Tuckwell v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tuckwell v Westpac Banking Corporation [2024] NSWPIC 227
APPLICANT:	Jann Tuckwell
RESPONDENT:	Westpac Banking Corporation
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	2 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for costs of centralisation rhinoplasty surgery; accepted injury to the face and nose; respondent disputed that the proposed surgery was reasonably necessary; applicant failed to discharge the onus upon her to establish that the surgery was necessary as a result of the injury to her face and nose on 3 March 2022; Held – award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award in favour of the respondent in respect of the claim for the surgery proposed by Professor Deva in his report of 25 July 2023 in relation to a centralisation rhinoplasty.

STATEMENT OF REASONS

BACKGROUND

Jann Tuckwell (the applicant) was employed by Westpac Banking Corporation (the respondent) as a customer service officer.
On 3 March 2022, the applicant sustained an injury to her face, including her right cheek and nose, when she fell while ascending a staircase.
The applicant made a claim for medical treatment proposed by Professor Anand Deva, in his report of 25 July 2023, in relation to surgery, namely, a centralisation rhinoplasty as a result of the injury on 3 March 2022.
The respondent disputed liability for the claim for the proposed surgery to the nose.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery to the nose proposed by Professor Anand Deva, namely, a centralisation rhinoplasty, is reasonably necessary as a result of the injury to the nose on 3 March 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via video link on
18 April 2024. The applicant was represented by Mr Luke Morgan, who was instructed by
Ms Basema Elmasri of Turner Freeman Lawyers. The respondent was represented by
Mr Fraser Doak, who was instructed by Ms Olivia Sommerton of Hall & Wilcox Lawyers.
Mr Roddy Nicholson from the respondent also attended the conciliation conference and arbitration.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

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

Submissions

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
However, the respondent submitted that any deviation of the tip of the applicant’s nose was minimal and that any airway obstruction was unrelated to the work injury. The respondent also noted that there were references to septum deviation to the right is some reports and references to deviation to the left in other reports. The respondent argued that the surgery proposed was largely a cosmetic procedure and unnecessary and unlikely to produce any improvement. Further the respondent noted that the applicant stated that she had adverse psychological issues as a result of the appearance of her nose, but there was no medical evidence to support this. Finally, the respondent submitted that there were risks and the cost of around $30,000 meant that the procedure was unreasonable and unnecessary as it was a procedure to address a problem that was not readily discernible. The respondent concluded that I could not be satisfied that in the absence of nasal obstruction, surgery to correct a very minor cosmetic defect was reasonably necessary.
The applicant referred to the case of Honarvar v Professional Painting AU Pty Ltd [2020] NSWPICPD 12 (Honarvar) and the authorities referred to by Snell DP in that decision. The applicant submitted that Drs Deva and Lai reported that the applicant would benefit from the proposed procedure and such an operation fits within the panoply of treatment available under s 60. The applicant argued that she wished to have the shape of her nose restored back to its pre-injury state and any therapeutic benefit should be seen from the applicant’s perspective. The applicant argued that Dr McGlynn’s report addressed function and not the cosmetic aspects.

FINDINGS AND REASONS

It was not disputed that the applicant sustained injuries to her face including her nose on
3 March 2022.

Evidence of the applicant, Jann Tuckwell

In a statement dated 19 February 2024, the applicant stated that following the fall on
3 March 2022 she was taken to Ryde Hospital Emergency Department where she was treated for soft tissue damage to her right cheek and eye trauma. She said that she also had X-rays and a CT scan taken, which revealed a fracture of her nose.
The applicant stated that her general practitioner, Dr Margaret Bryce, referred her to
Dr Nicholas Jufas, ear nose and throat (ENT) surgeon, for her fractured nose. She said that she consulted Dr Jufas on 7 March 2022, but no treatment was provided. She stated that she saw Dr Jufas again on 12 July 2022 and he referred her to Dr Niranjan Sritharan, ENT surgeon, to address the outside cosmesis of her nose.
The applicant stated that she saw Dr Sritharan on 12 September 2022 and he conducted a nasal endoscopy, and stated there was no bony trauma that could be surgically improved. She said that Dr Sritharan encouraged her to see a facial plastic surgeon for her right cheek.
The applicant stated that Dr Bryce then referred her to Professor Anand Deva, plastic surgeon for the nasal deformity as a result of the fall. She stated that she saw Professor Deva on 17 July 2023 and he observed nasal deviation of the tip to the left and subtle flattening of the right cheek. She said that in order to correct the deviation Professor Deva recommended a centralisation rhinseptoplasty. A request was made to the insurer who declined funding of the surgery, on the basis that the surgery is wholly for cosmetic purposes and is not 'reasonably necessary'.
The applicant wrote:
“19. The work injury has impacted the shape of my nose. which has been altered since my fall. My nose has been turned to the left side. This has affected my confidence. as I am conscious when I look into the mirror every day. Further, the work injury has caused me to occasionally breath through my mouth.
20. I would like to follow the advice of my treating surgeon and proceed with the centralisation rhinoseptoplasty. I understand that the surgeries may or may not be successful but because I am advised by my treating doctors that there is a good prospect that the proposed surgeries will correct the shape of my nose, I very much want to proceed.”

Medical reports

Medico-legal reports

In a report dated 17 October 2023, Dr Min Fee Lai, consultant in general surgery, plastic and reconstructive surgery, noted that he has assessed the applicant through video link on
17 October 2023. He reported that the applicant at present did not complain of any breathing issues through her nasal airway but was unhappy with the shape of her nose which has altered since her fall. He noted that she noticed that her nose is turned across to the left side and was especially conscious when she looked into the mirror every day.
Dr Lai noted that the applicant was aware of the potential complications from the rhinoseptoplasty that has been explained to her by Professor Deva. However, she is still considering proceeding with the procedure and would consult Professor Deva again to make a final decision.
Dr Lai referred to the investigation reports and wrote:
“1. X-ray facial bones dated 31 March 2022.
There is right facial soft tissue swelling but there is no definite fracture. The right zygomatic arch appears intact. There is no sinus haemorrhage. There is septal deviation to the right but no septal deviation thickening.
2. CT scan of sinuses dated 19 July 2022.
No sinonasal mucosal disease.
Examination of her nose revealed a very slight deviation of the nasal bones across to the left side. There was also a slight septal deviation of the dorsal septum to the left side. No septal dislocation from the nasal spine was noted. There was only a very slight hump of the nasal bone present. Adequate nasal projection was evident. Her nasal airway was slightly restricted on inspiration on the right side as compared to the left side.”
Dr Lai expressed the opinion that there is a need for septorhinoplasty as recommended by Professor Deva and this is as a result of the accepted work-related injury.
Dr Lai was of the opinion that the centralisation rhinoseptoplasty recommended by Dr Deva is reasonably necessary. He addressed the following:
“(a) The appropriateness of the treatment.
This treatment is appropriate for the injury of a deviated septum of the nose.
(b) The availability of alternative treatment, and its potential effectiveness.
There is no alternative treatment.
(c) The cost of the treatment.
This would be in the vicinity of $30,000.
(d) The actual potential effectiveness of the treatment.
This treatment is effective.
(e) The acceptance by medical experts of the treatment as being appropriate and
likely to be effective.
This treatment is widely accepted by medical experts as being appropriate and likely to be effective.”
Dr Lai concluded that the applicant’s nose will remain in the same state unless she proceeds with the corrective procedure as recommended.
In a report dated 13 December 2023, Dr Michael McGlynn, plastic, reconstructive and hand surgeon, noted he had examined the applicant in person on 11 December 2023. He reported that the applicant stated that her face was asymmetric due to soft tissue swelling or thickening of the right cheek and that her right nose-cheek junction was different to the left. He noted that she had intermittent partial bilateral nasal airway obstruction, slightly worse on the right.
On examination, Dr McGlynn wrote:
“There was slight mid-face soft tissue asymmetry with slightly more fullness on the right. There was no visible facial scarring and no visible facial skeletal deformity. Her nose was midline and symmetrical with no visible deformity. The was no anatomical obstruction to nasal airflow. There was free nasal airflow through both nostrils on forced inspiration.”
Under diagnosis, Dr McGlynn wrote:
“The documents and history are consistent with Ms Tuckwell sustaining soft tissue injury to right face and nose in the fall on 3/03/2022.
I have not seen any x-rays or their reports; however, the documents seen refer to imaging studies as above in Investigations. Dr Jufas reported at Ryde Hospital Ms Tuckwell was found to have fracture of her right nasal bone, septum and right maxillary nasal process. However, Facial Bone x-rays later the same month reported right facial soft tissue swelling but no definite fracture, and septal deviation to the right but no septal deviation thickening. This is consistent with soft tissue injury to the right face and probable pre-existing nasal septal deviation….
At this assessment I found slight soft tissue fullness of the right cheek causing subtle soft tissue asymmetry of the mid face. Her nose with midline no anatomical nasal airway obstruction”.
Dr McGlynn noted that Dr Lai referred to facial bone X-rays that show no definite fracture and report septal deviation to the right, not to the left. Further, Dr Lai assessed the applicant via video link. Dr McGlynn stated that he would not be able to assess septal deviation or nasal airway function via video. Dr McGlynn stated that he found no nasal deformity and no anatomical nasal airway obstruction in his examination.
Dr McGlynn agreed with the opinion of Dr Sritharan, who on 12 September 2022 stated, “I do not think there has been any bony trauma that could be surgically improved.” Dr McGlynn noted that the applicant has symptoms of intermittent very mild bilateral nasal airway obstruction, inconsistent with anatomical narrowing of the nasal airway and consistent with intermittent allergic or inflammatory nasal airway obstruction. He wrote: “At today’s examination I found no evidence of anatomical narrowing of the nasal airway and no evidence of any obstruction to nasal air flow on forced inspiration”.
Dr McGlynn expressed the opinion that nasal surgery is inappropriate and not reasonably necessary. He considered that no treatment is needed for the nose injury. In commenting on the cost of the proposed treatment he stated that was not relevant. In terms of the actual or potential effectiveness of the treatment, he opined that nasal surgery is unlikely to produce improvement. Finally in relation to the acceptance of the treatment by medical experts he noted that the documents contain opinions for and against nasal surgery. Dr McGlynn concluded that the recommended surgery is not reasonably necessary as he was unable to find nasal deformity and anatomical airway narrowing. He considered that no further treatment for her facial injuries is necessary.
In a supplementary report dated 22 February 2024, Dr McGlynn noted that he had reviewed the Discharge summary dated 3 March 2022 and the X-ray of facial bone dated
31 March 2022. Having regard to the radiological evidence and the SIRA Guidelines to be considered in determining whether treatment was reasonably necessary, Dr McGlynn maintained his opinion that the centralisation rhinoseptoplasty proposed by Professor Deva was not reasonably necessary as a result of the injury. He provided the following reasons:
“The x-rays are consistent with minimally displaced fractures of nose and maxilla with adjacent soft tissue injury. If there were significantly displaced fractures surgical treatment may be reasonable.
On examination I found the nose to be midline and symmetrical with no visible deformity. There was no anatomical obstruction to nasal airflow with free airflow through both nostrils on forced inspiration.
In summary, I found that who is no anatomical deformity requiring surgical treatment. This is similar to the finding of Dr Sritharan, ENT surgeon, who on 12/09/2022 stated, stated, ‘I do not think there has been any bony trauma that could be surgically improved.’
Thus, the proposed treatment is not reasonably necessary.”

Reports of treating doctors

Associate Professor Nicholas Jufas, treating ENT surgeon, saw the applicant four days after the injury on 7 March 2022. He reported that at Ryde Hospital she was found to have fracture of her right nasal bone, septum and right maxillary nasal process. Associate Professor Jufas noted Ms Tuckwell had some trouble breathing through the right side of her nose but this was improving and was almost back to normal. He noted that the applicant did not feel there has been any significant change to the outside appearance of her nose, possibly if anything there is some slight deviation to the left although now that the swelling is settling she is finding that this again is returning back to normal.
Associate Professor Jufas wrote:
“I have examined the outside of her nose today and cannot appreciate any palpable step deformities. Her facial sensation appears intact on both sides and looking inside her nose I can appreciate a right-sided septal deviation a lot of which is pre-existing although some of the area towards the front of the nose would be new particularly with a slight step deformity seen of the septum on the CT scan. She does not have any clear fluid running out of her nose to raise concern for a CSF leak.”
Associate Professor Jufas reported that he had talked to the applicant about the option of a closed reduction of her nose and septum. He wrote: “Overall my recommendation was not to proceed with this given the minimal displacement that is present as well as the fact that she feels both her breathing and the appearance of her nose are almost back to normal”.
Associate Professor Jufas reviewed the applicant on 12 July 2022. He noted that she was having ongoing concern for breathing difficulty, particularly more so on her right hand side, as well as an ongoing concern for the external appearance and cosmesis of her nose not returning back to normal after the injury.
Associate Professor Jufas noted that when he first saw the applicant, he offered her the option of a closed reduction of her nasal fracture which she decided not to proceed with. He wrote:
“On examination today, I can appreciate a mild deviaton and asymmetry that remains. Looking in her nose the appearance is largely unchanged from my previous review with a prominent right-sided internal septal deviation and bulky inferior turbinates. Again there was no sign of sinusitis present.”
Associate Professor Jufas considered that if the applicant wished to proceed with corrective surgery here, there are two options, the first being to only address the septum and the turbinates and the second to also address the outside cosmesis of the nose simultaneously with an open rhinoseptoplasty. He noted that the applicant was leaning more towards the latter of these options and he suggested therefore that she consult with a colleague who would be able to address both the inside and outside components of the nose.
Dr Niranjan Sritharan, ENT surgeon, in a report dated 12 September 2022, reported that the applicant felt the right alar, naso-facial groove and cheek area were asymmetrical compared to the left and she was unaware of any breathing restriction. He reported recent CT scan did not show any discernible fractures of nasal bones, maxilla or sinusitis.
Dr Sritharan performed nasal endoscopy and reported the right nasal passage was slightly narrower than the left due to probable pre-existing septal deviation. He stated, “I do not think there has been any bony trauma that could be surgically improved. As she feels the soft tissue of the right alar and cheek are still not back to normal, I have encouraged her to see a facial plastic surgeon for an opinion.”
Professor Anand Deva, plastic surgeon, in a report dated 17 July 2023, made examination findings of nasal deviation of the tip and septum to the left consistent with the fall to the right. He reported there was no obvious nasal airway obstruction. He noted that the applicant also pointed out some flattening of her right perinasal cheek but found this was very subtle and did not promise it could be fixed easily. He wrote:
“We did discuss centralisation rhinoseptoplasty to correct the deviation of the nose and I spent some time detailing this procedure and risks as well as outlined her likely expectations of the surgery. I also explained that all rhinoplasty patients carry about a 10% risk of having to need revision surgery at the 12 month mark due to warping and memory of the cartilage.”
In a Consultation Note dated 17 July 2023, Professor Deva wrote:
“Specifically offered her centralisation of the nasal dorsum and tip. This would require a formal rhinoplasty +/- cartilage grafts with a 1:10 risk of revision surgery being required at 12 months. Specific risks of infection, bleeding, scarring, asymmetry, nasal obstruction, deviation of the nasal septum, change to the nasal shape, and difficulty with breathing, were discussed. Photographs of previous cases shown. Advised to carefully think about the information and will seek approval from insurer, but will need to see her at least once or twice before proceeding with surgery.”
Dr Bryce, the applicant’s general practitioner, in her clinical notes made the following entries:
(a)    on 1 November 2022, Dr Bryce noted: “right cheek swelling has reduced right nare and nasal alignment remains off centre”. Dr Bryce noted that a referral for facial plastic surgery was needed;
(b)    on 14 April 2023, Dr Bryce noted: “right cheek swelling has gradually settled nasal deformity persists esp at base of right nose with nare and septal misalignment”. She referred the applicant to Professor Deva;
(c)    on 12 May 2023, Dr Bryce noted:
“persistent symptoms of right nasal narrowing
reduced cheek and eye asymmetry
persistent swelling lateral right nare
no pain
anxiety related to fall risk improved”;
(d)    on 6 June 2023, Dr Bryce noted:
“facial features stable”;
(e)    on 1 August 2023, Dr Bryce noted:
“persistent left septal deviation
persistent right lateral nasal swelling with some nasal deformity”, and
(f)    on 29 August 2023, Dr Bryce wrote:
“Note septal nasal deviation/asymmetry of nasal tip to L
can see deformity in R nasal alar region.”

Discussion

The definition of ‘medical or related treatment’ in s 59 of the 1987 Act provides:
“medical or related treatment includes—
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(c) (Repealed)
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1) domestic assistance services,
(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
Section 60 of the 1987 Act relevantly provides:
“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).
...
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
The matter to be determined is whether the surgery proposed by Associate Professor Deva, namely, centralisation rhinoplasty, is reasonably necessary as a result of the injury to the nose on 3 March 2022.
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of the degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke CCJ in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.     However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If is shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purpose of the Act.
3.     Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the 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 place in the usual medical armoury of treatments for this particular condition.”
Burke CCJ considered the relevant factors relating to reasonably necessary treatment under s 60 of the Workers Compensation Act 1987 Act in Bartolo v Western Sydney Area Health Service(1997) NSWCC 1 and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
In Diab v NRMA Ltd, [2014] NSWWCCPD 72 (Diab) Roche DP provided a summary of the relevant principles 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.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Roche DP in Diab also said:
“Reasonably necessary does not mean ‘absolutely necessary’. 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 certainly does not have to establish that the treatment is ‘reasonable and necessary’ ...”
The Court of Appeal considered the meaning of “reasonably necessary” in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case considered whether proposed home modifications for a paraplegic were “reasonably necessary” having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) NSWCCR 264 (Pelama), another decision of Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
Grove J referred to the dictionary definition of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Shorter Oxford Dictionary, 3^rd ed) and “that cannot be dispensed with” (Macquarie Dictionary).
Grove J added at [23]:
“23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone.”
The respondent did not dispute that the applicant had sustained injuries to her face and nose on 3 March 2022. The respondent’s case was that the surgery proposed was largely a cosmetic procedure, unnecessary and unlikely to produce any improvement.
Professor Deva has proposed surgery in order to correct the deviation of the applicant’s nose.
The applicant’s evidence, which I accept, is that her nose has been turned to the left side. She stated that this has affected her confidence as she is conscious of it when she looks into the mirror every day. She also stated that the work injury has caused her to occasionally breath through her mouth.
In considering the medical evidence, it is convenient initially to refer to the criterion set out in Diab.
In relation to the appropriateness of treatment, it is necessary to consider the reasons for the proposed treatment. Dr Lai, who assessed the applicant via videolink on 17 October 2023 expressed the opinion that the proposed treatment is appropriate for the injury of a deviated septum of the nose. Dr Lai stated that examination of the applicant’s nose revealed a very slight deviation of the nasal bones across to the left side, a slight septal deviation of the dorsal septum to the left side, and no septal dislocation from the nasal spine. He noted there was a very slight hump of the nasal bone present and adequate nasal projection was evident. He commented that the nasal airway was slightly restricted on inspiration on the right side as compared to the left side.
Dr Sritharan, on 12 September 2022, noted that the applicant was unaware of any breathing restrictions and that the applicant felt the right alar, naso-facial groove and cheek area were asymmetrical compared to the left. I note that Dr Sritharan did not actually find that there was septal deviation.
Professor Deva, on 17 July 2023, found no obvious nasal airways obstruction, but nasal deviation of the tip and septum to the left.
Dr McGlynn, who examined the applicant in person on 11 December 2023, opined that the proposed treatment was not appropriate as he was unable to find nasal deformity and anatomical airway narrowing.
I am not persuaded after considering the medical evidence that there is any real nasal obstruction as a result of the work injury and, therefore, I am satisfied that the procedure proposed is really a cosmetic procedure to address the applicant’s concerns about how she looks. Although the applicant stated that the appearance of her nose affects her confidence, there is no evidence to suggest that this has caused any problems from a psychological perspective. There is no evidence to suggest that the applicant has become reclusive because of what she perceives as a change to the shape of her nose or that it had affected her in any other way apart from having some impact on her confidence.
Dr McGlynn conducted the most recent examination of the applicant in person on
11 December 2023 and found no nasal deformity. The other examinations in 2023 were conducted by Dr Lai by video link on 17 October 2023 and by Professor Deva on
17 July 2023. I consider that because Dr Lai conducted his examination and assessment by videolink, he was disadvantaged as he was unable to examine the applicant in person and so relied on a videolink which necessarily was two-dimensional rather that, as with
Dr McGlynn examination in person, three dimensional. Therefore, I would therefore place less weight on Dr Lai’s opinions concerning the deviation. Professor Deva found nasal deviation to the tip and septum to the left but did not describe the extent of such deviation. I note that his examination took place some five months before that of Dr McGlynn. On balance, I accept the opinion of Dr McGlynn that there is no nasal deformity. Therefore, the proposed surgery is not appropriate treatment.
However, if I am wrong about this, I am satisfied that any deviation is minimal, to the extent that a highly experienced plastic surgeon, Dr McGlynn, was unable to detect the deviation when he examined the applicant in person.
Looking at the other criterion in Diab, in relation to the availability of alternative treatment, and its potential effectiveness, Dr Lai stated that there was no alternative treatment and
Dr McGlynn stated that no treatment was needed. In terms of the availability of alternative treatment and its potential effectiveness, I am satisfied that there is no alternative treatment.
In relation to the cost of treatment, Dr Lai stated that this would be in the vicinity of $30,000. Dr McGlynn stated that was not relevant. Professor Deva, in the surgical fee estimate, quoted a fee of $14,300 but this did not include the anaesthetist’s fees, hospital stay fees or any other additional costs. This is a significant cost, in my view, for what would be a cosmetic procedure to address a very slight deviation in the shape of the nose.
In relation to the actual or potential effectiveness of the proposed treatment, Dr Lai merely stated that the treatment is effective. Dr McGlynn opined that nasal surgery is unlikely to produce improvement. Obviously, the actual effectiveness of the surgery would depend on the outcome and the risk involved, which I address below.
In relation to the acceptance by medical experts of the treatment as being appropriate and likely to be effective, Dr Lai stated that the treatment is widely accepted by medical experts as being appropriate and likely to be effective. Dr Lai did not discuss any potential risks. I note that Professor Deva, in his consultation note of 17 July 2023, identified the risk of a one in ten risk of revision surgery being required at 12 months, and mentioned specific risks of infection, bleeding, scarring, asymmetry, nasal obstruction, deviation of the nasal septum, change to the nasal shape, and difficulty with breathing. Dr McGlynn noted that the documents in this matter contain opinions for and against nasal surgery. The risks of the proposed treatments are, in my view, relevant to consideration of the actual or potential effectiveness of the surgery.
On balance, assuming that there is a very minor deviation in the shape of the nose, I am not persuaded that the benefits of the proposed surgery are such as to outweigh the risks and costs of the surgery. The outcome of such surgery is important as this is a cosmetic procedure and therefore some weight should be placed on the risks, including the risk that the surgery would not improve the applicant’s appearance, and the risk that further surgery may be carried out at additional cost.
Having considered the matter in light of the criteria nominated in Diab and Rose, I am not satisfied that it is reasonably necessary that the appellant undergo the proposed centralisation rhinoplasty surgery. I find that the applicant has not discharged the onus of proof that the proposed treatment is reasonably necessary treatment for the injury to the face and nose on 3 March 2022.

[2024] NSWPIC 227

2 May 2024