White v DM Ifield & L.B Ifield

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	White v DM Ifield & L.B Ifield [2024] NSWPIC 427
APPLICANT:	Catherine White
RESPONDENT:	DM Ifield & L.B Ifield
MEMBER:	Cameron Burge
DATE OF DECISION:	8 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Medical expenses claim; applicant suffered accepted injury and seeks an order the respondent pay costs of, and incidental to, radio frequency and PRP injections to lumbar spine; respondent argues the treatment is not reasonably necessary on two bases, namely, the proposed treatment will treat the applicant’s underlying pathology rather than the aggravation to it caused by the injury, and the proposed treatment is premature and should only be undertaken after the applicant has had pain management treatment; Held – the proposed treatment is reasonably necessary as a result of the injury; the respondent is ordered to pay the costs of, and incidental to, it.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent on 11 January 2022. 2. As a result of the applicant’s injury, the treatment proposed by A/Prof Russo is reasonably necessary. 3. The respondent is to pay the costs of and incidental to the bilateral cluneal nerve pulsed radiofrequency and SIJ PRP injections, as recommended by A/Prof Russo.

STATEMENT OF REASONS

BACKGROUND

On 11 January 2022, Catherine White (the applicant) was working as a cleaner in the course of her employment with the respondents, DM Ifield and LB Ifield when she suffered a fall down some stairs at a client’s premises, falling backwards and landing on her back and tailbone.
There is no issue the applicant suffered an injury to her lower back in the fall at issue. She has also suffered accepted symptoms in the nature of urinary incontinence.
The applicant has consulted A/Prof Marc Russo, pain management specialist, who has recommended treatment by way of bilateral cluneal nerve pulsed radiofrequency and SIJ PRP injections to the applicant’s lumbar spine. The respondent denies liability for the treatment on the basis it is not reasonably necessary as a result of the applicant’s injury.

ISSUES FOR DETERMINATION

The parties agree that the only issue in dispute is whether the proposed treatment is reasonably necessary as a result of the applicant’s injury.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
The parties attended a hearing on 6 August 2024. At the hearing, the applicant was represented by Mr Stockley of counsel instructed by Mr Kasturi. The respondent was represented by Mr Gaitanis of counsel, instructed by Mr Gaudie.

EVIDENCE

Documentary evidence

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

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed treatment is reasonably necessary as a result of the applicant’s injury

The applicant carries the onus of proving the treatment proposed by A/Prof Russo is reasonably necessary as a result of her injury. The “results from” requirement in cases concerning medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act) is a question of causation and therefore, what is required is a commonsense evaluation of the causal chain in terms consistent with the OFT-cited paragraph of his Honour Kirby P (as he then was) in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452, (Kooragang).
As his Honour noted in that matter, there needs to be a commonsense evaluation of the causal chain in determining whether the need for treatment arises as a result of a given injury. The “results from” requirement is different to a “mere but - for” requirement of causation.
There is no issue the “results from” principle of causation applies to s 60 claims, but confusion is sometimes created by the fact that s 60 liability also has a requirement that the treatment be “reasonably necessary”. The principles of causation and reasonable necessity are different and must be kept distinct in s 60 claims. It is frequently a separation which is lost, or the differing principles misunderstood.
In cases such as the present, where there can be little doubt the applicant had pre-existing pathology in her lumbar spine, a question which often arises is whether a worker would have inevitably come to the same surgery regardless of the injurious aggravation. The question which is relevant, and highlights the distinction between the “mere but for” and “common sense” tests for causation is whether the injury brought to light a need for treatment which was going to be necessary anyway, or whether it not only brought to light a need for treatment which was going to be needed in any event, but that the treatment is required now and the option to wait and/or try other treatments has been removed.
This question is relevant in the present matter because the respondent’s Independent Medical Examiner (IME), Dr Gorman, opined that the applicant’s injurious aggravation ought to have passed within approximately three months of his examination of her, which took place in October 2023.
Dr Gorman, noted, and there can be little controversy, that the applicant had serious pre-existing pathology in her lumbosacral spine. In Dr Gorman’s view, the treatment recommended by A/Prof Russo would serve to treat this underlying pathology rather than any aggravation caused in the injurious event.
The opinion put forward by Dr Gorman is one commonly seen in this jurisdiction, however, there are significant problems with it. The primary issue is that symptomology necessitates treatment, not pathology. For example, a worker may have serious degenerative changes in a knee, however, they may be asymptomatic until such time as a work-related incident causes an aggravation to them which gives rise to a requirement to seek treatment. The applicant’s situation in this matter is directly analogous to such a case.
The second difficulty with Dr Gorman’s opinion is it does not explain the concomitant symptoms of the applicant which, on her uncontested evidence, have not resolved since the injury and which were not present at all before it. Against such a background, a medical opinion to the effect those symptoms would resolve over a comparatively short period of time, leaving only the effect of the previously asymptomatic underlying pathology requires some detailed explanation. Dr Gorman provides nothing but a bare ipse dixit statement in support of his conclusion, and accordingly I do not accept it.
There is no evidence the applicant suffered any lumbar spine symptomology before the injurious incident in 2022. Indeed, her statement evidence is she was physically fit and able before her injury and had no issues which affected her ability to lead an active lifestyle.
A further difficulty with Dr Gorman’s opinion that the effects of the applicant’s injury by way of aggravation would resolve within three months of October 2023 is the symptoms have remained in place since the accident and continue to do so, if not worsen.
In his report dated 6 November 2023, Dr Gorman noted:
“The procedures by A/Prof Russo are for treatment of the widespread degenerative disease. I see no indication for the cluneal nerve pulsed radiofrequency nor any indication that her sacroiliac joints are the source of any pain. There is little strong evidence for the benefits of PRP injection of the sacroiliac joint.”
Dr Gorman recommended the applicant should undertake a course of pain management through Innervate for two to three months, by which time the applicant’s symptoms caused by the aggravation ought to have resolved. Dr Gorman opined that the pulsed radio frequency neurotomy proposed by A/Prof Russo in the medial branches is for pain caused by aggravation of the degenerative disease, however, he did not believe it is reasonably necessary as the applicant’s aggravation was resolving and she has had inadequate conservative care.
That aspect of Dr Gorman’s report in fact supports a finding that the neurotomy proposed by A/Prof Russo is reasonably necessary as a result of the injury at issue. The reason for excluding the treatment which is provided by Dr Gorman is a temporal one, namely that the applicant’s condition caused by the aggravation would improve. That has not, in fact, occurred and Dr Gorman’s basis for his opinion must therefore fall away.
In terms of the bilateral cluneal nerve pulsed radiofrequency and SIJ PRP injections, Dr Gorman excludes them on a different basis, namely there is no indication the sites at which the radiofrequency and injections are sought to be placed are related to the work injury.
The applicant relies on the opinion of A/Prof Russo, treating pain specialist. In his report dated 21 February 2024, A/Prof Russo noted the applicant’s lumbar symptomology caused by the injurious event was persisting, which contradicts the opinion of Dr Gorman that they would have resolved by approximately February 2024. A/Prof Russo provides the following diagnosis:
“Catherine presents with persistent lower back pain and referred lower limb pain that is likely to be arising from the lumbar spine. The differential diagnosis here is between anterior column pain, i.e., discogenic versus posterior column pain, i.e., facet joint/sacroiliac joint/superior cluneal nerve. One of the major goals of treatment will be to eliminate the posterior component so that the anterior component can be assessed in isolation and determination made as to the treatment required.”
That is, A/Prof Russo provides a view that not only is the treatment likely to provide the applicant with relief but will serve to differentiate between the various symptomology which she currently experiences so that they can be treated separately.
The respondent relied on the fact that A/Prof Russo had recommended the applicant undergo the Innervate Pain Management Programme and suggested she had not done so to a sufficient degree to warrant the intervention which A/Prof Russo recommends. However, that submission with respect misrepresents A/Prof Russo’s position.
Whilst Dr Gorman is of the view the applicant should undertake the pain management programme before having the treatment in dispute, A/Prof Russo in fact recommends both treatments be conducted concurrently. That is, he suggests the applicant consult the Innervate Pain Psychology Team and undergo the neurotomy and platelet-rich plasma injections concurrently. As the applicant noted, A/Prof Russo recommended the following multimodal treatment:
“1.     Given her psychometric test score, she will need to see one of the Innervate Pain Psychology Team and I will organise for that to occur.
2.     I will be happy for her to start on Norflex 100mg BD as a skeletal muscle relaxant to treat the myofascial component of her pain. I am happy for her general practitioner to start that.
3.     I have outlined the role for treating her posterior column pain in the form of bilateral facet joint radiofrequency neurotomy using a multifidus sparring technique in conjunction with superior cluneal nerve pulsed radiofrequency neurotomy and sacroiliac joint platelet-rich plasma injection. That should hopefully resolve her pain symptoms but if they are persistent then she will need to look at her surgical options.”
The respondent criticised A/Prof Russo for a failure to set out the reasons why the proposed treatment is necessary and the benefits which will flow from it. However, I respectfully disagree with that submission. In his report, A/Prof Russo was specifically requested to explain how the proposed treatment would maintain the applicant’s health or slow/prevent its deterioration and replied:
“Radiofrequency neurotomy procedures have the potential to lead to a reduction in pain for a period of 12 to 18 months, at which time the procedure may be repeated if deemed clinically appropriate.
The platelet-rich plasma works to eliminate neuropathic pain by completing the wound healing process. Neuropathic pain is often caused by errors in the inflammation process, such as insufficient or no inflammation following injury, excessive inflammation or when the wound becomes stuck in an inflammatory state. Platelet-released factors involved in inflammatory processes act to resolve these issues by regulating the process and running it to completion.”
When asked to provide an opinion as to the expected positive benefit and outcome for the applicant, A/Prof Russo said:
“Responses to the requested procedures are individual and the results may vary. However, 70-80% of patients will get relief of anywhere from about two-thirds of their pain to complete relief following a radiofrequency neurotomy procedure.”
In his report, A/Prof Russo noted the total cost of the proposed disputed treatment was $8,939. The respondent, quite appropriately, does not submit the proposed treatment is prohibitively expensive in the circumstances.
On balance, I am satisfied that the requirement for the treatment sought has been brought about as a result of the injury at issue. Whilst the applicant had some serious pre-existing pathology, the evidence discloses that pathology was asymptomatic. It is axiomatic to state that a condition may have multiple causes: see for example Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 and ACQ Pty Ltd v Cook (2009) 237 CLR 656. It is only necessary that the injury at issue made a material contribution to the requirement for surgery. It does not need to be a substantial contributing factor to the requirement for surgery, let alone the main contributing factor.
In this matter, the evidence plainly discloses the applicant’s injury has given rise to symptoms in her lumbar spine which necessitate ongoing treatment. As noted, the applicant bears the onus of proving the treatment claimed is reasonably necessary.
The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab v NRMA Limited [2014] NSWWCCPD 72. In that matter, the Deputy President cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. That is, treatment will be considered reasonably necessary, if the Commission finds it preferable that the worker should have the treatment, then it be forborne.
There are a number of considerations which are relevant to deciding whether treatment is reasonably necessary. These include, but are not limited to, the appropriateness of the treatment, the availability of alternative treatment and the potential effectiveness of the alternative, the cost of the proposed treatment, the actual potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab, Roche DP also noted the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment is absolutely necessary.
In considering the various indicia in Diab, on balance, I am of the opinion the proposed treatment is reasonably necessary. There is no suggestion the treatment is prohibitively expensive, and although the respondent asserted that it was premature, the views of A/Prof Russo, as a treating doctor, are entitled to be given significant weight unless it can be shown that there is a specific error in his opinion and the basis for it.
Additionally, the fact Dr Gorman indicated there are alternatives to the proposed treatment does not mean it is necessarily unreasonable. The authorities make it clear there can be more than one form of reasonably necessary treatment available.
Dr Gorman’s opinion the applicant should undergo a pain management programme does not take into account or address A/Prof Russo’s view that such a plan may be undertaken concurrently with the treatment sought. As already indicated, this aspect of A/Prof Russo’s opinion is implicit in his both recommending the treatment sought and indicating to the applicant’s GP he would facilitate her undertaking a programme with the relevant pain management centre.
On balance, I do not accept Dr Gorman’s view that the effects of the aggravation to the applicant’s lumbar spine would have passed within three months of October 2023. This has plainly not happened.
Moreover, Dr Gorman’s view that the proposed treatment deals with underlying pathology rather than the symptoms caused by the aggravation in the injurious event clearly contradicts the facts of this matter.
As already noted, the applicant was asymptomatic before the injurious event. Her uncontested evidence is her symptoms have persisted since the incident at issue, and I have no difficulty accepting this is the case. As such, I reject Dr Gorman’s opinion that the effects of any aggravation would have passed by February 2024.
In my view, A/Prof Russo provides an adequate explanation as to why the proposed treatment is reasonably necessary. In his report, he sets out those parts of the treatment which are designed to treat posterior spinal symptomology and those which will hopefully improve the anterior symptoms.
I also note that in her statement, the applicant indicated she had undertaken treatment with the Innervate Pain Management Programme. From [34] and following, the applicant referred to her treatment, including stress relaxation therapy, mind strategies, stretching exercises undertaken through pain management together with physiotherapy and psychological counselling. It therefore follows I am not persuaded by the respondent’s submission to the effect the applicant has not had sufficient pain management treatment and should have it before embarking on the regime proposed by A/Prof Russo.
For these reasons, I am of the view the evidence overwhelmingly supports a finding the proposed treatment is reasonably necessary, and the respondent will be able to pay the costs of and incidental to it.

SUMMARY

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

[2024] NSWPIC 427

8 August 2024