Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (3 February 1997)

[1997] NSWCC 1; (1997) 14 NSWCCR 233

BARTOLO v. WESTERN SYDNEY AREA HEALTH SERVICE

Compensation Court of New South Wales: Burke J

24 AUGUST 1995 (H)

3 FEBRUARY 1997 (J)

ASSESSMENT AND AMOUNT OF COMPENSATION - SPECIAL PAYMENTS - MEDICAL AND HOSPITAL TREATMENT - REASONABLY NECESSARY AS A RESULT OF INJURY - INVESTIGATIVE RADIOLOGY PROCEDURE UNDERTAKEN IN UK - FACTORS TO BE CONSIDERED - WORKERS COMPENSATION ACT 1987, SECTIONS 59 AND 60

R.B. PAGE, for the claimant

D.S. WILKINS, for the opponent

CUR ADV VULT

BURKE J: The substantive issues in this matter were determined on 28 April 1994 when an award was made in favour of the worker for weekly payments on the basis of total incapacity, the maximum lump sum payment for losses under section 66, an award for about 85 per cent of the maximum payable in respect of pain and suffering and a general order in respect of expenses of treatment under section 60.

The worker by notice of motion seeks that the employer now be ordered to pay the expenses associated with a particular investigation carried out on 21 August 1992. This application was foreshadowed at the original hearing.

The worker is grossly disabled as a result of a back injury. She has had the full gamut of treatments employable to alleviate such a condition. She had undergone manipulation under anaesthesia, traction, facet joint injections, lumbar-sacral fusion, re-exploration for suspected sepsis, grafting, removal of fixation devices and insertion of a spinal cord stimulator. All this before the particular investigation now in issue. Since then she has had further fusion at the L4-L5 level. She uses Canadian crutches, a wheelchair or a motorised wheelchair for locomotion.

The particular investigation now disputed arose in unusual circumstances. Mrs Bartolo would dearly love some relief from her unremitting pain and disability. One afternoon, watching television, she saw an item dealing with the latest in radiological technology--3D computer automated tomography--which was being performed at the Middlesex Hospital in London. This technique she thought could perhaps elucidate the causes of her problem and thereby indicate some possible line of effective treatment. She discussed this hope with Dr Johnston who had exercised some general supervision of her treatment over the years. Dr Johnston specialises in paediatric neurology. His field of expertise does not include back surgery. He had treated Mrs Bartolo's son for quite some time in relation to spina bifida. In her own tribulation she had had recourse to him. Dr Johnston initially indicated that he would enquire about this modality of investigation. Subsequently he corresponded with Dr Lees at Middlesex Hospital and, in due course, the worker travelled to London, eventually underwent this form of investigation and returned home.

The worker seeks reimbursement of the costs of the procedure, [sterling]800 sterling paid in advance, together with the costs of travelling and maintenance.

As litigated three issues arise:

1. was this procedure medical or related treatment within section 59; and/or

2. was it hospital treatment within the same section; and, if either or both,

3. was it reasonably necessary that the worker have such treatment?

MEDICAL OR RELATED TREATMENT

Medical or related treatment is defined in section 59 to include a number of matters. Mr Page has submitted that, since the definition uses the term "includes", it is not exclusive and other matters may also fall within the definition. For many years a definition in virtually identical terms has been held to be exclusive: LAMONT v. COMMISSIONER FOR RAILWAYS [1964] NSWR 406; THOMAS v. FERGUSON TRANSFORMERS PTY LTD [1979] 1 NSWLR 216. No matter of distinction in the formulation of the definition as it presently stands has been indicated which would distinguish this venerable authority. It therefore follows that Mrs Bartolo must establish that the particular treatment falls within one or more of the particular items in the definition.

Only one item appears to be possibly relevant, namely:

"(b) therapeutic treatment given by direction of a medical practitioner."

"Medical practitioner" is defined to mean a medical practitioner registered under the law of a State or Territory of the Commonwealth. Consequently, the more usual paragraph (a) of the definition--treatment by a medical practitioner etc.--is not available as Dr Lees, who administered the treatment, isn't so registered.

"Direction" in the context of paragraph (b), in my view, has much the same connotation as the more commonly used "referral". Direction usually connotes an order, requirement, command or instruction. The doctor/patient relationship has not as yet come to the stage where the doctor can order the patient to do anything. He advises, and, in this type of situation, if the advice is accepted, he refers the patient for appropriate tests, investigations or active treatment.

Dr Johnston maintains that he referred Mrs Bartolo to Dr Lees for this 3D-CAT. Dr Lees seems clearly of the view that this was the case. Mrs Bartolo had canvassed with Dr Lees' secretary having this same type of scan of her left hip as well as her back. This elicited a response, INTER ALIA:

"When we spoke yesterday, you mentioned your problem with your hip and asked if Dr Lees would also perform a three-dimensional CT of your hip. When sending your films, please would you enclose a short note to Dr Lees explaining why you would like this done because your referring doctor in Australia did not mention this problem in his letter to Dr Lees."

Dr Johnston's active participation in arranging this investigation suffices in my view to amount to "direction" within the terms of the defined element of treatment.

HOSPITAL TREATMENT

"Hospital treatment" is also defined in section 59. It means treatment at any hospital. The definition is remarkably terse and unconstrained by subsidiary requirements. Medical treatment, in its basic form as in paragraph (a) of the definition, is defined as treatment by a medical practitioner, and the medical practitioner must be registered in Australia. Hospital treatment is merely treatment at a hospital with no requirement that the hospital have any particular character or geographical location.

Mrs Bartolo certainly underwent this particular investigation at a hospital.

No argument has been addressed concerning extra-territorial operation of the Act. The respondent in particular has not made any submission that the Middlesex hospital could not be a relevant hospital within the definition for the purposes of treatment. It may be that a NSW law should be read as PRIMA FACIE having a intra-territorial operation. That a medical practitioner is defined to include the wider ambit of the Commonwealth clearly suggests an intent of extra-territorial operation. The lack of any such provision in relation to a hospital may, in that circumstance, be taken to affirm the usual territorial restriction. However, I have not been asked to embark upon the resolution of such an erudite question and should refrain from doing so since it could be a matter of major consequence. It could be incongruous if the Broken Hill worker cannot recover the cost of treatment in Adelaide hospitals, or the Lismore worker that in Brisbane hospitals or the Albury worker in Melbourne.

The parties accepting that the geographical location of the hospital as irrelevant, I will accept, without deciding, that it is so.

Therefore it appears that Mrs Bartolo had this investigation at a hospital and such is within the relevant definition in the Act.

IT IS REASONABLY NECESSARY?

I tend to share the bewilderment of Wynn-Parry J in RE NAYLOR BENZON MINING CO LTD [1950] 1 Ch 567 at 575:

"The words `reasonably necessary' used as a phrase in which the adverb is designed to qualify the adjective are meaningless. A thing is necessary or it is not necessary.

It may be regarded or treated as necessary in one context and not in another but the context cannot be provided by merely preceding the word `necessary' with an adverb such as `reasonably'. As it stands, to me the phrase is a contradiction in terms."

In ROSE v. HEALTH COMMISSION (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32, it was suggested that the gravamen of the phrase connoted necessity judged in accordance with reason, prudence, common sense and sound judgment. "Necessary" is the problem concept. It usually has connotations of something indispensable or imperative, something that cannot be done without. Yet that would seem a far too stringent test. In most illnesses or afflictions even simple analgesia could be done without. The patient could be more uncomfortable but would probably recover in much the same time span.

It seems to me that the basic approach is really the reverse. The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.

Should Mrs Bartolo have done without this sophisticated, hi-tech, radiological investigation? It is this particular investigation that is in question, the one that was done at Middlesex Hospital, not Royal Prince Alfred; the one that involved return air fares to London, not an inter-suburban taxi journey; the one that involved three months maintenance in England, not a lunch break during the day. And it is this particular investigation in the context of all that had gone before. Dr R.G. Smith's report of 2 December 1993 tabulates results of 31 radiological investigations, 20 of them prior to this 3D-CAT done at Middlesex Hospital. The prior investigations included plain x-rays, multiple tomograms, a bone scan, a myelogram and multiple Magnetic Resonance Imaging. The latter form of investigation suffers some interference since the implantation of the spinal cord stimulator in April 1992. By and large, as at the time Mrs Bartolo had the investigation now in question, this massive radiological series had shown that the original L5-S1 fusion was sound and that the worker suffered marked arachnoiditis.

Dr Johnston was of the view that the patient's symptom complex was explained by the presence of arachnoiditis. Dr R.G. Smith, certainly after this 3D-CAT but apparently uninfluenced by it, was of the view that arachnoiditis alone was an insufficient explanation and suggested a probability of some super-added hysterical manifestation. Dr Fuller, without the benefit of this latter investigation, shared the opinion of Dr Johnston that arachnoiditis was the major source of Mrs Bartolo's problems. Dr Ditton was of the same view. Dr Millons noted that arachnoiditis was evident in the myelogram and CAT scan of September 1991. He had always had difficulty in assessing the cause of the patient's symptoms. He clearly shared some of Dr R.G. Smith's misgivings and had canvassed the desirability of psychiatric consultation on a number of occasions. There are some overtones of a Munchausen syndrome in his comment: "I do have difficulty in explaining why she would continue to offer herself up for surgical sacrifice". Dr Fearnside felt the patient's problems were due to a severe post-laminectomy syndrome and arachnoiditis.

Overall, at the time the 3D-CAT was undertaken, there was a strong current of diverse medical opinion that the worker suffered the aftermath of multiple surgical interventions with a necessary degree of scarring, tethering and fibrosis complicated by a marked arachnoiditis. There was an accepted view that those conditions as such were not amenable to other than palliative treatment. Dr Johnston's reason for referring the worker in those circumstances for this particular investigation was that it might show some additional structural problem amenable to surgical intervention or other modality of treatment.

The 3D-CAT showed arachnoiditis and a larger than usual mass of soft tissue fibrosis posterior to the laminectomy and fusion area. Essentially it confirmed that which was already known.

The simple fact that this sophisticated and expensive procedure revealed nothing new does not PER SE indicate that it was unnecessary. If the outcome was the relevant test, there is a good body of evidence that the totality of the operative interventions in Mrs Bartolo's case were equally unnecessary since, as Dr Millons cogently observes, each operative procedure has induced an increase in both symptoms and disability.

Some of the factors influencing a determination of this question of necessity or not were suggested in ROSE (UBI CIT SUPRA). They included:

* opinion as to relevance and appropriateness;

* available alternatives;

* relative costs;

* potential effectiveness;

* usualness.

APPROPRIATENESS

The referral was by Dr Johnston. He, in oral evidence and in reports, affirms that lumbar surgery is not his field of expertise; he is a paediatric neurologist. He did not actively treat Mrs Bartolo, merely directed her to what he regarded as appropriate specialists. His general view seems to be that he expected little real result from the procedure but that there was a chance it would reveal something that could indicate a line of treatment. Dr A.G. Smith, who performed the prior and the subsequent fusions, was not party to the decision to seek this particular mode of investigative radiology.

No other medical witness has really expressed a view that they would have adopted a similar course.

AVAILABLE ALTERNATIVES

Dr Fearnside has suggested that 3D imaging on CAT scans was, at the time, available in Australia. While Dr Johnston has deposed that he was unaware that such was so, he was not in a position to affirm that it wasn't. No other medical witness has negated Dr Fearnside's expressed view.

The probabilities suggest that the same, or similar, avenues of investigation were available locally if needed.

There is no body of evidence of appropriate radiological experts that the technique had any particular advantages over the types of investigations already employed. Dr Johnston has expressed the view that CAT scans, probably with or without the 3D reconstruction, better reveal bone defects than does the MRI. Dr Fearnside suggests that he wouldn't rate the particular technique as any more effective than the more usual types of investigation available.

RELATIVE COST

There is evidence that the actual cost of the procedure was [sterling]800 sterling. That is probably around A$1,700. CT myelograms and MRI's are probably in that sort of ball-park though the evidence is silent on the question. Intrinsically, this particular procedure does not appear unduly expensive.

The major cost inflator in this matter is the travelling and maintenance expense which constitute 80 per cent or more of the gross cost. If, as I believe is the probability on the evidence, similar procedures were available locally, the particular procedure was inordinately expensive.

POTENTIAL EFFECTIVENESS

There was a strong consensus of opinion of specialists in the relevant field that, at the time of the procedure, the worker suffered a post-laminectomy syndrome with arachnoiditis and, likely, some psychological effects which probably enhanced her subjective appreciation of her symptoms and problems. There was a strong consensus of opinion that little, if anything, could be done to remedy the physiological components. This investigation could only offer potential assistance to Mrs Bartolo if it revealed some additional physiological component that could be amenable to treatment. The prospects of that occurring, even in Dr Johnston's view, were quite slight.

USUALNESS

At the time this type of procedure was clearly fairly novel. It had not been incorporated into the routine medical armoury for cases such as that of Mrs Bartolo. Though with the burgeoning epidemic of cases of alleged medical negligence it could well become quite fashionable. However, as was suggested in ROSE, novelty PER SE doesn't import a lack of necessity to use a particular modality. Pasteur's enthusiasm for antisepsis, now DE RIGUEUR, wasn't exactly shared by his colleagues of the time. The particular procedure seems to be an evolutionary step in the refinement of the techniques available to demonstrate abnormality by non-invasive means.

The novelty of the procedure, in this particular case, does not, in my opinion, really impinge upon the question of the necessity or otherwise.

OVERALL

Determining a question of "reasonable necessity" has some similarities to determining a question of "permanent impairment". It is basically an objective evaluation of facts but the subjective element cannot be ignored.

Mrs Bartolo seeks a "cure". At least she seeks an amelioration of her symptoms and disability. She gives the impression that she would clutch at any straw which offers a scintilla of prospect that something could be done to alleviate her problems. A perfectly rational approach from a patient's viewpoint. She was really the initiator of the consideration of this particular radiological investigation. She secured the co-operation and ultimate support of Dr Johnston. That was in an area essentially outside his field of expertise. His support for the potential benefit of the procedure is rather tenuous. Positive support otherwise is virtually non-existent. A cost/benefit analysis suggests that a substantial expense was incurred with little prospect of potential benefit. That the investigation actually revealed no novel factor doesn't appear to have surprised anyone. In any event much the same technique could have been employed within the Commonwealth at considerable amelioration of cost.

Was it reasonably necessary that Mrs Bartolo have this three-dimensional computer automated tomography? On balance I think the answer is "No".

I therefore dismiss the notice of motion and make no order as to costs.

MOTION DECLINED

Solicitors for the claimant: FIRTHS

Solicitors for the opponent: HUNT & HUNT