Sutton and Telstra Corporation Limited [2011] AATA 419 (1 June 2011)

Last Updated: 23 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2538 & 2011/1760

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOHN SUTTON

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe Associate Professor J B Morley RFD, Member

Date 1 June 2011

Place Brisbane

Decision

The Tribunal decides that the decision under review is set aside and decides in substitution that it is reasonable for the employee to undergo surgery for L4/L5-S1 instrumented fusion and foraminal decompression.

.....................[SGD].........................
Senior Member

CATCHWORDS

COMPENSATION — whether the treatment is reasonable — instrumented fusion — foraminal decompression — physical pain — psychiatric condition — decision set aside

Safety Rehabilitation and Compensation Act, s 16

REASONS FOR DECISION

1 June 2011

Senior Member Bernard J McCabe Associate Professor J B Morley RFD, Member

THE FACTUAL BACKGROUND

1. The Tribunal delivered oral reasons for its decision at the conclusion of the hearing in this matter. One of the parties subsequently requested that we provide written reasons for our decision. These reasons have been prepared based on the transcript of the hearing.
2. Mr Sutton experiences pain in his lower back and his leg. That condition is the product of a previously accepted workplace injury that has also contributed to the development of a psychiatric condition. Mr Sutton has been to see a number of doctors. Earlier surgery was unsuccessful. More recently, he has seen Dr Gatehouse, an orthopaedic surgical specialist, who recommended in 2008 that the applicant undergo an L4/L5-S1 instrumented fusion and foraminal decompression. Telstra initially agreed to meet the cost of that treatment pursuant to section 16 of the Safety Rehabilitation and Compensation Act. The applicant decided against the procedure at that point as he wanted to trial more conservative treatment, including a gym program. The conservative approach apparently did not work, and the applicant now wishes to proceed with the surgery. But things have changed from Telstra’s point of view and it now says it should not pay for the procedure under section 16.
3. Telstra appears to have changed its mind because medical experts who saw the applicant in August 2009 in particular noted what one of them described as “abnormal pain behaviour”. Doctors Gibberd and Keays, who are both sceptical about spinal surgery of the kind contemplated in this case, formed the view that the prospects of success were even lower than they might otherwise be because of the abnormal pain behaviour brought on by psychosocial factors.
4. We say at once that we generally prefer the evidence of Doctor Gatehouse and Professor Steadman in relation to the procedure in question because they are the best qualified experts in the field. They have extensive recent experience of this kind of surgery. But we acknowledge that the observation of Doctors Gibberd and Keays in relation to abnormal pain behaviour is important for the purposes of the assessment we have to make under section 16.
5. Section 16 sub (1) provides:

Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

6. We do not propose to elaborate on the meaning of the word “reasonable”. It is a plain English word. The meaning is clear enough. We would only say that a course of action does not become unreasonable merely because reasonable people disagree about whether it should be attempted. The important thing from our point of view is that what is reasonable must be judged having regard to all the relevant circumstances. In this case, those circumstances included, but are not limited to:
   • the applicant’s age and physical condition;
   • his mental health and other psychosocial factors that might reduce his chances of a successful outcome (in this regard we note Dr Slack’s opinion that Mr Sutton’s mental health is intimately connected to the level of pain so that, in Dr Slack’s opinion, he is unlikely to improve his mental health – or he is unlikely to improve his mental health without addressing the physical pain);
   • the amount of time he has been out of the workforce and experiencing the condition because, as Dr Gibberd says (and Professor Steadman appeared to agree) pain can become ingrained over a long period of time: it becomes part of the person;
   • alternative treatments that might be available to the applicant (we note the medical evidence suggests the applicant has tried most conventional therapies without success. We note a suggestion that a pain management program might be of some assistance. The applicant has been trialled on some drugs which are yet to bear fruit. But that pain management program is on hold, depending on the outcome of these proceedings);
   • the fact he has had two previous operations in 1991 and 1994 at the
     L5-S1 intervertebral disk level, which is one of the two levels proposed to be involved in the complex subject orthopaedics spinal procedure;
   • the prospect that something might go wrong with the surgery or the recovery, like the infection that occurred last time;
   • concerns about some of the technical aspects of the operation: for example, the prospect that a two level fusion might lead to complications elsewhere in the spine.
7. These are all factors that must be considered when a decision is made whether or not it is reasonable to undertake the treatment. That leads us to a discussion of medical evidence. There were a number of medical experts called and a good deal of documentation provided to the tribunal.

MEDICAL EVIDENCE

8. We have framed the comments in the traditional parsonic three components. We looked at the logical arguments for the performing of this kind of procedure in conjunction with the medical advisability of it in the circumstances and we exchanged numerous questions with some of the experts.
9. We must deal specifically and separately with both the left leg nerve root pain and the back pain, as Dr Gatehouse suggests. We will deal with the left leg nerve root pain first. The particular issue of concern was the likelihood that the left S1 nerve root was already to an extent damaged by the two previous operations and that in itself could cause this condition of arachnoiditis. It is not an ongoing condition. It simply means that there is a scarring of the nerve root, but it makes that nerve root more sensitive and more vulnerable if there is any inadvertent additional surgical handling of the nerve root.
10. The other matter apart from the arachnoiditis scarring was the open question whether the infection that followed the 1994 laminectomy performed by Dr Morris might also have resulted in an inflammation, not only of that left S1 nerve root but other nerve roots actually contained within the spinal space. A number of our questions, particularly to Professor Steadman, were addressed to whether the “golden staph”, or to give it its technical term, the Staphylococcus aureus infection, might have actually produced some internal effect of that nature, although it would appear that the staphylococcal infection itself was located outside of that spinal space. The conclusion that we have come to is, on the basis of evidence that we have heard, that the presence of arachnoiditis scarring, at least as far as the left S1 nerve root is concerned, cannot be excluded. Indeed there appears to be some evidence for that on the MRI scans. However, on discussing the various technical issues, particularly with Professor Steadman, it does appear that the risks of such arachnoiditis scarring being present appear to be acceptably low.
11. With regard to the other form of pain, the back pain, it has been of interest to us that over the period of Mr Sutton’s history from this injury, attention has gradually shifted from the original injury at the L5-S1 intervertebral disc, to more recently, the next disc above, ie the L4-5 intervertebral disc. This has been illustrated on two grounds.
12. First, it is evident in the more recent MRI scans that such changes have occurred. This does not mean to say that things have settled down at the L5-S1 level (the original level); it just means that the L4-5 intervertebral disc level has come into play. Several of the medical witnesses were concerned that a fusion, particularly a multiple level fusion, might induce the next intervertebral disc above to become prone to degeneration. In that respect we see that the changes that are identifiable at the L4-5 intervertebral disc level are an ongoing consequence of what originally happened at the L5-S1 intervertebral disc and, indeed, Professor Steadman made a remark to that effect.
13. In addition, with regard to the back pain, was the evidence presented regarding the discography. Despite Dr Keay’s diffidence about the discography, we had clear and unrefuted evidence from Professor Steadman that in Mr Sutton’s case, the discography has been of outright assistance and it has been a procedure which has clearly established this more recent emergence of the subsequent degeneration of the L4-5 intervertebral disc’s role in producing Mr Sutton’s present back pain.
14. The second of the three points is that we have two important temporising or qualifying factors which have been pointed out to us by Dr Gibberd. The first being, of course, that the proposed fusion surgery at two levels increases the chance of degenerative changes occurring at the next level above: at the L3-4 intervertebral disc. This was indeed a possibility to which both Dr Gatehouse and Professor Steadman also alluded.
15. Dr Gibberd spoke eloquently about the psychosocial factors. He appropriately was cautious in not wishing to be drawn to specify what those psychosocial factors were as they were more in the realm of a psychiatrist. Professor Steadman had also mentioned them. As Dr Gibberd had observed, Professor Steadman had provided us with no detail. But Professor Steadman had agreed that such observation should be taken into account but cautiously, and he actually provided us with documentation from the medical literature pointing out the reasons for that statement; in other words, not by any means dismissing those particular criteria, but that they should be very carefully placed in perspective. Dr Slack was the only psychiatrist to provide evidence in this matter; and although he was not called to give oral evidence at the hearing, we consider that, as indicated next in these reasons, his opinion expressed in his written report has been of substantial assistance on this question.
16. The third point is an extension of Dr Gibberd’s concerns about the psychosocial factors. We have already referred to Dr Slack’s evidence in clarifying these. He identified these as chronic adjustment disorder with depressed mood. He specified in his report the adjustment disorder is intimately related to his chronic back pain and that if his chronic pain is improved, his moods will improve and vice versa. For good measure, Dr Slack stated that he has not identified any non-organic psychosocial factors that might be hindering Mr Sutton’s ability to undertake suitable employment if his pain is relieved.
17. Dr Gatehouse has, in effect, heeded or anticipated Professor Steadman’s flag waving of the red or the yellow flags, as he put it, regarding the presence of the psychosocial factors. He went on to say that Dr Gatehouse has included a careful consideration of this in his performing of what Dr Steadman described as a very thorough workup of Mr Sutton’s case.
18. It is some two years since Mr Sutton last had an MRI scan. It is quite possible and, in our view, appropriate that Dr Gatehouse may consider it to be advisable for Mr Sutton to have another up-to-date MRI scan before any surgery is undertaken.

CONCLUSION

19. In the circumstances we would set aside the decision and in substitution decide it is reasonable for the employee to obtain this particular course of treatment. We assume in doing that, of course, that Dr Gatehouse – as he appears to be the treating surgeon - will perform an appropriate workup. Of course, it is always possible that during the course of that workup, Dr Gatehouse might reach a different view about what should be done. But for now, we accept that it seems appropriate for the treatment to proceed on that basis.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member

Signed:.........................[SGD]...................................................

Associate

Date of Hearing 1 June 2011

Date of Decision 1 June 2011

Counsel for the Applicant Mr G Rebetzke

Solicitors for the Applicant Maurice Blackburn

Solicitors for the Respondent Mr B Dube, Sparke Helmore Lawyers