Young v Vietnam Veterans Keith Payne VC Hostel Limited - [2020] NSWWCCPD 66

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Young v Vietnam Veterans Keith Payne VC Hostel Limited [2020] NSWWCCPD 66
APPELLANT:	Donelle Young
RESPONDENT:	Vietnam Veterans Keith Payne VC Hostel Limited
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-1939/20
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	1 July 2020
DATE OF APPEAL DECISION:	19 November 2020
SUBJECT MATTER OF DECISION:	Factual determination – principles applicable on appeal; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 discussed; whether surgery was reasonably necessary – Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Hickey, counsel
Law Advice Compensation Lawyers
Respondent:
Mr P Perry, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The name of the respondent wherever it appears in the arbitral proceedings and on appeal is amended to read “Vietnam Veterans Keith Payne VC Hostel Limited.” 2. The Arbitrator’s Certificate of Determination dated 1 July 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Donelle Young (the appellant) was employed as an Assistant in Nursing at the Vietnam Veterans Keith Payne VC Hostel Limited (the respondent). The appellant suffered an injury to her lower back on 7 January 2016 when she went to the aid of a very large resident who had fallen to the floor in the resident’s room. The appellant, with the assistance of three other employees, lifted the resident into a chair using a “Johnny belt” lifting mechanism.
The appellant then performed observations on the resident and returned to her workstation. About 20 minutes later, the appellant experienced the onset of low back pain. She sought medical treatment and was certified unfit for work.
The appellant lodged a claim for compensation which was accepted by the respondent. Her symptoms worsened. She underwent numerous treatment regimes and procedures. Ultimately, in a report dated 21 June 2019, Dr Marc Coughlan, the appellant’s treating neurosurgeon, recommended surgical intervention in the form of a spinal fusion at the L3/4 level of the lumbar spine. The respondent disputed that the surgery was reasonably necessary, as required by s 60 of the Workers Compensation Act 1987 (the 1987 Act). The reasons for disputing liability were set out in a notice dated 28 August 2019 issued by the respondent pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[1]
[1] Application to Resolve a Dispute (ARD), pp 7–9.
The decision to decline liability was based upon the opinion of Dr Vidyasagar Casikar, neurosurgeon, who opined that:
(a)    the injury consisted of an aggravation of a pre-existing disease;
(b)    the aggravation had ceased;
(c)    the surgery was not justified and would have a poor outcome, and
(d)    the need for surgery was unrelated to the work-related injury.
The appellant commenced proceedings in the Commission. The matter proceeded to arbitration before Arbitrator Wynyard, who determined that the surgery was not reasonably necessary and entered an award for the respondent.
The appellant appeals that decision.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The decision is not interlocutory in nature, so leave to appeal pursuant to s 352(3A) of the 1998 Act is not required.
In her application before the Commission and in this appeal, the appellant nominated the respondent as “Vietnam Veterans Keith Payne VC Hostel.” The Reply to Application to Resolve a Dispute (Reply) and Opposition to Appeal Against Decision of Arbitrator (Opposition) also described the respondent in the same manner. Following enquiries made by the Presidential Unit, the parties agreed that the correct name of the respondent is “Vietnam Veterans Keith Payne VC Hostel Limited.” The name of the respondent, wherever it appears in the arbitral proceedings and on appeal is amended accordingly.

THE EVIDENCE

The appellant’s statement evidence

The appellant provided a statement dated 23 November 2018.[2] She described how the injury occurred and that, following the injury, she experienced flare-ups of her low back symptoms. The appellant said she was unable to return to full duties and was medically retired on 15 October 2016.
[2] ARD, pp 1–5.
The appellant provided a summary of the medical treatment she received but said that, despite the treatment, she continued to experience significant lower back pain, began to experience daily pain travelling through the middle of her back into the neck and developed anxiety as a result of the pain. The appellant described in detail her ongoing symptoms.

The appellant’s relevant medical evidence

Dr Marc Coughlan, neurosurgeon

Dr Coughlan reported to Dr Varsani, general practitioner, on 11 April 2017.[3] He described the appellant’s symptoms in the back as significant. Dr Coughlan also noted severe symptoms in the appellant’s neck and right wrist and the presence of bilateral leg pain, which he described as “radicular discomfort.” He discussed the results of an MRI Scan and a bone scan, which he reported showed that there was mild stenosis at the L4/5 level, with facet joint arthrosis at the L4/5 and L3/4 levels and bilateral inflamed L3/4 facet joints. In Dr Coughlan’s view, the annular tear seen on previous investigations appeared slightly improved and there was no underlying nerve root compression. He said that, in the absence of neurological deficit and spinal or nerve root compression he had reassured the appellant that there was no role for any surgical intervention and recommended pain management intervention.
[3] ARD, pp 82–83.
On 21 June 2019, Dr Coughlan again reported to Dr Varsani and advised that the appellant continued to suffer from significant back pain. He reported that the appellant was very frustrated and had exhausted all conservative treatment options. He recommended the appellant consider undergoing an L3/4 fusion.[4]
[4] ARD, p 72.
Dr Coughlan provided a report dated 11 February 2020 (said to be completed on 24 February 2020) for the purpose of these proceedings.[5] He advised that the appellant first consulted him on 1 March 2017. Dr Coughlan confirmed the history of symptoms recorded in his report dated 11 April 2017 and the results of the radiological investigations. Dr Coughlan reiterated that, at that stage, in the absence of neurological deficit and spinal or nerve root compression, he considered that conservative treatment was appropriate, and that the appellant would benefit from pain management to address her symptoms and analgesic intake.
[5] ARD, pp 66–68.
Dr Coughlan discussed further consultations with the appellant and said he considered that clinically, the appellant’s severe pain was compatible with the severe active inflammation of the L3/4 facet joints. Dr Coughlan said that he performed radiofrequency lesioning of the facet joints on 31 July 2017. He reported that the appellant continued to complain of severe pain and on 8 February 2019, he performed radiofrequency denervation of the facet joints, which he considered at the time was more appropriate than invasive surgery in the form of a spinal fusion, which could lead to adjacent segment disease.
Dr Coughlan advised that, following the procedure, the appellant continued to suffer from significant pain. In the light of the failure of conservative treatment, on 27 March 2019, he began to consider surgery to the L3/4 level of the lumbar spine, despite his previous aim to try a conservative approach. Dr Coughlan remarked that surgery was always the last resort, but the appellant had tried extensive conservative treatment to no avail and all conservative treatment options had been exhausted. On 19 June 2019, Dr Coughlan concluded that a surgical approach was warranted. He recommended an L3/4 spinal fusion and sought approval from the respondent.
Dr Coughlan saw the appellant again on 6 December 2019, when he discussed the proposed surgery with her. He was of the view that the main pain generator was the L3/4 level, despite the multi-level degenerative changes on the radiological imaging. Dr Coughlan said it was this level of the spine that needed to be addressed by surgery.
Dr Coughlan diagnosed significant facet arthropathy at the L3/4 level with bilaterally inflamed L3/4 facet joints. Dr Coughlan opined that the appellant had no symptoms prior to the work-related injury, that the injury caused the appellant’s continuing incapacity, and the appellant’s continuing back issues were directly related to the injury.
Dr Coughlan considered that the surgery was reasonably necessary to treat the work-related injury and would best address the severe arthropathy at that level, which was the main pain generator shown on the radiological scans. Dr Coughlan reiterated that all conservative measures had been ineffective and noted that the appellant was struggling, with no improvement in her symptoms, despite the appellant being very compliant and proactive in relation to her treatment. Dr Coughlan said that the surgery was most certainly worthwhile, with the aim being to significantly reduce the appellant’s pain and improve her quality of life.

Dr Vijay Varsani, general practitioner

Dr Varsani reported to the appellant’s legal representatives on 3 July 2019.[6] He reported that he initially consulted with the appellant on the day of her injury. He described her symptoms and advised that he was unaware of any prior history of back pain. Dr Varsani noted that the radiological investigations disclosed an L4/5 disc bulge and annular tear. He said that the appellant had returned to work on light duties, but her pain required escalating doses of opiates and Endone for pain.
[6] ARD, pp 70–71.
Dr Varsani provided details of the appellant’s continuing symptoms, the development of anxiety and the appellant’s ongoing treatment, which included:
(a)    referral to Dr Mitchell Hansen, neurosurgeon;
(b)    an exercise programme for her back;
(c)    CT guided cortisone injections into the L4/5 disc, with initial but not lasting improvement;
(d)    referral to Dr Russo, pain management specialist;
(e)    cognitive behaviour therapy, and
(f)    a referral to Dr Coughlan for a second opinion.
Dr Varsani said that the appellant was trialled on Norflex, Lyrica, Palexia, spinal injections of Etanercept, Sodium Valproate, Targin and Endone. He advised that the appellant was seen in the Gosford Hospital Emergency Department [sic Wyong Hospital] for severe pain on 3 October 2016, requiring a ketamine infusion. He said the appellant also underwent intradiscal pulse radiofrequency neurotomy with PRP injections and also received physiotherapy and treatment from a dietician because of excessive weight gain.
Dr Varsani confirmed that the appellant’s employment was a substantial contributing factor to her injury. He described the appellant’s significant pain and said that the appellant was hopeful that the surgery proposed by Dr Coughlan would enable her to continue to work in an appropriate role. Dr Varsani further confirmed that the appellant had exhausted multiple conservative, less invasive treatments without success and in his view, the spinal fusion, which was a last resort, was now required. He considered that without the surgery, the appellant’s prognosis was poor.

Dr Mitchell Hansen, neurosurgeon

The appellant was referred to Dr Hansen by Dr Varsani. Dr Hansen reviewed the appellant on 29 February 2016 and provided a report of the same date.[7] Dr Hansen noted the history of injury and the appellant’s ongoing symptoms. He observed that the MRI scan showed degenerate disc disease at the L4/5 and L5/S1 levels of the spine and diagnosed musculoskeletal back strain as a result of the injury. He recommended continued physiotherapy and consultation with a pain management physician.
[7] ARD, p 108.

The Wyong Hospital

A discharge referral from Wyong Hospital indicated that the appellant was admitted to that facility between 3 October 2016 and 6 October 2016 for treatment of severe shooting back pain across the L4/5 region with associated bilateral pins and needles in both limbs.[8]
[8] ARD, pp 87–91.

Dr Marc Russo, pain management specialist

The appellant attended Dr Marc Russo for management of her pain. He reported to Dr Varsani on 29 June 2016.[9] Dr Russo noted the onset of appellant’s low back pain and the continuation of her symptoms. He described central low back pain, at approximately the L4/5 and L5/S1 segment level, radiating down both legs mainly to the knees, with paraesthesia from the knee down to and including the right foot, as well as occasional anaesthesia of the right foot. Dr Russo noted the results of the MRI scan conducted on 19 January 2016, which he observed showed pathology referrable to the L4/5 level of the spine. He examined the appellant, noting lumbosacral stiffness secondary to muscle spasm, diffuse tenderness of the low back and that the appellant was neurologically intact in the lower limbs. Dr Russo remarked that the appellant demonstrated catastrophic pain behaviour.
[9] ARD, pp 105–107.
Dr Russo provided a treatment plan, which involved:
(a)    assistance from a self-help manual;
(b)    cognitive behavioural therapy with Dr Mike Shelley;
(c)    pain medication and medication to treat the appellant’s insomnia;
(d)    Etanercept injections to the right L4/5 nerve root, and
(e)    if the Etanercept injections were not beneficial, consideration of intradiscal therapy.
Dr Russo again reported to Dr Varsani on 27 July 2016,[10] 13 October 2016[11] and 30 November 2016,[12] and to the respondent on 8 August 2016.[13] In the report of 13 October 2016, Dr Russo reported that the Etanercept injections did not assist in controlling the appellant’s pain. He noted that the appellant had attended Gosford Hospital [sic, Wyong Hospital] Emergency Department where Ketamine was intravenously infused with minimal benefit. Dr Russo considered the remaining option was to treat the disc by performing an intradiscal radiofrequency neurotomy. Dr Russo indicated that the alternate treatment would be a spinal fusion but that Dr Hansen, neurosurgeon, considered that the appellant was not a suitable candidate for that procedure. The reports dated 27 July 2016, 8 August 2016 and 30 November 2016 add nothing further to the evidence in terms of the issue on appeal.
[10] ARD, p 103.
[11] ARD, pp 85–86.
[12] ARD, p 84.
[13] ARD, pp 101–102.
On 29 August 2017, Dr Russo reported to the appellant’s legal representatives.[14] He provided details of the treatment he provided to the appellant and commented upon the appellant’s work capacity. Dr Russo advised that, by his last review on 21 December 2016, the appellant had failed to respond to five different drugs and failed the intervention pain therapy that had been provided. Dr Russo said that he therefore had suggested the appellant undergo a spinal fusion or spinal cord stimulation.
[14] ARD, pp 78–81.

Dr James Bodel, orthopaedic surgeon

Dr Bodel was qualified by the appellant’s legal representatives to provide an opinion on behalf of the appellant. He provided a report dated 26 September 2019.[15] Dr Bodel noted the history of injury, the appellant’s subsequent attempts to return to work and the medical treatment received by the appellant. He observed that MRI scans revealed definite disc pathology at the L4/5 level with an annular tear but with no sign of any nerve root compromise or compression at any level of the lumbar spine. Dr Bodel further noted that the appellant’s back pain had deteriorated over time.
[15] ARD, pp 36–43.
Dr Bodel referred to the recommendation by Dr Coughlan that the appellant undergo an L3/4 fusion, the liability for which had been declined by the respondent. Dr Bodel considered that the disc which appeared abnormal on the radiological investigations was actually the L4/5 disc but agreed that the L3/4 facet joints appeared to be “quite involved.” He said he accepted Dr Coughlan’s explanation that the main pathology was at the L4/5 level, but there was facet joint arthritis at the L3/4 level which justified the surgery at that level. Dr Bodel said he would be surprised if the surgery was to be limited to the L3/4 level and did not include the L4/5 level, but said that he did not have any documentation before him that this was the case. Dr Bodel opined that the L4/5 disc seemed to be the most symptomatic and would be where he would entertain the treatment option of a spinal fusion.
Dr Bodel examined the appellant and reviewed MRI scans dated 19 January 2016, 23 February 2016, 9 November 2018 and 15 April 2019, as well as the bone scan dated 3 March 2017. He noted that all of the conservative treatment measures to date had been unsuccessful and that Dr Coughlan had come to the view that the surgery was necessary after further investigations and review and the failure of those conservative treatments, a decision that Dr Coughlan had not come to lightly or quickly. Dr Bodel referred to Dr Coughlan’s description of the appellant’s symptoms as significant and ongoing, and Dr Coughlan’s observation that the appellant had severe arthropathy at the L3/4 level which was the main pain generator on all of the radiological scans, with certain facet joint degeneration. Dr Bodel observed that Dr Coughlan consistently recommended the surgery at the L3/4 level.
Dr Bodel’s diagnosis of the injury was that of a disc rupture at the L4/5 level involving an annular tear. Dr Bodel opined that he did have some concerns about the level of the proposed surgery but not about the surgery itself. He said he would be reluctant to consider surgical intervention at the L3/4 level without a fusion of the L4/5 level. He described the proposed surgery as a “difficult call” to recommend a surgical fusion without hard objective evidence of neurological compromise which he had been unable to identify. Further, based on the information he had available to him, he was unsure of whether the L3/4 level was the pain generator.
Dr Bodel provided a supplementary report dated 11 March 2020 at the request of the appellant’s legal representatives, after review Dr Coughlan’s report dated 11 February 2020.[16] In this report, he clarified the opinion he expressed in the first report, saying:
“I accept his explanation as to why he has recommended the L3/4 level only. I would still express a note of caution about dealing with the L3/4 level only and not the L4/5 level at the same time but I accept his recommendation for the L3/4 level fusion that he has indicated as reasonably necessary for the management of the injury.”[17]
[16] ARD, pp 44–45.
[17] ARD, p 44.

Dr Paul Teychenné, consultant neurologist

Dr Teychenné examined the appellant on 16 August 2017 and provided a report dated 17 September 2017 at the request of the appellant’s legal representatives.[18] He was asked to provide an opinion on causation and an assessment of the appellant’s whole person impairment for the purpose of previous proceedings brought by the appellant. Dr Teychenné’s report pre-dated Dr Coughlan’s recommendation for surgery. Thus, Dr Teychenné did not comment on whether the proposed surgery was reasonably necessary. It is relevant, however, that Dr Teychenné was of the view that the initial MRI scan performed on 19 January 2016:
“showed a small annular tear at L4/5. There was some minor facet joint arthrosis. The posterior disc contour was maintained. MRI scan did not show any significant pathology in regard to the spinal canal nor in regard to the discs. Significant disc degeneration was not reported on the MRI scan of 19 January 2016.”[19]
[18] ARD, pp 46–60.
[19] ARD, p 52.
Dr Teychenné noted that:
(a)    an “MRI scan of the lumbar spine showed T2 signal at L4/5 with a high intensity zone present in the posterior annulus”;[20]
(b)    the appellant’s complaint to Dr Russo was of central low back pain at L4/5 and L5/S1 levels with radiating pain to both legs,[21] and
(c)    the appellant’s initial complaint of pain following the injury was at the L4/5 level.[22]
[20] ARD, p 50.
[21] ARD, p 50.
[22] ARD, p 52.
Dr Teychenné opined that:
“The initial MRI scan did not show any significant evidence of a lumbar disc lesion. She did not have any evidence of lumbar spinal stenosis. A tear in the disc annulus at L4/5 and some mild facet joint arthropathy may not in my opinion be insignificant enough to have resulted in a lumbosacral radiculopathy.”[23]
[23] ARD, p 54.
Dr Teychenné concluded that, on the basis of the appellant’s clinical signs, the cause of the appellant’s symptoms was an incomplete cervical cord lesion.

Dr Peter Bentivoglio, neurosurgeon

Dr Bentivoglio was qualified by the respondent to examine the appellant and give an opinion in respect of the respondent’s liability for the injury. He provided a report dated 21 April 2017.[24] Relevantly, Dr Bentivoglio opined that:
“My working diagnosis in this lady, is a lady with mechanical axial back pain secondary to pre-existing degenerative changes in her lumbar spine, particularly at the L4/5 level, but no evidence of neurological compromise or compression.”[25]
And:
“l do believe [the appellant] is suffering from pre-existing degenerative changes in her lumbar spine at L4/5 with facet joint changes at L3/4. L4/5 and to a lesser degree at L5/S1. I feel she has just aggravated this pre-existing degenerative problem.”[26]
[24] Reply, pp 1–7.
[25] Reply, p 3.
[26] Reply, p 5.
Dr Bentivoglio considered that, at that stage, surgical intervention was certainly not warranted.
Dr Bentivoglio provided further reports dated 6 June 2017[27] and 30 April 2018.[28] Relevantly, in the report dated 30 April 2018, Dr Bentivoglio opined that:
“At this stage she does not seem to be making any significant improvements with conservative treatment. I believe it is probably worthwhile doing the Radiofrequency Oblation of the facet joints at the L4/5 level, as all other conservative measures seem to have failed.”[29]
[27] Reply, pp 14–15.
[28] Reply, pp 16–21.
[29] Reply, p 19.

Dr Robin Mitchell, occupational physician

Dr Mitchell was asked to assess the appellant’s capacity for work and provide an opinion in respect of management of the appellant’s injury. In his report dated 8 May 2017, Dr Mitchell reviewed the MRI scans dated 19 January 2016 and 23 February 2016 and diagnosed a “radiologically stable L4/5 annular tear and disc protrusion without nerve impingement.”[30]
[30] Reply, pp 8–13.

Dr Vidyasagar Casikar, neurosurgeon

Dr Casikar was also asked to provide a medico-legal opinion in respect of the appellant’s injury. Dr Casikar provided a report dated 8 August 2019.[31] He opined that the appellant:
“appears to have had an aggravation on a background of degenerative disease. The description of the event, the clinical findings, and the radiological appearances are consistent with this diagnosis. The kind of injury she had, under normal circumstances, should have recovered in about four to six weeks. Her continued complaints of symptoms since 2016 suggests pain-focussed issues. In my opinion, her work-related symptoms have resolved, and now this is superseded by significant pain-focussed issues on a background of emotional problems. The fusion suggested by Dr Coughlan is not indicated because of the workplace injury she suffered in 2016.”[32]
[31] Reply, pp 22–27.
[32] Reply, p 25.
Dr Casikar added that it was well-recognised that a spinal fusion on the background of degenerative disease in a workers compensation case would result in a poor outcome, and if the appellant were to undergo the spinal fusion, there would be very little prospect of her returning to work. Dr Casikar suggested alternative treatment by a psychiatrist or psychologist in order to address the appellant’s significant pain-focussed issues, which he said was a treatment option suggested by most of the appellant’s specialists, other than Dr Coughlan.
Dr Casikar was asked to review and comment on the reports of Dr Coughlan dated 11 February 2020 (completed on 24 February 2020) and 21 June 2019, as well as the reports of Dr Bodel dated 26 September 2019 and 11 March 2020. In his report dated 11 May 2020,[33] Dr Casikar noted that both Dr Coughlan and Dr Bodel shared the view that the appellant required a spinal fusion in order to address the appellant’s degenerative disease in her back. He noted that there was a difference of opinion between the two experts as to which level should be fused. Dr Casikar remarked that the options were standard treatment for degenerative disease conditions in the back, but said it would be extremely difficult to accept that the need for surgery was necessary as a result of the work-related injury, given her symptoms were mainly due to degenerative disease. He added that the likely outcome for such surgery would be poor and cited the same reasons that he had put forward in his earlier report.
[33] Application to Admit Late Documents dated 20 May 2020, pp 1–2.

THE ARBITRATOR’S REASONS

The Arbitrator noted the issue for determination was whether the surgery proposed by Dr Coughlan was reasonably necessary. He described the circumstances of the injury and referred to the appellant’s continuing back pain since that day. The Arbitrator provided a summary of the treatment undertaken by Dr Varsani, Dr Coughlan and Dr Russo as well as the pain management intervention, psychological therapy and exercise physiology.
The Arbitrator took into account Dr Coughlan’s earlier opinion that surgery did not have a part to play in the appellant’s treatment and the reasons put forward by Dr Coughlan for subsequently considering a spinal fusion was reasonably necessary.
The Arbitrator considered the opinion of Dr Bodel and quoted a number of paragraphs in which Dr Bodel proffered and explained his view. He also considered the evidence of Dr Teychenné and Dr Mitchell, who he said were of the view that the appellant’s symptoms related to the central low back at the L4/5 and L5/S1 levels and the radiology disclosed an L4/5 disc protrusion with an annular tear. The Arbitrator further considered the opinion of Dr Bentivoglio that the appellant had pre-existing degenerative changes in the lumbar spine at the L4/5 level with facet joint changes at the L3/4 and L4/5 levels and to a lesser extent at the L5/S1 level, which were aggravated in the injury. The Arbitrator summarised the opinion of Dr Casikar. He further summarised the submissions of both parties.
The Arbitrator referred to and quoted from the decision of Diab v NRMA Ltd,[34] in which Roche DP set out the test for determining whether treatment was reasonably necessary. He noted that the appellant had submitted that the surgery was reasonably necessary because all other treatment regimes had failed, which the Arbitrator said was a submission frequently advanced and was the rationale put forward by Dr Coughlan.
[34] [2014] NSWWCCPD 72 (Diab).
The Arbitrator observed that Dr Coughlan had not indicated that he expected the surgery to be effective or to alleviate the appellant’s symptoms. The Arbitrator referred to Dr Coughlan’s initial view, expressed in his reports dated 11 April 2017 and 29 June 2017, that there was no role for surgical intervention. The Arbitrator further observed that the appellant continued to experience severe symptoms and underwent physiotherapy, hydrotherapy, and radiofrequency lesioning, all of which failed to improve her symptoms and yet Dr Coughlan still did not consider surgery to be a possible treatment. The Arbitrator said that instead, Dr Coughlan recommended radiofrequency denervation in March 2018, which did not occur until February 2019. He said Dr Coughlan first turned his mind to surgery in March 2019 as a “last resort,” and that the proposed surgery was a fusion at the L3/4 level.
The Arbitrator observed that while a potentially poor outcome from the surgery is not determinative of whether the surgery would be effective, the purpose of the treatment is to alleviate the injured worker’s suffering, and each case must be determined on its own facts. He reasoned that neither Dr Coughlan nor Dr Bodel put forward a convincing case that the surgery would have the potential to alleviate the appellant’s symptoms. The Arbitrator considered that, at its highest, Dr Coughlan’s evidence was that he had not come to the decision quickly or lightly, and that all other treatment had failed. The Arbitrator reasoned that the failure of past treatment was not of itself sufficient to show that the treatment was appropriate.
The Arbitrator referred to Dr Casikar’s view that psychological treatment was an alternative treatment option. He acknowledged that the appellant had undergone pain management with Dr Russo but said that further investigation of that treatment would be an alternative option. The Arbitrator noted that there were no submissions made about the cost of the proposed surgery.
The Arbitrator observed that it was not unusual for the medical experts to have differing opinions and so in those circumstances, “the medico-legal referee retained by the worker becomes of some relevance.”[35] The Arbitrator rejected the opinion of Dr Casikar that spinal fusion procedures have poor outcomes in a workers compensation “scenario” because it was not supported by any academic material or medical opinion.
[35] Young v Vietnam Veterans Keith Payne VC Hostel [2020] NSWWCC 217 (reasons), [112].
The Arbitrator reiterated that there was no evidence that the proposed surgery would have actual, or even potential, effectiveness. The Arbitrator reasoned that there was no unanimity between the medical professionals in the appellant’s case that the proposed surgery was appropriate or likely to be effective. The Arbitrator did not accept that Dr Bodel supported the opinion of Dr Coughlan in respect of the surgery being reasonably necessary.
The Arbitrator further reasoned that the evidence clearly pointed to the L4/5 disc as being abnormal, and Dr Bodel had diagnosed a disc rupture at that level which was causative of the injury. He said that the opinion was supported by the opinions of Dr Bentivoglio, Dr Teychenné and Dr Mitchell. The Arbitrator noted that Dr Bodel was concerned that Dr Coughlan was suggesting the fusion to be at the L3/4 level. The Arbitrator did not accept that Dr Bodel changed his opinion once he had been appraised of the explanation provided by Dr Coughlan. The Arbitrator indicated that Dr Coughlan had simply reiterated that the L3/4 level required surgery because it was “certainly” the main issue and was the pain generator on all of the scans. The Arbitrator considered that Dr Coughlan did not explain why he reached that conclusion. The Arbitrator did not accept that Dr Bodel was satisfied with Dr Coughlan’s explanation, despite having politely accepted it, when Dr Bodel maintained some caution about dealing only with the L3/4 level. The Arbitrator said that he considered Dr Bodel’s acceptance of Dr Coughlan’s recommendation was simply a professional courtesy and not an endorsement that the surgery was either appropriate or effective. The Arbitrator observed that in his first report, Dr Bodel had already cautioned against surgery to the L3/4 level without including surgery to the L4/5 level.
The Arbitrator said that, finally, it should be observed that the opinion of a medico-legal expert is to enable the expert to give an objective assessment of the party’s case and not to give “some context” to the treating doctor’s recommendation, as was submitted by the appellant. The Arbitrator concluded that Dr Bodel clearly disagreed with Dr Coughlan’s recommendation and as a consequence, the appellant had not discharged the onus of proving that the proposed surgery was reasonably necessary.
The Certificate of Determination issued on 1 July 2020 records:
“The Commission determines:
1.    The applicant was injured on 7 January 2016;
2.    The proposed surgery recommended by Dr Marc Coughlan on 27 June 2019 is not reasonably necessary.
The Commission orders:
3.     There is an award in favour of the respondent.”

GROUNDS OF APPEAL

The appellant brings four grounds of appeal, alleging the Arbitrator erred as follows:
(a) Ground One: error of fact in respect of the opinions expressed by Dr Coughlan and Dr Bodel in relation to the appropriateness of the treatment, thereby causing the Arbitrator to err in the application of the legal test under s 60(1) of the 1987 Act;
(b) Ground Two: error of fact in respect of the “unanimity” of the evidence;
(c) Ground Three: error of fact and law in respect of the availability of alternate treatment, by:
(i)failing to provide sufficient reasons to understand the basis of the determination or the determination itself;
(ii)making a finding overwhelmingly at odds with the weight of the evidence, and
(d) Ground Four: error of law in misapplying the correct test under s 60 of the 1987 Act.

LEGISLATION

Section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
…
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

SUBMISSIONS

Ground One: error of fact in respect of the opinions expressed by Dr Coughlan and Dr Bodel in relation to the appropriateness of the treatment, thereby causing the Arbitrator to err in the application of the legal test under s 60(1) of the 1987 Act

The appellant’s submissions

The appellant refers to the Arbitrator’s consideration of the opinion of Dr Coughlan, and the Arbitrator’s ultimate determination that Dr Coughlan had not:
(a) indicated that he expected the surgery to be effective or to alleviate the appellant’s symptoms, and
(b) made any convincing case that the surgery would alleviate and would have the potential to alleviate the appellant’s symptoms.
The appellant further refers to the passage from the Arbitrator’s reasons, in which the Arbitrator said:
“Whilst a potentially poor outcome from surgery is not necessarily a reason to doubt whether proposed treatment will be effective, as the overall purpose of medical treatment is to alleviate suffering, each case must be decided on its facts. Neither Dr Coughlan nor Dr Bodel has made any convincing case that the proposed surgery will alleviate, or have the potential to alleviate Ms Young’s symptoms. The highest the need for surgery has been put was that Dr Coughlan had not come to his decision quickly or lightly, but had recommended the surgery because of the failure of the previous conservative approaches. The failure of previous treatment is not of itself sufficient to establish that a particular treatment is appropriate.”[36]
[36] Reasons, [109].
The appellant submits that it was patently clear that from the outset, Dr Coughlan’s involvement in the treatment of the appellant was directed at alleviating the appellant’s chronic symptoms, improving her quality of life and achieving functional gains. The appellant says that Dr Coughlan made it clear that the proposed surgery was intended to achieve those outcomes, and, from the perspective of the treating neurosurgeon, surgical intervention was a worthy goal. The appellant points out that this view was shared by the treating general practitioner, Dr Varsani, who considered that without the spinal fusion, the appellant’s prognosis was poor.
The appellant asserts that Dr Coughlan confirmed his opinion that the procedure was the best measure available to address the appellant’s severe arthropathy at the L3/4 level, which was consistently shown to be the main pain generator. The appellant submits that the Arbitrator’s observation that Dr Coughlan’s opinion, “at its highest” was that the decision to perform surgery had not been arrived at quickly or lightly, and previous treatment options had failed, is a misrepresentation of Dr Coughlan’s evidence. The appellant asserts that Dr Coughlan’s actual opinion was that the surgery was the best option to address the severe arthropathy, thereby achieving functional gains and an improvement in the appellant’s quality of life.
Further, the appellant submits that the Arbitrator’s consideration of the evidence of Dr Coughlan failed to fairly represent the opinion of Dr Coughlan and so the Arbitrator committed an error of fact which in turn infected the Arbitrator’s findings at law.
The appellant refers to the Arbitrator’s consideration of the opinion of Dr Bodel and submits that the Arbitrator’s reasons were extremely brief in respect of his conclusion that neither Dr Coughlan nor Dr Bodel put forward a convincing case that the surgery would achieve the requisite outcomes. The appellant contends that the Arbitrator appeared to focus on the initial difference of opinion between the doctors as to which level of the spine should be the subject of the surgery. The appellant asserts that Dr Bodel supported the proposition that the surgery being offered was appropriate, despite his concerns in relation to the particular level recommended. The appellant contends that Dr Bodel confirmed his view in the final paragraph of his report dated 26 September 2019. The appellant says that after being appraised of Dr Coughlan’s explanation for the surgery, Dr Bodel issued his further report dated 11 March 2020, in which Dr Bodel accepted Dr Coughlan’s explanation and formed the view that the L3/4 surgical fusion was reasonably necessary. The appellant submits that the opinions of Dr Bodel as expressed in both his reports and the opinion of Dr Coughlan together support the proposition that the proposed surgery was appropriate.
The appellant contends that those opinions were supported by Dr Casikar’s evidence, in that Dr Casikar observed that the proposed treatment options were the standard form of treatment for degenerative disease in the lumbar spine. The appellant says that Dr Casikar’s issues with the proposed surgery were that the treatment was to alleviate the symptoms of the degenerative spine, which was not a workplace injury, and that spinal surgery in the workers compensation setting would not have a positive outcome.
The appellant submits that it is clear that there was no issue that surgery was the appropriate medical treatment which would alleviate, or potentially alleviate, the appellant’s symptoms and that it was the standard treatment for the appellant’s condition. The appellant concludes that the Arbitrator has misrepresented the opinions as they were in fact expressed.

The respondent’s submissions

The respondent refers to the Arbitrator’s determination that neither Dr Coughlan nor Dr Bodel had made a convincing case that the proposed surgery was reasonably necessary. The respondent submits that it was a matter for the Arbitrator to determine whether the evidence that appellant’s symptoms would be improved by the proposed surgery was convincing or otherwise. The respondent says that the Arbitrator gave his reasons at [104]–[109] and correctly pointed out that the failure of previous treatment is not, of itself, sufficient to establish that a particular treatment is appropriate.
The respondent submits that it is important to note that the particular intended surgery was an extreme lateral interbody fusion at the L3/4 level. The respondent says that the extract from Dr Coughlan’s explanation for the surgery provided by the appellant was incomplete. The respondent says that the complete explanation was:
“As I have said previously, the L3/4 level consistently came up as the main pain generator on all her scans.” (emphasis added by the respondent)
The respondent maintains that the statement by Dr Coughlan was incorrect in the light of Dr Bodel’s views that “all along the pathology appears to have been localised mostly at the L4/5 level and not at L3/4”. The respondent indicates that it also relies on its submissions made in respect of ground two to address this ground of appeal.
The respondent submits that the Arbitrator found that there was no convincing evidence that to treat L3/4 alone would benefit the appellant and, in fact, there was strong evidence to the contrary. In conclusion, the respondent submits that there was no error.

The appellant’s submissions in reply

The appellant asserts that the respondent’s submissions appear to rely upon an underlying assumption that the L4/5 disc was the abnormal disc, inferring that the L3/4 disc was not related to the appellant’s symptomology. The appellant says that the totality of the evidence makes it apparent that there was disc pathology at both levels and that the L3/4 level became the focus of medical intervention.
The appellant submits that the Arbitrator’s reasons at [104]–[109] clearly indicate that the Arbitrator determined that Dr Coughlan had not indicated that he expected the surgery to be effective or alleviate the appellant’s symptoms. The appellant maintains that the evidence shows that there was disc pathology at both levels and that, as the ongoing treatment progressed from January 2017 to 31 March 2019, the focus of that treatment was the L3/4 disc.
The appellant further submits that the respondent’s assertion that Dr Coughlan’s observation that all of the scans pointed to the L3/4 disc as the main pain generator was wrong as it is at odds with the investigations and treatment regime undertaken which led to Dr Coughlan’s conclusion.
The appellant submits that the respondent’s submissions do not engage with the appeal ground, that is that the Arbitrator failed to present the opinions in fact expressed and has thus fallen into error.

Ground Two: error of fact in respect of the “unanimity” of the evidence

The appellant’s submissions

The appellant refers to the Arbitrator’s determination that there was no unanimity in the appellant’s medical evidence that the surgery was appropriate or likely to be effective, where:
(a)    the evidence pointed to the L4/5 disc as being abnormal;
(b)    in his report dated 11 February 2020, Dr Coughlan merely reiterated that the main issue which required surgery was the L3/4 level of the spine, and
(c)    Dr Bodel did not support Dr Coughlan’s opinion.
The appellant submits that the Arbitrator dealt with the evidence in a cursory short paragraph and did not engage with the evidence in any meaningful way. The appellant asserts that the Arbitrator’s finding ignored the weight of the evidence that the appellant suffered from degenerative disease throughout the spinal canal and the L3/4 disc had been consistently recognised as having a significant abnormality. The appellant contends that, in arriving at that determination, the Arbitrator ignored:
(a)    the bone scan performed on 3 March 2017 and the MRI scan of the lumbar spine dated 15 April 2019;
(b)    the L3/4 level of the spine was identified by Dr Coughlan as having a potential role to play as early as 1 March 2017;
(c)    the appellant underwent radio frequency lesioning and subsequently bilateral facet joint denervation at the L3/4 level, the cost of which was met by the respondent, and
(d)    the appellant’s treating surgeon and general practitioner treated the appellant over a period of four years, which led to both doctors forming the view that the L3/4 level was the main pain generator in her condition.
The appellant submits that the Arbitrator, by ignoring that evidence, fell into error.
The appellant refers to the Arbitrator’s reasoning that Dr Coughlan “simply reiterated” that the L3/4 level of the spine was the main issue and required surgery was at odds with what in fact Dr Coughlan said in his report dated 11 February 2020. The appellant says that Dr Coughlan’s report provided a detailed overview of the treatment provided to the appellant and the path of reasoning, in which he set out:
(a)    how he became aware of the significant facet arthropathy at the L3/4 level;
(b)    how that pathology was ultimately identified as the main source of the appellant’s symptoms;
(c)    the course of the treatment regime, and
(d)    the outcomes to be achieved, namely reducing the appellant’s pain and giving her a better quality of life.
The appellant submits that Dr Coughlan made a clear attempt to outline his reasons for reaching his view and the Arbitrator’s conclusion that Dr Coughlan merely reiterated the views he had already expressed was at odds with that evidence and constituted error. The appellant adds that Dr Bodel’s change in view in his supplementary report supports the evidence of Dr Coughlan.
The appellant asserts that the Arbitrator’s reasoning that Dr Bodel was simply affording Dr Coughlan “professional courtesy” in his supplementary report was directly at odds with the comments made by Dr Bodel in that report. The appellant says that to describe Dr Bodel’s view as simply a matter of professional courtesy is a denial of procedural fairness in circumstances where “it reads into the report, and attributes to Dr Bodel, views that are not stated in the report itself by Dr Bodel.”[37] The appellant adds that to consider that an independent medical witness would simply accept another expert’s view as a matter of professional courtesy would be a breach of the expert’s code of conduct and would be inconsistent with the very nature of an independent expert report. The appellant submits that the Arbitrator erred in fact and law by importing such a concept into an expert report.
[37] Appellant’s submissions, [5.7].

The respondent’s submissions

The respondent submits that the reasons for Dr Bodel’s concern about the surgery proposed as expressed in his first report, which was produced after Dr Bodel had examined the appellant, were persuasive. The respondent refers to the appellant’s submission that the Arbitrator did not engage in a meaningful way with the evidence when he observed that there was a clear implication that the evidence indicated that the L4/5 disc was abnormal. The respondent contends that the appellant could not suggest that there was a lack of evidence that the L4/5 disc was abnormal. Further, the respondent points to Dr Bodel’s diagnosis of a disc rupture at the L4/5 level and asserts that Dr Bodel’s diagnosis was supported by his reasons, which included observations of the radiological investigations. The respondent indicates that the diagnosis was supported by Dr Bodel’s observation that:
“There is minor dehydration at the L3/4 level but again, the L4/5 level appears to be the most damaged disc. There is a facet joint arthritis at L3/4 on the left.” (emphasis added by the respondent)
The respondent also refers to the history recorded by Dr Teychenné that the appellant experienced pain across the L4/5 region on hip flexion and the evidence of Dr Teychenné that the MRI scan dated 23 February 2016 showed a T2 signal at the L4/5 level and a high intensity zone in the annulus. The respondent remarks that it is difficult to understand why the appellant considered that the Arbitrator was required to “make good” his conclusion that the L4/5 disc was abnormal.
The respondent submits that the lack of unanimity between Dr Coughlan’s views and those of Dr Bodel is clearly apparent, and it was correct for the Arbitrator to observe that Dr Bodel clearly disagreed with Dr Coughlan’s proposal. The respondent adds that, when Dr Bodel was asked by the appellant to review his opinion, he “accepted” Dr Coughlan’s explanation, but that there was a significant reservation to that acceptance.
The respondent asserts that a mere acceptance of an explanation does not remedy the absence of reasoning by Dr Coughlan. The respondent says the only reason put forward by Dr Coughlan was that the L3/4 level was shown on all of the scans as the main pain generator. Further, the respondent submits that Dr Coughlan did not offer any reason why the proposed surgery was isolated to the treatment of the L3/4 level. The respondent points out that this was the specific concern held by Dr Bodel. The respondent contends that both Dr Bodel and Dr Teychenné carefully reviewed the scans and did not interpret them in the manner suggested by Dr Coughlan, and nor did the radiologists’ reports of the scans themselves give that interpretation.
The respondent says that the appellant’s characterisation of Dr Coughlan’s second report as an “attempt” to provide the basis of his opinion was appropriate, but for reasons provided by the Arbitrator, the submission failed. The respondent contends that the Arbitrator’s categorisation of Dr Bodel’s opinion as a “professional courtesy” did not impact upon the Arbitrator’s reasoning process.
The respondent submits that the onus of proving that the proposed surgery was reasonably necessary rested on the appellant and the Arbitrator was required to determine whether that onus was satisfied. The respondent asserts that the Arbitrator observed that the failure of Dr Coughlan to justify his opinion could not be cured by Dr Bodel simply accepting the explanation by Dr Coughlan. The respondent contends that the appellant could not overcome the problems with the surgery identified by Dr Bodel, namely that:
(a)    the disc which actually appeared abnormal was the L4/5 disc;
(b)    the diagnosis was a rupture of the L4/5 disc, and
(c)    “all along” the pathology appeared to be mostly localised to the L4/5 level and not the L3/4 level.
The respondent refers to the appellant’s submission that the proposed surgery was supported by Dr Varsani, which indicated a concurrence between medical practitioners. The respondent submits, however, that in his referral of the appellant to the Hunter Pain Clinic on 18 April 2016, Dr Varsani described the MRI scan dated 7 January 2016 as showing an annular tear at the L4/5 level. Further, Dr Russo of the Hunter Pain Clinic reported that the appellant described central low back pain at about the L4/5 or L5/S1 segmental level.
The respondent contends that unanimity was not an expression used by the Arbitrator, but that, in any event there was a lack of unanimity in the appellant’s medical evidence, particularly in relation to the source of the appellant’s complaints of pain.

The appellant’s submissions in reply

The appellant submits that, for the purpose of clarity, her submission was that the totality of the evidence showed that the L3/4 disc was abnormal, in addition to the abnormality of the L4/5 disc. The appellant asserts that the respondent has failed to grapple with the point being made. That is, that there was ample evidence of disc pathology at the L3/4 level, and the Arbitrator did not engage with that evidence.
The appellant refers to the respondent’s reliance on the opinion of Dr Teychenné and contends that the respondent asserted that the Arbitrator was not required to provide adequate reasons, which the appellant says is wrong.
The appellant submits that the respondent’s submissions about the medical reports ignores the manner in which her treatment progressed.
The appellant also submits that the word “unanimity” is precisely the word used by the Arbitrator in his reasons.

Ground Three: error of fact and law in respect of the availability of alternate treatment, by

(a) failing to provide sufficient reasons to understand the basis of the determination or the determination itself

The appellant’s submissions

The appellant submits that, from the Arbitrator’s comments in relation to alternative treatment, it is difficult to understand what precisely the Arbitrator determined. The appellant reproduces the following relevant passage from the Arbitrator’s reasons:
“As to the availability of alternative treatment, I note the suggestion by Dr Casikar that psychiatric intervention should be considered. I note also that the applicant has been referred to psychologists as part of the pain management treatment by Dr Russo. However, in view of the intransigence of Ms Young’s condition, a further investigation of that modality of treatment might be a further option for alternative treatment. It is certainly true that the many forms of alternative treatment undertaken by Ms Young thus far have been unsuccessful.”[38]
[38] Reasons, [110].
The appellant asserts that the Arbitrator did not provide sufficient reasons for arriving at his determination. Further, the Arbitrator made no reference to, and disregarded, the abundant medical evidence as to, the significant treatment modalities which had been unsuccessful, following which surgery was considered to be the last option. Relying on Wingfoot Australia Partners Pty Ltd v Kocak,[39] Soulemezis v Dudley (Holdings) Pty Ltd[40] and Waterways Authority v Fitzgibbon,[41] the appellant submits that the Arbitrator was required to set out the actual path of reasoning that led to the decision in order for the parties to understand how the Arbitrator arrived at the result.
[39] [2013] HCA 43; 252 CLR 480.
[40] (1987) 10 NSWLR 247.
[41] [2005] HCA 57; 221 ALR 402.
The appellant contends that it is unclear precisely what findings the Arbitrator made, but if the finding was that there was some alternate treatment that may be available, the treatment was not identified or examined, and the Arbitrator did not point to the evidence that supported that conclusion. The appellant asserts that this is an error of law.

The respondent’s submissions

The respondent asserts that the word “intransigence” in the quote from the Arbitrator’s reasons has been mis-transcribed as “transience.” The respondent contends that, in any event, this appeal ground proceeds on the basis of a misapprehension that the Arbitrator’s determination was partly influenced by the availability of alternate treatment. The respondent contends that this is not the case and the Arbitrator’s final sentence at [110] of his reasons acknowledged that alternate treatment has not been successful. The respondent submits that the reason for the Arbitrator’s conclusion was that the failure of the alternative treatment of itself was not sufficient to justify the proposed surgery, which has not been shown to be beneficial.

The appellant’s submissions in reply

The appellant indicates that she relies on her submissions already made in respect of this ground of appeal.

Ground Three: error of fact and law in respect of the availability of alternate treatment, by

(b) making a finding overwhelmingly at odds with the weight of the evidence

The appellant’s submissions

The appellant submits that, if the finding was that there was some alternate treatment that may be available, then such a finding was contrary to the overwhelming weight of the evidence and was erroneous. The appellant says that the evidence of the treatment provided over a lengthy course clearly established that those treatment modalities were not successful and ultimately led to the conclusion that surgery was the last available option to address the appellant’s symptoms and functional limitations.
The appellant refers to the various therapies, programs and interventions provided to the appellant by her general practitioner, physiotherapist, psychologist, neurosurgeons and her pain management specialists. The appellant further refers to the ultimate conclusion reached by Dr Coughlan that because the appellant had tried and exhausted all conservative options, he did not believe there were any other alternatives to the proposed fusion. The appellant submits that this view was also expressed by Dr Varsani, who also indicated that the prognosis was unknown, but that he was hopeful that the surgery would lead to some improvement in the appellant’s pain and capacity for work.
The appellant contends that the Arbitrator’s finding was so against the weight of the evidence that it is plainly obvious that his discretionary judgment was not fairly or lawfully exercised, as expressed by Fleming DP in Knight v Eyles Nominees Pty Ltd /as Processed Forest Products[42] and Bryon DP in JD & PA Lowey v Campbell.[43]
[42] [2004] NSWWCCPD 73, [40].
[43] [2006] NSWWCCPD 248, [88].

The respondent’s submissions

The respondent submits that the appellant’s assertion that the Arbitrator fell into error by making findings against the weight of the evidence is not established because the Arbitrator did not make the finding suggested by the appellant.

The appellant’s submissions in reply

The appellant indicates that she relies on her submissions already made in respect of this ground of appeal.

Ground Four: error of law in misapplying the correct test under s 60 of the 1987 Act

The appellant’s submissions

The appellant points out that the Arbitrator referred to the decision in Diab when considering whether the surgery was reasonably necessary. The appellant agrees that Diab remains good authority for the statutory task of making such a determination. The appellant submits that, in accordance with Diab, the phrase “reasonably necessary” in s 60(1) of the 1987 Act does not mean “absolutely necessary,” and a range of different treatments may qualify as being reasonably necessary.
The appellant refers to the criteria set out in Diab, and says that, ultimately, whether the proposed treatment is reasonably necessary is to be determined on a case by case basis, and an arbitrator is required to exercise prudence, sound judgment and good sense, as discussed in Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee.[44] The appellant asserts that the Arbitrator “simplified” the argument put forward by her. The appellant submits that her argument was not simply that the surgery was appropriate because all other treatment failed. She says her submission was that the surgery was the only reasonably available option to try to alleviate her pain and improve her functional limits.
[44] [2012] NSWWCCPD 41, [67].
The appellant submits that, in the application of s 60 of the 1987 Act, the Arbitrator erred by:
(a)    mischaracterising the nature of the case she presented in evidence and submissions;
(b)    committing the factual errors outlined above in submissions relevant to the three grounds of appeal, which infected the Arbitrator’s application of Diab, and led the Arbitrator into legal error;
(c)    in his consideration of the evidence, failing to apply prudence, sound judgment, and good sense to determine whether the surgery should be undertaken;
(d)    treating each of the criteria in Diab as a pre-requisite to finding the treatment was reasonably necessary, when those matters which are relevant are descriptive, rather than prescriptive, and
(e)    failing to note that the respondent’s own medico-legal expert conceded that the proposed surgery was the standard form of treatment for the appellant’s condition (except in a workers compensation setting, which the Arbitrator rejected).

The appellant submits that the Arbitrator erred by determining that she had failed to meet her onus on the basis that Dr Bodel had disagreed with Dr Coughlan. The appellant submits that the Arbitrator erred by requiring complete unanimity between the treating surgeon’s recommendation and the appellant’s medico-legal expert, and by disregarding Dr Bodel’s ultimate conclusion. The appellant contends that, by requiring such unanimity, the Arbitrator placed a higher onus on her.
The appellant says that for the purpose of s 60, she was required to demonstrate, on the basis of the totality of the evidence, that there was a reasonable chance of a successful outcome and that it was better for her to have the surgery than not. The appellant contends that a divergence of opinion between the treating surgeon and a medico-legal expert in relation to the precise nature of the surgery does not, of itself, disqualify her from meeting her onus.
The appellant asserts that in his report dated 11 March 2020, Dr Bodel accepted Dr Coughlan’s recommendation of an L3/4 fusion and said that such treatment was reasonably necessary for the management of the appellant’s injury. The appellant submits that the Arbitrator’s reasoning that Dr Bodel’s evidence was at odds with that of Dr Coughlan does not justify the onus placed on the appellant by the Arbitrator.
The appellant submits that for the above reasons, the Arbitrator fell into error.

The respondent’s submissions

The respondent submits that the Arbitrator did not mischaracterise the appellant’s case by observing that the appellant had argued that the proposed treatment was appropriate because all other treatment modalities failed. The respondent points to the transcript, which shows that the appellant advanced the argument that the failure of all other treatment was a reason to conclude that the proposed surgery was reasonably necessary. The respondent submits that the Arbitrator acknowledged that argument at [104] of his reasons, but then went on to correctly note that the references to the surgery being a “last resort” were an acknowledgment that the surgery was “fraught with the risk of a potentially poor outcome.”[45]
[45] Respondent’s submissions, [60].
The respondent contends that the risk of a poor outcome made the proposed surgery a last resort and that risk made it crucial to justify the recommendation for a fusion at a different level of the spine to the level which was the site of the injury and the appellant’s complaints. The respondent refers to the evidence of Dr Russo, Dr Teychenné and Dr Bodel to that effect. The respondent says that the justification for the surgery was absent or, at best, unconvincing.
The respondent refers to the appellant’s submission that the Arbitrator’s factual errors infected his analysis of the test in Diab and says it is difficult to understand that concept. The respondent points out that the Arbitrator noted that both parties agreed that the indicia in Diab was relevant, and he considered the five indicia suggested in that decision, which were consistent with those set out by Burke CCJ in Rose v Health Commission of NSW.[46] The respondent submits that the Arbitrator acknowledged that matters relevant to the issue were not limited to those five indicia, but appropriately considered each of those indicia which had been the subject of submissions before him.
[46] [1986] NSWCC 2; 2 NSWCCR 32.
The respondent further refers to the Arbitrator’s observation that neither Dr Coughlan nor Dr Bodel made a convincing case that the surgery would alleviate or have potential to alleviate the appellant’s symptoms, which the respondent submits is a critical observation. The respondent submits that it is quite apparent that the Arbitrator was troubled by the assertion that it would be beneficial for the appellant to undergo the particular surgery. The respondent asserts that the Arbitrator was obliged to consider whether the evidence from the doctors was convincing in respect of the potential benefit from the surgery and provided a well-reasoned conclusion that the evidence was unconvincing. The respondent says that the Diab analysis was not “infected.”
The respondent submits that the allegation that the Arbitrator failed to apply prudence, sound judgment and good sense when weighing the evidence should be rejected. The respondent says that the Arbitrator noted that he was invited to apply the principles in Bielecki v Rianthelle[47] and in Diab, and there is no justification for the proposition put by the appellant.
[47] [2008] NSWWCCPD 53.
The respondent points to the appellant’s assertion that the Arbitrator treated the indicia in Diab as pre-requisites and contends that there is no justification for that assertion either. The respondent submits that the Arbitrator specifically noted that the criteria were relevant but not exhaustive.
The respondent notes the appellant’s assertion that the Arbitrator failed to take into account that Dr Casikar considered the proposed surgery was an accepted, standard form of treatment for degenerative disease in the lumbar spine. The respondent submits that the Arbitrator, at [109] of his reasons, acknowledged that spinal surgery was, in some cases, an accepted standard form of treatment for that condition.
The respondent contends that the appellant has avoided the central issue in the case, which was that the Arbitrator was not convinced that the proposed treatment would be beneficial for the appellant. The respondent says that the Arbitrator gave clearly articulated reasons for coming to that conclusion. That is, there was cogent evidence before him that there were serious concerns about that treatment, which had not been addressed or countered by the treating surgeon.
The respondent submits that the assertion that the Arbitrator considered that complete unity between the surgeons was a requirement is incorrect. The respondent asserts that it is apparent that the Arbitrator did not state such an onus or proceed on the basis of such an onus. The respondent submits that the Arbitrator considered that Dr Coughlan’s opinion could not be endorsed by Dr Bodel’s evidence because Dr Bodel had concerns about the level of the spine that was to be addressed. The respondent contends that Dr Bodel expressed the same concern in his second report. The respondent submits that, in observing that Dr Bodel disagreed with Dr Coughlan’s proposal and thus the appellant had failed to discharge her onus, the Arbitrator was speaking of the conflict in the evidence between purporting to support the particular treatment option but casting doubt on the wisdom of that treatment path.
The respondent concludes that the Arbitrator did not err in fact or in law.

The appellant’s submissions in reply

The appellant submits that the respondent has repeated the Arbitrator’s error in respect of the characterisation of her case and explains that her case was founded upon her significantly debilitating pain and discomfort, her significant loss of function and the failure of the non-surgical approach.
The appellant maintains that the Arbitrator, in saying that the highest the appellant’s case reached was that Dr Coughlan had not come to his decision lightly or quickly, ignored Dr Coughlan’s opinion that the aim of the surgery was to:
(a)    significantly reduce the appellant’s pain;
(b)    give the appellant a better quality of life, and
(c)    obtain functional gains for the appellant.
The appellant asserts that the respondent has failed to engage with the Arbitrator’s reasoning, in which the Arbitrator determined that because Dr Bodel clearly disagreed with Dr Coughlan’s proposal, the appellant has failed to discharge her onus. The appellant refers to the respondent’s assertion that the Arbitrator’s finding was supported by all of the evidence before him. The appellant maintains that this submission ignores the fact that the Arbitrator’s finding that Dr Bodel disagreed with Dr Coughlan was incorrect because Dr Bodel’s view was to the contrary. Further, the Arbitrator did not refer to any other evidence when he determined that because of that disagreement, the appellant was unable to satisfy her onus.

RELIEF SOUGHT

The appellant seeks to have the Arbitrator’s Certificate of Determination revoked and the matter remitted to another arbitrator for re-determination. The respondent does not seek any orders.

DISCUSSION

An appeal from a decision of an Arbitrator to a Presidential member is limited to the identification of error of either fact, law or discretion and to the correction of such error.[48]
[48] Section 352(5) of the 1998 Act.
It is clear that the issue in this matter turns upon whether the particular surgery, namely a spinal fusion at the L3/4 level, is reasonably necessary. As is not uncommon in cases such as this, there is a divergence of medical opinion, as to whether the particular surgery is reasonably necessary to address the pathology in the appellant’s lumbar spine that is causative of the appellant’s symptoms. It was certainly a live dispute as to whether the appellant’s symptoms were mainly emanating from the L3/4 level of her spine or whether the culprit was the pathology identified at the L4/5 level, or both. The Arbitrator’s task was to evaluate that evidence in order to reach a factual conclusion as to whether he was satisfied that the surgery proposed was reasonably necessary. The Commission has often discussed and applied the principles that apply to an appeal from an Arbitrator’s factual determination. As summarised by Roche DP in Raulston v Toll Pty Ltd:[49]
(a)    an arbitrator’s preference for one view of facts over another will not be disturbed on appeal unless other probabilities so outweigh the view taken by the Arbitrator that the arbitrator’s conclusion must be wrong;
(b)    an arbitrator’s finding of fact must be displaced before an inference drawn from those facts can be set aside;
(c)    if it can be shown that material facts were overlooked, given undue weight or given too little weight in deciding the inference to be drawn, it may show that the Arbitrator was wrong, or,
(d)    if, on the evidence, the opposite inference was so preponderant, then the Arbitrator must be wrong.[50]
[49] [2011] NSWWCCPD 25; 10 DDCR 156.
[50] Raulston, [19].
If a choice between conclusions is finely balanced and equally open to the Arbitrator, the Presidential member will not interfere merely on the basis that it preferred a different outcome.[51] Further, any error on the part of an Arbitrator must have affected the outcome before a Presidential member can intervene.[52]
[51] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 per Allsop J (as his Honour then was) (Drummond and Mansfield JJ agreeing), [28].
[52] Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 cited in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, [110].
The above principles were considered applicable to appeals from an Arbitrator’s decision to a Presidential member by the Court of Appeal in Northern NSW Local Health Network v Heggie[53] and Workers Compensation Nominal Insurer v Hill.[54] The appellant is therefore required to establish error of the kind described in order to disturb the Arbitrator’s factual conclusions.
[53] [2013] NSWCA 255, per Sackville AJA, [70]–[72].
[54] [2020] NSWCA 54, per Basten JA, [17]–[18].
The matters relevant to a consideration of whether treatment is “reasonably necessary” were set out by Burke CCJ in Rose as follows:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”[55]
[55] Rose, 48A–C.
Deputy President Roche applied Burke CCJ’s criteria in Diab, but also made the following observation (citations omitted):
“While the above matters are ‘useful heads for consideration,’ the ‘essential question remains whether the treatment was reasonably necessary.’ Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not.”[56]
[56] Diab, [90].
There was no dispute between the parties that the principles in Diab and Rose apply to this case.

The errors identified by the appellant in respect of this ground are that the Arbitrator misrepresented the opinions of Dr Bodel and Dr Coughlan by:
(a) concluding that neither Dr Bodel nor Dr Coughlan provided convincing evidence that the proposed surgery would alleviate, or potentially alleviate, the appellant’s symptoms, and
(b) considering that Dr Coughlan’s evidence, at its “highest,” was that the decision had not been arrived at easily and all previous options had failed.
In his report dated 11 February 2020, Dr Coughlan provided the following reasons as to why the proposed surgery was reasonably necessary:
“Firstly, I do believe the surgery is deemed reasonable and necessary to treat her work related condition. I have recommended an L3/4 lateral fusion with posterior screws. As I have said previously, the L3/4 level consistently came up as the main pain generator on all her scans. We have tried conservative measures without any effect. In my opinion, I believe the procedure will best address the severe arthropathy at L3/4. [The appellant] continues to struggle and has not progressed. I feel it would be most certainly worthwhile pursing the surgery with the aim of significantly reducing [the appellant’s] pain so she can have a better quality of life.”[57]
[57] ARD, p 68, [9].
Earlier in the same report, Dr Coughlan set out the treatment path, commencing with a bone scan investigation of the appellant’s lumbar spine, which disclosed, among other pathology, bilateral inflamed L3/4 facet joints. Dr Coughlan directed treatment to the facet joints. He described the appellant’s quality of life as “very poor,” said that the appellant had been in pain since 2016 and was attempting to walk in order to prepare for the surgery. Dr Coughlan clearly expressed the view that the surgery was certainly worthwhile and was intended to significantly reduce the appellant’s pain and improve her quality of life.
The Arbitrator’s reasons did not “misrepresent” the evidence of Dr Coughlan. The Arbitrator quoted the above passage from Dr Coughlan’s report before proceeding to determine whether he could accept that evidence. In the context of Dr Bodel having maintained a “note of caution about dealing with the L3/4 level only,”[58] the Arbitrator concluded that:
“Neither Dr Coughlan nor Dr Bodel has made any convincing case that the proposed surgery will alleviate, or have the potential to alleviate, Ms Young’s symptoms.”[59]
[58] Reasons, [54].
[59] Reasons, [109].
In other words, having acknowledged that Dr Coughlan said that the surgery could likely reduce the appellant’s pain, the Arbitrator was not convinced by Dr Coughlan’s evidence that the surgery had the potential to alleviate the appellant’s symptoms. The Arbitrator was not satisfied that Dr Coughlan’s opinion in that regard should be accepted.
The Arbitrator impliedly accepted that the appellant’s past treatment had failed and considered that further psychological intervention might be an option but had not assisted in the past. He concluded that the only established reasons for performing the surgery were that Dr Coughlan had not come to the decision quickly or lightly, and that all other treatment had failed. In the context of having rejected the proposition that the surgery would potentially relieve the appellant’s symptoms, there was no error in the Arbitrator describing the appellant’s case as being, at its highest, that the decision had not been made quickly or lightly, and all other treatment had failed.
Dr Varsani’s opinion goes no further than the accepted evidence of Dr Coughlan. Dr Varsani did not address the fundamental issue in this case, which was whether the surgery performed should solely involve the L3/4 disc.
It follows that this ground of appeal fails.

Ground Two: error of fact in respect of the “unanimity” of the evidence

Firstly, the appellant contends that the Arbitrator’s conclusion that Dr Bodel did not support the opinion of Dr Coughlan was wrong. Part of the appellant’s complaint is that the Arbitrator categorised Dr Bodel’s acceptance of Dr Coughlan’s explanation for the surgery as a “professional courtesy.” I do not accept that describing Dr Bodel’s acceptance of the opinion in that manner amounts to error. Dr Bodel merely expressed an acceptance, which was in the context of maintaining some caution for the surgery as proposed. His evidence did not go so far as to say, in any reasoned way, that he was of the view that the surgery was appropriate or that it would have the potential to alleviate the appellant’s symptoms. That the Arbitrator was unconvinced that Dr Bodel’s evidence supported the proposition that the surgery could alleviate the appellant’s pain is not surprising, given that Dr Bodel did not proffer a view on that possibility.
Secondly, the appellant asserts that the Arbitrator did not deal with the evidence in any meaningful way in coming to his conclusions that:
(a)    Dr Bodel did not support Dr Coughlan’s opinion;
(b)    Dr Coughlan merely reiterated his opinion that the main issue was the L3/4 level of the spine, and
(c)    the evidence pointed to the L4/5 disc as being abnormal.
This submission cannot be accepted. The Arbitrator extensively reviewed the reports of Dr Coughlan at [21] to [42] and Dr Bodel at [43] to [54]. The Arbitrator also reviewed the evidence from Dr Teychenné and Dr Mitchell, who recorded the appellant’s pain as coming from the central low back at the L4/5 and L5/S1 levels. Additionally, the Arbitrator summarised the evidence of Dr Bentivoglio and noted that Dr Bentivoglio diagnosed that the appellant had aggravated the degenerative changes at the L3/4, L4/5 and L5/S1 levels of the lumbar spine. The Arbitrator referred to that evidence in concluding that “[t]he evidence clearly indicates the implication of the L4/5 disc as being abnormal.”[60] The Arbitrator’s conclusion was, therefore, that the disc at the L4/5 level was implicated in the appellant’s symptomology. That conclusion was supported by all of the evidence reviewed by the Arbitrator, with the exception of Dr Coughlan. It should be noted that the Arbitrator did not make a finding that the L4/5 disc was the only level causing the appellant pain.
[60] Reasons, [115].
The Arbitrator’s reference to there being no “unanimity” in the appellant’s medical case was simply an observation that there was no agreement amongst the medical experts, particularly between Dr Bodel and Dr Coughlan, that the proposed surgery to the L3/4 level alone was the appropriate treatment to address the appellant’s symptoms. That observation was undoubtedly correct in the context of Dr Bodel having preserved his reservations about excluding the L4/5 disc in the surgical procedure. The Arbitrator was clearly looking for some corroborative evidence to support Dr Coughlan’s opinion.
The appellant further submits that the Arbitrator erred by considering that Dr Coughlan had “merely reiterated” his view that the L3/4 level of the spine was the main issue. Dr Coughlan did not provide any reasons as to why the L4/5 level disc abnormality was not being addressed by the surgery, despite Dr Bodel having opined that the additional disc should be included. In that sense, Dr Coughlan’s reason that the L3/4 level of the spine was the main issue and required surgery was, in fact, a reiteration of his view already expressed when he turned his mind to surgery on 31 March 2019. The appellant’s submission does not establish error on the part of the Arbitrator.

For those reasons, this ground of appeal fails.

Ground Three: error of fact and law in respect of the availability of alternate treatment, by

(a) failing to provide sufficient reasons to understand the basis of the determination or the determination itself, and

(b) making a finding overwhelmingly at odds with the weight of the evidence

The appellant submits that, if the Arbitrator made a finding that there was some alternate treatment that may be available, then he did not provide sufficient reasons for that conclusion, such a finding was contrary to the overwhelming weight of the evidence and was erroneous. The Arbitrator reasoned:
“As to the availability of alternative treatment, I note the suggestion by Dr Casikar that psychiatric intervention should be considered. I note also that the applicant has been referred to psychologists as part of the pain management treatment by Dr Russo. However, in view of the intransigence of Ms Young’s condition, a further investigation of that modality of treatment might be a further option for alternative treatment. It is certainly true that the many forms of alternative treatment undertaken by Ms Young thus far have been unsuccessful.”[61]
[61] Reasons, [110].
I do not accept that the Arbitrator went so far as to conclude that there was alternate treatment available. The Arbitrator expressed his view that psychological treatment might be an option, but then acknowledged that it had been unsuccessful in the past. The basis upon which the Arbitrator determined that the proposed surgery was not reasonably necessary was that he was not satisfied that the surgery would alleviate, or have the potential to alleviate, appellant’s symptoms.
It follows that Ground Three of the appeal is not made out.

Ground Four: error of law in misapplying the correct test under s 60 of the 1987 Act

The appellant contends that, because the Arbitrator made the factual errors alleged in the first three grounds of appeal, he erred in law by failing to apply prudence, sound judgment and good sense, as required by Diab. The appellant asserts that the Arbitrator “simplified” her case by reducing it to a proposition that the surgery was appropriate because all other treatment failed. The Arbitrator did not do so. The Arbitrator’s reasons disclose that he considered the evidence of Dr Coughlan that the intention of the surgery was to alleviate the appellant’s symptoms and found that evidence not convincing and not corroborated by other evidence. I have discussed in Ground One of the appeal the Arbitrator’s conclusion that, at its highest, the decision to perform the surgery was not made lightly or quickly and all other treatment had failed. For the reasons set out under that ground, the Arbitrator did not err in so concluding.
The Arbitrator did not treat each of the criteria in Diab as “pre-requisites.” He considered the criteria in the context of the evidence before him and was not satisfied that the failure of past treatment and that the decision was not made hastily or without due consideration were sufficient reasons to say that the proposed surgery was reasonably necessary. That was a determination of fact and it was open to the Arbitrator to conclude accordingly.
The appellant asserts that the Arbitrator failed to take into account that the respondent’s medico-legal expert, Dr Casikar, conceded that the type of surgery proposed was the standard form of treatment for a degenerative back condition. As the respondent submits, the Arbitrator acknowledged that spinal surgery was, in some cases, an accepted form of treatment. As Dr Casikar was the only expert to offer that opinion, it is clear that the Arbitrator took into account that evidence. In any event, Dr Casikar’s opinion in that regard does not assist the appellant. A general view that spinal surgery is an accepted form of treatment does not address the reasonableness of performing surgery to one level of the spine over another, or without the other. The concern expressed by Dr Bodel was that consideration should be given to fusing both levels of the spine. In those circumstances, even if the Arbitrator had failed to consider that evidence from Dr Casikar, the error would not have affected the outcome of this case.
In any event, the Arbitrator did not make the factual errors alleged, which is sufficient to dispose of this ground of appeal. It follows that Ground Four of the appeal also fails.

CONCLUSION

The appellant has failed to establish error on the part of the Arbitrator and the Arbitrator’s Certificate of Determination is confirmed.

DECISION

The Arbitrator’s Certificate of Determination dated 1 July 2020 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

19 November 2020