Toll Holdings Limited v Doodson - [2019] NSWWCCPD 62

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Toll Holdings Limited v Doodson [2019] NSWWCCPD 62
APPELLANT:	Toll Holdings Limited
RESPONDENT:	Allan Doodson
INSURER:	Self-insured
FILE NUMBER:	A1-1369/19
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	7 June 2019
DATE OF APPEAL DECISION:	10 December 2019
SUBJECT MATTER OF DECISION:	Whether proposed treatment is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 – Rose v Health Commission (NSW) [1986] NSWCR 2; 2 NSWCCR 32; Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed; s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – the requirement to establish error of fact, law or discretion
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Colin Biggers and Paisley
Respondent:
Brydens Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 7 June 2019 is confirmed.

INTRODUCTION

This appeal relates to a claim brought by Mr Allan Doodson (the respondent) in relation to proposed surgery recommended by Dr Tim Ho, pain management and rehabilitation specialist. The surgery proposed is the insertion of a trial dorsal root ganglion (DRG) stimulator. It is intended to address the respondent’s symptoms and conditions flowing from two left knee injuries suffered during the course of the respondent’s employment with Toll Holdings Limited (the appellant).
The matter was heard before an Arbitrator who subsequently delivered an oral decision in which he found the proposed surgery reasonably necessary.
The appellant appeals that decision.

BACKGROUND

The respondent suffered injuries to his left knee on 27 December 2009 and 16 April 2010. Following the second injury, the worker underwent two arthroscopies and a cartilage harvest and reimplantation procedure in 2010.
On 8 October 2011, the respondent’s rehabilitation and pain management physician, Dr David Manohar, performed a trial spinal stimulator procedure. On 12 December 2011, Dr Manohar implanted a permanent spinal stimulator. Unfortunately, on 14 July 2012 the respondent was involved in a motor vehicle accident, the impact of which reportedly caused the stimulator to be dislodged. As a result, the stimulator was eventually removed on 3 October 2014.
The respondent proceeded with ongoing conservative treatment until 30 July 2018, when he underwent a total left knee replacement, followed by a left knee manipulation procedure on 22 October 2018.
On 15 November 2018, the respondent requested the appellant approve the insertion of a trial DRG stimulator, which was said to be a more advanced stimulator than the previous implant. The appellant denied the claim on the basis that:
(a)    the previous stimulator was a failure, which the appellant said was not the history provided by the respondent to Dr Ho;
(b)    the respondent had not exhausted all conservative treatment;
(c)    the respondent had not been compliant with conservative treatment offered, and
(d)    the appellant did not consider that the proposed treatment would alleviate the respondent’s symptoms or result in an improvement in his condition.
The respondent developed chronic regional pain syndrome in the left lower extremity, and suffers from right knee, back and shoulder pain.

Incomplete Transcript

The parties were provided with an incomplete transcript of the arbitration proceedings that took place on 30 May 2019.
On 25 July 2019, a delegate of the Registrar forwarded a letter to the appellant inviting the appellant to make any submissions by 22 August 2019 about the effect of the incomplete transcript on the conduct of the appeal. The respondent was also invited to make his submissions about the incomplete transcript at the same time as he filed his Notice of Opposition to the Appeal Against a Decision of the Arbitrator (opposition), which was due by 5 September 2019.
Neither party raised an issue in respect of those parts of the transcript that were reported to be “not transcribable.” The appellant filed submissions on 22 August 2019 indicating that it relies on the submissions already made in its appeal, and by its counsel at the arbitration. The respondent’s submissions do not complain of any disadvantage because of the state of the transcript.
I have read the transcript and many of the parts that were not transcribable relate to extracts from medical reports read out by counsel, in circumstances where the document has been identified. Neither party asserts that they are disadvantaged because of the state of the transcript. I am satisfied that the parties’ submissions at arbitration are clearly apparent in the transcript and that it is proper and fair to proceed to determine the appeal.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant indicated the appeal should not be determined on the papers, as its grounds of appeal and submissions were drafted without the benefit of a transcript of the Arbitrator’s reasons and may require amendment, either orally or in writing. The transcript of the Arbitrator’s oral reasons was provided to the parties on 25 July 2019 and the appellant replied that it relied on the submissions already made. The respondent did not identify any issue with the state of the transcript of proceedings.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties. The appellant has had the opportunity to make further submissions following receipt of the transcript of reasons. 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 1998 Act have been met. Neither party wishes to adduce new or further evidence on the appeal.

THE EVIDENCE

The respondent’s statement

The respondent provided a statement dated 20 April 2019.[1] He described his injuries and the subsequent treatment, including the implant of the spinal stimulator in 2011 and its subsequent removal. Relevantly, the respondent reported that even after the left total knee replacement, his symptoms had not significantly improved. He said that following the total knee replacement, he developed chronic regional pain syndrome and was referred to Dr Ho, who recommended a trial DRG stimulator.
[1] Application to Resolve a Dispute (ARD), pp 1–3.
The respondent described his ongoing symptoms and disabilities as fluctuating, to the extent that on some days, his left knee became extremely painful, swollen and discoloured. The respondent said that he was keen to undergo the trial DRG stimulator because he found the previous stimulator “somewhat effective” in the past, and he experienced a lot more pain relief than when he was without it.

The medical evidence of the treating doctors

The respondent relied on reports from his general practitioner, Dr Raymond Morsingh and numerous reports from each of his treating specialists. It is not necessary to refer to all of those reports for the purpose of this appeal. The following summary deals with the reports that touch on the issues.

Dr Jonathan Herald

Dr Jonathan Herald, orthopaedic surgeon, provided several reports between 19 May 2010 and 17 February 2011[2] directed to Dr Uthum Karunaratne, the respondent’s general practitioner at that time. In the first report, Dr Herald recorded the history of the injury in 2010 and the subsequent symptoms. Dr Herald diagnosed an osteochondral lesion of the femoral condyle. He explained the proposed treatment plan, which was to perform an arthroscopy and chondroplasty. Dr Herald suggested there was an 80% chance of success of the surgery. Dr Herald provided a report on the operation on 27 June 2010, and a further operation report dated 24 July 2010 detailing surgery to implant harvested cartilage cells into the defect in the knee. Due to complaints by the respondent of ongoing symptoms, Dr Herald again performed surgery on the knee on 3 December 2010, on this occasion an arthroscopy and capsular release. On review, on 16 December 2010 Dr Herald reported that the respondent was doing well, with near full range of movement and minimal tenderness, and was improving daily.
[2] ARD, pp 107–116.
On 17 February 2011, Dr Herald reported that the respondent was complaining of pain and instability. Dr Herald noted features of a chronic regional pain syndrome present on the MRI scan, and confirmed on a subsequent bone scan. Dr Herald referred the respondent to Dr David Manohar, pain management physician, for management of his chronic regional pain syndrome.

Dr David Manohar

Dr Manohar provided extensive treatment to the respondent and provided numerous reports between 21 March 2011 and 9 October 2014 directed to Dr Morsingh in respect of that treatment.[3]
[3] ARD, pp 50–106.
In the report dated 21 March 2011, Dr Manohar took a history of the respondent’s injuries, the treatment provided by Dr Herald, and the development of features of complex regional pain syndrome. Dr Manohar referred to the bone scan, which was consistent with that diagnosis. He prescribed Lyrica, a pain inhibiting medication.
The ensuing reports indicate that Dr Manohar recommended an NMDA blocker infusion (an anaesthetic drug that inhibits pain receptors), which was approved by the appellant and performed in April 2011. On 28 April 2011, Dr Manohar reported that the “central sensitisation” pains had gone, but that the respondent had pain in both knees.[4] Dr Manohar recommended an MRI scan of the knees. After review of the MRI scan, Dr Manohar advised the respondent to consult Dr Tim O’Carrigan, orthopaedic surgeon. On 26 May 2011, Dr Manohar reported that Dr O’Carrigan confirmed the diagnosis of complex regional pain syndrome, which was a complication arising out of the original injury. Dr Manohar recommended exercise, physiotherapy and hydrotherapy.[5] On 4 July 2011, because of the respondent’s persisting pain and limitations, Dr Manohar referred the respondent to Successful Rehabilitation Services in order to undertake a reflex sympathetic dystrophy program.[6]
[4] ARD, p 55.
[5] ARD, p 57.
[6] ARD, p 59.
On 29 August 2011, Dr Manohar reported that the program with Successful Rehabilitation Services was concluding, the respondent had undergone hydrotherapy, a sympathetic blockade and was prescribed Lyrica.[7] Dr Manohar said the next step was a trial of a spinal cord neurostimulator, as all other treatment options had been trialled. On 10 October 2011, Dr Manohar reported that the installation of a trial spinal cord neurostimulator had been performed two days previously.[8] He subsequently reported an 80% improvement in the respondent’s pain, and that the respondent was able to walk well.[9]
[7] ARD, p 61.
[8] ARD, p 68.
[9] ARD, pp 69–70.
Dr Manohar then performed a permanent implant procedure of the spinal cord stimulator on 12 December 2011.[10] On 12 February 2012, Dr Manohar reported that the respondent had undergone surgery to the left knee at the hands of Dr Herald and complained of pain in the left leg extending to the knee and collapsing of the knee. Dr Manohar said that the respondent was “in the post-operative phase following the dorsal stimulator.”[11]
[10] ARD, p 72.
[11] ARD, p 77.
There are no further reports from Dr Manohar in evidence until 16 July 2012. On that date. Dr Manohar reported that the respondent had been involved in a motor vehicle accident and the x-rays of the thoracic and lumber spine showed that the spinal electrode had migrated slightly following the accident.[12] On 17 September 2012, the respondent complained to Dr Manohar of left leg and knee pain, and informed Dr Manohar that his symptoms had worsened since the accident.[13]
[12] ARD, p 78.
[13] ARD, p 82.
Dr Manohar continued to treat the respondent in respect of the consequences of the motor vehicle accident and the left knee condition. Relevantly, on 21 January 2013, Dr Manohar reported the respondent suffered from pain in the left knee, colour changes in the left leg, spasming and occurrences of the left knee collapsing, as well as a burning sensation at the site of the implant. Further reports of symptoms continued and on 11 March 2014, Dr Manohar reported that the x-rays of the thoracic and lumbar spine disclosed that the electrodes of the stimulator had shifted and there was lead migration of the right electrode.[14]
[14] ARD, p 92.
On 29 April 2014, Dr Manohar wrote:
“Mr Doodson had a more active life after the stimulator. He was able to drive, walk and undertake exercises to increase his fitness. The car accident has exacerbated his symptoms and caused a setback.”[15]
[15] ARD, p 96.
The stimulator was eventually removed on 3 October 2014.[16]
[16] ARD, pp 105–106.

Dr Morsingh

Dr Morsingh provided a report dated 9 March 2019.[17] He advised that the respondent first consulted him in respect of the injuries on 6 May 2011, at which time the respondent’s problem was “quite progressed.” Dr Morsingh recorded that the respondent did well after the spinal stimulator insertion until the motor vehicle accident. Dr Morsingh said that, over the years, the respondent’s knee symptoms and chronic regional pain syndrome progressed. Dr Morsingh noted that the respondent was experiencing severe pain and instability in the left knee, was prone to falls and could not complete one full revolution of an exercise bike. Dr Morsingh was of the opinion that the proposed trial of a DRG stimulator and, if that was successful, a permanent implantation of the neurostimulator was reasonable and necessary treatment.
[17] ARD, pp 5–6.

Associate Professor Munjed Al Muderis

Dr Morsingh referred the respondent to A/Prof Al Muderis, orthopaedic surgeon, who examined the respondent on 5 September 2017. At that consultation, A/Prof Al Muderis organised further radiological investigations. He recommended a referral to Dr Ho for pain management for evaluation and treatment before considering surgical intervention.[18]
[18] Report dated 5 September 2017, ARD, pp 31–32.
In a report dated 3 October 2017, A/Prof Al Muderis advised that Dr Ho had recommended a cortisone injection into the left knee, which A/Prof Al Muderis considered would be only a temporary measure until the respondent could undergo a total knee arthroplasty. A/Prof Al Muderis advised that the respondent had been provided with extensive non-surgical treatment options and the left knee symptoms had not improved at all. A/Prof Al Muderis was of the view that the only predictable surgical option was a total knee arthroplasty.[19] In correspondence dated 30 May 2018 directed to the respondent’s legal representatives, A/Prof Al Muderis confirmed his view that all conservative treatment options had been exhausted and it was reasonable to offer the respondent a total knee replacement.[20]
[19] ARD, pp 38–39.
[20] ARD, pp 40–41.
The respondent underwent a total knee replacement surgery at the hands of A/Prof Al Muderis on 30 July 2018. On 18 October 2018, A/Prof Al Muderis reviewed the respondent noting that it had been ten weeks since the surgery. The respondent’s pain management remained a problem and he could not bend the knee more than 84 degrees. A/Prof Al Muderis recommended Dr Ho provide the respondent with nerve blocks or radiofrequency to the nerves and then A/Prof Al Muderis would perform a manipulation of the knee.[21]
[21] ARD, p 46.

Dr Tim Ho

In a report dated 15 November 2018, Dr Ho advised:
“Allan has refractory left knee and leg pain with significant neuropathic component.
>6 months clinical documentation of all conservative treatment modality has tried and failed. There remains significant activity, sleep and emotional interferences due to severe pain. He has failed more conservative treatment Including medication, pain psychology and physiotherapy.
There is no further surgical intervention.
Further titration of strong analgesia is limited as he is already on a high dose opioid and due to drug related side effects. Given the advances in spinal cord stimulator system, previous failure to dorsal column system does not predict the response with a DRG stimulator system.
Allan is keen to trial DRG stimulator with left L3 and L4 lead.
There is no contraindication for his to trail [sic] spinal cord stimulator.
Allan is psychologically suitable for spinal cord stimulator trial and there is no history of drug abuse.
I would like to apply for approval for the above procedure.”[22]
[22] ARD, p 16.
Dr Ho discussed the goals of the procedure and said:
“Goal for a successful spinal cord stimulator trial
- Reduction of pain severity by 50%
- Reduction of pain medication by 50%, hence reduce harm related to high dose opioids
- Reduction of activity, sleep and emotional interference score by 50%
- If successful with the trial, patient will go on to have permanent implant
- After this, patient will continue with pain management program with focus on functional goal:
Able to perform DADL with pacing and has physical capacity for return to work at modified duty and modified hours.
- The effect is expected to be sustained in the long term. Current long term 2 year data from SENZA study showed persisting benefit after 2 years.
- In our experience, more than 50% of patients with successful implant of spinal cord stimulator regain meaningful capacity for return to work and engage in return to work rehabilitation, in conjunction with pain management program. Our practice performs >50 implants a year. Given the advances in spinal cord stimulator system, previous failure to dorsal column system does not predict response with a DRG stimulator system.”[23]
[23] ARD, p 17.
Dr Ho provided a further report dated 25 February 2019.[24] In that report, he reiterated the above observations and provided reasons for recommending the DRG Stimulator, which included:
(a)    all other surgical and conservative treatment had failed;
(b)    the respondent was already being prescribed a high dosage of opioids and experienced side effects related to the drug use;
(c)    there were no further surgical treatment options available;
(d)    the failure of the previous stimulator did not predict the likely success of the DRG spinal stimulator;
(e)    the respondent was keen to have the procedure, and
(f)    there were no contra-indications for the trial as the respondent was psychologically suitable for the procedure and had no history of drug abuse.
[24] ARD, pp 12–14.
Over the period from 2010 to 2016, the respondent also consulted Dr John Rooney, Dr Rami Sorial, Dr Edward Graham and Dr Daniel Biggs, all of whom are orthopaedic surgeons, for further opinions on management of his left knee condition. Their reports are in evidence, but apart from a short history from Dr Sorial (referred to below) the doctors’ reports are not germane to the issues in this appeal.

The medico-legal opinions

Dr James Vote

Dr James Vote, orthopaedic surgeon, was qualified by the respondent’s former legal representatives to provide an opinion. He provided a report dated 25 July 2017.[25] Dr Vote recorded a history of the various injuries suffered by the respondent, including the two left knee injuries, and the subsequent treatment. Dr Vote referred to the spinal stimulator inserted in 2011. The relevant history from the respondent recorded by Dr Vote was that the spinal cord stimulator was removed because of local back pain and because the respondent felt that it had been of no benefit to him whatsoever.
[25] Reply to Application to Resolve a Dispute (reply), pp 27–36.

Dr Vote took a history of the motor vehicle accident causing generalised cervical and thoracic discomfort, for which the respondent received no treatment. Dr Vote did not record a history of the shift in the spinal stimulator after the accident.
Dr Vote noted that, despite the multiple surgical procedures, the respondent had not benefitted at all in relation to his left knee and remained with significant pain and limitation of movement. Dr Vote said that he understood the respondent had been advised that further surgery was contraindicated because of the presence of chronic regional pain syndrome and felt that was wrong. Dr Vote was of the opinion that the respondent would be best served by having plain x-rays and an MRI scan of his left knee with a possible view to further surgery in the form of a hemi-knee replacement.

Dr Mohammed Assem

Dr Mohammed Assem, rehabilitation specialist, was qualified by the respondent’s current legal representatives to provide an opinion on the need for the procedure proposed by Dr Ho.
Dr Assem provided a report dated 4 February 2019.[26] Dr Assem referred to the injuries suffered by the respondent and the development of the chronic regional pain syndrome. He noted the long history of treatment by the various treatment providers. Dr Assem reported that although there was some improvement with the spinal stimulator it was later removed. Dr Assem opined that the treatment the respondent had received was reasonable and necessary and that on the basis that all other treatment regimens had been exhausted, a trial DRG stimulator may be beneficial. Dr Assem reasoned that the previous stimulator had been effective in slightly reducing the intensity of the respondent’s symptoms and would be cost beneficial because it would probably result in a reduction in the intake of narcotic analgesia and in the use of health resources.
[26] ARD, pp 19–25.

Associate Professor Michael Shatwell

Associate Professor Michael Shatwell, orthopaedic surgeon, provided a report directed to the appellant’s legal representatives dated 15 April 2019.[27] A/Prof Shatwell indicated that he had seen the respondent on two prior occasions and provided reports dated 17 July 2014, 22 September 2017 and a supplementary report dated 4 October 2017. A/Prof Shatwell recorded a history of the injuries, symptoms and treatment that was largely consistent with the treating doctor’s reports. A/Prof Shatwell noted that the respondent underwent permanent implantation of the spinal cord stimulator on 9 December 2011, but pain relief was short lived. The stimulator electrodes were displaced, requiring further surgery in March 2012 and ultimately the device was removed in October 2014.
[27] Application to Admit Late Documents (AALD) 22 May 2019, pp 4–14.
A/Prof Shatwell further noted that Dr Ho had proposed the insertion of a DRG spinal stimulator to treat the chronic regional pain syndrome. A/Professor Shatwell referred to the respondent’s past history of being diagnosed with anxiety disorders in 2003, 2007 and 2008 and recorded the respondent’s various other co-morbid ailments.
A/Prof Shatwell remarked that “Dr Ho states that only 50% of patients will have some partial relief of their symptoms and that this may not extend for more than two years.”[28]
[28] AALD, p 12.
A/Prof Shatwell acknowledged that Dr Ho’s experience in the use of stimulators was greater than his. However, based on his examinations of the respondent on three occasions, he considered it highly unlikely that there would be any dramatic change in the respondent’s symptoms following such a procedure. A/Prof Shatwell said that it was interesting that the respondent had told him in 2014 that the previous stimulator was “never a great success” and yet now he says that it gave him partial improvement.
A/Prof Shatwell considered the respondent to be “extremely pain-focussed”[29] and that the general practitioner’s notes revealed that the respondent had many other medical complaints that the respondent believed were attributable to the left knee injury.
[29] AALD, p 13.
A/Prof Shatwell formed the view that it was unlikely that any medical treatments or further investigations would assist the respondent and that he would be best managed by positive psychological reinforcement that he is not an invalid and has a capacity for improvement. A/Prof Shatwell said the respondent was “clutching at straws”[30] and any consideration of trialling a spinal stimulator should be put on hold until at least one year after the left knee replacement. He advised that opiate medication should be gradually withdrawn and replaced with regular paracetamol, together with small doses of anti-inflammatory medication. A/Prof Shatwell felt that positive reinforcement and some form of occupational therapy would divert the respondent’s attention from his physical ailments and may improve his mobility and prospects of recovery.
[30] AALD, p 13.
A/Prof Shatwell disagreed with Dr Assem’s view that because all other treatment options were exhausted, the trial of the DRG spinal stimulator was indicated. A/Prof Shatwell said that the fact that all other treatment options had been exhausted was not a reasoned argument for trialling an invasive procedure. A/Prof Shatwell did agree with Dr Assem’s view that the respondent’s prognosis was guarded, and that the respondent would most likely continue to have symptoms and limitations into the future.
In conclusion, A/Prof Shatwell observed that he was not convinced that the respondent had ever had a complex regional pain syndrome and observed that the respondent had a number of functional problems, many of which could not be explained on a medical basis. He added that it was his long-held view that the respondent’s pain-focussed behaviour was a psychiatric problem which had not been properly fully investigated or treated.

THE ARBITRATOR’S REASONS

Following the arbitration hearing on 30 May 2019, the Arbitrator reserved his decision. He then handed down an oral decision 6 June 2019.
The Arbitrator provided a review of the non-contentious history of injuries and the treatment that followed. The Arbitrator referred to the installation of the trial dorsal column stimulator and subsequent implant in 2011, which was a different stimulator to the DRG stimulator that was the subject of the proposed treatment at issue in the proceedings. The Arbitrator noted the respondent’s evidence that the stimulator provided him with some relief, up until the motor vehicle accident. The Arbitrator referred to the subsequent removal of the implant and the total knee replacement, which did relieve the respondent’s symptoms. The Arbitrator recorded that Dr Ho had recommended the DRG stimulator in order to treat the chronic regional pain syndrome and that the respondent was keen to undergo the procedure because of the relief he had experienced with the previous stimulator.
The Arbitrator noted that the respondent relied on the opinions of Dr Ho and Dr Assem. The Arbitrator reviewed Dr Ho’s evidence, which included:
(a)    a detailed account of the treatment already provided to the respondent;
(b)    the diagnosis of chronic neuropathic knee pain secondary to chronic regional pain syndrome;
(c)    the recommendation that the respondent should have a trial of the DRG stimulator, and
(d)    the long term benefits of the procedure.
The Arbitrator quoted the passage from Dr Ho’s report in which Dr Ho provided reasons in favour of the respondent being given the trial stimulator; and noted that the respondent’s counsel had submitted that those reasons were entirely consistent with the considerations set out by Burke CCJ in Bartolo v Western Sydney Area Health Service.[31] The Arbitrator noted the submissions of the respondent’s counsel that Dr Ho’s opinion was supported by the respondent’s general practitioner, Dr Morsinghe and that A/Prof Shatwell’s opinion should not be accepted because it was dependent upon the history that the previous stimulator had failed, which was incorrect.
[31] [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo).
The Arbitrator proceeded to review the evidence provided by Dr Manohar in relation to the respondent’s consultation with that doctor following the motor vehicle accident. The Arbitrator referred to Dr Manohar’s mention of the movement of the spinal electrode seen on the x-ray, and that Dr Manohar planned to reprogram the stimulator in order to address the respondent’s symptoms which had worsened following the motor vehicle accident.
The Arbitrator further referred to Dr Manohar’s reference to the respondent being well, enjoying a more active life after the stimulator was implanted and that he was ready to return to work when the motor vehicle accident occurred.
The Arbitrator noted the submission of the respondent’s counsel that the Commission should have no regard to the failure of the stimulator which had been effective up to the point of the motor vehicle accident. The Arbitrator also referred to the submission that A/Prof Shatwell had misread Dr Ho’s report in respect of the respondent’s prognosis. That is, the goal of the DRG stimulator was to achieve a fifty percent reduction in the respondent’s pain and fifty percent improvement in tolerances. A/Prof Shatwell read Dr Ho’s opinion to be that there would be only fifty percent of patients who would receive fifty percent partial relief of their symptoms. The Arbitrator remarked that A/Prof Shatwell’s understanding of what Dr Ho said was incorrect. The Arbitrator further noted A/Prof Shatwell’s concession that Dr Ho had far greater experience in relation to the use of stimulators. The Arbitrator quoted from A/Prof Shatwell’s report, where A/Prof Shatwell proceeded to rely on his general knowledge in relation to stimulators which, together with A/Prof Shatwell’s findings from the three physical examinations of the respondent over the past five years, led A/Prof Shatwell to conclude that it was highly unlikely that the respondent would experience any dramatic change in his symptomology. The Arbitrator also noted A/Prof Shatwell’s comment that the respondent told him in 2014 that the previous stimulator “was never a great success,” but now says that it did give him some improvement in his symptoms.
The Arbitrator considered that the history recorded by A/Prof Shatwell did not accurately reflect the full story behind the failure of the previous stimulator, and in the circumstances of the case, that discrepancy was significant.
The Arbitrator further referred to the submissions made by the respondent’s counsel that the comments made by A/Prof Shatwell were outside of the doctor’s area of expertise, given that he was not a pain management specialist. In addition, A/Prof Shatwell disagreed with Dr Assem’s statement that because all other treatment modalities had been exhausted, it was appropriate to trial a stimulator.
The Arbitrator summarised the submissions made by counsel for the appellant in which the appellant’s counsel referred to the decisions of Burke CCJ in Bartolo and Rose v Health Commission (NSW),[32] and the Presidential decision in Diab v NRMA Ltd.[33] The Arbitrator noted the appellant’s reliance on:
(a)    the history recorded by A/Prof Shatwell and A/Prof Shatwell’s opinion, in the context of A/Prof Shatwell having seen the respondent as long ago as 2014;
(b)    the history provided to Dr Vote that the previous stimulator had provided limited relief, which was consistent with the history taken by A/Prof Shatwell, and
(c)    the report of Dr Sorial dated 6 August 2012, which recorded that the respondent was continuing to take Lyrica and Oxycontin, despite at the time having the previous stimulator,
which the appellant said showed that the previous stimulator was of little benefit even prior to the motor vehicle accident.
[32] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[33] [2014] NSWWCCPD 72 (Diab).
The Arbitrator quoted from the report of Dr Sorial, which post-dated the motor vehicle accident and recorded that the stimulator was still in place, but that the respondent “at present remains on Lyrica and Oxycontin.”[34]
[34] Dr Sorial’s report dated 6 August 2012, ARD, p 123.
The Arbitrator accepted that Dr Sorial’s evidence was consistent with the respondent continuing to take Lyrica and Oxycontin despite the stimulator, and before the motor vehicle accident.
The Arbitrator further noted the appellant’s submissions that:
(a)    the history recorded by the various practitioners indicated that the respondent had not greatly improved within the period foreshadowed by Dr Manohar;
(b)    in the context of the respondent’s pain focus, there was no evidence that the respondent was psychologically suitable for the proposed treatment, as Dr Ho had asserted, and
(c)    the totality of the medical evidence indicated that the use of a stimulator was:
(i)just a part of the broad spectrum of treatment such as pain management and medication;
(ii)of limited past benefit, and
(iii)therefore not reasonably necessary.
The Arbitrator referred to and quoted relevant parts of the decisions in Rose and Diab and discussed the matters referred to in those decisions which were matters that were required to be considered in determining whether treatment was reasonably necessary. In particular, the Arbitrator recorded the summary of the considerations provided by Deputy President Roche in Diab, which was as follows:
“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.”[35]
[35] Diab, [88].
Applying those considerations, the Arbitrator reasoned:
(a)    in respect of the appropriateness of the treatment, he preferred the opinion of Dr Ho, which was supported by Dr Assem, and Dr Morsinghe, who considered that the treatment was appropriate. The Arbitrator accepted that the previous stimulator provided the respondent with some benefit before the motor vehicle accident. Further, the proposed stimulator was more advanced than the previous stimulator;
(b)    in relation to the availability of alternate treatment options, the respondent had undergone a range of surgical and conservative treatments, which were all of limited or no benefit. Even though the respondent would still require pain management and medication, applying Diab, it was only necessary to show the treatment was reasonably necessary. It was not necessary to establish that it was reasonably necessary to the exclusion of all other treatment;
(c)    with respect to the costs of the procedure, the appellant had not submitted that the costs were prohibitive. Although the costs were in the vicinity of $10,000, in the context of the nature and extent of the injury, the costs associated with the treatment could not be said to be unreasonable or prohibitive;
(d)    as to the actual or potential effectiveness of the treatment, the Arbitrator accepted the prognosis of Dr Ho, and in doing so noted that A/Prof Shatwell acknowledged that Dr Ho had greater experience with using stimulators. It was also apparent that A/Prof Shatwell had misread Dr Ho’s prognosis as to the likely outcome and inadvertently downplayed the benefits. For those reasons, the Arbitrator did not accept A/Prof Shatwell’s views, and
(e)    the acceptance by experts as to the viability of the treatment was not challenged by the appellant, and there seemed little doubt that the respondent did receive some benefit from the earlier stimulator, although not complete relief. The preponderance of the evidence disclosed that the treatment was accepted by experts and was appropriate and effective.
The Arbitrator concluded that he accepted the opinion of Dr Ho, which set out in detail the reasons why the proposed treatment was reasonably necessary. He was satisfied that the considerations referred to in Bartolo, Rose and Diab were met and found that the proposed trial of the DRG spinal cord stimulator as set out by Dr Ho in his report was reasonably necessary.
The Certificate of Determination issued on 7 June 2019 records:
“The determination of the Commission in this matter is as follows:
1.     The applicant suffered an injury to his left lower extremity in the course of his employment with the respondent on 27 December 2009 and on 16 April 2010.
2.     As a result of the injury referred to in (1) above, the applicant has developed chronic regional pain syndrome.
3.     As a result of his injury, the applicant has been recommended by Dr Tim Ho for a trial of the installation of a DRG spinal stimulator and associated treatment and care.
4.     The trial of the DRG spinal stimulator as recommended by Dr Ho is reasonably necessary.
5.     The respondent is to pay the costs of and incidental to the installation of the trial DRG spinal stimulator and any associated treatment.”

GROUNDS OF APPEAL

The appellant alleges four grounds of appeal described as follows:
(a)    ground one: the Arbitrator erred in fact and law in applying the relevant authorities to the facts;
(b)    ground two: there was insufficient evidence to determine the matter;
(c)    ground three: the Arbitrator ought to have considered alternative treatment modalities and rejected the proposed treatment, and
(d)    ground four: the Arbitrator failed to take into account the respondent’s psychological condition, which was referred to in the notes and referred to by A/Prof Shatwell, the appellant’s expert.

LEGISLATION

Section 60 of the Workers Compensation Act 1987 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).”
Section 352(5) of the 1998 Act relevantly provides:
“(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
…
(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

SUBMISSIONS

In its introductory submissions, the appellant says that the only issue in dispute in the proceedings below was whether the trial of the DRG stimulator was reasonably necessary treatment in respect of the accepted knee injuries.
The appellant asserts that a fair reading of the evidence as a whole, and an analysis of the expert medical evidence leads to a clear picture of an injured worker who has been overtreated. The appellant says that the relatively minor injury has resulted in multiple surgical procedures and ingestion of large quantities of opioid medications which has resulted in very little or no benefit to the respondent. It asserts it would be in the best interests of the respondent if he were psychologically treated and completely weaned off the medication. The appellant adds that there is very little chance of the treatment delivering any benefit to the respondent.

As to ground one: the Arbitrator erred in fact and law in applying the relevant authorities to the facts

The appellant’s submissions

The appellant submits that application of the relevant authorities was required in order to dispose of the proceedings before the Arbitrator. The appellant says that the authorities of Bartolo and Rose are relevant, and what is required is a finding that the proposed treatment will maintain or improve the respondent’s health.
The appellant submits that it is necessary to analyse the treatment the respondent has received to date, which includes:
(a)    arthroscopy on 3 June 2010;
(b)    implantation of harvested cells on 15 July 2010;
(c)    a further arthroscopy on 17 December 2010;
(d)    the implantation of a spinal cord stimulator on 9 December 2012, and
(e)    a total knee replacement on 30 July 2018.
The appellant says that the implantation of the spinal stimulator is supported by the treating specialist, Dr Ho, but submits that A/Prof Shatwell has assessed the respondent on a number of occasions and considers there is a psychological component to the respondent’s condition which has not been addressed. The appellant contends that the respondent has not adduced any psychiatric opinion to counter the existence of a psychological component in the respondent’s symptoms. The appellant asserts that the existence of such a component is consistent with the failure to gain benefit from other treatment modalities. The appellant contends that the presence of a psychological component should be investigated before the DRG stimulator is trialled.
The appellant points to the observation by A/Prof Shatwell that it had been less than twelve months since the total knee replacement, and that the respondent should put off a trial of the stimulator for twelve months. In the interim, the respondent should continue intensive hydrotherapy and wean himself off all opioids.
The appellant says that if the appeal succeeds, the respondent could bring his case again once a psychological component is ruled out and the respondent has weaned himself off the opioid medication.

The respondent’s submissions

The respondent submits that the appellant’s submissions have failed to identify any error on the part of the Arbitrator.
The respondent submits that A/Prof Shatwell is an orthopaedic surgeon and does not attempt to diagnose a psychiatric condition, which would be outside his area of expertise. The respondent submits that there is no diagnosed psychological condition. Further, Dr Ho considered the respondent was psychologically suitable for the trial DRG stimulator, and there was no history of drug abuse.
The respondent says that the Arbitrator was correct in identifying that A/Prof Shatwell misquoted Dr Ho’s opinion, which the Arbitrator correctly set out in his reasons. A/Prof Shatwell also proceeded on the assumption that the previous stimulator was of no benefit, and the Arbitrator was therefore correct to come to the conclusion that the previous stimulator was of benefit prior to the motor vehicle accident. That conclusion was consistent with the evidence. The respondent points out that the Arbitrator’s acceptance of that fact has not been challenged in this appeal.
The respondent contends that A/Prof Shatwell did not give any rational reasons as to why the DRG stimulator was not reasonably necessary. The respondent submits that the Arbitrator correctly noted that the treatment could be reasonably necessary even though other forms of treatment were also provided.
The respondent asserts that A/Prof Shatwell’s rejection of Dr Assem’s opinion was not logical. The respondent says that the fact that other treatment modalities have not been successful is a strong indicator that other treatment should be tried.
The respondent says that in any event, A/Prof Shatwell does not address what benefit might be afforded to the respondent from the DRG stimulator. The respondent remarks that A/Prof Shatwell was of the view that there was unlikely to be a “dramatic” change. The respondent submits that in the context of the respondent’s condition, any improvement, even though it fell short of “dramatic,” would still justify the trial of the DRG stimulator. Further, the outcome of the trial would help to determine what treatment follows.
The respondent maintains that Dr Ho provided a reasoned opinion as to why the trial of the DRG stimulator was reasonably necessary, which addressed all of the factors to be taken into account and was supported by the opinion of Dr Assem. The respondent says the Arbitrator was entitled to accept that opinion. The respondent submits that the Arbitrator considered the appropriate authorities and correctly applied them, so that the appellant has not disclosed any error on the part of the Arbitrator.
In conclusion, the respondent submits that, in reality, the only complaint the appellant makes is that the Arbitrator should have preferred the opinion of A/Prof Shatwell over that of Dr Ho and Dr Assem. This was despite the errors identified in A/Prof Shatwell’s report and the concession that Dr Ho had a greater expertise. The respondent submits that the Arbitrator was entitled to prefer the opinion of Dr Ho and gave logical reasons for doing so.
The respondent submits that the appellant has failed to establish error on the part of the Arbitrator.

As to ground two: there was insufficient evidence to determine the matter

The appellant’s submissions

The appellant submits that the Arbitrator’s reliance upon the opinion of Dr Ho and failure to address the opinion of A/Prof Shatwell involves an error of fact.
The appellant asserts that Dr Ho does not explain how the DRG stimulator is different from the previous stimulator. Further, while there is evidence to support that the previous stimulator was of some benefit, the respondent chose to have it removed following his non-work related accident which possibly displaced the electrodes.
Additionally, while Dr Ho said that the aim of the procedure was to reduce the pain severity by 50%, Dr Ho did not comment on the likelihood that this benefit would be achieved for the respondent. The appellant contends that Dr Ho did not take into account the failure of the previous treatment or whether that failure had an effect on the probability of the treatment being efficacious.
The appellant also submits that Dr Ho did not comment on A/Prof Shatwell’s forceful opinion that the respondent’s problems are largely psychological, and that psychological treatment is likely to be the only treatment of benefit to the respondent.

The respondent’s submissions

The respondent asserts that grounds two, three and four are in substance the same complaint made in ground one and are merely a restatement of that ground.
The respondent says that, to the extent there may be a different argument raised, the challenge that Dr Ho did not explain the difference between the previous stimulator and the DRG stimulator, and the challenge that Dr Ho did not take into account the likelihood of the particular benefit to the respondent, were not matters argued at the arbitration.
The respondent reiterates that Dr Ho provided comprehensive reasons including that the failure of the previous (different) stimulator does not predict the likely success of the DRG stimulator. The respondent maintains that Dr Ho, as a pain management specialist proposing a course of treatment to address pain, is in a more appropriate position to manage the respondent’s condition.
The respondent submits that it is not necessary for Dr Ho to comment on A/Prof Shatwell’s view that the respondent’s problems are largely psychological because:
(a)    Dr Ho is treating a physical condition with clear physical signs;
(b)    A/Prof Shatwell has no expertise in psychology, and
(c)    Dr Ho, as a pain management specialist, would have experience working with psychologists as part of a pain management team and would be more familiar with psychological issues than A/Prof Shatwell.
The respondent submits that Dr Ho gave a clear and reasoned opinion recommending the trial of the DRG stimulator, and the Arbitrator was entitled to rely on that opinion.

Grounds three and four: the Arbitrator ought to have considered alternative treatment modalities and rejected the proposed treatment (ground three), and failed to take into account the respondent’s psychological condition (ground four)

The appellant relies on its submissions made in respect of ground two.
The respondent also relies on its submissions already made.

The appellant’s submissions in reply

The appellant made further general submissions in reply. The appellant reiterated that in circumstances where the respondent’s presentation had the potential to be largely psychological, which was reinforced by his ingestion of high levels of addictive medication, it was incumbent upon the respondent to rule out that condition as being a treatable option. The appellant submits that the respondent has not discharged the onus of proof.

DISCUSSION

The appellant’s first ground of appeal alleges that the Arbitrator erred in fact and law when he applied the relevant authorities to the facts.
The only “facts” identified by the appellant in its submissions are those recorded by A/Prof Shatwell that the respondent has a psychological component to his presentation and that at the time A/Prof Shatwell wrote his report, it had been less than twelve months since the total knee replacement occurred.
The Arbitrator thoroughly reviewed the authorities of Rose and Diab and correctly identified the principles and considerations to be applied in determining whether the proposed treatment was reasonably necessary. The Arbitrator proceeded to consider the evidence before him which included the extensive treatment provided by Dr Manohar prior to the respondent being referred to Dr Ho.
The Arbitrator reviewed the evidence of Dr Ho, in which Dr Ho provided details of the treatment the respondent had already received, gave a diagnosis, made a recommendation that the respondent should undergo the proposed trial DRG stimulator, and identified the long term benefits of the procedure. The Arbitrator accepted that, in accordance with the authorities, Dr Ho’s evidence positively satisfied the considerations he was required take into account. The Arbitrator also noted that Dr Ho’s opinion was supported by both Dr Assem and Dr Morsingh.
There is no identifiable error in that approach.
The balance of the appellant’s submissions relies upon A/Prof Shatwell’s opinions as to what treatment should or should not be offered and puts forward the proposition that the Arbitrator ought to have accepted that evidence. This argument suggests that the appellant’s complaint is that the Arbitrator committed a factual error in accepting the respondent’s medical evidence over that of A/Prof Shatwell.
The Arbitrator found that the respondent had enjoyed some benefit from the previous stimulator. He took into account the evidence of the respondent and Dr Manohar, who performed the implant and was treating the respondent over the period of time the previous stimulator was in place. Dr Manohar’s evidence was that the respondent was doing well, was more active, and ready to return to some work when the motor vehicle accident occurred.
The factual finding that the previous stimulator provided some benefit to the respondent has not been challenged in this appeal. Even if it was challenged, there would be no reason to disturb it. For the appellant to succeed in establishing an error of fact, it must establish that in arriving at his conclusion, the Arbitrator overlooked material facts, or gave undue or too little weight to material facts in deciding the inference to be drawn, or the available inference in the opposite sense is so preponderant that the decision is wrong.[36] Dr Manohar’s evidence, the evidence of the respondent and the evidence of the general practitioner, Dr Morsingh, who also treated the respondent while the stimulator was in place, all reported that the respondent had some benefit from it. In the face of histories taken some years later by two medico-legal experts (Dr Vote and A/Prof Shawtell), the Arbitrator’s finding was soundly based on probative evidence and ought not be disturbed.
[36] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, per Heydon JA (as his Honour then was) (Sheller JA and Studdert AJA agreeing), [45].
Having made that finding, the Arbitrator proceeded to consider the probative value of A/Prof Shatwell’s evidence. Noting the opinion was based on the history that the respondent had experienced no benefit from the previous stimulator, the Arbitrator also observed that A/Prof Shatwell had misread Dr Ho’s opinion about the potential outcome of the procedure. That observation was undoubtedly correct. Taking either or both of those two significant errors in the report into account, it was open to the Arbitrator to find that A/Prof Shatwell’s conclusions about the reasonable necessity for having the DRG stimulator were flawed, and that the probative evidence of Dr Ho should be preferred.
The Arbitrator rejected, on a proper basis, A/Prof Shatwell’s opinion as to why the DRG stimulator was not reasonably necessary. Having done so, the accepted evidence was sufficient to find the proposed procedure reasonably necessary. The Arbitrator was not required to consider whether the alternate treatment put forward by A/Prof Shatwell was reasonably necessary in the terms identified by Burke CCJ in Rose and Roche DP in Diab. As the Arbitrator observed, it is not necessary to establish that the treatment was reasonably necessary to the exclusion of all other treatment.
The appellant has failed to identify error on the part of the Arbitrator and ground one of the appeal fails.
As the respondent points out, grounds two, three and four are simply re-statements of ground one.
Ground two alleges that there was insufficient evidence to determine the matter.
As the respondent submits, the submissions in support of what is expressed as ground two were not submissions that were put to the Arbitrator. If a submission is not made, it is not an error to fail to refer to it.[37] The appellant did not challenge Dr Ho’s evidence that the DRG stimulator was more advanced than the previous stimulator and given Dr Ho’s expertise, that unchallenged evidence was open to be accepted by the Arbitrator. The appellant did not submit that the respondent’s election to have the previous stimulator removed was a factor that ought to be considered by the Arbitrator. Even if the respondent did make that submission, it has no merit. Dr Manohar’s contemporaneous evidence is that after the motor vehicle accident, the electrodes in the stimulator had shifted so that they were no longer effective, the respondent was experiencing a burning sensation at the implant site and there was lead migration of the right electrode.[38] It is not surprising the respondent chose to have the stimulator removed and the fact that he did is not relevant to whether the proposed DRG stimulator will be beneficial and is reasonably necessary.
[37] Brambles Industries Limited v Bell [2010] NSWCA 162, [22] and [30].
[38] Dr Manohar’s report dated 11 March 2014, ARD, p 92.
Ground three asserts that the Arbitrator ought to have considered the treatment proposed by A/Prof Shatwell and ought to have found the trial DRG stimulator was not reasonably necessary.
It is not sufficient for the appellant to simply assert that the Arbitrator ought to have found in its favour. In Norbis v Norbis, the High Court made the following observation:
“In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”[39]
[39] [1986] HCA 17; 161 CLR 513, 518–519, per Mason and Deane JJ.
An appeal brought pursuant to s 352 of the 1998 Act is not a review or a re-hearing.[40] I have discussed the probative value of the evidence and the satisfactory nature of the Arbitrator’s reasons for preferring the evidence of Dr Ho to that of A/Prof Shatwell. It is not necessary to repeat that discussion in relation to the appellant’s complaint that the Arbitrator ought to have accepted its case. In the absence of an identifiable error, a Presidential member has no power to intervene even if he or she preferred a different result, which in any event I do not.
[40] Section 352(5) of the 1998 Act.
It follows that the appellant’s complaint, expressed as ground three, fails.
Ground four contends that the Arbitrator failed to take account of the respondent’s psychological condition. Again, I have already dealt with the Arbitrator’s reasons for finding that the DRG stimulator was reasonably necessary, and why it was not necessary for the Arbitrator to determine whether the treatment proposed by A/Prof Shatwell was reasonably necessary.
The Arbitrator’s findings leading to his conclusion that the proposed treatment was reasonably necessary were factual findings. Findings of fact will not normally be disturbed if they have rational support in the evidence.[41] There is no evidentiary material and nothing about the process of reasoning followed by the Arbitrator that is indicative of error. On the contrary, the Arbitrator’s approach was rational, logical and consistent with the authorities of Diab and Rose.
[41] Fox v Percy [2003] HCA 22; 214 CLR 118.
The complaint made in ground four is not made out and ground four fails.

CONCLUSION

The appellant’s grounds of appeal (however they are expressed) and submissions in support have failed to identify any error on the part of the Arbitrator. Having failed to establish error of the kind required by s 352(5) of the 1998 Act, there is no reason disturb the Arbitrator’s determination and the appeal fails.

DECISION

The Certificate of Determination dated 7 June 2019 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

10 December 2019