 2018, February 2018, and March 2019. They only helped his pain in the short term.
In September 2023, the applicant was referred to Dr Pal.
Dr Pal had recommended ACDF. The applicant had been advised of the risks and benefits of the surgery and was keen to go ahead with it. He had already tried all the other treatment that had been recommended, and “nothing has worked in the long term”. He hoped that the surgery would reduce his pain and help him eventually return to work.
The applicant currently saw his GP, Dr Hina Asher, having switched to her in or about July 2021. He attended physiotherapy about twice a week and also attended Goulburn pool, as this was recommended by his physiotherapist and GP.
The applicant had also seen a sports physiotherapist and had recently been referred to a psychologist.
The applicant had the following symptoms:
·        numbness in his right hand;
·        sleep disturbance;
·        restricted range of motion;
·        constant dull and sharp pain;
·        feelings of electric shock down his arms;
·        struggling with tasks like gardening and mowing the lawn. He did what he could, but it was painful;
·        he could not do recreational activities like golf or swimming. Even walking was hard, as his neck got very stiff;
·        his neck pain had been more pronounced in the last few months, and his physiotherapist had asked to treat his neck as well as his shoulders;
·        feelings of anxiety and depression, and
·        struggling financially. He hoped he might be able to return to work after the surgery, so he was no longer struggling to pay the bills.

Medical evidence

Dr Sudipto Pal – neurosurgeon

Dr Pal reported to Dr Asher on 30 September 2023.
Dr Pal recorded that the applicant had had a work injury five years ago. The applicant’s neck was never investigated, as his left arm was so painful. Over the last nine months, the applicant had had a lot of neck pain and right C5 brachialgia.
The applicant’s CT scan showed significant C5/6 degenerative change, with severe left foraminal stenosis, and moderate foraminal stenosis on the right. Dr Pal opined that this required an MRI to rule out C4/5 stenosis explaining the applicant’s symptoms, and a bone scan to investigate for facetopathy targets causing neck pain.
Dr Pal planned to see the applicant after the scans were done, for assessment of possible surgery or conservative management options.
Dr Pal again reported to Dr Asher on 28 October 2023, after the applicant had undergone MRI and SPECT.
Dr Pal opined that the SPECT scan showed some uptake at C5/6, which had osteophytic changes on CT. The applicant’s MRI was “much more concerning”, with extremely severe foraminal stenosis at C5/6 bilaterally, but worse on the left, at C4/5 moderately severe foraminal stenosis bilaterally, and at C3/4 a left sided disc herniation and severe bilateral foraminal stenosis, worse on the left.
I note here that the MRI scan was reported by Dr Rohit Tamhane on 9 October 2023.
Dr Tamhane commented that there was severe left C5/6 foraminal stenosis. There was also moderate foraminal stenosis at C5/6 on the right and at C3/4 on the right. Dr Tamhane reported no canal or foraminal stenosis at C4/5.
Dr Pal recorded that the applicant’s neck pain was debilitating. Physiotherapy with traction on the cervical spine relieved his neck pain, which was likely due to decompression of the nerve roots with traction. For this reason, as well as the radiological findings and the applicant’s poor quality of life, Dr Pal recommended ACDF.
Dr Pal opined that posterior surgery would be less effective, as most of the applicant’s nerve compression was anterior. Other options were probably less likely to improve the applicant’s neck pain, compared to fusion, as the latter eliminated movement.
On 20 February 2024, Dr Pal responded by email to questions posed by GIO.
Dr Pal opined that prognosis was difficult to predict, but the applicant’s pain was unlikely to improve without decompression of the cervical nerve roots.
Dr Pal again reported to Dr Asher on 16 March 2024.
Dr Pal had reviewed the applicant, including his scans and clinical history. His opinion had not changed.
Dr Pal believed the applicant required a three level decompression/fusion. There were both posterior and anterior options, each having its “pros and cons”. In the applicant’s case, the anterior approach would give Mr Tiyce the best chance of improvement.
Dr Pal reported to the applicant’s solicitors on 24 April 2024.
Dr Pal opined that the proposed surgery was reasonably necessary. He provided the following reasoning:
(a)    it was the appropriate treatment for multilevel bilateral severe foraminal stenosis with degenerative disc disease;
(b)    alternative treatments, such as posterior surgery, would not address the anterior compression, and alternative anterior surgery, such as multilevel disc replacement, would allow ongoing movement and the potential for ongoing neck pain;
(c)    the cost of the treatment was generally similar to anterior fusion or disc replacement;
(d)    the ACDF operation, out of all known available surgical options, was most likely to treat neck and arm pain and help restore cervical lordosis, especially in the context of severe bilateral foraminal stenosis and radioisotope uptake in the disc on nuclear medicine bone scan, as in the applicant’s case, and
(e)    the ACDF was not a new or experimental procedure and was “tried and tested” for degenerative cervical disc disease and radiculopathy.
Dr Pal reported that the applicant had had conservative treatment, including time and physiotherapy. The applicant improved with traction, but that was not a long term solution. It supported Dr Pal’s opinion that ACDF was likely to help the applicant’s symptoms.

Dr Prashanth Rao – neurosurgeon and spine surgeon

Dr Rao reported to Dr Asher on 26 October 2023.
Dr Rao recorded a nine month history of neck pain, with radiation to the right arm.
The applicant rated his neck pain as 6/10. It was constant, shooting, and aching, worse on sitting and lying, and relieved on sitting.
Dr Rao recorded that the applicant had trialled physiotherapy, massage and acupuncture, which made it better. Medication made it worse, and there was no change with bed rest.
Dr Rao noted that cervical bone scan showed an increase in the uptake at C5/6. CT of the cervical spine showed bilateral neural foraminal stenosis at C5/6. MRI showed moderate to severe bilateral neutral foramina compression at C5/6.
Dr Rao’s impression was of C5/6 discovertebral degeneration and possible right ulnar nerve compression.
Dr Rao’s management plan was further investigation, with cervical flexion-extension X-rays and upper limb ECG studies. He had also recommended that the applicant trial a right nerve root injection, and follow up two weeks after the injection, with the requested imaging.
There are no further reports from Dr Rao.

Dr John Sheehy – neurosurgeon

Dr Sheehy was qualified by the respondent and reported on 15 January 2024.
Dr Sheehy recorded complaints of ongoing pain in the applicant’s neck, with pain radiating into the left arm and involving the radial aspect of the left forearm, without finger involvement. There were similar, but lesser, symptoms in the right arm. The predominant site of pain was around the shoulder, but pain extended from the elbow into the radial aspect of the forearm.
Dr Sheehy referred to having seen the reports of the applicant’s bone scan, CT scan, and MRI scan.
Dr Sheehy noted Dr Pal’s report dated 28 October 2023, including what Dr Pal had reported about the MRI scan.
Dr Sheehy opined that the applicant’s MRI confirmed severe foraminal stenosis at C5/6, and the history, physical signs, and MRI imaging were consistent with injury to the C6 nerve. The injury would not resolve until the exit foramina at C5/6 was expanded and the C6 nerve was decompressed.
Dr Sheehy opined that, considering the site of the applicant’s pain and the findings of the MRI scan, it was appropriate to decompress the C6 nerve root, via either anterior or posterior approach. An anterior approach was more likely to improve the neck symptoms, as well as the arm symptoms. Surgery at other levels would not improve the applicant, as there was no evidence of significant nerve compression at other levels.
Dr Sheehy was asked whether he recommended alternative treatment. He responded, “No”.

Dr Peter Khong – neurosurgeon and spine surgeon

Dr Khong was qualified by the applicant and reported on 28 February 2024.
Dr Khong recorded complaints of posterior midline neck spasms, present since 2018. The applicant had had aching from the shoulders to the elbows since the injury. He had recently developed electric shocks down the lateral arms and forearm bilaterally, with numbness in the right little and ring fingers, minor on the left.
Dr Khong opined that the applicant’s prognosis was guarded. He may benefit from cervical spine surgery but was likely to have some persistent neck pain and upper limb symptoms.
Dr Khong was asked to opine on the reasonable necessity of the proposed surgery. He opined as follows:
(a)    Appropriateness: MRI demonstrated multi-level degenerative disc disease, worse at C5/6. There was foraminal stenosis at C3/4, C4/5, and C5/6. There may be some increased uptake at C5/6 on bone scan. One or more of those levels may have been contributing to the applicant’s pain.
A fusion at C5/6 could be considered reasonably necessary to immobilise the painful motion segment and decompress the C6 nerve roots. The applicant also had foraminal stenosis at C3/4 and C4/5. Fusion at C5/6 alone may cause adjacent segment disease at these levels. Thus, fusion at these levels could be considered reasonably necessary to decrease that risk, as well as to decompress the nerves at these levels.
(b)    Availability, and potential effectiveness of, alternative treatment: alternatives included analgesics, physiotherapy, and steroid injections. Steroid injections may have diagnostic value but were unlikely to provide long term pain relief.
(c)    Cost: the surgical cost of a three level ACDF was approximately $20,000 for the primary surgeon and 20% of this amount for the assistant. Dr Khong was unable to comment on other costs.
(d)    Actual or potential effectiveness: surgery may help a proportion of the applicant’s neck, shoulder, and arm pain.
(e)    Acceptance by medical experts: ACDF is accepted as appropriate and likely to be effective for discogenic neck pain and radicular arm pain that is unresponsive to non-operative management.
Dr Khong provided a supplementary report dated 6 March 2024, having been asked to comment on Dr Sheehy’s opinion.
Dr Khong agreed that at C5/6 there was bilateral foraminal stenosis, severe on the left. However, there was clearly bilateral foraminal stenosis at C4/5 and C3/4. The report of the MRI stated there was moderate right and mild left foraminal stenosis at C3/4. It stated there was no foraminal stenosis at C4/5, but that was incorrect.
Dr Khong also agreed that C5/6 was likely contributing to the majority of Mr Tiyce’s symptoms. However, given the bilateral foraminal stenosis at C3/4 and C4/5, it was difficult to know if there was any contribution to pain from these levels. Steroid injections may have some diagnostic value. Foraminal views on MRI may further clarify the stenosis, although there was clearly stenosis at C3/4 and C4/5 on the axial views.
Dr Khong opined that surgery at all three levels was reasonably necessary. One or more levels may be contributing to the applicant’s pain.
The applicant had had neck and bilateral shoulder pain for over six years. More recently, he had developed some electric shock symptoms in both arms. He had trialled analgesia and physiotherapy.
Dr Khong repeated his opinion as to the appropriateness of the proposed surgery.

SUBMISSIONS

Counsels’ submissions have been recorded. I will therefore provide only a summary of the submissions.

Applicant

The applicant referred to Dr Sheehy’s evidence that he would not recommend any alternative treatment. In any event, he submitted that he had tried alternative treatment, with no relief.
The applicant submitted that Dr Sheehy had seen the report of the MRI, but not the images themselves, which Dr Pal had seen, and on which he commented.
The applicant submitted that Dr Pal had provided reasons why he recommended anterior, rather than posterior, surgery.
The applicant referred to Dr Khong’s evidence, which he submitted supported that of Dr Pal. Dr Khong and Dr Pal were “on the same page” regarding the preference for anterior surgery. The applicant submitted in some detail about Dr Khong’s evidence.
The applicant submitted that Dr Sheehy clearly said that treatment at C5/6 was reasonably necessary. The issue was with respect to the two levels above. Dr Pal had explained why it was necessary to treat all three levels.
The applicant referred to Dr Pal’s report dated 24 April 2024, which he submitted “tick[ed] off the reasons” why the surgery was reasonably necessary. Dr Pal was the treating specialist, who had seen the applicant on a number of occasions, and the applicant submitted I would accept his opinion, which was supported by Dr Khong.
The applicant submitted that the report of Dr Rao “does not take us anywhere”, because he said the applicant needed an MRI.
In reply, the applicant submitted that nowhere did Dr Sheehy say that surgery was not reasonably necessary. He did not say that surgery at levels other than C5/6 was not reasonably necessary. The treatment did not have to be absolutely necessary, or certain to improve the applicant’s condition.

Respondent

The respondent submitted that what needed to be determined was the reasonable necessity of the treatment as a result of the injury. The applicant bears the onus.
The respondent referred to the matters for consideration, as stated in Diab v NRMA Ltd[1] and Rose v Health Commission (NSW).[2] It submitted I would not be satisfied to the point of actual persuasion that the treatment was reasonably necessary as a result of the injury.
[1] [2014] NSWWCCPD 72 (Diab).
[2] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).
The respondent submitted that Dr Rao had referred to the MRI scan and his impression was limited to C5/6. He recommended further investigations, but there is no evidence that they were undertaken. He also recommended that the applicant undergo a nerve root injection. That these measures were not undertaken should be taken into account.
The respondent referred to Dr Sheehy’s evidence that surgery at the other levels would not improve the applicant's symptoms, as there was no evidence of compression at those levels.
The respondent submitted that there was no explanation as to why Dr Pal disagreed with
Dr Tamhane, who reported on the MRI, and is also a doctor. Drs Tamhane and Rao agreed with Dr Sheehy. It was not as simplistic as Dr Sheehy “being out on his own”.
The respondent submitted there was no evidence that Dr Khong had been provided with the scans themselves. He had made no specific reference to the scans, or explained why he reached a different conclusion to the radiological findings.
The respondent submitted that the language used by Dr Khong was not persuasive as to the reasonableness of the surgery. The further scans and steroid injections he recommended had not been undertaken.
The respondent finally submitted I would not be satisfied that the proposed specific surgery was reasonably necessary as a result of the injury, as required by s 60 of the 1987 Act.

SUMMARY

Section 60 of the 1987 Act 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).
Note: Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are-
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted-the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if-
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following-
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
‘appropriately qualified’ for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

The respondent referred to the decision of Deputy President Roche in Diab.
Roche DP said in Diab (at [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 reasonable necessity 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 claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP referred to the decision of Burke CCJ in Rose, and said (at [88]-[90]):
“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 point (5) in Rose…namely
(a)the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
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’ (Margaroff v Cordon Bleu Cookware Pty Ltd [3]). Thus, it is not simply a matter of asking, as was suggested in Bartolo[4], is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[5] , when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
[3] [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C.
[4] Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233.
[5] [2010] HCA 28.
The matters noted in Rose were those that Drs Pal and Khong were asked by the applicant’s solicitors to address.
It does not appear to me that there is any real dispute as to the reasonable necessity of the proposed surgery at the C5/6 level, or that an anterior approach should be taken. Dr Pal and Dr Khong agree on this, and Dr Sheehy said an anterior approach was more likely to improve the applicant’s neck symptoms, as well as his arm symptoms.
Dr Rao suggested further investigations, but Dr Pal, who has assumed the applicant’s care, was satisfied that the surgery was reasonably necessary, after ordering an MRI scan.
Dr Sheehy did not suggest that further investigations were required. He opined unequivocally that Mr Tiyce’s injury would not resolve until he underwent surgery at C5/6. His answer to the question of whether he recommended alternative treatment was an again unequivocal “no”.
The applicant has had physiotherapy, attended Goulburn pool, seen a sports physiotherapist and a psychologist, undergone traction, had massage, acupuncture, medication and bed rest, and given the injury “time”. Dr Khong opined that steroid injections may have diagnostic value but were unlikely to provide long term relief.
I am satisfied that the applicant has had appropriate alternative treatment, and I am mindful of his evidence regarding his symptoms, and the duration of those symptoms. The applicant is not required to undergo every available form of alternative treatment or investigation before a particular form of treatment may be found to be reasonably necessary.
The real area of dispute appears to be whether the applicant requires surgery at the C3/4 and C4/5 levels, as well as at C5/6. Dr Sheehy opined that he does not, as there was no evidence of significant nerve compression at those levels.
Drs Pal and Khong disagree with Dr Sheehy.
Dr Pal has seen the MRI scans and has reported his own findings.
It is not clear whether Dr Khong saw the actual scans, but he reported that it was incorrect to say there was no foraminal stenosis at C4/5. He may have been reliant on Dr Pal’s review of the scans in saying this.
It is clear from Dr Sheehy’s report that he did not see the MRI scans, and he reported that there was “no foraminal stenosis at C4/5 reported on the MRI”.
The respondent was critical of Dr Pal’s evidence, as he did not explain why he disagreed with Dr Tamhane’s findings, but Dr Sheehy has also not explained why he disagreed with
Dr Pal’s assessment of the MRI scan itself. Dr Pal also had the advantage over Dr Tamhane of having examined the applicant and recorded his findings on examination.
The respondent was also critical of Dr Khong’s evidence, but it appears to me that Dr Khong was exercising appropriate caution in opining as to the likely outcome of the proposed surgery. He clearly said in his supplementary report that the proposed surgery was reasonably necessary, and he provided sufficient reasons for his opinion.
Both Dr Pal, who is the applicant’s treating surgeon and has had the advantage of reviewing his investigations, and Dr Khong, have in my view adequately addressed the criteria to which Burke CCJ referred in Rose. The respondent did not submit that the cost of the proposed surgery was a factor militating against its approval.
I am particularly persuaded by the evidence of Dr Pal, and I accept his evidence and that of Dr Khong, which I prefer over that of Dr Sheehy.
I determine that the proposed treatment, that is, ACDF at levels C3/4, C4/5, and C5/6, as proposed by Dr Pal, plus assistant surgeon, anaesthetist, hospital expenses, and post-rehabilitation expenses, is reasonably necessary as a result of the injury on 10 April 2017.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 578

17 October 2024