Tran v ATS
[2014] VMC 16
•8 AUGUST 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No.D12153337
| UY HOAT TRAN | Plaintiff |
| v | |
| ATS AUSTRALASIAN TECHNICAL SERVICES P/L | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 7, 8 & 9 JULY & 4 AUGUST 2014 |
DATE OF DECISION: | 8 AUGUST 2014 |
CASE MAY BE CITED AS: | TRAN v ATS |
REASONS FOR DECISION
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Catchwords: S 274 (1)(b) Workplace Injury Rehabilitation and Compensation Act 2013 – application to court to refer medical questions to a Medical Panel on Hearing date – Refused – abuse of process. Issues: relationship between ongoing back symptoms and fall occurring on 9 September 2011 – s 223 & 224: whether proposed surgery to left shoulder as recommended by treating surgeon is ‘reasonable and necessary’ – whether hydrotherapy, physiotherapy and acupuncture treatment is ‘reasonable and necessary’ - capacity for employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Tait | Zaparas Lawyers |
| For the Defendant | Ms Gladman | Lander & Rogers |
HIS HONOUR:
1 Mr Tran is aged 46 years and commenced employment with the defendant as an asbestos remover in 1997. He alleges that as a consequence of a fall from the back of a ute on 9 September 2011, in the course of his employment, he sustained injuries to his head, back, shoulders and subsequently depression. The issues for the court to determine are the ongoing compensability of his back injury for which his entitlements were terminated as from 10 June 2013 and the reasonableness of the proposed surgery on his left shoulder for which the defendant denied liability on 29 May 2013. Mr Tran remains in receipt of weekly payments for the right shoulder injury sustained on 9 September 2011.
2 Prior to the hearing commencing, the parties filed proposed Minutes of Consent seeking to have the matter adjourned for a period of six weeks to enable them to prepare the necessary documentation in order for Mr Tran to make application to the court for medical questions to be referred to a Medical Panel for an opinion. I refused the application on the grounds that;
a. the application to adjourn was made on the hearing date;
b. prior notice of the intended application to adjourn and to apply for medical questions to be referred to a Medical Panel was not given to the court pursuant to s 274 (1)(b)(ii);
c. the proposed application to refer medical questions to a Medical Panel was made contrary to Practice Direction No.1 of 2012;
d. to allow an adjournment and subsequent referral of medical questions to a Medical Panel will result in a significant delay before an opinion is obtained; and,
e. determination of the proceeding will be more speedily and efficiently determined by the court.
3 Mr Tran gave evidence through the assistance of a Cantonese interpreter. He told the court that he came to Australia from Cambodia in 1986 with his eight brothers and sisters. He said that he worked at a number of factories prior to commencing employment with the defendant in 1997. He gave evidence that on 9 September 2011, he was unloading timber from the back of a ute when he fell backwards onto a concrete path rendering him unconscious. He said that he experienced pain in his head, low back and both shoulders and that he continues to experience low back pain, left and right shoulder pain and neck pain. He told the court he was transported from work to the Monash Medical Centre by ambulance on 9 September 2011.
4 Mr Tran told the court that he has received various forms of treatment for his injuries including physiotherapy, hydrotherapy, acupuncture, injections, medications and underwent surgery on his right shoulder on 7 February 2012 by Mr Li. He said that since his medical treatment expenses were terminated in relation to his back condition in June 2013 he has continued to receive physiotherapy once per fortnight, hydrotherapy 3-4 times per week for which he pays as well as acupuncture once per week. He said this treatment is of “some help” and gives him “temporary relief”. He also told the court he receives ongoing treatment from Dr Woo, General Practitioner, Ms Le, Psychologist and Dr Hogan, Psychiatrist.
5 Mr Tran gave evidence that he did previously injure his back in June 2011 whilst playing ball with his son for which he attended Dr Hoang at Dr Woo’s clinic and was prescribed Celebrex and had one day off work. He said that he did not mention this incident to any doctors because he considered that he had “healed”.
6 Mr Tran said that his back condition restricts him in performing everyday tasks including home duties, walking on uneven surfaces or upstairs/downstairs, that he is restricted to standing/sitting for up to 15-20 minutes, he cannot fully bend or twist, can only carry light objects, cannot walk properly or fast, experiences left leg weakness and he is never pain free.
7 Mr Tran said that his left shoulder has been in pain since the fall and that he did not mention his left or right shoulder pain when he first attended the Monash Medical Centre because he was more concerned with his back and neck pain and he thought his shoulder pains would disappear. He said his right shoulder was more painful following the fall but now his left shoulder is more painful. He told the court that he wants to undergo left shoulder surgery because of the pain, the difficulty he has in using his left arm and he expects surgery will give him some relief. He said that he pays for and receives physiotherapy treatment which gives him temporary relief.
8 During cross examination, Mr Tran told the court that he could not recall attending Dr Ong on 3 February 2005 complaining of back pain. He agreed that when he attended Dr Ong following the incident on 9 September 2011, he provided a history that he fell onto his back and hit his head. He said that he believed he subsequently told Dr Woo that he hurt his head, neck and back in the fall and that his main problem was pain in his right shoulder. Mr Tran was cross examined at length concerning his failure to mention the prior back injuries to doctors and his consistent response was that he did not believe it was necessary as he had “healed” from the injury. He was also cross examined on alleged inconsistent histories given to doctors as to whether he fell onto his left side or right side in the fall for which he could provide no explanation.
9 The records from Southern Health indicate that Mr Tran attended at 12.43 p.m. on 9 September with a history of falling from the back of a vehicle landing on his back. A complaint of back and right shoulder pain was recorded with some left sided and midline cervical pain. On examination no shoulder girdle tenderness was reported. Dr Woo gave evidence and medical reports prepared by him were tendered. Dr Woo obtained a history from Mr Tran on 20 September 2011 that he was experiencing headaches, dizziness, neck pain, low back pain, right shoulder pain and right elbow pain as a result of the fall on 9 September. He recorded that the hospital had reported that he suffered fracture at the transverse process at L1, L2 and L3. Dr Woo also obtained a history from Mr Tran that he landed heavily on the right side of his body and his lower spine and hit the back of his head against the concrete floor and that he had no relevant past history including no past complaint of neck, shoulder or back pain. In evidence he agreed that he was incorrect and that Mr Tran had previously attended with a complaint of back pain. He reported that Mr Tran had injured his right elbow, right shoulder and lower back. Dr Woo referred him for radiological investigations which revealed:
a. CT Scan Lumbar Spine 21 September 2011: undisplaced fractures Left transverses of L1, 2 & 3;
b. X Ray Right Shoulder & Elbow 20 September 2011: normal;
c. Ultrasound Right Shoulder 20 September 2011: partial thickness 5 x 7mm tear in supraspinatous tendon;
d. Ultrasound Left Shoulder 20 October 2011; no abnormality;
e. X Ray Left Shoulder 20 October 2011: normal alignment, bones and articular spaces intact, no evidence of osteoarthritis, bony abnormality or soft tissue calcification.
10 Dr Woo reported that he referred Mr Tran to Mr Li, Orthopaedic Surgeon who arranged for MRI Scans to be performed which revealed no abnormality in the right elbow and a supraspinatous tear in the right shoulder. Dr Woo reported a complaint of left shoulder pain for which Mr Li arranged for an MRI Scan performed on 3 February 2012, which indicated minor subacromial bursitis with intact cuff and supraspinatous tendinosis, no evidence of a tear but a small amount of fluid was seen subacromial bursa posteriorly with the Dr Dorey, Radiologist, noting degenerative changes of the AC joint and for which Mr Li administered cortisone injections and recommended surgery if those injections failed to assist. Dr Woo reported that Mr Tran subsequently underwent right shoulder surgery by Mr Li on 7 February 2012. Dr Woo also reported that Mr Tran was referred to Mr Brighton Knight, Orthopaedic Surgeon, who arranged for a Bone Scan which revealed no abnormality to the lower spine and a further MRI Scan on 8 June 2012, which revealed disc degeneration at L1/2, L4/5 and L5/S1 and disc damage with fissure at L4/5 and L5/S1 with no evidence of transverse process fracture (with a notation that they are difficult to visualise on MRI). The Scan revealed generalised disc bulges resulting in minor bilateral foraminal stenosis at L4/5 and L5/S1 without neural compromise. Dr Woo reported that he also referred Mr Tran to Professor Bittar in May 2012 regarding his back pain who suggested he see Dr Gassin, Pain specialist. In July 2012 he noted that Mr Tran was depressed and referred him for psychological counselling with Mr Liu and also referred him to Mr Taylor, ENT Surgeon due to symptoms of dizziness.
11 On 16 March 2013, after a further MRI Scan of the left shoulder, Dr Dorey noted low level supraspinatous tendinosis with minor subacromial spur formation and AC joint degenerative changes. Dr Woo commented that Mr Tran required arthroscopic decompression and arthroplasty of the acromioclavicular joint because physiotherapy and cortisone injections had not worked. He opined that the tendonitis may be related to the fall and/or overuse of the left shoulder as Mr Tran was unable to use his right shoulder for a period. He noted that Dr Gassin had performed a left L3-5 medical branch nerve block on 2 April 2013 with little improvement.
12 In his latest report dated 21 May 2014, Dr Woo noted a continuing complaint of pain in the left shoulder and low back for which ongoing treatment in the form of hydrotherapy and physiotherapy had been refused. He also noted a worsening of symptoms of depression for which he referred Mr Tran to Dr Hogan, Psychiatrist who prescribed Axit and Pristiq. Dr Woo reported that Mr Tran was also being prescribed Norspan, Endep, Panadol Osteo, Panadeine Forte and Serc for his dizziness.
13 In evidence, Dr Woo told the court the prior episodes of back pain in February 2005 and June 2011 do not affect his opinion as to the relationship between Mr Tran’s ongoing condition and the relationship between them and the fall on 9 September 2011. He said Mr Tran told him that the fall occurred mainly on the right side of his body. He told the court that in his opinion the incident aggravated the underlying degenerative condition in Mr Tran’s lumbar spine and that he now has a chronic pain syndrome. He also told the court that Mr Tran would have complained of left shoulder symptoms when he first saw him notwithstanding an absence of that history in his notes because he would not otherwise have referred him for an Ultrasound and X Ray of the left shoulder. He gave evidence that Mr Tran requires left shoulder surgery so as to improve his pain level and range of movement.
14 In cross examination, Dr Woo told the court that normally mild transverse fractures improve without treatment within 12 months and agreed that the MRI Scan dated 8 June 2012 indicated the fractures had healed by that date. He agreed that the level of pain complained of by Mr Tran in his back is inconsistent with that demonstrated on radiological investigation and also agreed that the level of degeneration seen on the MRI Scan dated 8 June 2012 may have been present although not visible on the CT Scan in September 2011. In respect to the left shoulder complaint, he agreed that the ultrasound and x ray were normal and the MRI Scans dated 3 February 2012 and 16 March 2013 essentially demonstrated degenerative changes only.
15 Dr Gassin, Musculoskeletal and Pain Physician, gave evidence and a report prepared by him and dated 13 June 2013 was tendered. He reported that he saw Mr Tran on five occasions between September 2012 and May 2013 on referral from Professor Bittar. He obtained a history from Mr Tran that he landed on his back and the back of his head in the fall and was complaining of widespread pain involving the neck, shoulders, mid and low back. He noted on examination that Mr Tran was exhibiting significant pain behaviour. In February 2013, Dr Gassin reported that Mr Tran was highly disabled by pain and reported severe restriction in his ability to sit or stand or perform any activity. Dr Gassin reported that he performed a left L3-5 medial branch block on 2 April 2013, the results of which were negative indicating his back pain was not arising from the lower lumbar facet joints. He diagnosed Mr Tran to be suffering from soft tissue injuries and symptoms highly suggestive of a chronic pain syndrome with significant psychological distress. In evidence, Dr Gassin told the court that the cause of Mr Tran’s back pain is due to disc issues or injury to the paravertebral muscles and that he has subsequently developed a chronic pain condition which causes incapacity. He said that Mr Tran should continue to have physiotherapy and hydrotherapy treatment if it increases his level of activity. He also told the court that the prior complaints of back pain do not affect his expressed opinion.
16 In cross examination, Dr Gassin confirmed that his qualifications are that of a General Practitioner but that he has specialised in pain and skeletal medicine for 12 years. He agreed that due to Mr Tran’s significant pain behaviour, part of his ongoing treatment should be psychologically based. He told the court that the radiological investigations undertaken does not show the bruising that may have occurred within the muscles as a result of the impact in the fall and that he would have expected the transverse fractures to have healed within 6 weeks of the incident.
17 Mr Douglas Li, Orthopaedic Surgeon, gave evidence and a report prepared by him and dated 20 August 2012 was tendered as was a letter to Mr Tran’s lawyers dated 16 May 2013 and numerous letters from him to Dr Tang and Dr Woo. Mr Li reported that he first saw Mr Tran on referral from Dr Woo on 30 November 2011 in relation to his right shoulder complaint. He reported that he obtained a history from Mr Tran that he fell off the back of a truck on 9 September 2011 and landed heavily on his right side with x-rays demonstrating a fracture and an ultrasound and MRI demonstrating a partial thickness supraspinatous tendon tear. Mr Li also reported that Mr Tran was complaining of similar left shoulder symptoms when he reviewed him on 16 December 2011. He obtained a history from Mr Tran that he had been experiencing left shoulder pain since the incident and Mr Li opined that this was consistent with rotator cuff disease.
18 Mr Li reported that he performed a right shoulder arthroscopic subacromial decompression and right rotator cuff repair on 7 February 2012. At operation he discovered a small full thickness supraspinatous tendon tear at its insertion. Mr Li reported that he was hopeful that Mr Tran would be able to return to pre injury employment within 6-9 months following surgery. He also reported that on 16 February 2012, Mr Tran continued to complain of left shoulder symptoms consistent with impingement with an MRI demonstrating bursitis with intact cuff. Mr Li reported that he injected the left shoulder with steroids which only provided temporary relief and told Mr Tran that if his pain continued he would consider performing surgery on his left shoulder. By 1 May 2012, he recorded that Mr Tran told him his left shoulder was getting worse and Mr Li considered that he remained unfit for all work due to a combination of his left and right shoulder problems and his back condition. He reported in July 2012 that Mr Tran’s right shoulder was improving but his left shoulder was swollen and painful notwithstanding that he had undergone two steroid injections without effect and recommended that he undergo a hydrodilatation because he believed he was developing capsulitis (frozen shoulder). Mr Li reported that when he last saw Mr Tran on 14 May 2013 he opined that he had developed left shoulder rotator cuff tendinopathy and bursitis with acromioclavicular arthropathy which had failed non operative treatment and he therefore required arthroscopic subacromial decompression and excision arthroplasty of the acromioclavicular joint.
19 When giving evidence, Mr Li told the court that he specialises in shoulder and knee surgery. He said that he recommends Mr Tran undergo surgery on his left shoulder on the basis of clinical and radiological findings. He opined that the problems with Mr Tran’s left shoulder are due to the fall entirely or the fall exacerbated an underlying degenerative process in the shoulder. In cross examination, he did not attach any significance to the fact that the ultrasound and x ray of the left shoulder performed in October 2011 was normal and said that it cannot be inferred from those results that no abnormality existed in the left shoulder at that time. He agreed that the second MRI scan of the left shoulder performed in 2013 indicated bursitis and a spur had developed subsequent to the initial MRI performed which in his opinion was not surprising and indicated the progression of the degenerative process in the left shoulder. Mr Li told the court that in his opinion the incident was not the sole cause of the left shoulder problems and that it was also due to work performed by Mr Tran over a period.
20 Mr Li agreed with the suggestion that an operation on Mr Tran’s left shoulder may not improve his pain having regards to the ongoing symptoms he complains of in relation to his right shoulder despite surgery and that it may in fact make his left shoulder worse. However, he said that in view of Mr Tran’s ongoing complaints of pain and restriction of movement of the left shoulder he would still recommend, after further re-evaluation, that he undergo surgery.
21 Mr Tran tendered medical reports from Dr Chua who provided acupuncture treatment and Dr Shirazi who he attended for pain management therapy and who recommended a ketamine infusion. A medical report from Professor Bittar, Neurosurgeon, was also tendered and he opined that as a consequence of the fall Mr Tran aggravated an underlying condition of lumbar spondylosis. Medical reports from Ms Law, Physiotherapist, were tendered indicating that she first saw Mr Tran on 26 June 2012 on referral from Dr Woo and she initially treated him with interferential therapy, ultra sound and rotator cuff exercises, self managed hydrotherapy, a home exercise program, spinal mobilisation exercises and shoulder exercises. She noted in a report dated 3 July 2014 that Mr Tran was continuing to receive physiotherapy treatment on a needs basis at his own expense. A report from Dr Clayton Thomas, Rehabilitation and Pain Medicine Consultant, dated 8 January 2013 was tendered. Dr Clayton Thomas reported that he examined Mr Tran at the request of his lawyers on 11 December 2012. After reviewing medical reports, radiological investigations and conducting an examination of Mr Tran he opined that Mr Tran sustained undisplaced transverse process fractures, had residual symptomatic spondylosis, a surgically repaired right rotator cuff and presented with significant illness behaviour. He recommended that Mr Tran undertake a multi disciplinary rehabilitation and pain management program.
22 Mr Tran tendered medico legal reports from Mr Flanc, Vascular and General Surgeon, who assessed him on 16 November 2012 and 4 June 2014, Mr Doig, Orthopaedic Surgeon, who assessed him on 13 May 2013 and Mr Kossmann, Orthopaedic Surgeon, who assessed him on 30 May 2014. Mr Flanc opined that as a consequence of the fall at work, Mr Tran suffered fractures of the left transverse processes of L1/2 and L3, significant aggravation of degenerative disease of the lumbar spine rendering it symptomatic, a tear of the right rotator cuff, acromioclavicular arthritis and subacromial bursitis of the left shoulder and features of a chronic pain syndrome. In his report dated 10 June 2014, Mr Tran told him that his back pain was more severe and that it radiated into his left buttock and thigh, that he still experienced stiffness in his right shoulder although there had been improvement since the operation and that he continues to experience pain and stiffness in his left shoulder. After reviewing the medical reports, Mr Flanc opined that Mr Tran continues to suffer from back pain due to the aggravation of his underlying degenerative condition as a consequence of the fall, that he has developed a chronic pain syndrome with a psychological disturbance, that his ongoing right shoulder pain is influenced by his chronic pain syndrome and that ongoing left shoulder symptoms are due to a soft tissue injury caused by the fall which aggravated a pre-existing degenerative condition of the rotator cuff. Mr Flanc suggests that Mr Tran should be managed by a multi disciplinary pain management team. He also opined that although in theory a left shoulder operation may be appropriate, it may lead to a disappointing result unless improvement can be obtained in the multidisciplinary management of his pain. He is of the opinion that Mr Tran remains unfit for work which involves repetitive bending, heavy lifting or manual use of his upper limbs.
23 As at May 2013, Mr Doig was of the opinion that as a consequence of the fall, Mr Tran exacerbated pre-existing asymptomatic AC joint degenerative changes in his left shoulder, sustained fractures of the transverse processes in the lumbar spine and sustained a full thickness tear of the rotator cuff of the right shoulder. He did not consider that Mr Tran had any capacity for employment.
24 In May 2014, Mr Tran told Mr Kossmann that he was still experiencing pain in his left and right shoulder joints, cervical and lumbar spines and was suffering from headaches and dizziness. After reviewing numerous medical reports and radiological investigations, Mr Kossmann diagnosed that he suffers from; low level supraspinatous tendinosis with minor subacromial spur formation and acromioclavicular joint degeneration of the left shoulder; a full thickness tear of the supraspinatous tendon of the right shoulder; degenerative changes of the cervical spine; multi level disc degeneration of the lumbar spine without focal disc protrusion, annular fissure with minor bilateral bony foraminal stenosis at L4/5 and L5/S1; and, undisplaced fractures of the left transverse processes of L1, L2 and L3. Mr Kossmann opined that Mr Tran has a poor prognosis and will require further treatment with pain medication, anti inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. Mr Kossmann also opined that he does not believe surgery to the left shoulder will improve Mr Tran’s condition and that it may even worsen it. He is also of the opinion that Mr Tran does not have any work capacity.
25 Dr Barton, Occupational Physician, assessed Mr Tran on behalf of CGU on 4 December 2012, 4 March 2013 and 10 September 2013. He obtained a history from Mr Tran that on 9 September 2011 he had fallen from the back of a truck onto concrete hitting his back, head and the left side of his body and that despite surgery to his right shoulder he continued to experience pain in the right shoulder, neck and across to the left shoulder down the arm into the hand, back pain and pins and needles and numbness in the left leg. Dr Barton noted that Mr Tran exhibited a considerable degree of illness behaviour during examination and that his treating doctors should encourage him to “move on” from this episode. He assessed Mr Tran as having a capacity for pre-injury duties and hours following a graduated return to work program. Following Dr Barton’s examination of Mr Tran in March 2013, he opined that due to ongoing and worsening complaints of pain he believed that it confirmed his original opinion that Mr Tran had a significant functional overlay and there was a non physical basis for his complaints and that he had features of abnormal illness behaviour. In September 2013, Dr Barton stated that Mr Tran had some persisting dysfunction following surgery to his right shoulder but that it was not as disabling as he portrayed and that he did not have any physical incapacity.
Conclusion
26 I find that Mr Tran suffered injuries as a consequence of a significant fall in the course of his employment on 9 September 2011. It is not in dispute that as a result of the fall he injured his right shoulder in the form of a full thickness supraspinatous tear which required operative treatment and for which he still experiences disabling pain and discomfort and receives weekly payments of compensation pursuant to the Act.
27 I accept the evidence of Mr Tran that he continues to experience low back pain symptoms which have not abated since the fall. I find that he has developed a chronic pain syndrome as diagnosed by Dr Woo, Dr Gassin and Mr Flanc on the basis that the level of pain of which he complains appears to be inconsistent with the radiological findings which indicate resolution of the transverse process fractures and degeneration at the L4/5 and L5/S1 levels.
28 There is no dispute that the fall on 9 September 2011 caused a significant impact to Mr Tran’s back. I find that the fall aggravated an otherwise asymptomatic underlying degenerative condition of the lumbar spine as opined by Dr Woo, Mr Flanc and Mr Kossmann, the effects of which persist and cause an ongoing incapacity for pre-injury employment.
29 During submissions, the defendant informed the court that it accepted Mr Tran suffered a soft tissue injury to his left shoulder but disputes that the surgery as recommended by Mr Li is reasonable and necessary. I accept the opinion of Mr Li that the fall at work on 9 September was a significant contributing factor to the development of left shoulder rotator cuff tendinopathy and bursitis with acromioclavicular arthropathy. This diagnosis is supported by Mr Flanc, Mr Doig and Mr Kossmann.
30 The issue of whether the surgery proposed by Mr Liu can be considered to be ‘reasonable and necessary’ is to be determined by the totality of the facts including the various medical opinions expressed regarding its appropriateness, alternative treatments available and the actual or potential effectiveness of the surgery in alleviating Mr Tran’s suffering. Mr Li has not examined Mr Tran since 14 May 2013. When told that Mr Tran gave evidence that he continues to experience pain, discomfort and restriction of movement in the left shoulder, he told the court that he would still recommend the proposed surgery, subject to further evaluation, notwithstanding that the surgery he performed on the right shoulder has not been a complete success. Mr Flanc expressed the opinion that the proposed operative treatment may lead to a disappointing result and Mr Kossmann expressed the opinion that surgery would not improve Mr Tran’s condition and may in fact make it worse. In all the circumstances, having regards to the nature and extent of Mr Tran’s ongoing complaints of pain, discomfort and restriction of movement, it appears to me that if Mr Li, who specialises in shoulder surgery, continues to recommend surgery after further evaluation, the proposed surgery can be considered reasonable and necessary. If there is a reasonable prospect of it alleviating his pain, it is reasonable and necessary treatment for the purposes of the Act and the defendant is liable for the reasonable costs associated with it.
31 I do not consider payment of physiotherapy, hydrotherapy or acupuncture treatment in relation to Mr Tran’s back can be considered to be ‘reasonable and necessary’ and therefore an expense that should be borne by the defendant. Mr Tran told the court that this treatment only provides temporary relief. Accordingly, It cannot be considered essential treatment that would ensure that his health or ability to undertake activities of daily living did not significantly deteriorate. The treatment does not arrest or abate the progress of his back condition or alleviate, cure or remedy it. On this basis, the defendant is not liable for the costs associated with it.
32 The medical evidence indicates that Mr Tran should undertake a multi disciplinary rehabilitation and pain management program to address his ongoing complaints of pain. He should participate in such a program once a final decision has been made relating to left shoulder surgery and prior to undergoing any assessment concerning his capacity to return to work in suitable employment.
33 At this stage, Mr Tran’s incapacity for employment is a result of a combination of the ongoing effects of his right shoulder, left shoulder and low back injuries which arose out of or in the course of his employment with the defendant on 9 September 2011.
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