Turner v Holcim (Australia) Holdings Pty Ltd
[2021] NSWPIC 13
•10 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Turner v Holcim (Australia) Holdings Pty Ltd [2021] NSWPIC 13 |
| APPLICANT: | Pamela Turner |
| RESPONDENT: | Holcim (Australia) Holdings Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 10 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- claim for cost associated with surgical treatment in the nature of extension C3/4 and C4/5 Anterior Cervical Discectomy and fusion which the applicant came to under the care of Dr Kam, neurosurgeon, on 14 August 2020; Held – the surgical treatment in the nature of extension C3/4 and C4/5 Anterior Cervical Discectomy and fusion which the applicant came to under the care of Dr Kam, neurosurgeon, on 14 August 2020 was reasonably necessary treatment as a result of work-related injury sustained by the applicant on 18 January 2018. |
| DETERMINATIONS MADE: | 1. The surgical treatment in the nature of extension C3/4 and C4/5 Anterior Cervical Discectomy and Fusion which the applicant came to under the care of Dr Kam, neurosurgeon, on 14 August 2020 was reasonably necessary treatment as a result of work-related injury sustained on 18 January 2018. The respondent is to pay the cost of this surgical treatment in accordance with ss 59 and 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Pamela Turner (the applicant) commenced employment with Holcim (Australia) Pty Ltd (the respondent) on 9 January 2017, working as Key Account Manager. She is currently 52 years of age. In these proceedings the applicant relevantly alleged she sustained injury to her cervical spine in the following incidents:
(a) On 5 August 2017 the applicant was in stationary vehicle at a set of lights on Pennant Hills Road and waiting to make a left hand turn when her vehicle was sideswiped by another vehicle that came from behind her, hitting the front side of her vehicle. The applicant was pushed from the impact, with the right side of her head hitting the side window and side door.
(b) On 8 January 2018 the applicant was sitting in an office chair at work which slid and topped over, causing her to fall and land with the full weight of her body on her head and neck. The applicant’s head struck a metal filing cabinet as she fell. The applicant felt a crack in her neck and immediate pain. There was a loss of consciousness.
The applicant brought previous proceedings in the Commission, being matter numbers 3470/2018 and 3056/2020. In proceedings matter number 3470/18 the Commission determined on 16 November 2018 the surgical treatment in the nature of C5/6 and C6/7 anterior cervical discectomy and fusion which the applicant had come to under the care of Dr Kam on 6 March 2018 (the previous surgical treatment) was reasonably necessary treatment resulting from the injury she sustained on 8 January 2018.
The applicant’s claim for compensation in these current proceedings involved a claim made for costs associated with cervical spine surgical treatment in the nature of extension C3/4 and C4/5 Anterior Cervical Discectomy and Fusion which the claimant came to under the care of Dr Kam, neurosurgeon, on 14 August 2020 (the further surgical treatment).
The respondent issued notice in accordance with s78 of the Workers Compensation Act 1987 (1987 Act) on 24 July 2020, in which the respondent advised the applicant her request for approval of the further surgical treatment was declined on the basis the further surgical treatment was not reasonably necessary treatment and the further surgical treatment did not result from the injury she sustained on 8 January 2018. An Optional Review response dated 11 September 2020 confirmed the respondent’s decision to decline the applicant’s claim.
The applicant’s claim for compensation proceeded to Arbitration hearing on 16 February 2021 by telephone. Luke Morgan of counsel appeared for the applicant, instructed by Richard Dababneh, solicitor. Tom Grimes of counsel appeared for the respondent, instructed by Belinda Walsh, solicitor. Simon Christie and Shaun Ledwidge of the respondent were also present.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Whether the further surgical treatment undertaken by the applicant was reasonably necessary treatment resulting from work-related injury.
PROCEDURE BEFORE THE COMMISSION
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 Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Application to admit late documents dated 10 December 2020 lodged by the applicant and attached documents (AALD A1);
(c) Application to admit late documents dated 18 December 2020 lodged by the respondent and attached documents, such application made in response to Direction issued by Member Haddock on 16 December 2020 (AALD R), and
(d) Application to admit late documents dated 22 January 2021 lodged by the applicant and attached documents (AALD A2).
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses. Both counsel made oral submissions and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Review of evidence
A brief summary of the evidence follows.
Applicant’s statements
The applicant relied on a number of statements in her current claim before the Commission, two of which pre-date the further surgical treatment and two of which post-date it.
In her statement dated 1 June 2020 [1] the applicant relevantly explained that since she sustained injury on 5 August 2017 and 8 January 2018 she continued to experience difficulties and had been unable to return to work in any capacity since 2 March 2018. She said she continued to require extensive treatment for her injuries.
[1] ARD at page 15.
In a later statement dated 12 November 2020 [2], being the applicant’s most recent statement, the applicant said while she noticed a limited improvement in her symptoms after the previous surgical treatment, over the following two years her condition deteriorated. She said she was unable to raise her arms or turn her neck, and she suffered from constant pins and needles in her arms and hands. The applicant explained she often spent days in bed as her restricted movement “made it difficult to do much else”.
[2] ARD at page 22.
The applicant consulted with Dr Kam on 2 July 2020 after an emergency admission because of “unbearable” pain in late June 2020, and Dr Kam recommended the further surgical treatment. With the applicant’s request for approval of the further surgical treatment declined by the respondent, the applicant “opted to proceed with the surgery out of pocket”, coming to same on 14 August 2020. The applicant said she chose to proceed with the further surgical treatment “[A]s I felt this was my only way in which to gain a sense of normalcy and have any chance of my condition improving”.
Rosedale Medical Practice
The clinical records from April 2018 “to date” produced by Rosedale Medical Practice [3] demonstrate the applicant continued to experience symptoms relevant to her cervical spine following the previous surgical treatment the month before. The applicant presented at the practice with complaint on numerous occasions during 2018 and into 2019. It is also evident the applicant was attended at home by doctors at the practice on 30 September 2018 [4] and 14 October 2018 [5] relevant to problems with her cervical spine.
[3] ARD at page 382.
[4] ARD at page 399.
[5] ARD at page 401.
In a report dated 23 August 2019 [6] addressed to the applicant’s solicitors, the applicant’s treating general practitioner, Dr Anderson confirmed the applicant had been under her care for some 10 years. Dr Anderson said too she had been involved in the applicant’s medical care since the accident occurring on 8 January 2018. Dr Anderson described the applicant as having had ongoing neck pain and limitation of movement, and she noted Dr Kam was “concerned that at some future time she may require fusion of a further level of her cervical spine”. Dr Anderson said the applicant’s lifestyle was “severely restricted”.
[6] ARD at page 292.
The applicant’s physiotherapist, Jane Watson, reported on 2 July 2018 [7] that the applicant had come to the previous surgical treatment “with partial resolution of symptoms”.
Dr Kam, Neurosurgeon
[7] ARD at page 394.
As noted, the applicant’s treating neurosurgeon was Dr Kam. Relevant in part to her cervical spine pain, the applicant was reviewed by Dr Kam on 7 September 2017, with Dr Kam having reported the same day [8]. At that point in time Dr Kam described the applicant’s cervical spine as “quite stable” and merely recommended stretching exercise.
[8] ARD at page 467.
However, the applicant returned to Dr Kam on 22 February 2018 following the workplace incident occurring on 8 January 2018, with Dr Kam having reported the same day [9]. Dr Kam noted while recent C5/6 and C6/7 foraminal block provided minimal relief to the applicant, she was not keen to proceed with surgical intervention and he recommended she undergo a bilateral C6/7 foraminal block in a final attempt to assist with pain. Dr Kam cautioned at that time if there was no improvement in the applicant’s symptoms, the only option available to her would be an anterior cervical discectomy and fusion of the C5/6 and C6/7 levels, which of course the applicant came to on 6 March 2018.
[9] ARD at page 469.
On review on 6 April 2018 Dr Kam reported the applicant as “doing well” but noted some residual numbness in her right upper extremity [10] and on review on 27 April 2018, Dr Kam noted the development of “unusual symptoms” involving the applicant’s left upper extremity [11]. By 10 August 2018 while Dr Kam described the applicant as continuing to do well, he noted she was receiving physiotherapy treatment for stiffness in her neck [12]. The applicant’s symptoms did not settle and ultimately she came to the further surgery. Dr Kam’s relevant operation report dated 14 August 2020 [13] is detailed in part below:
“You may recall that she had previously undergone cervical spine surgery in March 2018 for the C5/6 and C6/7 level. She has developed increasing symptoms involving her right and left upper extremity related to adjacent level disease to the previous fusion site. She now has evidence of significant foraminal compression at the C3/4 & C4/5 above the old fusion that has not responded well to steroid injections. She will be required to undergo and extension fusion to include the C3/4 C4/5 level. After failing conservative management, surgery was considered and recommended to Mrs Turner”.
[10] ARD at page 473.
[11] ARD at page 474.
[12] ARD at page 475.
[13] AALD 2 at page 2.
In a subsequent report dated 1 November 2020 addressed to the applicant’s solicitors [14]
Dr Kam noted the previous surgical treatment and provided opinion the incident occurring on 8 January 2018 “had a substantial contribution to the onset of her symptoms and cervical spine injury that required additional surgery”. He described the further surgery “as reasonable and necessary” as a result of the injury sustained on that occasion because the applicant was “in extremis” with the degree of pain.[14] ARD at page 137.
In this latest report, Dr Kam explained why his opinion differed from that of Dr Cochrane, in that he said his interpretation of the MRI scan prior to surgical treatment on 14 August 2018 indicated that if he was to only operate at the C4/5 level and not also operate at the C3/4 level “the symptoms that Mrs Turner had described would have been partially treated and her outcome would be less than what experienced recently”. Dr Kam provided opinion it was in the applicant’s best interests to operate on both levels and it was not in her best interests to operate on the C4/5 level only and come back again some months later to operate on the C3/4 level.
Dr Rao, Neurosurgeon
The applicant was referred to Dr Rao, neurosurgeon, for second opinion, with Dr Rao having reported on 16 July 2020 [15] following review the same day. Dr Rao took a history of the applicant coming to the previous surgical treatment, with preceding conservative treatment having failed. While he described the applicant as having improved following the previous surgery, he noted she “had intermittent issues in her arms”. The applicant reportedly complained of neck pain, which was worse on standing and relieved on walking or lying down. Dr Rao essentially reported physiotherapy, spinal injections, bed rest and pool therapy ultimately made no difference.
[15] ARD at page 210.
Following clinical examination and review of the diagnostic imaging made available to him, Dr Rao formed the impression the applicant suffered right sided cervical radiculopathy with non-dermatomal and myotomal weakness, coupled with adjacent segment disease at C4/5 and C3/4 with foraminal narrowing. As regards medical management, he relevantly said:
“There has been extensive investigation by Dr Kam and based on this and the fact
that there has been many presentations to the Emergency at SAN and as she is quite significant disability, the likelihood would be that non-surgical management is going to be of minimal benefit in the medium or long term. The goals would be to decompress the nerves at C3/4 and C4/5 at the same time correct the kyphosis”.
Independent medical evidence
Dr New
Dr New provided a number of independent medical examination reports at the request of the applicant’s solicitors. In his initial report dated 20 April 2018 [16] Dr New provided opinion the previous surgical treatment undertaken by the applicant was reasonable and necessary predominately as a result of the incident occurring on 8 January 2018. He said the applicant did not require further surgical treatment “at the present time” and noted the surgical treatment under the care of Dr Kam appeared “to have a good effect to date”. He cautioned however it was too early to know the final result and described the long term prognosis as guarded.
[16] ARD at page 106
In a supplementary report dated 27 September 2019 relevant to the applicant’s cervical spine injury, [17] Dr New noted that while the applicant had some relief from a right C5/6 foraminal block, he was of the view she may require another bout of surgical treatment.
Dr Cochrane
[17] ARD at page 117
Dr Cochrane provided a number of independent medical examination reports at the request of the respondent’s solicitors.
In his initial report dated 27 March 2019 [18], which pre-dated the further surgical treatment,
Dr Cochrane noted the applicant had come to the previous surgical treatment. Dr Cochrane noted complaint of ongoing symptoms since the previous surgical treatment, which he said seemed “to be slowly improving over time”. Following clinical examination, in which he noted “a very poor range of neck motion” and review of the diagnostic imaging made available to him, Dr Cochrane described current diagnosis in terms of a work-related aggravation of spondylosis with C6 and C7 radiculopathy and accepted the need for the previous surgical treatment resulted from the injury the applicant sustained on 8 January 2018.[18] Reply at page 18
In his report dated 6 April 2020 [19] following assessment of the applicant on 13 March 2020 which also pre-dated the further surgical treatment, Dr Cochrane again noted complaint of ongoing neck pain, which now appeared to be escalating. The applicant complained her neck “locks up” on an intermittent and unpredictable basis. Following clinical examination and review of the diagnostic imaging made available to him on this occasion, Dr Cochrane’s conclusion included the following comment:
“Assessing Mrs Turner today, she demonstrated a very poor range of cervical movements with inconsistent motor examination of the upper limbs. Note was made I was significantly hampered by submaximal effort and give-way phenomenon and detected a degree of disability which I perceive as far greater than would be expected from the radiological findings, noting a normal cervical cord and moderate bony foraminal narrowing on the left at C4/5 and C6/7 only”.
Relevant to his recommendation for ongoing treatment at that time, Dr Cochrane provided opinion the diagnostic imaging to date showed no disruption of the surgical construct in the cervical spine nor any change in signal of the cervical cord nor cord compression. He said at that time “[A]s such, I see no indication for further cervical surgery”.
[19] Reply at page 20
In his most recent report dated 13 July 2020 [20], which is described as a supplementary report, Dr Cochrane canvassed Dr Kam’s request for the further surgical treatment.
Dr Cochrane noted that in his substantive report he had reviewed the CT Cervical Spine on 10 February 2020 which he said demonstrated loss of cervical lordosis with early kyphosis developing at C4/5 level, but did not demonstrate any abnormality at C3/4 level. He noted too that in that same substantive report he had reviewed the MRI Cervical Spine on 19 June 2020 which he said demonstrated persisting bony foraminal narrowing at C4/5 level, left more than right side, but again did not demonstrate any abnormality at C3/4 level. Relevant to his examination of the applicant at assessment, Dr Cochrane noted his concerns about the applicant’s markedly restricted cervical movements and bilateral dysfunction in the upper limbs, and said:“I would be very concerned, therefore, that Ms Turner has a very low chance of responding favourably to further surgery, even if it may radiologically indicated. The amount of neck restriction which was severe at the time of my assessment is unlikely to be improved by any additional fusion surgery, particularly surgery of fusion at two levels which would result in a total of four levels of the cervical spine out of seven being fused. The give-way phenomenon, submaximal effort and inconsistent bilateral motor examination leads me to also believe Ms Turner will respond poorly to additional surgery”.
[20] Reply at page 36
Relevant to specific questioning, Dr Cochrane accepted that while with the early kyphotic deformity and degeneration at the C4/5 level, surgery was at least radiologically indicated at that level he did not accept there was a necessity for surgery at the C3/4 level. He believed the applicant to be a very poor candidate for surgery and anticipated she would “respond very poorly”. He did not recommend the further surgical treatment.
Respondent’s submissions
Through Mr Grimes of counsel, the respondent reminded the Commission of the principles in Diab v NRMA Ltd [21] and the factors in determining whether treatment is reasonably necessary.
[21] [2014] NSWWCCPD 72 (Diab)
A factor addressed by the respondent was that of the “appropriateness” of the further surgical treatment. The respondent referred to Dr Cochrane’s initial report wherein
Dr Cochrane made reference to the applicant’s presentation at assessment which included:“…marked fear-avoidance of movements of the cervical spine. Noting give way phenomenon I could not objectively verify radiculopathy in the upper limbs and note the reflexes were symmetrical and normal in all limbs and no wasting was evident”.
It was the respondent’s submission this comment of Dr Cochrane would not support the claimed further surgical treatment. The respondent also noted other comment by
Dr Cochrane relevant to pathology:“…certainly my review of the MRI scan taken soon after the alleged injury suggests there has been a progression, at least on the right side, of disc bulges and foraminal narrowing, more right sided, and more at C6/7 than C5/6. As such I believe the current diagnosis is work-related aggravation of spondylosis with C6 and C7 radiculopathy”.
The respondent pointed out that in Dr Cochrane’s opinion there was different pathology than the site of the further surgical treatment.
The respondent then turned to Dr Cochrane’s report dated 6 April 2020 and made reference in particular in where Dr Cochrane in part concluded:
“Assessing Mrs Turner today, she demonstrated a very poor range of cervical movements with inconsistent motor examination of the upper limbs. Note was made I was significantly hampered by submaximal effort and give-way phenomenon and detected a degree of disability which I perceive as far greater than would be expected from the radiological findings, noting a normal cervical cord and moderate bony foraminal narrowing on the left at C4/5 and C6/7 only”.
The respondent noted Dr Cochrane again did not find pathology that supported complaint by the applicant and his findings on examination did not support her reported symptoms. The respondent also noted Dr Cochrane’s response to enquiry as to his recommendation for ongoing treatment:
“The radiological investigations to date show no disruption of the surgery construct in the cervical spine nor any change in signal of the cervical cord nor cord compression. As such, I see no indication for further cervical surgery”.
The respondent next turned to Dr Cochrane’s subsequent report dated 13 July 2020, and in particular the following comment:
“There was uncomplicated bony fusion from C5 to C7 at the sites of previous anterior cervical discectomy and fusion surgery performed by Dr Kam. There was foraminal narrowing on the left at C4/5 as well as the operated C5/6 and C6/7 levels. I did not note any abnormality at the C3/4 level. An MRI scan of the cervical spine performed on 19 June 2019 did show persisting bony foraminal narrowing at the C4/5 level, left moreso than right. Again, I did not note any abnormality at the C3/4 level on my review of the imaging nor was an abnormality reported”.
The respondent accepted the opinion of Dr Cochrane favoured the respondent but also favoured the applicant in that Dr Cochrane supported foraminal narrowing at the C4/5 and C5/6 levels but not at the C3/4 level. Although Dr Kam provided opinion he would not recommend surgery at only one level, having noted Dr Cochrane’s comments on examination and pathology, the respondent submitted Dr Cochrane’s opinion should be accepted.
Relevant to “effectiveness” of the further surgical treatment the respondent made reference to Dr Cochrane’s findings on examination at the more recent assessment:
“… I noted that Ms Turner had markedly restricted cervical range of movement and marked bilateral (not just left sided) dysfunction in the upper limbs. I would be very concerned, therefore, that Ms Turner has a very low chance of responding favourably to further surgery, even if it may be radiologically indicated. The amount of neck restriction which was severe at the time of my assessment is unlikely to be improved by any additional fusion surgery, particularly surgery of fusion at two levels which would result in a total of four level of the cervical spine out of seven being fused. The give-way phenomenon, submaximal effort and inconsistent bilateral motor examination leads me to also believe Ms Turner will respond poorly to additional surgery”.
The respondent noted too Dr Cochrane provided the following opinion:
“… I am not of the opinion that there is any necessity for surgery at the C3/4 level. Moreover, I believe Ms Turner is a very poor candidate for surgery and expect she will respond very poorly. Surgery is highly unlikely to be associated with any improvement in her neurological state or her pain levels or her range of movement in her neck, and these will in fact more likely worsen”.
The respondent referred then to the applicant’s statement made after the further surgical treatment and pointed out there was no evidence of improvement in the applicant’s symptoms post the further surgical treatment, which was supportive of Dr Cochrane’s view the further surgical treatment was unlikely to improve the applicant’s position. This said, the respondent conceded Dr Kam provided opinion the applicant’s symptoms had significantly improved with the surgical treatment, although he noted the applicant continued to experience some ongoing discomfort and restricted range of movement. The respondent submitted that most surgeons believed their surgical treatment resulted in a good outcome and there was conflicted evidence as to how much the applicant had improved with the further surgical treatment.
Another factor addressed by the respondent was “cost” of the further surgical treatment, which was large. Dr Cochrane offered alternate treatment in terms of pain management, and although he accepted the applicant’s prognosis was poor, his view was the same regardless of whether the applicant came to the further surgical treatment or not.
The respondent submitted overall that Dr Cochrane’s opinion should be accepted as it was supported in part by a lack of pathology and a lack of evidence of improvement. The respondent submitted that ultimately the Commission should find in favour of the respondent that the further surgical treatment was not reasonably necessary treatment, but further submitted that if the Commission was against the respondent on that, the Commission should find at least the C3/4 aspect of the further surgical treatment was not reasonably necessary treatment.
Applicant’s submissions
Through to Mr Morgan of counsel, the applicant referred first to the respondent’s submission that there was no evidence the further surgical treatment resulted in improvement which gave force to Dr Cochrane’s opinion and said (a) the applicant did not accept that and (b) in any event it was the wrong test. The applicant said the relevant analysis for the Commission was a contemporary one. It was not appropriate to import the outcome of the further surgical treatment into analysis. The Commission must look at the decision that was made at the time it was, the basis on which it was made and whether, with reference to the authorities, Diab in particular, it was an approach that fitted within the relevant test.
The applicant said her position was a relatively short one and made reference to her statement dated 12 November 2020, in which the applicant described her symptoms following the previous surgical treatment in the following terms:
“Following the surgery, I noticed limited improvement in my symptoms. Over the course of the next two years however, my condition deteriorated. I was unable to raise my arms or turn my neck. I was also suffering from constant pins and needles in my arms and hands. I often spent days in bed as the restriction in movement in my neck and upper extremities made it difficult to do much else”.
The applicant referred to her attendance at the Emergency Department of the SAN Hospital in late June 2020 due to “unbearable” pain and her having been seen by Dr Kam on 2 July 2020. It was noted Dr Kam made a recommendation to the applicant on a background of the long relationship between the two of them and the treatment he had previously provided to her. It was noted too the applicant accepted Dr Kam’s recommendation because she wanted some level of normality instead of putting up with what she had been putting up with over the previous two years - being the constant pain, analgesia, and an inability to function which saw her remain in bed at times.
The applicant said that prior to the further surgical treatment, one would expect a surgeon such as Dr Kam to weigh up consequences and alternatives. Dr Kam had helpfully identified such steps in his report dated 1 November 2020:
“Because she was in extremis with the degree of pain and disability from the pain the surgery that was performed in August 202 was reasonable and necessary as a result of work related injury.
Following the surgery, her symptoms have been significantly improved with the operation of August 2020.
It is my opinion that the operation has been appropriate, effective in reducing her symptoms and all alternative therapies were considered but had been ineffective”.
As regards the recent opinion of Dr Cochrane, the applicant said Dr Cochrane’s opinion suffered as he did not appear to have all the relevant clinical material available to him at the time of reporting. He did not have the outcome of the clinical examination done by Dr Kam in mid 2020, nor the diagnostic imaging no doubt performed at that time. The applicant pointed out it was apparent this last report of Dr Cochrane was prepared by working off an email sent to him by the self-insurer and with reference to scans he had previously provided comment on. The applicant noted Dr Cochrane did not have any new material before him when providing opinion in this last report.
The applicant was confident Dr Kam was in a much better position than Dr Cochrane to provide opinion because he had the benefit of being the long term treating specialist, was able to examine the applicant, and was able to deal with the needs of the applicant expeditiously as was necessary in the circumstances of her presentation at the Emergency Department of the SAN Hospital. Dr Kam said:
“My opinion regarding Mrs Turner is different from Dr Neil Cochrane. My interpretation of the MRI scan prior to the surgery of August 2020 reveals the presence of significant foraminal narrowing at the C3/4 and C4/5 levels, potentially contributing to the severe debilitating pain that Mrs Turner had experienced involving her neck, trapezius, shoulder and upper extremity. If we were to only operate at the C4/5 level and not address the C3/4 level, the symptoms that Mrs Turner had described would have been partially treated and her outcome would be less than what has been experienced recently. It is my opinion that it would be in Mrs Turner’s best interest to have the 2 levels operated on in August 2020. It would not be in her best interest if we operated at 1 level in 2020 and had to come back again and operate on C3/4 level some months later”.
In addition to the report of Dr Kam dated 1 November 2020 the applicant referred to his earlier treating reports, those of the treating general practitioner, Dr Anderson, and the independent medical reports of Dr New. It was the applicant’s submission that this body of medical evidence, and in particular the report of Dr Kam dated 1 November 2020, provided the Commission with the level of satisfaction required by the test in Diab.
Returning to Dr Cochrane’s report dated 13 July 2020 which is directly relevant to these particular proceedings, the applicant noted the report was provided directly to the self-insurer, referred to Dr Cochrane having assessed the applicant on 13 March 2020, and provided comment “I note from your email that treating specialist, Dr Andrew Kam, has requested that extension fusion to the C3/4 and C4/5 levels be undertaken seemingly with respect to the work injury of 8 January 2018”. The applicant pointed out Dr Cochrane then proceeded to express opinion purely on the information he had available to him in April 2020 (being the date he furnished his report following assessment on 13 March 2020) which included CT scanning of 10 February 2020 and MRI scanning of June 2019 (but no more recent MRI scanning such as that referenced by Dr Kam) and without seeing the applicant. The applicant submitted Dr Cochrane’s report at a very fundamental level must suffer in so far as his expressed opinion is concerned. The applicant further noted Dr Cochrane’s report unfortunately focused potential outcome of the further surgical treatment that strayed into psychological analysis rather than opinion purely relevant to his speciality as a neurosurgeon and spinal surgeon. Dr Cochrane appeared more focussed on opinion the applicant was a poor surgical candidate rather than on opinion as to whether the further surgical treatment was appropriate treatment. Dr Cochrane was prepared to accept surgical treatment at the C4/5 level could be justified as it was radiologically indicated at this level (based on the radiology in early 2020 and without the benefit of examination) but did not accept surgical treatment at C3/4 was justified.
The applicant submitted the essential debate in this matter was whether the Commission would accept the opinion of Dr Cochrane, which was formed without the benefit of Dr Kam’s opinion in which he had described how the applicant presented, what the recent radiology demonstrated and what treatment in his opinion as a treating specialist the applicant needed to address her complaint of pain, particularly considering her presentation to hospital in extremis in an emergency setting. The applicant submitted the Commission would have little difficulty in accepting the opinion provided by Dr Kam as opposed to that of Dr Cochrane.
Respondent’s submissions in reply
Mr Grimes offered no submissions in Reply.
Determination
Was the further surgical treatment reasonably necessary treatment resulting from work-related injury
The respondent does not dispute that on 8 January 2018 the applicant sustained work-related injury and in Matter Number 3470/18 the Commission found that the previous surgical treatment was reasonably necessary treatment for that injury [22]. However, the respondent now disputed the further surgical treatment was reasonably necessary treatment resulting from work-related injury.
[22] ARD at page 32.
Section 60 of the 1987 Act provides:
“60 (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)”.
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[23]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[23] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“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, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be 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 purposes of the Act.
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.
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 the particular condition.”
In Diab former Deputy President Roche in the Commission cited Rose with approval and provided a summary of the 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”.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case as discussed in Kooragang. In this matter the applicant must establish that the work related injury she sustained to her cervical spine while working with the respondent materially contributed to the need for the further surgical treatment. This requirement was confirmed by former Deputy Roche in the Workers Compensation Commission in Murphy v Allity Management Services Pty Ltd[24] where he stated:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ of the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[24] [2015] NSWWCCPD 49.
It is evident that while the applicant experienced some relief after the previous surgery, she remained symptomatic. The applicant said that while she had some relief after the previous surgery, her condition deteriorated over the following couple of years which saw her return to consult with her long term specialist Dr Kam. The clinical records from Rosedale Practice, out of which her treating general practitioner, Dr Anderson, practised demonstrate the applicant sought medical treatment for her neck symptoms on numerous occasions after the previous surgery. Her treating physiotherapist, Ms Watson described the applicant as having had only “partial resolution of symptoms” with her previous surgery.
In her report dated 23 August 2019 Dr Anderson noted Dr Kam’s concern the applicant could require fusion at some further level of her cervical spine in the future, and in a report dated 27 September 2019, which too is after the previous surgical treatment but prior to the further surgical treatment, Dr New cautioned the applicant may require another bout of surgical treatment. When the applicant consulted with Dr Kam on 2 July 2020 after emergency presentation at the SAN Hospital in late June 2020 due to unbearable pain, with failure in conservative treatment Dr Kam recommended the further surgical treatment, and when the applicant sought second opinion from Dr Rao, he provided opinion on 16 July 2020 that conservative treatment would be of minimum benefit to the applicant in the medium to long term.
Although Dr Cochrane essentially provided opinion the surgical treatment at the L5/6 was reasonably necessary treatment for work-related injury, he provided opinion the surgical treatment at the L3/4 was not. The applicant submitted Dr Cochrane’s opinion on this occasion suffered as he did not appear to have all the relevant clinical material available to him and neither did he have the opportunity to assess the applicant at the time he reached his view. The applicant submitted Dr Cochrane’s opinion should not be given the weight of Dr Kam’s opinion because Dr Kam was the applicant’s treating specialist under whose care she had been for some time and had had the opportunity to review her following admission to hospital in an emergency setting before providing opinion as to future medical management. I accept this submission by the applicant, particularly so because Dr Kam provided meaningful comment relevant to Dr Cochrane’s opinion and Dr Cochrane has not provided comment that is before the Commission that is relevant to the report of Dr Kam dated 1 November 2020, being a report that I find particularly persuasive.
Although the applicant provided no comment as to relief achieved by the further surgical treatment, Dr Kam provided comment her symptoms have significantly improved following the further surgical treatment. While the respondent submitted Dr Kam’s comment could be self-serving, I am mindful of the former Deputy President’s comment in Diab that although the effectiveness of treatment is relevant to whether the treatment was reasonably necessary, it is not determinative. In Diab the Deputy President said “each case will depend on its facts” and made specific reference to a poor outcome from surgical treatment not necessarily meaning the surgical treatment was not reasonably necessary treatment.
The evidence demonstrates the applicant experienced a deterioration of her symptoms since the previous surgical treatment and subsequent conservative treatment did not provide lasting relief. Although Dr Cochrane expressed concern about the outcome of the further surgical treatment, Dr Kam and Dr New earlier cautioned that despite the applicant’s previous surgical treatment another bout of surgical treatment may be required, and Dr Kam ultimately recommended the further surgical treatment to address the applicant’s “unbearable” symptoms, surgical treatment with which the applicant was keen to undertake. I am mindful Dr Kam provided opinion the further surgical treatment was “reasonable and necessary” as a result of the injury the applicant sustained on 8 January 2018, and note that in Diab the former Deputy President provided comment that treatment does not have to be “reasonable and necessary” which would be a much higher standard than “reasonably necessary”.
Having regard to counsels’ submissions, the authorities and the evidence discussed, when considering the support afforded to the applicant by the applicant’s treating specialist Dr Kam in particular, I am of the view the further surgical treatment was reasonably necessary treatment for the work-related injury the applicant sustained to her cervical spine on 8 January 2018.
SUMMARY
The applicant sustained work-related injury to her cervical spine on 8 January 2018. The applicant requires medical treatment and services as a consequence of the work-related injury she sustained to her cervical spine on 8 January 2018.
In proceedings matter number 3470/18 the Commission determined on 16 November 2018 that the previous surgical treatment (being surgical treatment in the nature of C5/6 and C6/7 anterior cervical discectomy and fusion which the applicant had come to under the care of
Dr Kam on 6 March 2018) was reasonably necessary treatment resulting from the injury she sustained on 8 January 2018.
The further surgical treatment (being surgical treatment in the nature of an extension C3-4 and C4-5 Anterior Cervical Discectomy and Fusion which the applicant came to on 14 August 2020 under the care of Dr Kam) was reasonably necessary treatment resulting from the injury she sustained on 8 January 2018.
Jacqueline Snell
MEMBER
10 March 2021
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