Watson and Telstra Corporation Ltd
[2001] AATA 386
•9 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 386
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/325
GENERAL ADMINISTRATIVE DIVISION )
Re Patricia Ann Watson
Applicant
And Telstra Corporation Limited
Respondent
DECISION
Tribunal Mr R D Fayle, Senior Member & Dr Y S Haslam, Member
Date9 May 2001
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor decides that the respondent is liable in respect of an operation on L4/S1 post lateral fusion iliac crest graft and possible pedicle screws. The Tribunal orders, pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the respondent pay the applicant's costs of this proceeding, such costs, in the absence of agreement, to be taxed by the Registrar or a Deputy Registrar of the Tribunal in accordance with the Tribunal's General Practice Direction dated 18 May 1988.
..........(- sgd RD Fayle -)............
Senior Member
CATCHWORDS
Compensation – Safety, Rehabilitation and Compensation Act 1988 – injury suffered during course of employment - sprained left leg and back – liability to pay the cost of spinal fusion operation – laminectomy/discectomy – exacerbation of old low back problem – history of compensation payments being made in respect of the injury, including medical expenses relating to five separate operations on spine – perceived need for operative treatment – conservative treatment - discography
REASONS FOR DECISION
9 May2001 Mr R D Fayle, Senior Member & Dr Y S Haslam, Member
On 13 August 1999 a delegate for Telstra Corporation Limited ("the respondent") wrote to Mrs Patricia Watson ("the applicant") advising that in relation to her claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), in respect of sprained left back and left leg, that liability in respect of an operation on L4/S1 post lateral fusion iliac crest graft and possible pedicle screws ("the spinal fusion") is not approved.
The applicant, through her solicitors, on 26 August 1999, requested that that decision be reconsidered. On 20 September 1999 the respondent wrote to the applicant informing her that pursuant to s65(5) of the SRC Act it had reconsidered its decision of 13 August 1999 and affirmed it. By letter dated 29 September 1999, the applicant applied to this Tribunal for a review of that decision.
The issue before this Tribunal is whether, pursuant to s16 of the SRC Act, the respondent is liable to pay the cost of the spinal fusion operation to be undertaken by Mr Peter Woodland, being treatment that is reasonable for the applicant to obtain in the circumstances.
The applicant was represented by Ms Anette Schoombee of counsel. Mr Callum Fraser, of Downings Legal represented the respondent. Four medical witnesses, all being orthopaedic surgeons, each provided written reports and gave oral evidence. They are Mr Peter Woodland and Mr Barry Slinger for the applicant and Mr David Wright and Mr Nick Batalin for the respondent. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the following exhibits were taken into evidence:
Exhibit A1 Report of Mr Woodland of 19 April 2000;
Exhibit A2 Report of Mr Slinger of 18 March 2000; and
Exhibit R1 Report of Mr Batalin of 9 May 2000.
The applicant did not give evidence. The following relevant background is gleaned from the papers. None of this is in dispute. On 11 October 1973 the applicant slipped in the course of her employment (not with the respondent), injuring her neck and back. On 23 March 1978, during the course of her employment with the respondent, the applicant suffered an injury described as "sprained left back and left leg". Following a claim for compensation in this respect, on 26 April 1978, the respondent accepted liability to pay compensation. There is a history of compensation payments being made in respect of the injury, including medical expenses relating to five separate operations on her spine. Two of these occurred in 1979, and one in each of 1982, 1985 and 1996. On 13 August 1979 the applicant underwent an L5/S1 hemilaminectomy and discectomy on the left (side). Dr Michael Lee, the surgeon reported on 7 December 1979 that;
"There was good relief of her pain and her neurological deficits recovered but on subsequent review there was gradual return of pain into the left leg but this was not associated with any deteriorating neurological function. … (Because) good relief had been obtained previously from removal of the disc, I re-explored her on 2 November [1979]. At surgery there was a degree of postoperative fibrosis around the S1 nerve root but certainly not excessive and a small disc fragment was removed from under the nerve root.
This had not made any difference to her pain which I feel is probably due to a combination of intraneural fibrosis and a degree of arachnoiditis. …" (T14)
During the period from having had the laminectomy/discectomy in August 1979 and its re-exploration in November 1979, and February 1990, the applicant underwent many medical examinations and had treatment from a physiotherapist (T32), a psychologist for pain management (T46, a lumbar epidural (T50), two lumbar myelograms (T42 & T52), transcutaneous nerve stimulation and gentle pool therapy (T59), facet injections (T62), massage and relaxation programme (T63) and chiropractic treatment (T67, 68, 71 & 73). On examination and review by Dr Geoffrey Gee on 7 February 1990, whom she has previously seen on several occasions, he concluded:
"I believe this lady has had the benefit of very extensive treatment and that little change has occurred in the years in which I have seen her. I cannot see any positive therapeutic event which is going to change her pain or her lifestyle." (T74)
Dr D B Gope, orthopaedic surgeon, in his report of 18 May 1993 stated:
"I understand that subsequently [to the L5/S1 discectomy] she underwent two more operations in the lumbo-sacral region which has been described as repeat laminectomy and explorations of the L5/S1 nerve root, the third one in 1982 and the fourth one in 1985."(T86)
The Tribunal understands that it is not disputed that the applicant underwent those four procedures which together with another carried out on 27 February 1996 (T101) are critical facts relied on by both parties in their submissions.
It is further noted that Dr Gope, following his examination of the applicant on 18 May 1993, remarked:
"After four surgical interventions, one would be reluctant to consider further invasive procedure. But if symptoms degenerate further, causing neurological involvement or sever backache, stabilisation of the lumbo-sacral segment with spinal fusion may be necessary at a later date." (T86)
10.After another myelogram and a fluoroscopic examination in February 1996 (T95 & 96) Dr Michael Lee performed a L4/L5 discectomy and rhizolysis of the L5 nerve root on 27 February 1996. (T101) He reported "considerable improvement in her left leg pain but her main problem since then and the reason for continued hospitalisation has been in effect an exacerbation of her old low back problem …" (T101).
11.The applicant's medication included pethidine injection until March 1996 and then she was prescribed MS Contin and Prothiaden. Dr Gee, her treating anaesthetist for some time, reported on 29 March 1996 that he gradually reduced her MS Contin "with cessation on 27 March 1996" but maintained the Prothiaden. He opined that "she appears to be functioning a great deal better". (T102) Dr Gee reported in October 1996 that her then "current medications include Doloxene, Oestrogen, Pepcidine and Temazepam. The Prothiaden that we got her onto in hospital was stopped because she ran out of pills". (T107)
12.The applicant was again admitted to hospital with "recurrent low back pain and left leg pain" on 21 March 1997. Dr C Parry reported that "she was almost unable to walk; treatment in hospital consisted of analgesia, initially with narcotic injections and then oral analgesics and Amitryptilline to achieve some potentiation of the analgesics and afford some sedation, and physiotherapy." (T114) In July 1998 Dr C Parry reported that the applicant had been undergoing physiotherapy and had a fitted moulded back brace. Her then medication was Doloxene and occasional Pethidine injections. (T123) Meanwhile, in July 1998 a lumbar spine MRI was undertaken. (T126).
13.When examined by neurological surgeon, Dr Peter Watson in July 1998, after being referred by Dr Michael Lee, he said:
"I don't feel further surgery is indicated although one would have to say she could be a candidate for an anterior lumbar fusion at L4 and L5 levels. I have talked to her in general terms about fusion surgery indicating that at best I felt there would be a 50/50 chance that this would benefit her symptoms. She is going to consider this option and if she wishes to discuss the matter further then I would recommend that she is reviewed by Peter Woodland" (T127)
14.Mr Woodland saw the applicant on 17 July 1998. He summarised his views thus:
"… this lady's predominant complaint at this time was that of back pain and to a lesser extent lower limb symptoms. I agree that further posterior decompressive surgery would be unlikely to improve her overall pain state. Theoretically some type of fusion/stabilisation surgery at the L4/5 and L5/S1 levels would allow improvements in this lady and from a technical viewpoint my preference would be that of anterior discectomy and interbody fusion at the L4/5 and L5/S1 levels. However, I feel strongly that conservative treatments should be pursued. I was not certain that this lady would have significant improvements in her pain, even with uncomplicated anterior discectomy fusion surgery. I did suggest to her that there possibly would be a 50% chance of some type of improvement with a 5% chance of worsening symptoms." (T128)
15.Dr P J Graziotti performed L4 and L5 root sleeve injections and a localised epidural at L4/5 in July 1998. At the time the applicant's regular medication consisted of MS Contin 50mg bd (sic), panadol and prothiaden. (T130) Dr Graziotti saw the applicant again in August 1998 and concluded that she only obtained temporary relief from the injections and he saw no reason for more. (T133) In his letter of 28 August 1998 he opined:
"At this stage there is little else that can be done for Mrs Watson. It may be that further epidural injections will eventually result in some improvement or possibly radio frequency rhizotomy on the facet joints in the low lumbar spine may again result in some improvement but my feeling is that this is unlikely." (T137)
16.Mr Peter Woodland, who reviewed the applicant for the second time in May 1999, then reported that she was taking "MS Contin 100mg per day in addition to other medications". He repeated his earlier assessment in that, if she underwent a posterolateral fusion from L4 to S1, there would be a 50% chance of some type of improvement in regard to her back pain and a 5% chance of worsening of symptoms. In that respect he referred to possible complications from anaesthetics, wound infection, thromboembolism, nerve injury and failure of bone graft. He stated:
"This lady understands that if she underwent surgery, it would not be able to restore her back to normal, rather it would hopefully stabilise symptoms and enable her to reduce her narcotic analgesic levels." (T151)
17.In July 1999, the respondent requested Mr David Wright, orthopaedic surgeon, to examine the applicant. His report is at T157. His 24 July 1999 report observes inter alia:
"There was a non dermatomal loss of sensation to the left lower limb below the knee. Dorsiflexion, eversion and inversion of the left ankle were very weak but I was not convinced that this was an organic weakness. …
Ms Watson is suffering from a lumbar disc problem caused by a combination of degeneration and arachnoiditis which is a result of previous surgery. She also has degeneration of the lower thoracic discs causing pain in the thoracolumbar region.
Whilst the thoracolumbar symptoms are a result of a progression of degenerate disease, her lower lumbar symptoms are caused by a combination of degenerative disease and previous operative treatment. …
Ms Watson has had a wide range of treatments including several operations, as well as pain management techniques, none of which appear to have resulted in any great improvement. She is taking a high dose of a narcotic analgesic with only slight improvement of her symptoms. In view of those facts, I very much doubt that surgical treatment will help this lady. I have read Mr Woodland's reports and whilst I respect his opinion and his better experience in the field of spinal surgery, I disagree with his proposed treatment. It is unlikely, in my opinion, that a spinal fusion would help Ms Watson in view of her lack of response to previous operations and all the other factors involved in her presentation." (T157)
Evidence of the 4 orthopaedic surgeon witnesses
Mr Peter Woodland
18.Mr Woodland told the Tribunal that he has been practicing as a spinal surgeon in Perth since 1993 and presently performs about 50 spinal fusions each year, over a range of conditions including low back problems. He describes himself as a conservative surgeon. Reference was made to the five back operations that the applicant has had. In this regard, page 9 of the transcript records:
MS SCHOOMBEE: So, what you've just said that all five operations were to some extent similar operations although they were applied to two different disc positions? ---Yes, that's right, that's right.
Now the operation that you have recommended to be done at this stage is what? --- Well, what I've said is if this lady does have any further surgery the procedure logically would be a fusion procedure, not a laminectomy procedure, because in very basic terms this lady tells me that when I last saw her, last year, was that her predominant pain was relating to her back pain. She still does have some left lower limb symptoms, but when I – when I've seen her on several occasions now, Mrs Watson tells me that her main symptom is back pain. The only operation – the only surgical operation which would possibly help back pain is fusion surgery. Now in each end of the case you you've got to argue whether or not someone should have fusion surgery, but what I've said is the only operation likely to help her would be a fusion operation, where basically we are joining bones together in an attempt to improve the pain.
So if you join bones together, is this different, or the same type of operation than the discectomies and laminectomies that she's had before? --- No, it's completely different. Discectomy/laminectomy is taking pressure off nerves, fusion surgery is joining bones together, the four – well the fourth vertebrate to the sacral bones, so in other words the lower two inches of her spine would be fused. Now there are different ways of doing that, there are many different techniques but the common denominator is actually fusing the bones together in an attempt to improve the back pain. It doesn't address the leg pain.
…
And what is the medical position in her spine at the moment, in terms – which suggest that the spinal fusion operation might be the right thing to do? --- Okay, well obviously investigations are just part of the assessment. We don't just treat X-rays or scans, obviously not, but this lady's had a number of X-rays and scans and the most specific detailed investigation is the MRI scan on 8 July 1998 and that's the magnetic resonance imaging scan. This is, to put it simply, the best scan we have in the world today to work out exactly what condition a spine is in. It looks very closely as disc protrusion, if there's any pressure on the nerve, is there any scar tissue, if there's any wear and tear or damage to disc and in summary the scan which I saw in July 1998 showed that in this lady the lower two discs were damaged. So in other words the L4/5 and the L5/S1 disc were both worn or degenerate, or arthritic, it means the same thing. There is no evidence of any pressure on any nerves. There was some scar tissue around the nerves which would be relating to the previous surgery, because every time someone has an operation on nerves there is some scar tissue, but the important point is that on the MRI scan there was quite definite disc degenerative change or wear and tear process involving those lower two discs and as opposed to the other discs in the lumbar spine which all looked quite good, in fact remarkably good for a lady of her age. There was some wear and tear in the lower thoracic region, but that's about six or seven inches above where this lady's reporting most of her pain, so in my mind that is not particularly relevant. The important point is that the scan shows that the lower two discs are degenerate or worn. That still doesn't mean that that's where the pain's coming from but its part of the clinical picture.19.In his letter of 19 April 2000 (ex. A1) Mr Woodland made the following remarks when addressing the question of whether there was still a perceived need for operative treatment:
"As I previously mentioned in correspondence, the decision for surgery is a little difficult, particularly in view of the fact that this lady has already undergone five separate laminectomy/discectomy surgical procedures and yet with continuing pain. I have not changed my previous view that surgery would give her a chance of symptom improvement on the basis that her pain arises from the L5/S1, possibly L4/5 disc levels. Possibly she may have a 50% chance of some type of symptoms improvement with a 10% chance of some type of complication including making her pain worse. Obviously these are not great odds. On the other hand, this lady does appear to have genuine ongoing lumbar back pain. Mr Slinger, in his report, suggested the possibility of Morphine pump treatment as would be initiated by a pain specialist. I agree that this may well be a good alternative to surgical treatment; recent results have been promising in regard to significant chronic pain states, particularly in the context of previous surgery. Again however, no guarantee could be given in regard to symptom improvement.
I agree with Mr Slinger's opinion that prior to proceeding to any surgical treatment (posterolateral fusion L4-S1) it would be best to carry out pre-operative discography in an attempt to contain the pain source. However, this particular investigation is not 100% accurate in predicting good results from surgery." (A1)
20.In answer the question as to the possible benefits from surgery, Mr Woodland said:
"You quite rightly state that the main aim of surgery would be to improve her pain by reducing the need to have Morphine medication. As above, she would have approximately 50% chance of being able to reduce her Morphine requirements." (ex. A1)
21.And in conclusion Mr Woodland said:
"Other comments:
From my viewpoint it would appear that this lady's ongoing spinal difficulties do relate directly or indirectly to the initial incident in 1978. Unfortunately she has had ongoing back and left lower limb symptoms despite several operative procedures. (ex. A1)22.In relation to the possible success rate for the proposed spinal fusion operation the following is an exchange between Ms Schoombee and Mr Woodland:
MS SCHOOMBEE: In your report you say that her success rate would be 50 per cent, … Now could you just explain to us how you arrived at that 50 per cent judgement? --- Yes, well its very subjective. It's based on experience and unfortunately there's no pain gauge or thermometer that we can use to determine if someone's going to be successful or not. In other words we don't have a crystal ball, but there are well accepted factors – various negative factors, which apply … and various negative factors which apply to Mrs Watson.
So you have looked at negative and positive factors? --- And positive factors, yes.
Well perhaps you would like to explain both of those to us? --- Okay, all right. We'll start with the negative. The negative factor – sorry, if I see a patient that I think they are a very good, excellent candidate for surgery for back pain I would tell them 70 per cent, maybe 80 per cent chance of some type of improvement. Now, with Mrs Watson, the negative factors are firstly, there is ongoing litigation, that's why we're here, there's an ongoing worker's compensation claim and it's well documented literature that you know the success rates are less. In other words the patients that have spinal fusion surgery in the context of ongoing litigation, report less improvement in pain, and you can take about 10 to 15 per cent off the initial figures. So if you start off with 70 per cent you're down to 55 – 60 percent. The other factor is this lady smokes, she's a smoker and that's a little bit controversial but many studies would suggest that 5 to 10 percent – you take off 5 to 10 per cent off the success rate because smoking reduces the chance of the bone graft fusing successfully. Other factors are that this lady has had many different procedures before, but you can argue … for and against that actually, but in general, on face value when I first saw this lady I knew that she's had five previous spinal procedures and that can be a negative factor. The other factor is that when I've examined this lady – and this has been confirmed by the other examiners, that there are some pain behaviour factors – what we call … inappropriate pain behaviour factors. That's not to say at all that this lady's deliberately exaggerating or elaborating, it's just that some people with chronic pain, particularly some people with chronic back pain, develop what we call abnormal pain behaviour and there are various tests we can do to determine that. … The other negative factor is that on one of the tests, the myelogram in 1996, showed that there is quite significant scar tissue around the nerves at the base of the spine, what we call arachnoiditis, which is just a word to describe scar tissue, usually caused by previous procedures such as surgery and that scar tissue, in itself, can sometimes cause back pain, sometimes. … the other thing is that this lady's on high dose morphine of MS Contin. If I see someone on very extremely high doses, its relative, negative factor again, because basically if someone's on very high dose morphine it's very hard for them to get off, whatever treatment you do, that's why drug addicts find it very hard to go cold turkey, because whatever treatment you do it's hard to come down off that. So they're the negative factors.
…
…if you would then deal with your positive factors? --- Yes, okay. Positive factors. Number one, I think this lady does have genuine pain. Number two, she has what we call mechanical lumbar back pain. If this lady told me that she had pain all the time, it was – there, she's lying in bed at night, it was there all the time and it made no difference whether she was active or not, I'm not sure that fusion surgery would help her. In other words, what we like to see is that if someone's complaining of activity related pain, if she tries to stand or walk or do shopping or bend, if all the other factors are right as well. The next point is that even though she's had five previous operations, they are different operations. Those operations were directed at improving leg pain. This operation is different; this is addressing a different problem. In other words it's not doing more of the same, it's fusing the bones in an attempt to improve her back pain. The next positive point is the MRI scan … in 1998 showed that the disease process, or the wear and tear process is just confined to the lowest two levels, not – if she had what we call multi-level wear and tear changes, if the scan had shown that all of the lumbar spine discs were all terrible and rotten and damaged and worn, I would certainly tell her not to have the surgery. … The final positive point is that … I felt that she had genuine pain and I didn't think there were any strong personality or psychological factors going against surgery and so I thought as far as her psychological personality profile went, I though she'd be a reasonable candidate for surgery. All this is very subjective, there's no such thing as a … barometer, or thermometer to judge how much pain someone's got and to judge exactly what their success rate is going to be, but I came up with 50 per cent. (Transcript pp.14-16)23.In his cross-examination of Mr Woodland, Mr Fraser, for the respondent, raised questions relating to the foregoing. This exchange appears at transcript pages 26 to 29:
MR FRASER: You said that in Miss Watson's case there'd be a 50 percent chance of some improvement of her symptoms. Now what do you mean by "some improvement"? --- Well, yes, that can range from say 10 or 20 percent improvement in symptoms, if you can quantify that, to – for a significant improvement. Theoretically it would include complete relief of symptoms. We rarely see that, but even if I say that someone's got a 50 per cent chance of some type of improvement, that theoretically means that there would be a 50 per cent chance that they'd have total improvement. In other words this lady would tell me afterwards that the pain was gone. Now I very much doubt that but that's the best case scenario and you've got all grades in between … More likely there would be a 50 per cent improvement of symptoms.
In regard to the positive and negative factors that you outlined in response to questions from my learned friend, you listed the negative factors and gave a percentage of – you say, if somebody produced to you and you thought they were an excellent candidate for fusion you'd say they had a 70-80 per cent chance of improvement, you then looked at other factors, that were well known factors and you would reduce percentages, now those percentages are they from studies or from your experience? --- Both, I mean there are, for example if you look at the issue of worker's compensation there are various papers and studies which have been done. For example one from a South Australian group, Professor Robert Fraser, published on this I think about five years ago and there's about a 15 per cent difference in the success rates, compared to the so-called private patients [than] people in the worker's compensation system. That's well accepted.
Okay. You referred to smoking and your figures were 5 to 10 per cent …? --- Yes, … smoking is less … definite, there are actually some papers out there which indicate there no difference at all. I personally feel there's maybe 5 to 10 per cent chance.
All right, you refer to the fact that Miss Watson has had a number of different procedures and this can be a negative factor. What percentage would you attribute to that? --- It's hard to quantify that, the -–like I said before, I think that you could actually argue for and against whether those procedures predict a good result, because I think I said before when I see patients that have had a previous discectomy operation for leg pain and the leg pain has gone, but they have worsening back pain, they are actually a relatively good candidate for surgery. So, the multiple surgery on first impression might be a negative factor, but I think it probably balances out actually.
…
All right. The next point you mention as a negative factor was some inappropriate pain behaviour factors? --- Yes, yep.
Could you attribute a percentage to, as you've said, that ongoing litigation would drop the likelihood of success by 15 percent? Could you attribute a percentage to inappropriate pain behaviour? --- That's not well documented. … You might say 5 per cent but it's very dangerous to actually quantify that. In summary we do know that workers' comp cases, we can definitely quantify that negative percentage. We can quantify the smoking but beyond that it becomes very subjective. You know, and it's not as if you can total up a ledger. It's not quite like that. You just can't do it that way and so if you're going to ask me, you know, how do I arrive at 50 per cent? If you start with 70 per cent or 80 per cent and chip away the figures, you know, you arrive at approximately 50 per cent and you really can't be any more specific than that. If I determine that someone has a less than 50 per cent chance of improvement, well, I don't do surgery. I've never done a fusion operation on someone with back pain if I have said that they would have less than 50 per cent chance of being helped. I don't think it's appropriate…
All right. … The other negative factors you've indicated, you've referred to the arachnoiditis, which can cause back pain? --- Yes.
And the fact that Ms Watson is taking a high dose of MS Contin? --- Yes.
You said one side effect of that is the risk of addiction. Do you have an opinion as to whether Ms Watson may be addicted to morphine? --- I'd say she would be, yes. Yeah.
Right. Would that indicate then that even if she were to have surgery, she may still continue to take morphine, feel the need for it? --- Yes, yeah, and again it's very hard to quantify that. There's nothing really well documented in the literature but all surgeons involved with this type of work realise that it's probably hard to get people off high dose morphine. Having said that, I have had some patients in this exact situation where they have been able to come off all morphine. They've been able to cease everything, but that's unusual. … That's unusual. I'd suggest that she'd be able to significantly reduce her dose. It's very hard for me to estimate that, actually. I mean, it is possible that she'd be able to stop MS Contin completely and I have seen that previously. We'd give her a chance.
And possibly that it may not? --- Yes.24.Mr Fraser also sought clarification from Mr Woodland as to his opinion that he would not preform a spinal fusion operation unless the patient's pain arose from activity. In this respect he referred Mr Woodland to the report of Mr B Slinger (A2). The transcript records this exchange at pages 29 and 30:
MR FRASER: If I could just perhaps refer you to Mr Slinger's report again, and I appreciate that different doctors will have different opinions. I'll just refer you to this comment and see if you wish to comment on that. Again on the second page under the heading "Present", the second paragraph. Mr Slinger refers to:
Symptoms being aggravated by a change in whether, activities which involve lifting or bending. When sitting, she has to fidget. Tolerating that position for 20 to
I presume he means 30 minutes.
… standing is tolerated for 15 minutes. Pain occurs when lying and wakes every night.
Would that indicate that her pain is in fact not mechanical? ---Yes. I saw that comment and you've got to be very specific what's actually causing the pain. Typically people with bad back pain wake up at night time every night frequently because when they're turning in bed, pain wakes them up. And you've got to be very specific when they're lying down or when they're moving around.
What about things like changes in the whether? ---That can be a relative factor. It doesn't really help you much in deciding whether someone would be likely to benefit from surgery. What we like to see in patients that might benefit from fusion surgery is that it's mechanical pain, its pain which is worsened by movement and different postures and loading, in other words, when they are carrying things, lifting and bending.25.Ms Schoombee directed Mr Woodland's attention to the medical reports of Mr Wright (T 157) and Mr Batalin (ex.R1) and the following exchange occurred (Tr. P.17-20):
MS SCHOOMBEE: Do you agree with what [Mr Wright] says in his report? ---You know that's – he's given his opinion and I respect his opinion. His opinion in summary is that he feels that all the negative factors outweigh the positive factors, so therefore he's taken the view that further surgery, whatever it is, would be unlikely to help her. …
Now the fact that she's already had five operations, apart from the point that you've mentioned before, that they were really geared to alleviating a different symptom to what the spinal fusion operation is aimed at, what sort of effect could these previous operations have had on her psychological condition? ---Well, yes, I mean, on face value, on first impressions, you'd say well you know this person's had five previous operations why have another one, but I don't think its quite that simple in this case because that, as we said before, they were different procedures and whilst that type of discectomy/laminectomy surgery is quite successful in improving leg symptoms, …, neurological nerve symptoms in the leg, it's not designed to improve back pain and in fact in probably 10 per cent of patients that undergo discectomy surgery for leg symptoms actually have worsening back pain, that's one of the trade-offs with that procedure. Discectomy surgery for leg symptoms, in other words discectomy surgery for sciatica has a very high success rate, like about 90 per cent success rate of getting rid of the pain, or improving the leg pain, but it's – the downside is that in the medium to long term there can be worsening back pain. It's a dilemma we have because when we see patients with severe leg symptoms, they're clearly not coping in certain situations, all the appropriate treatments have been done and the pain continues, so it's very reasonable to do discectomy surgery but the trade off is in the long term the back pain actually worsens because the discs in the lower two levels, in Mrs Watson's case have been damaged by the initial injuries presumably and then on top of that some of the disc has been shaved or chopped off to take the pressure off the nerve and it doesn't mater how well the surgery is done, the disc really, physiologically is further damaged.26.Ms Schoombee then referred Mr Woodland to a summary of what Dr Michael Lee reported over the years when he treated the applicant and carried out the laminectomy/discectomy operations. She put the following question to Mr Woodland:
MS SCHOOMBEE: … in summary it seems that [Dr Lee] says there was improvement after [each] operation but the patient still has back pain. What is your comment on that, does that accord with what you've just said, or do you think that means that the operations weren't successful? ---No, no, just it doesn't change my view at all. I mean sometimes patients with back pain have discectomy and laminectomy operation, this still happens around the world and I still see patients like that. It's clearly inappropriate surgery, but that's not the case here. My understanding from looking at reports is that this lady predominantly is complaining of leg symptoms, so in my opinion it was reasonable for her to be offered discectomy surgery. It doesn't surprise me at all that it's been documented previously this lady has ongoing back pain, well of course she would because discectomy surgery is not designed to improve back pain.
… what is your view of the fact that we've had five operations with varying responses and then various conservative treatment over this period, in terms of whether this lady seems to be responding to treatment or not? ---Well, at first, I think we're all agreed, all doctors involved in this case would agree that it's unusual that one patient has so many procedures and I think Mr Lee, himself, in his own – one of his own reports said you know Mrs Watson's probably one of the few patients where she's had so many procedures. Its – you know it's unusual, usually we find that if someone's had so many procedures well the success rate does fall off after that for various reasons, we don't advocate continuing surgery. So it's unusual. Having said that, this lady had four procedures between 1979 and 1985 and then she went 11 years from 1985 to 1996, so presumably she had some type of stabilisation of symptoms, otherwise she would have presented to one of us before then, but she went from 1985 to 1996, so that's 11 years and then she had another operation in '96 which is now five years ago, so even though she's had five procedures, four of those were done 16 years ago, or – you know, before 16 years ago, so its not as if she's had multiple procedures in the past few weeks. This has extended over a long period of time, so ---
… Now the fact that she had a range of conservative treatments and sometimes did not respond to it or it didn't last very long, as I think is alleged in Dr Wright's and Dr Batalin's reports, what does that tell you, or what sort of conclusions could one draw from that? ---Well you can argue both ways, I mean firstly if I see a patient with severe mechanical lumbar back pain, if they've not had conservative treatment, I tell them they must go away and try all those conservative treatments and the internationally accepted feeling is that you must not offer someone surgery for lumbar back pain unless they've had pain for at least 12 months, unless they've had at least six months of conservative treatment and that conservative treatment may involve all those things, physiotherapy, chiropractic treatment, acupuncture, massage, facet joint injections, epidural injections, various things like that. So, that, if you like, that is one of the relative indications for surgery that someone's had various conservative treatments but they haven't helped. You could – I mean I could go into greater detail, for example, a lot of the pain specialists treatments this lady's had haven't been in fact allegedly none of them have been that successful, but I could give you very good reasons why they would not have been successful, for example, this lady's had facet joint injections and she's had facet joint rhizotomies where the nerves to the facet joints in the back have been frozen. That hasn't helped but her back pain may not relate to the facet joints, it may relate predominantly to the discs. She's had epidural stimulator that hasn't helped; well again if her problem is predominantly discogenic back pain it doesn't always respond. Part of the problem is that in many cases we as clinicians cannot come to an absolute definite diagnosis as to the cause of the back pain, we can have a fairly good idea as to the cause of back pain and there are specific tests like discograms we can do or try to determine where pain is coming from, but even then it's still not 100 per cent specific.
So are you saying that if one sees a person who's had a range of conservative treatment and a range of surgical procedures, does that necessarily give you an instant view, or do you need to look at it very carefully? --- I don't think that really – I think the equation balances out. I don't think that really helps me either way. It's in the equation trying to arrive at a figure which I've come to 50 per cent ie I really think the fact that she's had a range of conservative treatments without success, really sways me either way actually.
…
Now, if your assessment of her likely success rate is 50 per cent in comparison to the usual 70/80 per cent, what is your view as to whether in all the circumstances of the case the position that Mrs Watson finds herself in, the treatment that she's having at the moment, which is basically the medication, whether this spinal operation would be a reasonable treatment to undergo? ---Yes, it depends what you mean by reasonable. I think it's reasonable, I think that I've said 50 per cent, that means that she'd have 50 per cent chance of some type of improvement. She would have 45 per cent chance, approximately, of pain being unaltered and she'd have 5 per cent, maybe 10 per cent chance of the pain being made worse. That's the risk, there is a risk. Now, I think it's reasonable – I think it's reasonable in that it gives her some chance of improvement. It's reasonable because the surgery being proposed is the only type of surgery which would be likely to help her pain. If I was proposing a discectomy operation, it wouldn't be the right operation for the right condition. (Tr. p.21)
27.Ms Schoombee then asked Mr Woodland about Mr Slinger's view that he would first have a discogram carried out before proceeding to surgery. This is a reference to what Mr Slinger said at page 4 of exhibit A2:
"Alternatively, consideration as to further surgery, such further surgery would, in my opinion, require evaluation with lumbar discography which would assist in determining whether a posterolateral spinal fusion would be of consideration in her future management."
28.The following exchange occurred between Ms Schoombee and Mr Woodland in this respect:
MS SCHOOMBEE: And just lastly, Dr Slinger said that he though it might be recommended to have a discography? ---Yes
Could you just make your – put your view? ---Yes, that's one – that's one thing after having read the other reports, including Mr Slinger's, that has influenced me, I do now feel that in this particular case it would be reasonable to carry out a discogram. I think one of the reasons is that in this varied situation where we're all sitting here at the moment, the discography is the most objective test we have to work out whether someone's likely to benefit from surgery or not. We sometimes use it as an indicator. …
Are there cases when a discogram shows negative and yet you have done a spinal fusion …? ---I can see a patient that have had a strongly positive discogram but the results from surgery are subsequently disappointing. But it does … tend to increase the success rate of his type of fusion surgery. To be honest, I actually probably use that procedure mainly to exclude someone from having surgery. If I see someone I think they're really doubtful whether they'd benefit from this type of fusion surgery I then counsel them to have the discogram and I tell them that if they have the discogram and it's negative, in other words it doesn't demonstrate that the discs are painful, well I tell them that I will not do the operation for them.29.Mr Fraser, for the respondent questioned Mr Woodland in cross-examination about his perception of the state of the applicant's back generally because Mr Batalin had raised some doubts about the appropriateness of a spinal fusion if the patient's back was degenerate, as he believed was the applicant's. The following exchange occurred (Tr. p.30-31):
MR FRASER: Dr Woodland, you referred to the MRI scan of 1998 which is another positive factor which showed that the disease was confined to the lower two levels, L5/S1 – sorry L4/5? ---Yes.
Just on Mr Batalin's report. For example … on the third page under the heading "Investigations, 8 February 1996", he refers to:
"Degenerative changes affecting the L4/5 and to a lesser extent, L3/4 level and then chronic degenerative changes in the lower thoracic spine."
Now, you referred to the change in the thoracic spine. Did you note the changes in the L3/L4 level? ---Yes. I saw he said that and I don't know whether it relates – whether it's his opinion or whether it relates to a specific … report. What I would say is that the most specific specialised test for looking at spinal conditions is the MRI scan, so what the MRI scan shows really supersedes any other test. So there may well be – I mean, there might be some very minor osteophyte formation, very minor, wear and tear changes seen on the plane X-rays at the L3/4 level, although I haven't documented that, I don't believe. But despite that, if there is any significant disc wear and tear change, it'll be shown up on the MRI scan and the MRI scan clearly shows that there is significant disc wear and tear change at the L4/5 and L5/S1 levels but not at the above levels until you get to the lower thoracic spine.30.During his examination in chief by Mr Fraser, Mr Batalin was asked specific questions in regard to this. The following exchange occurred after having discussed the applicant's reliance on narcotic analgesics (Tr. p79):
MR FRASER; Are there other [negative] factors that you can think of? I mean, you state in paragraph 6 of your report, you refer to progressively deteriorating symptoms, failure to respond to at least five surgical procedures. You also refer to a very extensive gambit of conservative treatment and we've talked about Mrs Watson's inconsistencies on presentation. What do these add up to in your opinion in regard to the prospects of this fusion operation? ---Well, patient certainly has a problem and it's a very genuine problem to her, we recognise that. There is, without doubt, pathology which we now note and this includes multi-level degenerative disc disease, low thoracic T10, 11, T11, 12 and I think there is also lower lumbar, 4, 5 and 5S1, point number 1. Number 2, she has had five surgical procedures and let it be said very loudly that each surgical procedure will contribute to scarring, some adhesions. And there is in fact, myelographic and MRI evidence of adhesions. That in itself adds to problems, nerve root entrapment and pain.
31.Ms Schoombee pursued this evidence in cross-examination. The following exchange appears at pages 88 and 89 of the transcript:
MS SCHOOMBEE: Could I just ask you, in your report on page 3, the third last paragraph you say:
There are also degenerative changes affecting L4-5 level and, to a lesser extent, L3-4.
MR BATALIN: I looked at these and I certainly looked carefully at the scan, the fourth paragraph:
8th of the 2nd '96 CT scan, L3/4 shows marginal osteophyte formation but no disc prolapse.
Marginal osteophyte formation means spurs, reactive spurs ---
Sorry, Dr Batalin, to interrupt, we are just sort of a bit pressed for time so let us not get off the point? ---Yes.
The only question that I had, not what all the other changes are but just the question, you know, which X-ray or where did you pick up the 3/4 level, and you say you think that was from the lumbosacral X-rays ---? ---Well, I just said it to you:
8th of the 2nd '96 explain X-rays. CT scan –
and you would – so there ---
There was also an MRI scan done in July 1998 and I understand from previous evidence given by Dr Woodland that that is really the best procedure that is showing up most of what you can see? ---Well, it has limitations ---
And that does not seem to say anything about changes at L3/4? ---See, what you have got to do is look at it yourself, this is where the point is. Whatever report is means little to me, and I in fact don't do that, I don't read reports I just look at it first then I will read the report, but the information I gather is by actually looking at all the X-rays myself and if I am able to look at the X-rays I make that very clearly, which I did in this particular case there are early degenerative changes at L3/4 level in my opinion.32.The Tribunal understands that answer by Mr Batalin to be a reference only to the X-rays and not to the MRI scan. The transcript continues:
MS SCHOOMBEE: That was not picked up by either Dr Woodland or Dr Slinger?---I respect Dr Woodland and Mr Slinger, equally they respect me. Perhaps you can ask them why they feel that. I certainly give my reasons for what I see.
Do you recall seeing it on an X-ray or on the CT scan or ---? ---Do I recall looking at particular X-rays at this stage of the game, the honest answer is no. I see dozens of patients, hundreds since then, I don't recall it but because I don't remember and I realise my fallacy I document immediately and what I document is fairly reliable.
Can you really say that if this patient has a spinal fusion operation there is no possibility that she would have some relief, from what you have seen of her? ---No. Not saying that. That wasn't what I said. I have said that in my experience and based on what limited information available to me I would not suggest spinal fusion at this stage and in my hands the chances of improving the patient are slim to the extent of being worried and explaining that to the patient very fully. I would also explain possibility of making her worse.33.The following is a relevant extract from the summary made by Mr Batalin in his report (ex. R1):
"Summary
For the reasons outlined in the initial part of this report, I am at a distinct disadvantage of determining initial diagnosis and subsequent pathology in this patient. Without availability of the original xray and CT scan, it is impossible to come up with the initial diagnosis. Furthermore, I am not sure of the exact pre-operative diagnosis preceding each one of her five surgical procedures nor am I aware of the full operative finding during each surgical procedure.
Currently Mrs Watson has radiological and MRI evidence of chronic, degenerative lower thoracic and facet joint osteoarthrosis. She obviously had multiple surgical procedures and I note some affect of these.
…
In answer to your specific questions:
Unfortunately, I could not obtain an accurate history and the patient could not remember many relevant details.
…
In my experience, a patient with progressively deteriorating symptoms, failure to respond to at least five surgical procedures and very extensive gamut of conservative treatment is unlikely to respond to further surgery.
In my hands attempt at spinal fusion in a patient with such presentation is unlikely to be successful."34.Dr Slinger made the following comments in relation to the x-rays and the MRI scan, in his report of 18 March 2000 (ex. A2):
"RADIOLOGY:
The available x-rays were those of a lumbar myelogram of March 1996 which showed a previous disc protrusion at L4/5 had substantially resolved, the residual left small posterolateral disc protrusion.
Lumbar spine MRI, 1988, confirmed the L5 laminectomy and the plain (sic) films finding of degenerative changes at L4/5 and L5-S1. There was minor disc bulge at L4/5 without any evidence of neurological compromise."35.Mr Fraser, for the respondent, examined Mr Wright on the same point (Tr. p54):
MR FRASER: You were referring to the degeneration within Mrs Watson's spine to lower two levels of lumbar spine – thoracolumbar spine, and a gap of 3 levels in the middle, you said the MRI scans didn't pick up degeneration at the next level. L3/4, was it your evidence that there may be degeneration at that level, given the degeneration above and below? ---Well, any investigative process is only as good as its limitations and there – it is quite likely that there will be some degeneration at those levels which isn't yet clinically or radiologically manifest.
If that is the case and if Mrs Watson were to have her L4 to S1 fused what effect would that have on those other levels? ---It is very common after a spinal fusion operation that in the longer term the next level and often the next two levels become degenerate and that is one reason why spinal surgeons would not usually contemplate fusion if the next two levels were obviously degenerate at the time. So a spinal fusion operation will – if successful will usually only last 10 to 15 years before they develop further symptoms."36.Ms Schoombee questioned Mr Wright in relation to the MRI scan which he said showed some degeneration in the thoracic spine. The following exchange occurred (Tr. p52):
MS SCHOOMBEE: You also said that her degenerative changes are widespread and this is why – in her spine, and this is why it was another factor indicating contrary to a spinal fusion operation. Now, Dr Woodland again said the opposite, he said:
The degenerative changes are very much limited to the lower two discs.
And that was a positive factor? ---Yes, and then there's a gap … of two or three discs and then it starts again.
… I think you refer to the thoracic spine, did you? ---Thoraco-lumbar, yes.
… But that is quite a distance away from the actual back pain lower – not likely to impact upon this operation? ---There are three discs in between, yes.
Where does it say that she also has some degenerative changes? ---That I think is on the MRI scan report.
…
Is it the T levels that you are referring to? ---Yes.
Yes. I don't think Dr Woodland saw that as being of any effect whatsoever. In fact, in his view was that the degenerative changes were confined to the lower two discs and that was a positive factor the spinal fusion operation? ---Well, the lumbar spinal changes seen on the MRI scan are confined to the two lower lumbar discs. But she then – and yes, that is a positive factor in many ways. But she then has degeneration in the thoraco-lumbar levels and – so the main impacts of degeneration is that the fusion will necessarily change the bio-mechanics of the back so more stress is placed on the next disc up, L3, 4 and L2, 3 where very badly degenerate. But raises a question mark to me that there's degeneration above, there's a small gap where there isn't and then there's obviously marked degeneration because of the previous surgery, among other things at the lower T levels. Whilst MRI scans are extremely good they don't necessarily pick up early degeneration that isn't yet apparent to their methodology. (Tr. p52)37.The MRI report in question, of Dr Jay Ives of SKG Radiology, dated 8 July 1998, appears at T126 and states relatively:
"Findings: The L5 laminectomy is noted. The sac is expanded. There is no evidence of disc protrusion or epidural scar affecting the sac or nerve roots.
The L4/5 disc shows a left para-central focal enhancing disc bulge slightly indenting the thecal sac above the exit of the left L5 root. A broadbased right postero-lateral bulge of the disc margin extends into the foramen causing moderate narrowing. There is no definite compression of the right L4 root.
The upper lumbar discs appear normal. There is degenerative change in the T10/11 and T11/12 discs with a slight broadbased bulge of the later effacing the anterior CSF. No other structural abnormality is seen in the spinal column. Alignment is normal. No abnormality is detected in the lower spinal cord or cauda-equina.
Conclusion: Abnormal discs at the lower two levels and evidence of previous surgery. The left para-central L4/5 focal disc bulge and the right postero-lateral broadbased bulge may be relevant even though root compression has not been identified."38.When examined by Mr Fraser, Mr Wright, whose report is at T157 and referred to above, opined that Mrs Watson presented to him as a person who may not benefit from a spinal fusion operation. His reasons are that she already has had five operations with very little if any, benefit, she has had a variety of pain management techniques and treatments, including epidural injections and facet joint injections and she also exhibits "non-organic" signs such as glove and stocking type loss of sensation to her left lower limb. (Tr. p39) He said he used the term "non-organic" after a District Court experience when a solicitor took umbrage because he used the term "psychosomatic" and was not a psychiatrist. He further opined that the MRI scan indicated degeneration in the thoracolumbar region. (Tr. p40) In these regards he responded in the following way to questions put to him by Mr Fraser:
MR FRASER: In the years that you've practiced as an orthopaedic surgeon have you had patients that you've been treating who have presented with, for example, non anatomic signs and have undergone fusion, you've come across patients like that? ---I have.
And generally, in your experience what's the result of the fusion? ---The results are never good in my experience.
Is there any reason for that? ---Well, a spinal fusion is a difficult operation, with – it hasn't got the concrete indications for it, for example if somebody has appendicitis then there is no doubt [about] the treatment they need, they need an appendectomy, where with a spinal fusion there's no absolute indication for or against and that is why there is often disagreement among surgeons about which patients need one and which don't. But because it is a difficult operation, because it is a painful operation and the results are not always evident on day one, then there has to be a psychological ability by the patient to accept that the procedure and also a strong wish to get better and in the presence of the non organic signs and other aspects of Mrs Watson's presentation, I'm not convinced that she would have a good result from the spinal fusion." (Tr. p40)39.When asked by Ms Schoombee about Mr Woodland's assessment of success from the proposed spinal fusion operation on the applicant, Mr Wright expressed the following point of view (having acknowledged that in his opinion Mr Woodland had better experience in spinal fusion surgery [Tr. p41]):
MS SCHOOMBEE: So do you think Dr Woodland is letting himself into a potential situation like this out of the goodness of his heart or because he has properly assessed this case? ---Well, I am sure Mr Woodland has properly assessed the case but I think this might be a case where he has underestimated the potential for lack of success." (Tr. p42) …
… would you agree that Dr Woodland who has or he says he does about 15 to 20 spinal fusion operations aimed specifically at people with lower back problems, per year, he does about 50 including those and others for other issues a year, he has seen Mrs Watson on about 4 occasions and if you acknowledge that it is subjective judgment, would you not agree that he is perhaps better qualified in this instance? … ---I would concede that he has better experience and he has seen her more often, yes. And so, therefore, his opinion is valuable. I still don't [agree] with it. (Tr. p48)40.Mr Wright in his evidence expressed the view that the applicant should not be prescribed MS Contin and that even if she had the proposed operation it was unlikely that her dosage of narcotic analgesics would reduce. (Tr. p48-49) He was also of the opinion that even if the operation was successful in a physical sense it may not be perceived as such by the applicant which he believed to be an important factor when assessing a patient for an operation.
41.The evidence relating to the appropriateness of the applicant undergoing a discogram as part of the pre-operative assessment can be summarised in the following way. Mr Slinger believes such a report is essential and he would not operate without a positive outcome. It should be noted that his experience as a spinal surgeon is similar to that of Mr Woodland, both currently preforming about 50 spinal operations each year including specifically a significant number of spinal fusions of the type contemplated here. Mr Woodland sees the benefits of a discogram report but used them mainly to screen out patients whose other assessment factors suggest some doubt about the cause of the back pain. Mr Wright was not asked to express an opinion in relation to the relevance of a discogram examination. Mr Batalin's evidence is that a discogram probably should be done as an assessment procedure (Tr. p89) but admitted that he does not necessarily find them helpful (Tr. p92). He did agree that discograms carried out by experience radiologists "increases the chance of more accurate diagnosis" (Tr. p98).
42.All four witnesses agree that the applicant is suffering severe back pain which is not just imagined.
43.All four witnesses agreed that it was not good for the applicant to be on her present prescription of 100mg of MS Contin per day. All agree that the applicant is more than likely addicted to morphine. Both Mr Woodland and Mr Slinger thought that the proposed spinal fusion would provide a significant probability of reducing the applicant's dependence of narcotic analgesics with a very slight chance of eliminating her dependency altogether. Both Mr Wright and Mr Batalin were sceptical that even after a successful physical outcome from the proposed operation that the applicant's perception of pain would result in any reduction in narcotic analgesic dependence.
44.All four witnesses agreed that the applicant has experienced a wide range of "conservative" treatment over the years without any marked improvement in her back pain.
45.Both Mr Wright and Mr Batalin regard Mr Woodland as a reliable and experienced spinal surgeon. Mr Batalin has had considerable experience of working with Mr Woodland over the years and seen him develop and indeed said that if he had a back problem he would not hesitate to see him. (Tr. p99)
46.Both Mr Wright and Mr Batalin, under examination and cross-examination, confirmed their earlier views expressed in their written reports that they do not believe it appropriate to carry out another surgical procedure, specifically the proposed spinal fusion. Whilst their reasons for that view vary between them in detail, in essence they believe the negative factors (spoken of by Mr Woodland in his evidence) outweigh the positives and they respectfully disagree with Mr Woodland's estimate of success, that is, a significant reduction is symptoms and likely reduction in narcotic analgesic dependence. They each hold this belief notwithstanding agreement that the previous surgical procedures, the laminectomies/discectomies were intended to relieve leg (sciatic) pain whilst the intended operation, the spinal fusion, is directed at reducing the applicant's back pain. Neither could be persuaded, under cross-examination, from changing that view.
47.Mr Woodland opined that there is about a 50 per cent chance of improving the applicant's back pain should she undergo the spinal fusion. He also takes the view that there is about a 45 per cent chance of no change and a possible 5 to 10 per cent chance of a worsening of symptoms. Mr Slinger was not asked to express a view as to what he saw as the likely success rate for the proposed operation, however, in his report (ex. A2) he said:
"I could not … fault her presentation today when she appeared as a genuine lady with significant incapacity and I believe that further investigation would be reasonable in terms of lumbar discography which would assist in determining the likely success of any surgery."
48.Mr Slinger suggested that consideration might be given to using a morphine pump as an alternative to surgery although it appears that has not been considered. He further recommended that the applicant "re-visit a pain specialist for further discussion as to the efficacy, indication and merits of a morphine pump which might be more attractive than a further operative procedure". (ex A2, p4) When examined by Ms Schoombee on this point he said:
MS SCHOOMBEE: And how do you see that treatment [i.e. 100mg of MS Contin per day], is that to be recommended on a long term basis? ---Well, if she needs pain relief she has three choices, to continue with medication including morphine, to consider a morphine pump which is an implanted pump to provide a continuous infusion of morphine, or an operation. (Tr. p60)
49.The evidence is that all four witnesses agree that the best outcome that the applicant could expect from the proposed operation is to improve her pain situation – it would not cure her pain.
50.All four witness were of the view that because the applicant is receiving workers' compensation benefits and that this operation would be part of that process if it was so decided, then this is a significant negative effect on the potential success of the outcome. Less significantly, but of concern is the fact that the applicant is a smoker, which reduces the healing rate and settlement of the post-operative fusion process. Given though that the applicant could give up smoking for the operation and the duration of the recovery period, the evidence is that that reduces that negative factor appreciably.
Conclusions from the evidence
51.The issue before the Tribunal is whether, in terms of s16 of the SRC Act 1998 it would be reasonable for the respondent to be liable to pay, by way of compensation, for the cost of the proposed spinal fusion operation (including appropriate post-operative patient management). Section 16 states:
16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
52.It is not in issue that the applicant suffered an injury in the course of her work for the respondent and that her present back pain is attributable to that injury.
53.The Tribunal concludes, from the evidence before it, that:
The applicant is suffering genuine back pain.
The proposed treatment, an operation on the L4/S1 post lateral fusion iliac crest graft and possible pedicle screws ('the spinal fusion") is a different operation to those previous spinal operations already undergone by the applicant. It is directed at relieving, not curing, the applicant's back pain.
Mr Woodland has seen the applicant on four occasions, had access to her previous relevant x-rays, CT scan and MRI scan and the respective radiological reports. The other medical witnesses have each seen the applicant once only to arrive at their assessment and opinion.
All four medical witnesses have had experience of carrying out spinal fusion operations although Mr Batalin has performed no more than 4 per year in recent times and Mr Wright, by choice, none in the past 3 to 4 years. Messrs Slinger, Wright and Batalin accept Mr Woodland's professional competency. Messrs Woodland and Slinger each have past and ongoing extensive experience in spinal procedures including spinal fusions.
Any assessment of appropriateness of a spinal fusion operation for a patient with a history such as presented by the applicant, is necessarily subjective.
All medical witnesses agree that it is important to see one's patient on several occasions to make an appropriate assessment of the likely success of a spinal procedure. This includes taking a detailed history and having access to all radiological and previously documented medical evidence.
An appropriate assessment requires subjective judgement about the impact of negative factors as well as positive factors.
On the positive side, the applicant has genuine back pain. Her back pathology is such that a fusion at L4—S1, as proposed is reasonable and the fact that there is some noted degeneration at T10, 11 and T11, 12 is a factor that has been taken into the assessment. Only Mr Batalin believes it is a significant negative factor. Also on the positive side is the fact that the applicant has undergone significant "conservative treatment" without any ongoing back pain relief, apart from the current dosage of MS Contin, an objective of the operation being to reduce or eliminate that dependency. Also, on the positive side is that despite having had five previous spinal procedures, none were intended to relieve back pain and that the spinal fusion is a different operation designed to relieve back pain.
The negative factors are that the applicant has had five previous spinal procedures and has some anachnoiditis as a result. However, the evidence is that, at least in respect of the first two (which were the significant procedures) some relief was experienced. However, on the positive side in this regard, is the fact that the applicant went for a period of 11 years before having the last of those procedures some 5 years ago. The other negative factors weighing against a successful operation are that the applicant is currently a compensation litigant, she smokes and is on very high dose narcotic analgesic to which she is more than likely addicted.
Mr Woodland subjectively formed the view, based on his experience and knowledge of the literature, that the applicant has a significant (50 per cent) chance of improved symptoms in her back pain if she undergoes the proposed surgical procedure. Mr Wright and Mr Batalin felt that Mr Woodland had over-stated the likely success, in terms of reduced pain and reliance on narcotic analgesics. Whilst neither were critical of Mr Woodland's methodology which he applied to make the assessment, both felt, for their own reasons, that Mr Woodland was wrong in this regard and neither would be prepared to carry out the proposed procedure on the applicant. However, the evidence is that both place much greater weight than do either Mr Woodland or Mr Slinger, on the negative factor of the five previous spinal procedures.
Neither Mr Wright nor Mr Batalin, on the evidence, attributes any benefit having been derived by the applicant from the five previous spinal procedures.
The evidence is that the applicant did benefit, in terms of reduced pain, from the previous spinal procedures and that her present dependency on narcotic analgesics may have masked her ability to compare the pain levels she experienced at the relevant time with her current pain level assessment. Mr Woodland reported, in May 1999, (T151) that the applicant then "reports activity related lumbar back pain and to a much lesser extent, left lower limb pain radiation in the S1 nerve root dermatome distribution with a description of 'burning' symptoms involving the leg and foot. The predominant feature is that of her back pain. She tells me that the back pain is getting progressively worse."
54.In sum, the Tribunal has evidence from four orthopaedic surgeons, two of whom (Messrs Woodland and Slinger) recommend the proposed surgical procedure and two (Messrs Wright and Batalin) who do not recommend it. Mr Slinger's recommendation is subject to a prior positive discogram. Only Mr Woodland has seen and observed the applicant clinically on more than one occasion. He is highly regarded as a spinal surgeon (including by Messrs Wright and Batalin). Mr Woodland's methodology of assessing the likely probability of the applicant benefiting from the proposed procedure has not been questioned in evidence – only Mr Batalin's opinion on some only of the subjective measures attributed to the methodology differ from the opinion of Mr Woodland. Mr Wright takes a more global approach, based on his experience (albeit considerable but not recent) which cannot be compared in any meaningful way with Mr Woodland's more discrete assessment of positive and negative factors. So, for all of the above reasons and evidence before the Tribunal, the Tribunal finds as fact that the opinion of Mr Woodland is preferred. This is not to say that Mr Woodland is right and Messrs Wright and Batalin are wrong – not at all. It is simply to say that of the opinions of the four experienced and mutually respected senior orthopaedic surgeons, where subjectivity plays a very significant role, Mr Woodland has had the best opportunity, information and recent relative experience, on which to make his assessment.
55.Having reached that conclusion on the evidence before it, the Tribunal must now turn its mind to the question of whether the proposed operation is treatment that would be reasonable for the employee to obtain in the circumstances (c/f s16(1) of SRC Act).
Whether the proposed operation is treatment that would be reasonable in the circumstances
56.The evidence is that the applicant's back pain is real and that her current dosage of MS Contin is relatively high and that she may well be addicted to morphine. Dosage is unlikely to reduce unless the applicant obtains relief from her back pain. Also, the consensus of opinion of the medical witnesses is that the applicant's morphine dependency might be reduced given a successful outcome of the proposed surgical procedure. The consensus of opinion of the medical witnesses is that the applicant's back pain arises as a result of spinal movement. The evidence is that the applicant's spinal pain, relative to her radiated leg pain, is predominant. The evidence is that the applicant's back pain may be reduced or possibly eliminated by fusing the discs giving rise to the source of the back pain – that is to prevent the movement between those vertebrae. Mr Slinger suggested that the only alternate treatment to the present narcotic analgesic dosage or a spinal fusion was that of a morphine pump. That is a mechanical method of infusing morphine as an alternate to the applicant's present oral dosage of MS Contin. The question of whether the applicant should be provided with a morphine pump or indeed undergo a discogram was not an issue before the Tribunal and cannot be considered by it (c/f Comcare v Burton (1988) 50 ALD846 and Lees v Comcare (1999) 56 ALD 84).
57.None of the medical witnesses thought that continual high dosage of MS Contin was a good solution to back pain control. All believed that the applicant's welfare would be improved if she were able to reduce or even eliminate the dosage. Mr Wright though the applicant should not be on MS Contin at all. All medical witnesses agreed that a possible outcome from a successful spinal fusion would be a reduction in morphine dependence, although there were shared reservations about the likelihood of the applicant being able to come off narcotic analgesics altogether.
58.In Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321, Gray J, Presidential Member, said:
"In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others." (325)
59.The question then, whether it is reasonable for the applicant to have the proposed surgical operation is not one that should be considered solely in relation to the applicant's personal life per se, but rather whether objectively, a person in the applicant's circumstances, suffering back pain, should be afforded the operation to improve his/her pain level. In the Tribunal's opinion the evidence supports a finding that the kind of surgical procedure proposed is appropriate. It also supports the finding that there is a significant chance (50 per cent), that the applicant's pain level will be reduced and in consequence, there is likelihood that the applicant's narcotic dependence will reduce. In the opinion of the Tribunal, all these factors point to a conclusion that the proposed operation is treatment that would be reasonable for the employee, that is, the applicant, to obtain in the circumstances.
Decision
60.For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor decides that the respondent is liable in respect of an operation on L4/S1 post lateral fusion iliac crest graft and possible pedicle screws.
61.The Tribunal orders, pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the respondent pay the applicant's costs of this proceeding, such costs, in the absence of agreement, to be taxed by the Registrar or a Deputy Registrar of the Tribunal in accordance with the Tribunal's General Practice Direction dated 18 May 1988.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr Y Haslam, Member
Signed: ........(sgd – W. Treasure)................
AssociateDate of Hearing 6 February 2001
Date of Decision 9 May 2001
Counsel for the Applicant Ms A Schoombee
Solicitor for the Applicant Nicholson Clement
Counsel for the Respondent Mr C Fraser
Solicitor for the Respondent Downings Legal
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