Tray Fit Pty Ltd v Cairney - [2015] NSWWCCPD 2

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2
APPELLANT:	Tray Fit Pty Ltd
RESPONDENT:	Jamie Cairney
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-8864/13
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	12 September 2014
DATE OF APPEAL DECISION:	14 January 2015
SUBJECT MATTER OF DECISION:	Future medical expenses; claim for proposed three level fusion; order for payment of two level fusion; whether claim for three level fusion included claim for two level fusion; nature of issues in dispute; application of principles in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 and Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363; s 60(5) of the Workers Compensation Act 1987; ss 3 and 354(3) of the Workplace Injury Management and Workers Compensation Act 1998; system objectives; meaning of “reasonably necessary” discussed; fundamentally flawed approach by insurer to claim for medical expenses
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stiles Lawyers
Respondent:	Law Partners Compensation Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 12 September 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

In this matter the Arbitrator found that, as a result of accepted injuries to the worker’s lumbar spine, it was reasonably necessary that the worker have surgery fusing the L4/5 and L5/S1 levels of his spine. That is, a two level fusion. The employer has challenged that finding on the ground that the only claim made by the worker was for the cost of an L3 – S1 fusion. That is, a three level fusion. For the reasons explained below, the appeal is unsuccessful.

BACKGROUND

On 10 February 2012 and 2 April 2012, the respondent worker, Jamie Cairney, injured his lumbar spine in the course of his employment with the appellant employer, Tray Fit Pty Ltd. The appellant’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), accepted his claim for compensation and commenced payments of weekly and other compensation.
Allianz arranged for Mr Cairney to be examined by neurosurgeon, Dr Vidyasagar Casikar. In a report dated 10 October 2012 Dr Casikar agreed that Mr Cairney had a “very large disc prolapse at the L4/5 segment”, but felt that the only surgical treatment appropriate was a microdiscectomy at that level.
Due to increasing back and leg symptoms, Mr Cairney was referred to Dr Darweesh Al-Kawaja, neurosurgeon. In a report dated 10 January 2013, Dr Al-Kawaja recommended that Mr Cairney’s spine be fused from L3 to S1, that is, he proposed a three level fusion. Dr Al-Kawaja sought approval from Allianz for this procedure. In the same letter, Dr Al-Kawaja noted that Mr Cairney sought a second opinion from Dr Peter Bentivoglio, neurosurgeon.
In a report dated 19 February 2013, Dr Bentivoglio said that, if Mr Cairney had surgery, he needed a fusion at L4/5 and S1, that is, a two-level fusion, with decompression of both L5 nerve roots. That was because Mr Cairney had significant mechanical back pain, but did not have significant symptoms of sciatic nerve irritation. Dr Al-Kawaja, on reviewing Dr Bentivoglio’s opinion, thought that a two level approach was a “fair idea”, though he still thought it wise to include the L3/4 level in the surgery, otherwise Mr Cairney will require further extension later on.
On 8 March 2013, Allianz issued a s 74 notice in which it denied liability for Mr Cairney’s claim for the surgery requested by Dr Al-Kawaja, namely, the “L3–S1 Anterior Lateral Interbody Fusion” (the three-level fusion). Allianz relied on, among other things, the evidence from Dr Casikar. It asserted that the treatment Mr Cairney sought was not reasonably necessary “for a workplace injury”.
The s 74 notice expressly referred to, among other things:
(a)     Dr Casikar’s opinion that a microdiscectomy was the recommended treatment;
(b)     Dr Al-Kawaja’s request for approval for a three level fusion, and
(c)     Dr Bentivoglio’s opinion that Mr Cairney have a two level fusion with decompression of the L5 nerve roots.
The notice said that Allianz had requested Dr Al-Kawaja and Dr Casikar to review Dr Bentivoglio’s report and the most recent MRI scan to “determine which of the three different surgeries are [sic] more appropriate”. It is important to note that, at this early stage, Allianz was well aware that a two level fusion was one of the proposals being considered for Mr Cairney as a result of his back injury and that it sought an opinion from Dr Casikar about it.
Dr Casikar reported on 8 March 2013 that the spinal fusions suggested by Dr Al-Kawaja and Dr Bentivoglio were not “sustainable as a consequence of the work related injury, particularly considering the fact that Mr Cairney has now both clinical and radiological evidence of improvement”. He thought that Mr Cairney would improve with a physical upgrading program and that the plan for surgery should be deferred and revisited at a later stage if Mr Cairney developed any symptoms pertaining to his work related injury.
On 13 March 2013, Dr Al-Kawaja wrote to Allianz stating that it was well known in the literature that discectomy for back pain is not successful. He added, as per Dr Bentivoglio’s history, that Mr Cairney insisted that his problem was in his lower back not in his legs. He thought that a discectomy would make Mr Cairney worse. He maintained that a three level fusion was “the way to go with Mr Cairney”.
On 22 May 2013, Dr Al-Kawaja again sought approval from Allianz for the three-level fusion he had recommended in January 2013.
On 29 May 2013, Dr John Grant, neurosurgeon, examined Mr Cairney at the request of Allianz. He noted that Mr Cairney had disc bulging at L3/4 and L5/S1 and a “significant disc prolapse at the L4/5 level” related to his employment. He considered the need for surgical management with decompression of the L4/5 segment with consideration being given to stabilisation of the L3/4 and L5/S1 levels. (This report appears to have been tendered in breach of cl 49 of the Workers Compensation Regulation 2010, which restricts the number of forensic medical reports that can be admitted to one.)
On 5 July 2013, Allianz issued a second s 74 notice in which it again denied liability for the three level fusion. It again referred to the evidence from Dr Bentivoglio recommending a two level fusion. Essentially, it denied liability because the proposed three level fusion addressed a “non[-]work related injury”, Allianz asserting that the only work injury was to the L4/5 disc. In addition it asserted that it was not clear whether the work related injury was “totally responsible for [Mr Cairney’s] current condition and need for surgery”.
On 29 August 2013, Dr Casikar prepared a supplementary report in which he responded to various questions and propositions put to him by Allianz. He agreed that the injury to the L3/4 disc had largely resolved and that surgery (presumably, to that level) would not be required. He agreed with Dr Grant that microdiscectomy at L4/5 would be more appropriate, given that Mr Cairney was 43. He said that a three level fusion was “not the optimal treatment” for Mr Cairney and said that the outcome was “likely to be very poor”. He thought that Mr Cairney would benefit from a microdiscectomy at L5/S1.
On 17 September 2014, Allianz issued a third s 74 notice declining liability for the proposed three level fusion. Again, this notice referred to the evidence from Dr Bentivoglio recommending a two level fusion. Again, Allianz relied on the opinion of Dr Casikar to deny liability.
On 15 November 2013, Mr Cairney filed an Application to Resolve a Dispute (the Application) in the Commission claiming the cost of “[s]urgery – L3 – S1 Anterior Lateral Interbody Fusion”. In a Reply filed on 9 December 2013, the appellant denied liability on the grounds set out in the above s 74 notices.
On 11 December 2013, the Commission referred to an Approved Medical Specialist (AMS), Dr Michael Davies, the question of whether the proposed “L3 to S1 anterior lateral interbody fusion” was reasonably necessary as a result of Mr Cairney’s injury (s 60(5) of the Workers Compensation Act 1987 (the 1987 Act)).
After examining Mr Cairney on 11 March 2014, Dr Davies issued a non-binding Medical Assessment Certificate on 19 March 2014. Dr Davies took a history of Mr Cairney’s injury to his lower back on 10 February 2012, which he further aggravated on 2 April 2012. Under “summary of injuries and diagnoses”, Dr Davies concluded that Mr Cairney had sustained a lumbar disc injury (at L4/5) in the incident on 10 February 2012.
Though the protrusion had decreased in size over time, Dr Davies thought that there was still a significant disc protrusion at L4/5. Mr Cairney also had “marked modic changes at L4/5 and L5/S1 and the L5/S1 disc [was] quite degenerate”. There was also some “desiccation of the L3/4 disc but this had not changed over time”. The diagnosis was “lumbar spondylosis with a moderate disc protrusion at L4/5”. Conservative treatment had not provided any sustained improvement.
Dr Davies said the “main issue” appeared to be whether Mr Cairney needed a two level fusion or a three level fusion. The main pathology was at L4/5 and L5/S1. There were some mild degenerative changes at L3/4 but they had remained stable over Mr Cairney’s various scans, whereas the changes at L4/5 and L5/S1 had progressed to some extent, with increased endplate changes at both levels.
Dr Davies said that a simple discectomy was unlikely to offer any significant improvement in Mr Cairney’s back pain, though it might improve his leg symptoms. As Mr Cairney’s main complaint was back pain, it would be more appropriate to undertake a fusion rather than the simple discectomy Dr Casikar had recommended. However, Dr Davies added that he would be “very reluctant to recommend a three level fusion in somebody of [Mr Cairney’s] age [44] just because the L3/4 disc shows some degenerative change and that he may require further surgery at that level at some stage in the future if he doesn’t have it included in the initial operation”.
Noting that a three level fusion was a “major undertaking” that would leave Mr Cairney with a “very stiff lower back”, Dr Davies said that a single level procedure at L4/5 (where Mr Cairney has a significant disc protrusion) would be “insufficient because [Mr Cairney] has significant degenerative change at L5/S1 also”. He said, acknowledging that it might further confuse the issue, that he would be more in favour of a fusion at L5/S1 and disc replacement surgery at L4/5.
Specifically, Dr Davies agreed with Dr Al-Kawaja (and Dr Bentivoglio) that Mr Cairney’s main problem was back pain rather than leg pain and that lumbar fusion was the more appropriate treatment, as opposed to lumbar discectomy. Dr Davies clearly rejected Dr Casikar’s opinions, which seemed to be based on the assumption that a fusion should only be done when there are documented or neurological abnormalities in the lower limbs. Dr Davies explained that a fusion is in fact performed to treat back pain and not specifically to treat radicular complaints in the lower limbs. That is, it is undertaken to treat discogenic pain rather than nerve root pain.
In answer to the specific question of whether an L3 to S1 anterior lateral interbody fusion was reasonably necessary as a result of the injury on 10 February 2012, Dr Davies said that he did not believe it was necessary to include the L3/4 level in the fusion. He explained that a “hybrid operation”, with fusion at L5/S1 and disc replacement would be a “preferable alternative”. Alternatively, a two level fusion at L4/5 and L5/S1 could be undertaken, but this would put Mr Cairney at risk of developing adjacent segment disease at L3/4 compared with a hybrid procedure.
At a teleconference on 15 April 2014, the Arbitrator adjourned the matter to allow Mr Cairney to obtain an updated report from Dr Al-Kawaja. No further report was tendered from Dr Al-Kawaja.
After a teleconference on 26 May 2014, the Arbitrator directed the parties to file written submissions on “whether L3 to S1 anterior and lateral into body [sic, interbody] fusion is reasonably necessary treatment as a result of [the] injury”. As the parties agreed to the matter being determined without a formal hearing, the Arbitrator determined the matter on the basis of their written submissions.
The Arbitrator held (at [93]) that “lumbar fusion surgery is appropriate and relevant”, noting that, despite the daily ingestion of Panadeine Forte, Mr Cairney continued to suffer back pain that affected his ability to walk. He preferred the views of Drs Davies, Bentivoglio, Grant and Al-Kawaja that surgical intervention was necessary.
The Arbitrator said (at [118]) that he was unable to conclude that the three level surgery proposed by Dr Al-Kawaja was “reasonably necessary” treatment pursuant to s 60 of the 1987 Act. However, he was satisfied that the referral (to Dr Davies under s 60(5) of the 1987 Act) could “be taken to include a proposal for surgery at two levels and the opinion of the AMS [Dr Davies] has been given with respect to that treatment”. He concluded that he was “satisfied that surgery by way of fusion at L4/5 and L5/S1 is reasonably necessary treatment for the purpose of section 60(1) as a result of injury on 10 February 2012” ([120]).
The Commission issued a Certificate of Determination on 12 September 2014 in the following terms:
“The Commission determines:
1. I find that surgery by way of fusion at L4/5 and L5/S1 is reasonably necessary treatment for the purpose of section 60(1) of the Workers Compensation Act 1987 as a result of injury on 10 February 2012.
2. The respondent is to pay the costs of and associated with that proposed surgery.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

The appellant has challenged the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that an L4/5 and L5/S1 fusion is reasonably necessary treatment in circumstances where it was not the subject of a claim by Mr Cairney, and
(b) making an order in relation to payment of the costs associated with an L4/5 and L5/S1 fusion in circumstances where a claim had never been made for such treatment.

SUBMISSIONS

The appellant’s solicitor, Mr Daniel Stiles, submitted that it had never been disputed that Mr Cairney requires surgery. He said that the dispute had always been whether the surgery proposed by Dr Al-Kawaja (the three level fusion) was reasonably necessary treatment, noting that there had only ever been a claim in respect of that treatment.
Mr Stiles referred to s 60(5), which requires that any dispute regarding proposed treatment be referred to an AMS for assessment. He noted that the dispute referred to Dr Davies was in relation to the proposed treatment, namely, the “L3 to S1 anterior lateral interbody fusion”. Therefore, that was the only proposed treatment referred for consideration, as required under s 60(5). As the Arbitrator was unable to find that the proposed three level fusion was reasonably necessary treatment, Mr Stiles submitted that that should have been the end of the matter.
Mr Stiles contended that the Arbitrator erred in saying that the referral to the AMS could be taken to include a proposal for surgery at two levels, noting that Mr Cairney never made a claim for a two level fusion and Dr Al-Kawaja never recommended that procedure or sought approval for it. Mr Stiles added that Dr Davies was never asked to comment on whether such a procedure was reasonably necessary and it was not for the Arbitrator to speculate on what treatment would be reasonably necessary. He was only required to deal with the claim for a three level fusion, a procedure he concluded was not reasonably necessary.
Further, Mr Stiles argued that as no claim for a two level fusion has ever been made, Pt 4 of Ch 7 of the 1998 Act precluded the Arbitrator from dealing with any matter beyond that which had been the subject of a claim. If Mr Cairney now seeks to make a claim for “some other surgical procedure, that claim can be properly made and the Appellant would have the opportunity to respond to that claim within the statutory timeframes”. If no agreement is reached, Mr Cairney can take further steps to pursue that claim.
However, Mr Stiles contended that, at this stage, no claim had been made for a two level procedure and the Arbitrator erred in finding that that procedure was reasonably necessary and ordering the appellant to pay the costs associated with that procedure.

DISCUSSION AND FINDINGS

I do not accept the submissions by Mr Stiles.
As counsel for Mr Cairney, Mr McManamey, submitted, Mr Stiles has not challenged the Arbitrator’s finding that a two level fusion is reasonably necessary treatment per se. The challenge is that, given the pleadings and the nature of the referral to Dr Davies, the Arbitrator was not entitled to determine whether a two level fusion was reasonably necessary, even though it is of a very similar nature to the treatment proposed by Dr Al-Kawaja. For the reasons explained below, that challenge is rejected.
The submissions by Mr Stiles have overlooked the fact that the Commission “is not a court and is not expected to function as a court” (Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244; 5 DDCR 247 at [91] (Barrow), citing Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [25]). As such, the Commission is not bound by strict pleadings (Far West Area Health Services v Radford [2003] NSWWCCPD 10). Moreover, it is a tribunal that has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act).
It is first necessary to consider the history of the matter. While Dr Al-Kawaja recommended a three level fusion, he added that Mr Cairney wished to obtain a second opinion. He obtained that opinion from Dr Bentivoglio, who recommended only a two level fusion with decompression of the L5 nerve roots. Allianz considered and rejected both these recommendations, which were clearly presented as alternatives, preferring to rely on the evidence from Dr Casikar that a microdiscectomy was the appropriate treatment.
For reasons explained, Dr Casikar’s opinion was firmly rejected by Dr Davies, and by the Arbitrator. The appellant has not challenged that part of the Arbitrator’s decision, but has chosen to take a narrow technical point that is completely without merit.
The second s 74 notice again acknowledged Dr Bentivoglio’s opinion, which recommended a two level fusion. The s 74 notice again denied liability. It asserted that it was not clear whether the work related injury was “totally responsible for [Mr Cairney’s] current condition and need for surgery”. It should be noted that this was the wrong test. The test in s 60 is whether the proposed treatment is reasonably necessary as a result of the injury.

The critical point is that Allianz was well aware, based on the reports from Dr Al-Kawaja and Dr Bentivoglio, two proposals were mooted: the three level fusion recommended by Dr Al-Kawaja and, in the alternative, the two level fusion recommended by Dr Bentivoglio. Allianz again considered and rejected both proposals in its subsequent s 74 notice. (Though there is no direct evidence from Mr Cairney as to which proposal he wishes to accept, which is unsatisfactory, given his submissions in support of the Arbitrator’s conclusions with regard to the two level fusion, the logical inference is that he wishes to have that procedure.)
It follows from the above that, in practical terms, the real dispute was whether Mr Cairney should have surgery in the form of a lumbar fusion, as recommended by Dr Al-Kawaja and Dr Bentivoglio and, if so, whether that fusion should be at two levels or three. That is so notwithstanding that the Application and the referral to the AMS only referred to the three level fusion.
While it is regrettable that the Application was not formally amended to make it clear that the two level fusion was claimed in the alternative, that has caused no prejudice or disadvantage to the appellant or Allianz. Allianz was, as I have explained, well aware that Mr Cairney had been given different advice as to the appropriate treatment for his injury and it was, at all relevant times, in possession of Dr Bentivoglio’s opinion, which it considered and rejected. Special procedures apart, cases are determined on the evidence, not the pleadings (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 per Dawson J at 297).
The Commission should consider and determine a dispute that is properly before it. To suggest that the only dispute in the present matter is whether Mr Cairney should have a three level fusion, and nothing else, is unrealistic and artificial. It ignores the history of the matter, and the substantial merits of the claim. It takes a technical and unreasonable approach to the matter that is inconsistent with binding authority and the clear objectives of the legislation.
As the Court of Appeal has made clear, on more than one occasion, the Commission may consider the merits of a matter properly before it even though there has not been a claim in accordance with the WorkCover Guidelines (Tan v National Australia Bank Ltd [2008] NSWCA 198 (Tan) and Barrow). Moreover, as explained by Basten JA in Tan, at [42], the objectives of the Act, which are directed primarily to ensuring compensation for work-related injury, will not be promoted by a narrow reading of a provision which allows recovery of compensation in circumstances where procedural requirements have not been followed.
In the present case, there is a claim properly before the Commission for proposed surgery to Mr Cairney’s back. The medical evidence is in conflict as to the most appropriate treatment, that is, which treatment is reasonably necessary as a result of the injury or injuries. Allianz sought and obtained extensive evidence on that issue. That conflict has been the subject of three s 74 notices in which Allianz has steadfastly disputed the claim, well aware that a two level fusion was one of the options recommended for Mr Cairney. In the unusual circumstances of this case, it is completely specious for Allianz to now assert that there is no dispute with respect to the proposed two level fusion. Clearly, there was and is such a dispute and, equally clearly, the AMS properly directed his mind to it and expressed an opinion on it, even though he was not formally asked to do so.
It should be noted that an assessment by an AMS under s 60(5) is a non-binding opinion. That opinion is evidence that an Arbitrator is entitled to consider, but it is not conclusive evidence. As such, the requirement for strict compliance with s 325, for a Medical Assessment Certificate to be valid (see Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 at [30] and [38]), does not apply with the same rigor to a non-binding assessment. What is necessary is that the AMS provides an assessment (opinion) about the dispute. Dr Davies did that in a way that considered the several different issues identified in the evidence, even though the referral only asked for an opinion about a three level fusion.
While AMSs should normally confine their assessments to the issue or issues referred to them, in the circumstances of the present case, where Allianz had fully considered and assessed the proposal for a two level fusion, and where that was, on one view, the main issue in dispute, it was appropriate for Dr Davies to deal with the matter as he did. It was also appropriate for the Arbitrator to consider the opinion from Dr Davies in his assessment of the claim.
The submission by Mr Stiles that it was not for the Arbitrator to “speculate” on what treatment would be reasonably necessary was based on the false assumption that that is what the Arbitrator did. The Arbitrator determined the matter according to the substantial merits of the case, having regard to the evidence and the parties’ submissions. His assessment of the evidence ran to over 120 paragraphs and included a detailed consideration of the appellant’s case, as outlined in Dr Casikar’s several reports and also Dr Grant’s report (which should not have been tendered). His conclusion that the two level fusion is reasonably necessary as a result of the injuries was open on the evidence and, as previously noted, has not been challenged on its merits.
The submission by Mr Stiles that if Mr Cairney now wishes to make a claim for “some other surgical procedure”, that claim can be made and the appellant will have the opportunity to respond to it within the statutory timeframes has completely ignored the history of the matter and the real issue in dispute. The appellant has had every opportunity to respond to the proposed two level fusion. It did so by qualifying Dr Casikar and, improperly, obtaining a further opinion Dr Grant. It obtained several reports from Dr Casikar addressing virtually every possible treatment option for Mr Cairney. To suggest that a further claim be made (for a two level fusion) so that the appellant can have the “opportunity to respond” is untenable nonsense.
The suggestion that, in the circumstances of this case, there be a further claim is contrary to the clearly stated system objectives in the 1998 Act. A further claim would involve a further unnecessary delay in the resolution of the claim, in circumstances where the claim has already been unreasonably delayed by Allianz’s approach, and further substantial costs. The stated objectives of the 1998 Act are, among other things, to provide “prompt treatment of injuries” in order to assist injured workers (s 3(b) of the 1998 Act) and to be “fair, affordable, and financially viable” (s 3(d) of the 1998 Act). These objectives would not be met by forcing Mr Cairney to bring a separate claim for the cost of a two level fusion.
Medicine is not an exact science. It is not uncommon for doctors to disagree on the proposed treatment of a patient. However, in the present case, the overwhelming weight of the expert opinion supports Mr Cairney having a fusion. That is, that a fusion is reasonably necessary as a result of his injuries. The real dispute was, as Dr Davies properly acknowledged, the extent of the fusion. That issue was well and truly canvassed in the evidence and the appellant had every opportunity to call evidence and make submissions on it. It did so. There is no reasonable ground for making Mr Cairney make a fresh claim in respect of a matter that has been fully and fairly considered on its merits.
It follows that it was open to the Arbitrator to determine that the referral to the AMS could be “taken to include a proposal for surgery at two levels” ([119]) and that the AMS expressed an opinion with respect to that treatment. More accurately, in the terms of s 60(5), with respect to the dispute about the proposed treatment, namely, the proposed surgery, the AMS provided an “assessment” under Pt 7 of Ch 7 of the 1998 Act.
As earlier noted, the AMS’s assessment was not conclusively presumed to be correct under s 326(1) of the 1998 Act, but was evidence that the Arbitrator was entitled to consider, and did consider, in his assessment of whether the proposed two level fusion was reasonably necessary as a result of the accepted work injuries. The Arbitrator’s finding that the two level fusion proposed by Dr Bentivoglio was reasonably necessary as a result of the work injuries was open to him and disclosed no error.

OTHER MATTERS

Two further matters require comment. Dr Casikar expressed the view, in response to a specific question put to him by Allianz, that a three level fusion was not the “optimal treatment” for Mr Cairney. (The phrase “optimal treatment” was included in the question put by Allianz to Dr Casikar.) That is not the test in s 60. The test is whether the proposed treatment is reasonably necessary as a result of the injury. As explained in Diab v NRMA Ltd [2014] NSWWCCPD 72, “reasonably necessary” is a composite phrase in which necessity is qualified so that the treatment must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]).
Reasonably necessary does not mean “absolutely necessary” (Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [154]). If something is “necessary”, in the sense of indispensable, it will be “reasonably necessary”. That is because reasonably necessary is a lesser requirement than “necessary”. Depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments. A worker does not have to establish that the proposed treatment is the “optimal treatment” before it can be held to be reasonably necessary.
It is most unsatisfactory that a scheme agent, such as Allianz, would ask a doctor such a profoundly flawed question in a case of this kind. This question, and Allianz’s assertion in its second s 74 notice that it was not clear whether the work related injury was “totally responsible” for Mr Cairney’s condition and need for surgery, demonstrated a fundamental misunderstanding of the issues involved in claims for medical treatment under s 60. That is most disturbing and a matter that should be addressed by the WorkCover Authority of NSW.
The second matter that requires comment is the lack of any direct evidence from Mr Cairney. Though his history was recorded in the medical reports, and liability for his injury was accepted, it was unsatisfactory that he did not provide a statement setting out his views on the matters in issue. Though that omission has not proven fatal in this case, that will not always be so. It is important that, in cases of this kind, direct evidence be provided by the applicant worker about the history of the injury and why the claimed treatment is sought, as opposed to some other treatment.
In summary, the conduct of the parties in this matter would not be a model to be followed in matters of this kind in the future.

CONCLUSION

The submissions by Mr Stiles were without merit, ignored binding authority on the approach to claims in the Commission, and ignored the history of the matter. The claim for surgery was properly before the Commission and properly referred to the AMS. The Arbitrator was entitled to determine the matter as he did. Though it would have been preferable if the Arbitrator had amended the claim, to reflect more accurately the dispute, that omission was one of form not substance and has not affected the outcome nor prejudiced Allianz in any way.
Though it was not expressly stated by the Arbitrator, it is tolerably clear that the two level fusion will also involve the decompression of the L5 nerve roots, as recommended by Dr Bentivoglio. It goes without saying that the cost of the two fusion will include the cost of the procedure to decompress the L5 nerve roots and all reasonable incidental costs associated with the surgery.

DECISION

The Arbitrator’s determination of 12 September 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Acting President

14 January 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE