Wilson and Australian Postal Corporation (Compensation)

Wilson and Australian Postal Corporation (Compensation) [2020] AATA 2446 (23 July 2020)
Division:GENERAL DIVISION
File Number(s): 2018/5303
Re:Paul Wilson
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:23 July 2020
Place:Sydney

The decision under review is affirmed.
.....................[sgd]...................................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
WORKERS COMPENSATION – accepted claim for canal stenosis and right shoulder impingement – proposed C7/T1 anterior cervical discectomy surgery and fusion surgery – whether this is reasonable medical treatment obtained in relation to the applicant’s accepted injury – whether the respondent is liable to pay for the medical treatment in respect of previously accepted liability – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
23 July 2020
BACKGROUND

This matter has a long history that raises complex medical issues. Despite major surgeries, the applicant has only had intermittent pain relief after he was injured in a motor vehicle accident during his employment for the respondent on 27 August 2012.
Given the complex nature of this matter, I set out that background in full below.
The applicant is currently 68 years old.
The applicant started working for the respondent, Australia Postal Corporation, in approximately 1997. He was employed by the respondent until a few years ago.
On 27 August 2012, the applicant was involved in a motor vehicle accident where his Australia Post van collided with a truck. The applicant said that this resulted in injuries and pain in his shoulders, neck, spine and lower back.
On 25 October 2012, the respondent accepted the claim for compensation for “whiplash cervical strain and right shoulder impingement”.
On 17 September 2013, Australia Post denied liability to pay compensation for “lower back condition”, which the applicant said was a resulting condition arising from the accident.
In a determination decision dated 6 October 2015, the respondent denied continuing liability to pay incapacity payments and medical treatment expenses for “whiplash cervical strain and right shoulder impingement”.
The respondent, however, reinstated the applicant’s payments for compensation for “whiplash cervical strain and right shoulder impingement” when further information was provided in a report prepared by Dr John O’Neill dated 14 March 2016.
In May 2015, the applicant was referred to neurosurgeon Dr Michael Donnellan in relation to neck pain, back pain and bilateral foot numbness that has arisen since the 2012 motor vehicle accident. Dr Donnellan recommended the applicant undergo C3/4 decompression, lumbar decompression and possible fusion.
On 11 May 2016, a claims manager for the respondent issued a reconsideration decision, categorising the applicant’s accepted injuries for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) to be “canal stenosis C3/4, compression of the right C6/C7 nerve roots, lateral recess canal stenosis at L4/L5 and right shoulder impingement”.
On 3 June 2016, the applicant underwent surgery in the form of C3/4 anterior cervical discectomy and fusion performed by Dr Donnellan. The applicant also underwent surgery at the L4/5 level in approximately September 2016.
On 14 February 2017, Dr Herald diagnosed the applicant with bilateral shoulder impingement syndrome, right hip hamstring tendon tear and left hip arthritis. On 28 February 2017, Dr Herald proposed a range of treatment for the applicant’s conditions, including bilateral shoulder arthroscopy, acromioplasty, rotator cuff repair and bicepstenodesis, shoulder reconstruction surgery, but thought that the proposed further cervical spine surgery should proceed first.
On 17 August 2017, Dr Donnellan recommended the applicant undergo C7/T1 anterior cervical discectomy and fusion surgery.
In a report dated 9 March 2018, Dr Graeme Macdougal, orthopaedic and shoulder surgeon, noted the applicant’s left shoulder was injured on 31 October 2011, with a subsequent aggravation on 27 August 2012. Dr Macdougal diagnosed the applicant as having “left shoulder low grade impingement, weakness of supraspinatus suggestive of mildly symptomatic rotator cuff tear” and recommended the applicant continue swimming and walking, as well as consider a hydrotherapy programme to maintain body conditioning.
Consultant neurosurgeon Dr Neil Cochrane examined the applicant on 16 March 2018. In his report dated 28 March 2018, Dr Cochrane did not agree that the proposed cervical spine surgery was necessarily required or related to the applicant’s motor vehicle accident in 2012.
On 11 July 2018, the respondent denied liability to pay for the proposed cervical spine surgery. On 12 July 2018, the respondent denied liability to pay for the proposed left shoulder reconstruction surgery.
On 16 August 2018, the applicant sought approval to undergo “L4/5 and L5/S1 anterior lumbar interbody fusion and L4/5 foraminotomy” as recommended by Dr Donnellan.
The applicant sought reconsideration of the determinations dated 11 and 12 July 2018 respectively.
The respondent issued two separate reviewable decisions each dated 17 August 2018 which continued to deny liability for the proposed left shoulder reconstruction surgery, and the proposed cervical spine surgery.
On 17 September 2018, the applicant lodged applications for review of both reviewable decisions in the Tribunal.
On 14 October 2019, the respondent accepted liability for one of the applications for review before the Tribunal, allowing the applicant to undergo the procedures “L4/5 and L5/S1 anterior lumbar interbody fusion and left-sided L4/5 foraminotomy”.
ISSUES
The issue before the Tribunal is whether it is satisfied it is the correct and preferable decision to affirm the reviewable decision of the respondent dated 17 August 2018, which denied liability for medical treatment in relation to the proposed surgery (C7/T1 anterior cervical discectomy) under section 16(1) of the SRC Act.
THE LAW
The respondent’s general liability to pay compensation is set out in section 14(1) of the SRC Act, which provides as follows:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The payment of compensation in respect of medical treatment expenses is governed by section 16 of the SRC Act, which relevantly states:
(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…
In short, compensation for medical treatment expenses is payable in circumstances where:
(a)the employee suffers an ‘injury’; and
(b)incurs costs receiving medical treatment in relation to the injury; and
(c)the medical treatment is reasonable and appropriate to obtain in the circumstances.
THE EVIDENCE
Applicant’s evidence
The applicant gave evidence that he first started working at Australia Post in July 1997. His first job was as a mail sorter and he moved to driving duties approximately 12 months later.
On 27 August 2012, the applicant was involved in an accident which he described at the hearing as follows:
…I was on my way to pick up some parcels from work. I was driving down Victoria Street, there was a semitrailer in my gutter lane, he was doing a left-hand turn. I was on the inside of him and out of the blue a truck pulled out in front of me and I hit him, T-boned him.
When cross-examined about the accident, the applicant said that he believed he was going to die, particularly as the airbags in his vehicle did not deploy. He said he was not speeding at the time he ran into the truck.
The applicant did not call an ambulance after the accident. He said he was dazed and concerned that he would get into trouble. He did not take time off work, but his supervisor sent him to see a doctor nominated by the respondent.
Since the accident, the applicant said he had suffered lower back pain and problems with his left and right shoulder. He said that when he first saw the doctor he was still in shock and his pain worsened about a week later.
Dr Donnellan first operated on the applicant approximately four years after the accident. The applicant said he followed Dr Donnellan’s advice and that he was happy to have the surgery he recommended.
The applicant said that although he wanted to work, he was “forced to retire” in January 2018 because of his health.
He referred to a road rage incident in 2009, which meant he could not take medications. Under cross-examination he said that he suffered psychological problems from this accident and physical problems with his hamstring and hip. After the road rage incident, he sought medical attention straight away. He could not recall what he had said to the doctor about the pain he was suffering at the time.
The applicant stated in reply to a question from counsel for the respondent that he understood the basis upon which he received compensation for a permanent psychiatric impairment as a result of the road rage incident. He could not take pain medication but was on numerous other medications for blood pressure, anxiety and depression.
The applicant said he had not pursued other exercise options which could assist him in relation to the pain he had been experiencing. The applicant could not remember what he had told Dr Donnellan about the result of the injections he was given for pain management.
The applicant said he trusted Dr Donnellan. The applicant gave evidence that he did not see his general practitioner often and that he would generally follow Dr Donnellan’s decisions because he trusted his judgement.
When cross-examined about the previous surgery at C3/4, the applicant said it gave him only limited, if any, pain relief. When questioned further as to the result of all his surgery, including C3/4 and shoulder surgery, the applicant agreed that no previous operation had given him any long-lasting benefit.
He said, however, that he wanted to have the operation in question at C7/T1 because “hopefully it will give [him] some quality of life”.
When cross-examined at length about exercise and the possible benefits of exercise in assisting with pain management, the applicant said that he accepted Dr Donnellan’s advice. Other than swimming or going for a walk, he could not recall exploring other more conservative approaches to address the pain in his neck, such as working with an exercise physiologist to strengthen muscle around the neck.
The applicant could not recall whether Dr Donnellan had spoken with him about the various scans which showed degenerative disease in both his lumber spine and cervical spine.
He also said that following a program of exercise as an alternative to surgery or to assist in conjunction with surgery was likely to also be expensive for the respondent. The applicant said that he would only do something like this on Dr Donnellan’s advice.
The applicant said that he had pain and stiffness in his right and left arm, but he generally didn’t think about pursuing exercise such as swimming because of the pain he suffered.
The applicant said he recalled meeting Dr Cochrane some time ago, where he answered questions and did a number of tests.
At the hearing, the applicant produced a photograph of the accident, which was taken by his supervisor at Australia Post and shown to him the day of the accident. It was after seeing this photograph that the applicant said he realised just how serious the accident had been.
I found the applicant to be a credible witness who did his best to give full and honest answers even though on some occasions he was unable to recollect detail. He has clearly suffered and continues to suffer serious pain.
Expert evidence
Dr Neil Cochrane and Dr Michael Donnellan, who were eminently qualified as neurosurgeons, gave concurrent evidence to the Tribunal. At the hearing, each doctor was able to hear and make contemporaneous comments in relation to the evidence of one another.
In addition to the evidence at the hearing, I have also had regard to the written reports of Dr Cochrane and Dr Donnellan, the clinical documents and the MRI Scan by Dr Jason Wenderoth, which was submitted by the applicant just prior to the hearing but was in line with previous MRIs taken over a lengthy period of time. I have also received other medical evidence including clinical notes, X-ray and CT reports, including from Dr Masters, which I have considered. However, the most relevant and current reports were from Dr Donnellan, Dr Cochrane and Dr Wenderoth. Dr Steadman provided a comprehensive medical history of the applicant, but his report is mostly focused on the applicant’s left shoulder injury which was not relevant to this reviewable decision before the Tribunal.
It should be noted that there was general agreement between both doctors in relation to the appropriateness of the previous medical treatment provided to the applicant. However, they differed significantly in their views on the proposed surgery at C7/T1, and specifically whether it related to the compensable injury and was reasonable medical treatment under section 16(1) of the SRC Act.
Dr Donnellan
Dr Donnellan, who is an experienced neurosurgeon, has been treating the applicant since his first referral in May 2015.
He gave evidence that the applicant suffers chronic ongoing pain. Dr Donnellan first operated on the applicant in approximately June 2016 for severe pain in his neck and arms as a result of the C3/4 disk rupture.
The surgery performed by Dr Donnellan to treat this disc rupture was accepted as relating to a compensable injury by the respondent in their reconsideration decision on 11 May 2016.
There was considerable discussion as to whether the surgeries the applicant had previously undergone were successful, especially in light of the applicant’s evidence that he had experienced only limited pain relief. However, both Dr Donnellan and Dr Cochrane agreed that the surgery had been necessary and was appropriate treatment at the time. Furthermore, they agreed that it had provided significant benefit in terms of the applicant’s mobility, even though the period of pain relief he experienced was limited.
Dr Donnellan stated that although this surgery was successful, it had led to further disk prolapse, which he said required further surgery at C7/T1 in order to address neck pain, free up the nerves in this area and assist the applicant in managing the pain in his arms. He said that there was a causal link between the surgery to C3/4 and the issues the applicant was experiencing at C7/T1, particularly because of the additional pressure placed on the upper spine as a result of the previous surgery. In his report dated 19 December 2019, Dr Donnellan stated “the fusion procedure at C3/4 plus the ossification of [the applicant’s] posterior longitudinal ligament has caused an adjacent level disease of the C7/T1 disc”.
He also said that in his opinion the applicant might not need further shoulder surgery if he underwent the surgery at C7/T1.
Dr Donnellan said that he had considered alternative treatment, including hydrotherapy, and that he had given the applicant steroid injections. Dr Donnellan also said that in the past physical exercise and physiotherapy had not worked for the applicant and so he had not used these techniques as an alternative to the proposed C7/T1 surgery. Dr Donnellan was also of the view that physiotherapy would not be useful because of the ossification of the applicant’s neck.
Dr Donnellan said that continuing to treat the applicant with medication for pain relief for the rest of his life was unlikely to offer significant long-term pain relief and may lead to addiction.
Dr Donnellan said that the steroid injections he had given to the applicant were for both diagnostic and therapeutic purposes. As the applicant had only received a very short period of relief from the injections, Dr Donnellan considered them of limited, if any, value.
In his view, the applicant’s conditions meant that he would not get better without surgery.
Dr Donnellan said that although operative intervention was necessary, it was likely to be of much less benefit to the applicant now than if it had been carried out when he first recommended it in August 2017.
Dr Donnellan said that he did not believe that the applicant had suffered age-related degenerative disease in the area at C7/T1, and his problems were rather caused by the motor accident on 24 August 2012 and the subsequent surgery at C3/4. He said that the applicant’s accident and resultant injuries will always affect the ‘weakest link’ in general terms.
Dr Donnellan said that although it was not reported, it was possible to see calcification on CT scans and X-rays of the applicant’s neck.
Under cross-examination, however, Dr Donnellan agreed that the disk prolapse at C7/T1 regularly occurred due to the normal aging degenerative process. Dr Donnellan conceded that there is some ambiguity as to whether the disk prolapse is definitively attributable to the applicant’s accident and said that “it’s possible that this injury could have happened because of old age”.
Dr Cochrane
Dr Cochrane, who is also an experienced neurosurgeon specialising in spinal surgery, met the applicant on 16 March 2018 to assess the proposed surgery.
Although agreeing that the applicant had significant spinal injury at C3/4 and that the previous surgery was necessary treatment, Dr Cochrane said that on his examination of the patient and the scans sent to him he did not see significant calcification. Rather, Dr Cochrane saw mild age-related degeneration. The MRI he examined in July 2017 showed the C7/T1 protrusion but, in his view, the protrusion was not related to the C3/4 fusions nor the compensable injuries sustained as a result of the motor vehicle accident on 27 August 2012. In other words, there was no causal link between the accident, subsequent surgery at C3/4 and the deterioration at C7/T1.
In Dr Cochrane’s opinion, further surgery would not help the applicant. His view was that the applicant would not respond well to surgery, particularly because he believed that the issues the applicant is experiencing are linked to age-related degenerative disease and long-term pain. Dr Donnellan agreed with Dr Cochrane that the applicant was not an ideal candidate for surgery, particularly given the time that has now lapsed since he proposed the surgery at C7/T1.
Neither doctor believed that further steroid injections would assist the applicant, whom they both agreed was a “difficult case”.
There was agreement between the doctors as to the possible benefit of a bone scan for the applicant before it was decided whether surgery at C7/T1 was reasonable and necessary. A bone scan had not been carried out on the applicant and accordingly this evidence was not available to the Tribunal.
The applicant was said to be a “peculiar case” and both Doctors said that the current situation was “unexpected”. In particular, the applicant was unusual in the on-going intense pain he continued to suffer with only intermittent relief, even after major surgery since the accident in 2012.
Whilst Dr Cochrane agreed with Dr Donnellan that the proposed operative treatment at C7/T1 was open to him in treating the applicant, he did not believe that the applicant was likely to benefit from such surgery. Dr Cochrane did not see the proposed operation as “irrational” but felt that the applicant would be much more likely to benefit from neck strengthening exercises, assistance with pain management and physiological assistance.

In Dr Cochrane’s view, multidisciplinary intervention and pursuing other modalities that are less invasive than surgery is more appropriate in the applicant’s circumstances. Although he could understand Dr Donnellan’s rationale, he differed in his opinion and in particular felt it was inappropriate to undertake surgical intervention without exhausting other less invasive options.
CONSIDERATION
As outlined previously, this case has a very long and quite complicated history, which is evidenced by the long timeline that I have included in my decision. It is important to see the current issue in the context of the applicant’s long medical history and the many medical reports over a long period of time.
I found both doctors who gave evidence to the Tribunal to be excellent witnesses. They both substantially agreed with the applicant’s previous medical treatment and openly and respectfully acknowledged the others’ views when their medical opinion differed.
I note further that this is a case involving a great deal of medical evidence, including many reports, scans, and X-ray material taken over a lengthy period that were tendered as evidence. As explained above, I have chosen not to quote extensively from all of the various reports because the crux of the case comes down to a difference of opinion between Dr Donnellan and Dr Cochrane as to whether the surgery at C7/T1 is directly referable to the issues arising from the motor vehicle accident on 27 August 2012, which has long been accepted as a compensable injury and if so, if the proposed surgery at C7/T1 is a reasonable course of medical treatment in the applicant’s circumstances.
Is there a causal link between the proposed surgery and the applicant’s compensable injury?
In relation to the question of whether the proposed surgery at C7/T1 relates to the applicant’s compensable condition, I find that on balance the evidence does not support such a conclusion.
Dr Donnellan’s evidence was that, although the surgery he first performed on the applicant for severe pain in his neck and arms due to C3/4 disk rupture was successful, it had resulted in further disk prolapse and ossification in the anterior longitudinal ligament and subsequent surgery was necessary at C7/T1 to address the significant pain the applicant was suffering. He also felt that the operation at C7/T1 might reduce the need for further shoulder surgery.
Dr Cochrane agreed with the surgery performed by Dr Donnellan at C3/4 and said that it was appropriate treatment at the time. However, Dr Cochrane said that on his examination of the applicant and through examining the various scans sent to him and before the Tribunal he did not see “significant calcification” or other issues related to the previous surgery, but rather age-related degeneration, including degeneration at C7/T1. Dr Cochrane also pointed out that C7/T1 was a very long way from C3/4 and that the intervening discs appeared to have not been adversely impacted, making it hard to provide convincing evidence of a causal link between the surgery at C3/4 and the disk prolapse at C7/T1. Dr Cochrane did not believe that he could relate the effects of the motor vehicle accident nor the surgery at C3/4 to the discrete disc protrusion at C7/T1.
In cross-examination, Dr Donnellan also agreed that disk prolapse at C7/T1 usually occurred as a result of the aging process.
None of the medical evidence before the Tribunal, including MRI and X-rays, offers a conclusive view as to whether there was a causal link between the accident and the applicant’s problems at C7/T1. I do, however, give weight to the report from Dr Jason Wenderoth, a neurologist, submitted by the applicant and dated 1 April 2020, which supports Dr Cochrane’s opinion. I note that Dr Wenderoth was not called for cross-examination, but his report is consistent with previous MRI reports submitted to the Tribunal. This report makes a comparison to the previous examination of the applicant in July 2017. The report notes:
Cervical alignment is within normal limits. Vertebral body heights are well -preserved. The craniocervical junction appears normal. There has been an ACDF at C3/C4 with satisfactory appearances.
At C2/3, there is a prominent posterior disc/osteophyte complex but no significant central canal or foraminal stenosis.
At C3/4, there is central cord signal hyperintensity on the T2-weighted sequences, with slight loss of cord volume indicating chronic myelomalacia. These appearances are stable. There is moderate facet arthropathy and a large posterior disc/osteophyte complex causing moderate central canal narrowing at this level. There is also mild left foraminal stenosis and moderate to severe right foraminal stenosis.
At C4/5, there is marked facet and uncovertebral arthropathy and a prominent posterior disc/osteophyte complex resulting in mild central canal narrowing and moderate bilateral foraminal stenosis. These appearances are stable.
At C5/6, there is moderate facet and uncovertebral arthropathy and a large posterior disc/osteophyte complex resulting in moderate left foraminal stenosis, mild right foraminal stenosis and mild central canal narrowing. These appearances are stable.
At C6/7, there is moderate facet and uncovertebral arthropathy and a prominent posterior disc/osteophyte complex with mild bilateral foraminal stenosis and mild central canal narrowing. These appearances are stable.
The report does not seek to make any link between the deterioration at C3/4 and C7/T1. Rather, it makes the point that what is most likely age-related degeneration of the discs in the spine has remained stable, even in relation to C7/T1 where the report notes:
At C7/T1, there is marked bilateral uncovertebral arthropathy and a prominent posterior disc/osteophyte complex. There is also moderate facet arthropathy. The osteophytic changes related to the uncovertebral joints are more pronounced on the right, and there is mild to moderate foraminal stenosis on the right with only mild foraminal stenosis on the left and no significant central canal narrowing. These appearances are essentially stable.
It goes on to note “these Multilevel degenerative changes as described. Essentially stable
appearances since the previous study.”
In looking at the overall position of the applicant, Dr Wenderoth refers to degenerative changes which are seen as “essentially stable" since the previous study in 2017. In my opinion, this provides support for Dr Cochrane’s conclusion that there is not a clear link between either the accident on 27 August 2012 nor the surgery at C3/4 and the problems the applicant is experiencing at C7/T1. I note that Dr Wenderoth’s report was submitted by the applicant but was not otherwise referred to by either side at the hearing. As the report was never challenged by either party and is in line with the previous medical reports which were also not challenged, its findings are not in dispute.
Whilst I have given weight to Dr Cochrane’s evidence and to Dr Wenderoth’s report, I accept that the treatment proposed by Dr Donnellan was not “irrational” and was certainly an available option for dealing with the applicant’s ongoing pain. In fact, it seems clearly that regardless of the issue of causation, Dr Donnellan was focused (quite properly) in trying to find a way to relieve on-going pain in what can best be described as a singular case.
On balance, I am not satisified that there is a causal link between the motor vehicle accident, the surgery at C3/4 and the proposed surgery at C7/T1. In considering the evidence, I have taken into account Dr Donnellan’s evidence that X-rays are a better indicator than MRI scans. However, no persuasive X-ray or other evidence was provided which was in any way sufficient to show a causal link.
Having found that the proposed surgery at C7/T1 does not relate to the applicant’s compensable injury, it is not necessary to consider whether the proposed treatment is reasonable medical treatment for the purposes of section 16(1) of the SRC Act. However, for completeness, I have dealt briefly with this issue below.
Is the proposed surgery reasonable medical treatment?
In my opinion, the proposed surgery at C7/T1 is not reasonable medical treatment pursuant to section 16(1) of the SRC Act, although the operation is clearly treatment which is open to the applicant and was described by Dr Cochrane as not being “irrational”.
Whilst the applicant received only limited pain relief from previous surgeries, there seemed to be general agreement by the doctors that the original surgery at C3/4 had been of benefit to the applicant in terms of his mobility.
The applicant had received some benefit from steroid injections, although the benefit was short lived and considered by Dr Donnellan to be of no use longer term.
The applicant was seen by the doctors as “a peculiar case” and the proposed surgery was seen as not clear-cut and “probably not in the books”. The applicant has had a significant number of operations and, in his evidence at the hearing, he seemed to believe that further surgery was the only option open to him. He had certainly not turned his mind to seriously consider other options.
Contrary to Dr Donnellan, Dr Cochrane felt that the applicant would not respond well to surgery at C7/T1 for degenerative disease and long-term pain. Rather, he felt that the applicant would benefit from alternative treatment, including exercise physiology and psychological counselling. In his evidence presented at the hearing, Dr Cochrane said that he was of the opinion that it was not reasonable or appropriate to proceed to surgery in the absence of first proceeding down the path of strengthening the applicant’s neck, which would be best assisted by a multidisciplinary team, alongside other alternative treatment such as a hydrotherapy programme and psychological pain acceptance, which he believes would provide the applicant with a more “robust treatment”. I accept this assessment.
It is also relevant that Dr Donnellan felt that the lapse of time since he first proposed the applicant’s surgery at C7/T1 and the time at which any likely surgery will now be performed mean that the proposed surgery is likely to be of less benefit to the applicant. Dr Cochrane also agreed and said that given this lapse of time, in his opinion, the chance of the applicant benefitting from surgery was “negligible”. In other words, Dr Cochrane was of the view that the applicant was likely to receive little benefit from what would appear to be very major surgery.
Considering the individual circumstances of this particular case, I am of the view that any benefit for the applicant in obtaining this surgery is diminished by the lapse in time before the surgery is conducted, the likely response the applicant may have (in light of his response to other surgeries), his age and general level of fitness and health.
In summary, the applicant’s total focus on surgery, his somewhat unusual circumstances and the limited pain relief he has received from previous surgeries, the limited benefit, if any, he is likely to receive from further surgery and the fact that a number of alternative treatments were available that had not been tried leads me to conclude that the C7/T1 surgery is not reasonable medical treatment under section 16(1) of the SRC Act. My conclusion in no way reflects adversely on Dr Donnellan whom I found to be highly competent, very concerned about the welfare of his patient and looking for what he considered to be the better solution for an unusual set of circumstances and with a patient with particular pain management issues.
I am also not satisified that the evidence before the Tribunal demonstrates a sufficient causal link between the motor vehicle accident in 2012, the C3/4 surgery and the current problems at C7/T1, particularly given the lack of clear evidence showing this causal link and the agreement of various medical practitioners that the applicant’s condition is commonly explained by age-related degenerative conditions in people of his age.
DECISION
The correct and preferable decision is to affirm the decision of the delegate.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..................................[sgd]......................................
Associate
Dated: 23 July 2020

Dates of hearing: 16 March 2020, 5 June 2020 and 10 July 2020

Counsel for the applicant:

Applicant’s representative:

Mr J Mrsic

Ms S Ali, State Law Group

Counsel for the respondent:

Respondent’s representative:

Mr M Gollan

Mr S Moloney, Moray & Agnew Lawyers

[2020] AATA 2446

23 July 2020

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Remedies

Duty of Care

Negligence

Statutory Construction