Trapman v KinCare Homecare Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Trapman v KinCare Homecare Pty Ltd [2021] NSWPIC 235
APPLICANT:	Cecile Alice Trapman
RESPONDENT:	KinCare Homecare Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	8 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for medical expenses; applicant claims for cost of proposed complex, two-stage lumbar spine surgery; respondent opposes claim and alleges surgery not reasonably necessary; respondent raises changes to the recommended surgery by treating doctor as a factor in questioning reasonable necessity, along with divergence of medical opinion against a background of the applicant having a complex clinical picture; Held- it is not necessary for the treatment claimed to be the only reasonably necessary treatment available; the proposed surgery is reasonably necessary; Diab v NRMA Ltd and Rose v Health Commission (NSW) followed; the fact the treating surgeon has modified or altered his opinion with respect to the precise nature of the surgery for which approval is sought does not render the surgery unreasonable, particularly in the context of nearly a decade of conservative treatment and a changing clinical picture; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent on 25 August 2011. 2. The injury referred to in paragraph 1 above consisted of an aggravation to an underlying degenerative condition in her lumbar spine to which employment with the respondent was the main contributing factor. 3. The two-stage lumbar spine surgery recommended by Associate Professor Papantoniou is reasonably necessary as a result of the applicant's injury on 25 August 2011. 4. The respondent is to pay the costs of and incidental to the proposed surgery.

STATEMENT OF REASONS

BACKGROUND

On 25 August 2011, Cecile Trapman (the applicant) suffered an injury to her lumbar spine in a motor vehicle accident. There is no issue that injury was a work-related one suffered in the course of the applicant's employment with KinCare Homecare Pty Ltd (the respondent) as an assistant in nursing.
Since that time, the applicant has undergone conservative treatment over many years, to little or no benefit. She also had lumbar laminectomy surgery at the hands of Associate Professor Papantoniou in 2013.
The applicant brings these proceedings seeking payment for the costs of and incidental to a proposed two-stage lumbar fusion surgery by A/Prof Papantoniou. The respondent opposes that claim and alleges the proposed surgery is not reasonably necessary.
The medical and treatment history of this claim is lengthy. It involves a number of requests for surgery by A/Prof Papantoniou, the nature of which requests have changed over the years. Given the complexity of this history, it is necessary to recount in general terms the timeline of events leading up to the request at issue.
A/Prof Papantoniou, who has treated the applicant since April 2012, at that time sent the applicant for lumbar spine scans which disclosed L2/3 and L3/4 disc prolapses. The applicant had a steroid injection in her right buttock in September 2012. Thereafter, the applicant underwent treatment by way of physiotherapy, hydrotherapy, self-directed exercise, core stability exercise and dietary changes with a view to returning to work on restricted duties in or about November 2012.
In mid-November 2012, as the applicant was progressing towards a return to work, she developed right buttock pain radiating into her right thigh while undertaking hydrotherapy. She was referred for an L4/5 epidural steroid injection and told to continue with her exercise regime.
The steroid injection took place in approximately March 2013, however, the applicant still suffered right side of lower back pain, numbness and a cold sensation in her legs, the right worse than the left. A/Prof Papantoniou considered the applicant was now suffering L5 nerve root impingement as a result of her injury.
In May 2013, the applicant underwent a lumbar spine MRI, which reported disc desiccation from L1-L4, together with disc bulges at L3-4, L4-5 and a disc protrusion at L5-S1. At this time, A/Prof Papantoniou recommend L3-4 laminectomy, decompression, discectomy and neurolysis. The applicant had that operation on 14 October 2013.
After her surgery, the applicant continued to suffer right-sided lower back symptoms including radiculopathy. She suffered periodic falls owing to loss of sensation in her legs and feet. A/Prof Papantoniou recommended further L4-5 steroid injection, ongoing physiotherapy, painkilling and anti-inflammatory medication, a TENS machine and referral for nerve conduction studies. The steroid injection provided only temporary relief.
In June 2014, A/Prof Papantoniou recommended L3-L5 instrumental fusion, and requested approval from the respondent's insurer on three occasions for that surgery up to and including July 2015. Approval was not forthcoming, and the respondent issued a Dispute Notice. The applicant continued to suffer pain and weakness in both her back and legs, which caused repeated falls.
In August 2015, the applicant underwent further radiological study. A/Prof Papantoniou indicated these scans showed deterioration and formed a view that a different procedure was now required, namely an L2-L4 revision laminectomy, decompression and instrumental fusion. Approval was sought for this procedure, and in the meantime, the applicant had a further L3-4 steroid injection to no effect.
Unsurprisingly given the effluxion of time, the applicant's back pain deteriorated to the point where she presented to the Wyong Hospital on 7 October 2015. She was prescribed a cocktail of opioid painkilling medication and anti-inflammatories then discharged into
A/Prof Papantoniou's care.
The applicant returned to A/Prof Papantoniou, who again requested approval for the L2-L4 instrumental fusion and revision decompression. The applicant alleges there was no formal decision made regarding this procedure, despite the respondent's insurer writing to
A/Prof Papantoniou on three occasions requesting clarification.
In June 2016, the applicant returned to A/Prof Papantoniou. She continued to suffer low back pain, reduced sensation in her legs and feet, foot drop and had developed increased bladder urgency.
At this time, A/Prof Papantoniou recommended further scans to review the surgery recommendation, owing to the delay in approval. The applicant then had a further steroid injection at the L4-5 area and was referred to Dr Russo for pain management, subject to the insurer's approval.
Upon review of the further scans, A/Prof Papantoniou told the applicant she had multi-level disc prolapses and he could not specify the extent of the required fusion, but that it will potentially be an L1-L4 procedure.
By December 2016, approval for the referral for pain management by Dr Russo had still not been received. Owing to the applicant's worsening symptoms, A/Prof Papantoniou told her that surgery was now urgent and an L3-S1 fusion was the preferred procedure, to be carried out across two separate operations.
On 9 March 2017, the applicant fell at home due to her foot drop. She suffered a left distal fibula avulsion fracture.
From time to time, the applicant continued to consult A/Prof Papantoniou. On 26 June 2018, he amended his recommendation for surgery to an L4-S1 fusion in the first stage, followed by a revision L2-S1 fusion. A/Prof Papantoniou then requested approval for this surgery from the respondent's insurer.
On 24 July 2018 and 16 October 2018, the applicant attended A/Prof Papantoniou. She states there had still been no communication from the respondent's insurer confirming or denying surgical approval. Instead, the insurer again wrote to A/Prof Papantoniou requesting further information and on 17 October 2018, he provided a report to the respondent's insurer.
On 20 December 2018, the applicant again consulted A/Prof Papantoniou with worsening symptoms. He confirmed the urgent need for surgery and also prescribed a further L4-5 epidural injection.
On 14 October 2019, the applicant had another epidural injection. Her symptoms were still worsening. On 13 October 2020, A/Prof Papantoniou send a further request for surgery, with a slight change to the requested procedure. He now recommended an L5-S1 fusion with cages, followed six months later by a revision L2-S1 fusion, with cages to be fitted at L4-5 and L3-4.
It is this surgery which is the subject of these proceedings.

ISSUES FOR DETERMINATION

The parties agree the only issue in dispute is whether the proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 21 May 2021 and 11 June 2021.
At the hearing, Mr D Adhikary of counsel instructed by Ms B Harris, solicitor appeared for the applicant and Ms S Warren of counsel instructed by Ms K Faapito, solicitor appeared for the respondent.

EVIDENCE

Documentary Evidence

The following documents were taken into consideration by the Commission:

(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents; and
(c)    Respondent's Application to Admit Late Documents (AALD) and attached documents dated 14 May 2021.

At the hearing, the respondent withdrew its reliance upon the reports of Dr Sekel and
Dr Cummine. The applicant withdrew her reliance on the reports of Dr Evans and
Dr Ghabrial. These documents were not taken into consideration by the Commission in reaching its decision.

Oral Evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the surgery is reasonably necessary

It is trite to say the applicant carries the onus of proving the procedure proposed by
A/Prof Papantoniou is reasonably necessary. The test adopted in determining whether medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] to NSWCCR 2 (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them that the particular treatment is essential to, should be afforded to and should not be forborne by, the worker.
5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its price in the usual medical armoury of treatments for the particular condition."
In Diab v NRMA Ltd [2014] NSWCCPD 72 (Diab), Deputy President Roche noted the Court of Appeal considered the meaning of "reasonably necessary" Clampett v WorkCover Authority (NSW) [2003] [NSWCA 52]. The Deputy President stated the effect of the decision in Clampett was that the phrase "reasonably necessary" does not mean absolutely necessary. The Deputy President noted "reasonably necessary" is a lesser requirement than "necessary". Further, as the Deputy President stated, depending on the circumstances, a range of different treatments may qualify as reasonably necessary and the worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is "reasonable and necessary", which is a significantly more demanding test.
In Diab, Deputy President Roche specifically endorsed the matters to be taken into account as set out by Burke CCJ in Rose and noted that list is not exhaustive.
In this matter, Ms Warren noted that the reasons for declining liability relied upon by the respondent are set out at [R23] in the Section 287 Review Notice dated 28 January 2021.
Specifically, that notice referred to no fewer than three Section 78 Notices dated 8 March 2017, 26 November 2018 and 11 June 2019.
The Review Notice is useful as it sets out in reasonably economical terms, the various surgeries which have been requested from time to time by A/Prof Papantoniou. Those requests may be summarised as follows:
(a)    20 December 2016: L5/S1 instrumented fusion and L3/S1 extension fusion;
(b)    27 April 2017: L5/S1 laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral and instrumental fusion, PLIF bone graft and paravertebral nerve blocks and L3/S1 revision laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral and instrumented fusion, PLIF, paravertebral nerve blocks and bone graft;
(c)    14 February 2019: L4/S1 laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral instrumented fusions, PLIF, PRP bone graft, paravertebral nerve blocks followed by an L2-S1 laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral instrumented fusions, PLIF, PRP bone graft, paravertebral nerve blocks and fat/fascia graft;
(d)    26 September 2019: L3/S1 instrumented fusion performed in staged procedures with an L5/S1 fusion followed then by an L4/S1 fusion with any higher levels to be fused in one procedure connecting the lower levels;
(e)    3 March 2020: Urgent L5/S1 fusion followed by a number of months later by an L4-S1 revision fusion again followed a number of months later by the final L2-S1 instrumented fusion, and
(f)    13 October 2020: L5/S1 laminectomy, decompression and discectomy, neurolysis, posterior, posterolateral and instrumental fusion, PLIF, bone graft, PRP, paravertebral nerve blocks and fat/fascia graft and second layer revision L2/S1 laminectomy, decompression, discectomy, neurolysis, posterior, posterolateral instrumented fusion, PLIF, bone graft, PRP, paravertebral nerve blocks and fat/fascia graft.
It is noteworthy that the requests from A/Prof Papantoniou dated 3 March 2020 and 13 October 2020 were against the background of symptoms being developed by the applicant consistent with a cauda equina syndrome.
The respondent's Section 287 Review Notice then contrasted the medical opinion of various treating and independent medical examiner (IME) experts, as to the reasonable necessity of surgery. That evidence included a Medical Assessment Certificate (MAC) by Approved Medical Specialist (AMS) Dr Wong dated 26 February 2020, in which the AMS concluded the applicant's condition had not reached maximum medical improvement and which noted the applicant required surgery.
By contrast, the respondent obtained an opinion from Dr Sharp dated 24 February 2017.
Dr Sharp made no comment in relation to the then proposed surgery.
IMEs Dr Smith and Dr Anderson retained by the respondent, each provided opinions that the applicant would not receive a great deal of benefit from the proposed surgery.
For his part, the IME retained by the applicant, Dr Bodel provided an initial report dated 20 August 2019 in which he did not recommend the then proposed surgery until such time as the applicant's potential cauda equina lesion symptoms were investigated. In a supplementary report dated 4 January 2021, Dr Bodel referred to the surgery being an L3/S1 instrumented fusion performed in two stages. He noted the findings of Dr Manning, urogynecologist, of impaired bladder compliance and stated that whilst the proposed surgical procedure was extremely lengthy and therefore always difficult to recommend as a treatment option, it may be the only viable treatment alternative for the applicant and was therefore reasonably necessary.
The respondent noted that Dr Bodel's most recent report refers to a proposed 2-stage L3-S1 fusion, whereas A/Prof Papantoniou is now proposing a 2-stage L2-S1 fusion. It noted that in his previous report dated 20 August 2019, Dr Bodel had significant reservations as to the efficacy of an L2-S1 fusion.
The respondent then indicated that because of the inconsistency in A/Prof Papantoniou's request for surgery and the conflicting medical opinion as to whether it is reasonably necessary, the evidence does not support the proposed surgery satisfying the requisite legal test.
Ms Warren noted that the applicant has the onus of proving that the particular treatment is reasonably necessary, and submitted it is not sufficient to have regard to the general concept of a fusion surgery, rather to the specific proposed operation.
Ms Warren submitted there is no evidence which reconciles the change in opinion across the years by A/Prof Papantoniou. She submitted the opinion of Dr Anderson from his report dated 10 November 2015 is still relevant, given at the time of his report, the proposed surgery was an L2-L4, possibly L5 fusion. She noted that Dr Anderson had the complaints of various symptoms from the applicant and nevertheless found that the proposed surgery was not reasonably necessary.
Ms Warren made similar submissions with respect to the opinion of Dr Smith contained in his report dated 5 April 2016. She also submitted there was no evidence before the Commission to satisfy that the applicant had undergone sufficient investigations on her right hip condition to satisfy on the balance of probabilities that some of her symptoms were not linked to it.
Ms Warren submitted this was particularly important because in 2011 and 2012,
A/Prof Papantoniou was concerned about the applicant's right hip and referred her to
Dr Kafataris, whose report was not in evidence. Moreover, the applicant underwent an MRI on her right hip on 4 September 2012, which showed abnormalities which led to her having a steroid injection into the hip.
Ms Warren submitted that the proposed surgery is extensive, drastic and expensive. She then took the Commission to the report of Dr Sharp, IME, dated 24 February 2017 at [R105]. In that report, Dr Sharp noted that it was not particularly clear as to the nature of the surgery which A/Prof Papantoniou actually wished to carry out. Dr Sharp noted that at various times, A/Prof Papantoniou had been thinking of an L3/4 instrumented fusion, possibly an L1/4 instrumented fusion and even going down to L5/S1 or the pelvis. His opinion was that despite this there was no guarantee the applicant would have a decrease in her lower back pain following the surgery and at the present time (2017), she was receiving some relief from conservative measures including injections.
Relevantly, Dr Sharp's report does not assist Ms Warren's earlier submission that some of the issues concerning the applicant's symptoms relate to her hip. Having taken an exhaustive history and reviewed much of the documentation, Dr Sharp indicated a diagnosis concerning the lumbosacral spine and said that the applicant's hip and leg numbness symptoms are as a result of her workplace injury.
Dr Sharp provided a further report dated 3 October 2019, found at [R134]. That report was directed to the question of the applicant's Whole Person Impairment, however, it is relevant that Dr Sharp diagnosed ongoing radicular pain at L4, L5 and S1, decreased ankle jerk on the right, muscle weakness involving the flexor and extensor hallucis longus injury on the right, and a decreased right ankle jerk and some wasting of the right calf muscle, together with numbness on the right side of her perineum, with associated faecal and urinary incontinence. The findings of Dr Sharp as to the applicant’s injury, together with those found by her treating specialists and IME Dr Bodel in my view answered the respondent’s submission that the symptoms may be referable to the applicant’s hip rather than her lumbar spine.
Dr Sharp provided a further report dated 7 May 2021, attached to the respondent's AALD. In that report, Dr Sharp specifically referred to a number of the reports which are in evidence, including the MAC of Dr Wong. In answer to specific questions regarding the aetiology of the applicant's condition, Dr Sharp maintained a consistent view, namely that she suffered from constitutional degenerative changes in the lumbosacral spine which were aggravated following the accident at issue, together with post-operative radiating pain following the laminectomy at L3/4 performed in October 2013.

When asked specifically whether he considers the proposed surgery to be reasonably necessary, Dr Sharp extracted some comments from some medical articles then provided the following opinion:
“To answer your question, there does not appear to be any evidence to support posterolateral instrumented fusion. There may be a place for decompression of the neural foraminal stenosis mentioned previously."

The article referred to by Dr Sharp concerned the efficacy of surgery for degenerative lumbar spondylosis. This report was objected to by Mr Adhikary, as it came late in the proceedings and, he submitted the applicant had not had an opportunity to provide the applicant's doctors with the articles in question.
I admitted the report into evidence, however, in my view, the report should only be given limited weight in circumstances where only extracts of the relevant article are provided.
Dr Sharp provides extracts of the articles, then a two-sentence opinion that the surgery is not warranted. In my view, Dr Sharp's opinion is deficient and that he fails to provide any basis as to why the academic articles whose extracts he has included in his report have application to the specific condition at issue. Moreover, the conclusion of the article that there is a paucity of evidence on the efficacy of surgery for lumbar spinal stenosis does not, in my opinion, adequately explain the complex range of symptoms and diagnoses from which the applicant suffers. It is also trite to say that lumbar decompression and fusion is a comparatively common operation, carried out over the course of many decades by appropriately qualified surgeons.
Ms Warren took the Commission to the report of A/Prof Papantoniou dated 10 March 2014, in which he acknowledged the complexity of the applicant's case and indicated that she requires a multi-faceted approach to her management.
With respect, I do not see that opinion as representing a contradiction to the Associate Professor now wishing to carry out surgery, or indeed to the nature of the proposed surgery changing over time.
It is apparent on the face of the clinical material that the applicant has undergone many conservative treatment modalities, and that they have offered her no long-term benefit. She has had some short-term benefit from various epidural injections, and from physical therapy, however, there is nothing to suggest that her condition has benefited long term from these therapies.
Although the respondent is within its rights to criticise A/Prof Papantoniou for changing his opinion as to the precise nature of the operative intervention required, in my view, he has been careful to alter his opinion in light of updated radiological and clinical evidence. For example, in his report dated 1 June 2016 [A117], A/Prof Papantoniou noted that he would make an up-to-date decision on what he felt was the appropriate level of instrumental fusion once the applicant had undergone further MRI. This is a recurring theme in
A/Prof Papantoniou's treatment of the applicant.
In my view, it is not appropriate to criticise a practitioner who, when faced with new evidence that in their view alters the clinical picture, changes their opinion as to the most appropriate treatment modality for a patient.
Whilst Ms Warren submitted the Commission would have concerns regarding
A/Prof Papantoniou's opinion changing over time, it should be noted that this has taken place over several years in a dynamic clinical picture.
Ms Warren also submitted there is no evidence the applicant underwent pain management at the hands of Dr Russo, as referred by A/Prof Papantoniou. I note, however, that the applicant’s statement indicates approval for pain management treatment was not forthcoming. In the circumstances, and given this statement evidence is untrammelled, I do not believe the absence of pain management treatment to be fatal to the applicant's claim for the proposed surgery, or as evidence she has not sufficiently explored conservative treatment options.
Likewise, the change in opinion from Dr Bodel is explained by the effluxion of time, the presence of updated radiological investigation, worsening symptoms and a dynamic clinical picture. Ms Warren took the Commission to Dr Bodel's 2016 report, however, it is now five years on from the doctor providing that viewpoint.
Whilst it is the case that Dr Bodel indicated in 2016 he was not minded to support the requirement for surgery, by 2021 he had the benefit of A/Prof Papantoniou's most updated plan for surgery, the assessment by Dr Manning, urogynecologist, and the opinion of
Dr Sharp, IME, for the respondent. Dr Bodel, having examined the patient twice previously, was plainly aware of her clinical history, which he had set out in his previous reports. Taking into account the most up-to-date clinical information as at January 2021,
Dr Bodel said:
"The surgical treatment recommended by Professor Papantoniou is very extensive 2-stage lengthy spinal fusion and it is always difficult to recommend that as a treatment option, but this lady is quite severely incapacitated based on the clinical presentations recorded and it may be the only viable treatment alternative for her.
It does therefore appear reasonably necessary as a result of the injury that occurred in the accident on 25 August 2011."
In other words, Dr Bodel like A/Prof Papantoniou has observed the applicant's developing clinical picture and come to the conclusion, however reluctantly, that the extensive surgery proposed by A/Prof Papantoniou is reasonably necessary.
On balance, I am of the same opinion as Dr Bodel. Applying the criteria in Diab, it is apparent that the surgery is of a type which is widely carried out and whilst it is expensive, it is widely regarded in general terms as a mode of treatment which offers benefit to patients. Whilst there is a divergence of medical opinion in this matter, I note that A/Prof Papantoniou's views as a treating doctor should be given significant weight, particularly given the lengthy and exhaustive treatment provided by him to the applicant over the course of nine years.
In making this finding, I have taken into account all of the expert and treating evidence relied upon by the parties.
I also accept Mr Adhikary’s submission that it is not fair for a respondent, having denied multiple requests for surgery, to seek to hold against the applicant her treating doctor's view that the nature of the required procedure has changed over the course of nearly a decade, or to submit that changing view represents a lack of clarity on the surgeon’s part as to precisely which operation to carry out.
I also note and agree with the report of A/Prof Papantoniou of 20 May 2015, where he discusses appropriate treatment modalities and states:
"The concept of a best treatment option is a fiction. The options that Ms Trapman has are further conservative management or surgical intervention. I believe she has reached maximum improvement with conservative management and that surgical intervention will add to this and improve her even further."
In this matter, the medical evidence is overwhelming as to the cause of the applicant's problems. Even Dr Sharp, IME for the respondent, indicates that the symptoms have been brought about by the workplace aggravation to her underlying degenerative condition. As
Ms Warren appropriately noted that the outset of proceedings, injury is not in issue.
In my view, there is a clear causal link on a common sense of basis between the injury at issue and the requirement for surgery. Likewise, there is no evidence put forward to suggest that the applicant would have required similar treatment at a similar time of her life were it not for the injury in issue.
The authorities in matters such as this are clear. It is not necessary for the proposed surgery to be the only reasonably necessary treatment, or that there be some guarantee of a favourable outcome. What is required is for me to be satisfied on the balance of probabilities that the applicant should undergo the treatment rather than it be forborne. In this case, while there have been changes to the recommended surgery, they are carefully considered ones made by an eminently qualified treating specialist after due consideration is given by him to the updated clinical and radiological picture.
Having considered the treating evidence, which in this matter is particularly beneficial as it spans almost a decade, together with the IME opinion, I am comfortably satisfied on the balance of probabilities that the proposed surgery low extensive and expensive, is reasonably necessary.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2021] NSWPIC 235

8 July 2021