Surgery not ‘reasonably necessary’ because it is a ‘last resort’

Donelle Young v Vietnam Veterans Keith Payne VC Hostel [2020] NSWWCC 217

Ms Young injured her back in the course of her employment as an Assistant in Nursing.

Material Facts

She sought a Declaration pursuant to Section 60(5) of the Workers Compensation Act 1987 (‘the 1987 Act’) that the proposed surgery constituted reasonably necessary treatment for an injury sustained in the course of her employment.

Arbitrator John Wynyard heard the matter in the Workers Compensation Commission. In summary, the Applicant argued that the surgery proposed by Dr Coughlan was appropriate as all other treatment modalities had failed. The Respondent relied upon its medical evidence, including the report of Dr Bodel, who had expressed doubt as to the utility of the proposed surgery in improving the Applicant’s condition.

Relevant law

Section 60 of the 1987 Act provides:

• 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

Arbitrator Wynyard summarised the Applicant’s position, being that the proposed procedure is appropriate as all other treatments have failed. He observed this to be a ‘justification which is advanced often to rationalise what is usually an invasive surgical intervention, which is not without significant risk…’ and noted that this was clearly the basis upon which Dr Coughlan was proceeding.

The Arbitrator went on to note that the Applicant had undergone a number of treatments with Dr Coughlan from 2017 to 2019.

During that time, Dr Coughlan repeatedly indicated that he did not consider surgical treatment to be an option. It was not until March 2019 that Dr Coughlan turned his mind to the question of whether surgery was worthwhile as a ‘last resort’.

Helpfully, Arbitrator Wynyard noted that ‘[w]hilst 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.’ He observed that neither Dr Coughlan nor Dr Bodel had made a convincing case that the proposed surgery would alleviate the Applicant’s symptoms. The Arbitrator considered that ‘[t]he failure of previous treatment is not of itself sufficient to establish that a particular treatment is appropriate.’ Arbitrator Wynyard concluded that Dr Bodel did not agree with Dr Coughlan’s proposal, and consequently the Applicant had been unable to prove that the proposed surgery was reasonably necessary.

The Implications

Surgical treatment will not be considered ‘reasonably necessary’ purely on the basis that all other treatment options have been exhausted. Even where surgery is proposed as a ‘last resort’, the worker must establish that the surgery is reasonably necessary.

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