Is surgery reasonably necessary?

McMillan v Budage Pty Ltd [2020] NSWWCC 178

The issue in these proceedings was whether the proposed surgery was reasonably necessary as a result of the injury sustained in June 1997.

Material facts:

The Applicant in this matter injured her lumbar spine on her way to work in June 1997. Liability for the injury was accepted. She came under the care of Dr Terence Hillier, who referred her to his colleague Dr Nair to explore surgical options in 2019. Dr Nair recommended that she undergo L4/5 and L5/S1anterior lateral interbody fusion. The Respondent declined to pay for the surgery. The issue in these proceedings was whether the proposed surgery was reasonably necessary as a result of the injury sustained in June 1997.

Relevant law:

Section 60 of the 1987 Act relevantly provides as follows

•  If, as a result of an injury received by a worker, it is reasonably necessary that:
  • any medical or related treatment (other than domestic assistance) be given, or
  • any hospital treatment be given, or
  • any ambulance service be provided, or
  • any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

The question as to whether treatment is reasonably necessary is to be answered by reference to case law, in particular the decision in Diab v NRMA Ltd [2014] NSWWCCPD 72. In that case at [88] DP Roche stated that the matters for consideration include but are not limited to the following:

• the appropriateness of the particular treatment;
• the availability of alternative treatment, and its potential effectiveness;
• the cost of the treatment;
• the actual or potential effectiveness of the treatment, and
• the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

Determination/ Reasons:

The matter came before Arbitrator Rachel Homan in the Workers Compensation Commission. The Arbitrator noted that an unusual feature in this case was the lack of a detailed explanation from Dr Nair as to the basis upon which he had recommended the surgery. The only evidence from Dr Nair was a request for approval and a brief series of answers to questions posed by the Respondent’s insurer.

The Arbitrator accepted the Respondent’s submission that the evidence form Dr Nair failed to address many of the considerations ordinarily taken into account in determining whether proposed surgery is reasonably necessary.

The Arbitrator made a number of observations regarding the strength of the Applicant’s evidence, which we summarise as follows:

• Dr Nair had indicated that he had not identified any ‘non-compensable factors’ impacting the Applicant’s pathology; however, he gave no explanation or indication of his understanding of what might be considered a ‘non-compensable factor’.
• There was no indication in the evidence as to the history provided to Dr Nair, the investigations he considered, the other medical evidence he considered, whether he examined the Applicant, or his findings on examination.
• Dr Nair had not explained why he considered the purpose and potential effect of the surgery was to alleviate the consequences of injury and there was no explanation as to why the treatment was considered appropriate, whether alternative treatments were available or as to the likelihood of functional improvements being realised.
• There was evidence that the Applicant had consulted Dr Nair again after he had recommended the surgery, and on the later occasion he had ordered updated imaging (a discogram). This was not approved and did not proceed, and there was no evidence from Dr Nair as to whether he continued to recommend surgery in the absence of updated imaging.
• There was evidence from another treating specialist, Dr Hillier, in support of the surgery. Dr Hillier had treated the Applicant for a number of years and had previously recommended surgery (of a different kind) in 2007. The Arbitrator noted that Dr Hillier did not, in his recent reports, engage with the ‘significant body of evidence’ which suggested a psychological element to the Applicant’s pain.

The Applicant did not qualify an IME to provide an opinion on her behalf. The Respondent obtained an IME opinion from Dr Stenning, who did not consider the surgery to be reasonably necessary.

The Arbitrator ultimately accepted that the Applicant had disc pathology at L4/5 and L5/S1 which was symptomatic, and she also accepted that conservative treatment had been unsuccessful. However; this was not sufficient to establish that the proposed surgery was reasonably necessary. She noted the Applicant might proceed to obtain further evidence from Drs Nial or Hillier, or from an IME, which would be sufficient to discharge her evidentiary onus; however, on the available evidence the Arbitrator was not satisfied that the proposed surgery was reasonably necessary.

The implications:

This case provides a good example of the practical application of the matters identified in Diab, which are used to determine whether proposed surgery is reasonably necessary. A key factor which will be considered by an Arbitrator is whether the treating surgeon has provided an explanation as to why the surgery is reasonably necessary given the history of injury, findings on examination, radiological findings and the likelihood of functional improvements. Where there is evidence from other treating practitioners that the condition might not require such surgery (ie. where there are psychological factors at play), it may be necessary for the surgeon to address those opinions in their reports.

Should you have any questions about a particular workers compensation matter, please telephone our workers compensation team on either 4929 9333 or 8297 5900.