CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Wilcox v Integrated Living Australia Ltd [2024] NSWPIC 261	
		
APPLICANT:	Melissa Rose Wilcox	
		
RESPONDENT:	Integrated Living Australia Ltd	
		
Member:	Parnel McAdam	
		
DATE OF DECISION:	21 May 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; whether proposed treatment reasonably necessary; claim for pulsed radiofrequency following failed fusion surgery in presence of spinal cord stimulated; competing medical opinions; Diab v NRMA Ltd applied; Held – treatment reasonably necessary; respondent pay applicant’s section 60 expenses. 
 	
determinations made:	The Commission determines:
1.	The respondent pay for the proposed medical treatment as claimed in the Application to Resolve a Dispute pursuant to s 60 of the Workers Compensation Act 1987. 

STATEMENT OF REASONS
BACKGROUND
1.	Ms Wilcox (the applicant) is in pain. 
2.	In spite of numerous and various attempts to treat the back condition Ms Wilcox has suffered with since her injury on 22 January 2015, this pain has continued to a greater or lesser extent. Ms Wilcox comes to the Personal Injury Commission (Commission) seeking that Integrated Living Australia Ltd (the respondent) pay for specific treatment as recommended by her treating specialist in order to reduce the pain she suffers. 
ISSUES FOR DETERMINATION
3.	The parties agree that the following issue remains in dispute:
(a)	whether surgery proposed by Dr Volschenk is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). 
PROCEDURE BEFORE THE COMMISSION
4.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
EVIDENCE
Documentary evidence
5.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute (Application) and attached documents, and
(b)	Reply and attached documents. 
6.	On 29 March 2023, Dr Volschenk, a specialist pain medicine physician, requested approval to undertake the following procedure on Ms Wilcox: 
“ADMISSION 1. Left Middle Cluneal Nerve/Superior Clunenal Nerve Pulsed Radiofrequency
ADMISSION 2. Caudal Epidural Injection with Hyalase for Lysis Adhesions
ADMSSION 3. Left L5-S1 Dorsal Root Ganglion Pulsed Radiofrequency”
7.	The treatment is on the background of a series of previous interventions to treat Ms Wilcox’s spine, including most significantly spinal fusion in 2018, followed by the implantation of a spinal cord stimulator in January 2022. She presents with symptoms of failed back surgery syndrome, including ongoing and persistent residual pain. She seeks that the insurer be ordered to pay for the above treatment on the basis that it will provide pain relief and assist her mental health. 
8.	At the centre of this dispute are competing opinions from Dr Volschenk, the applicant’s treating specialist, and Dr Needham, an independent medical expert relied on by the respondent to dispute Ms Wilcox’s claim. I will discuss the relevant material below, before turning to the submissions of the parties. 
Reports of Dr Volschenk
9.	Dr Volschenk has been treating Ms Wilcox for a number of years and in particular following her spinal fusion procedure, which left her with ongoing pain and disability. Dr Volschenk first provides a report dated 28 March 2022, suggesting that a pulse radiofrequency neurotomy may be recommended in the future, pending the result of reprogramming of her spinal cord stimulator. On 15 August 2022, Dr Volschenk reports on that procedure, noting significantly less pain over the area and that she had reinitiated her spinal cord stimulation with good effect. 
10.	On 16 March 2023, Ms Wilcox was reviewed to an “acute exacerbation of her neuropathic leg pain” which began around three weeks prior to the report. Dr Volschenk recommended “a similar procedure that aided her in her hip pain”, being the surgery now claimed. It is hoped that “that will give her longer reduction in her pain”. He states: 
“Alternative more conservative strategies have been considered but are not clinically indicated. It is likely that the above therapy has the potential to lead to an improvement in work capacity and subsequent change in Work Certificate and work status.”
11.	That procedure was specifically requested by Dr Volschenk on 29 March 2023. 
12.	Following on from this request, the respondent’s insurer sought specific advice from Dr Needham. A report was produced and forwarded to Dr Volschenk, who replied on 7 July 2023. In response to the specific question raised by the insurer, he states: 
“Melissa, in spite of effective spinal cord stimulation therapy, still reports ongoing neuropathic leg pain which is amenable to the recommended procedures. This is an acute exacerbation of her neuropathic leg pain, despite her spinal cord stimulator being effective for her overall back and leg pain, and given the presence of the spinal cord stimulator, this is the most appropriate option we can offer her to give her some relief.”
13.	Dr Volschenk, as was requested by the insurer, attaches two medical papers concerning the use of hyaluronidase in neuroplasty/ in treating failed back surgery syndrome. 
14.	On 23 November 2023, Dr Volschenk provides a report to Ms Wilcox’s legal representatives concerning the proposed treatment. That report sets out the history of injury and the previous similar treatment. The diagnosis is “persistent neuropathic left leg pain in L5/S1 distribution as well as cluneal neuralgia”. Dr Volschenk then responds to a series of questions concerning the injury and the treatment sought. He describes the nature of the treatment sought in a clear way: 
“Ms Wilcox has ongoing neuropathic leg pain which is amenable to the recommended procedures. This is an acute exacerbation of her neuropathic leg pain, despite her spinal cord stimulator being effective for her overall back and leg pain, and given the presence of the spinal cord stimulator, this is the most appropriate option we can offer her to give her some relief.
This procedure involves using electrodes contained in a needle to direct brief pulses of an electrical current to the pain generating nerves in order to interfere with their ability to transmit pain signals and in turn results in a reduction in pain.”
15.	Dr Volschenk answers the question of how the surgery is “reasonable and necessary” (noting here the question poses the wrong test at law): “Ms Wilcox has responded to these procedures in the past indicating a high chance of her having a further response to the recommended treatment.” The expected outcome is said to be a reduction in pain and improvement in functionality. 
16.	In relation to alternative treatments, Dr Volschenk discusses outpatient cognitive behavioural therapy pain management, but notes that it “is unlikely to chance [sic, change] her pain levels as such… but it designed to optimally improve her level of functioning for the given level of pain that she has”. He describes the treatment as the “most rationale and appropriate use of pain clinic therapy give her current pain presentation… Without the recommended treatment, her prognosis would be persistent pain”. 
Reports of Dr Needham
17.	Dr Needham provides three reports for the respondent. The first is dated 2 May 2023, and was performed via telehealth assessment. He records the relevant history including failed spinal fusion. In relation to the similar procedure referred to by Dr Volschenk, Dr Needham records the following: 
“She subsequently also underwent interventional pain management treatments later in 2022 with radiofrequency treatment to superior and middle cluneal nerves with reported significant symptom reduction on temporary basis, although with no functional improvement.”
18.	He records the treatment proposed, and notes: “It is not clear whether these treatments are envisaged to be undertaken individually or concurrently.” He provides the following opinion: 
“It is generally envisaged that spinal cord stimulation be a definitive procedure and subsequent repeated peripheral procedures are unusual in this situation if spinal stimulation is acting satisfactorily.”
19.	Dr Needham suggests that further studies, including nerve conduction and an MRI be performed. His opinion, in relation to whether treatment will be effective, is “I believe the proposed treatments could possibly give temporary symptom reduction but would be most unlikely to give any functional improvement”. 
20.	A further report is provided dated 6 June 2023. This concerns the referral for an MRI, which was not able to proceed due to the presence of her spinal cord stimulator. As an alternative, Dr Needham requests the following material: 
“I would request that the proposing practitioner provide detailed information regarding the envisaged benefits and also possible risks of these procedures together with supporting literature. I am a rehabilitation medicine pain practitioner and input from an independent interventional practitioner could additionally be considered in this situation if required. I remain of the opinion that symptom reduction alone is unlikely to give significant functional improvement in this situation.”
21.	The above request led to the report of Dr Volschenk of 7 July 2023, attaching the literature as requested. 
22.	Dr Needham provides a further report dated 11 August 2023. He refers to the literature provided by Dr Volschenk. He notes the outcome of previous surgical interventions: 
“Spinal surgeries have been of negative impact and radio-frequency treatments have been ineffective. The spinal cord stimulation has been of modest benefit for symptom reduction, although has not given any functional improvement.”
23.	Dr Needham records that none of the treatments have given any improvement in function or returned Ms Wilcox to employment. The proposed cranial nerve and superior cluneal nerve treatments are “most unlikely to give benefit as these are localised treatments and symptoms are generalised”. The caudal epidural injection was not opposed. Dr Needham also suggests the dorsal root ganglion pulsed radiofrequency treatment was “most unusual”, but clarifies that he is a rehabilitation based specialist, and suggests further input from an interventional pain medicine specialist. He ultimately suggests that treatment should focus on conservative pain management with education, physical reconditioning and effective psychiatric treatment. 
Other medical evidence
24.	As suggested above, the majority of this dispute concerns the competing medical opinions between Drs Volschenk and Needham. There are some other pieces of medical evidence that may be relevant. 
25.	On 5 June 2023, a report of Dr Keith Burton is provided. It records “the electrophysiological studies do not reveal a generalised neuropathy affecting large diameter fibres”. 
26.	A report of Dr Rebecca Beiers dated 12 May 2023 is provided. Dr Beiers is a rehabilitation medicine physician, who saw Ms Wilcox as part of a day rehabilitation programme. Dr Beiers records that Ms Wilcox has chronic pain syndrome after failed back surgery. She recommends ongoing specialist input from pain management psychology. She records:
 “Success in our programme and maintenance gains may be limited due to her current beliefs and reliance/belief in injection procedures… if we are not progressing, it may be prudent to cease the programme and recommence after these decisions regarding treatment have been resolved.”
27.	I have also reviewed the literature provided by Dr Volschenk and will make comments on it in my consideration of the issues in dispute, below. 
SUBMISSIONS
28.	The parties provided oral submissions during the hearing, which were recorded. I do not intend to repeat the submissions in full, but will summarise the parties’ submissions below.
The applicant 
29.	The applicant began by referring to the relevant test that it was said I would be required to consider, being that set out in Diab v NRMA Ltd (Diab) applying the decision of Rose v Health Commission (NSW). The applicant referred to the relevant matters as set out in [88] of Diab, being: 
(a)	the appropriateness of the particular treatment; 
(b)	the availability of alternative treatments, and their potential effectiveness; 
(c)	the cost of the treatment; 
(d)	the actual or potential effectiveness of the treatment, and
(e)	the acceptance by medical experts of the treatment as being appropriate and likely to be effective. 
30.	The applicant submits that the appropriateness of the treatment is as set out by Dr Volschenk along with the literature he has provided on the subject. The purpose of the treatment is to reduce the applicant’s pain, and based on the recommendation of Dr Volschenk, that would be appropriate.
31.	In reference to the availability of alternative treatments, the applicant submitted that she has been through every possible treatment and has already proceeded down this path successfully at the expense of the insurer, with reference to the middle and superior cluneal nerve pulsed radiofrequency neurotomy performed by Dr Volschenk. 
32.	The applicant then went on to contrast the opinions provided by Drs Needham and Volschenk. It was first noted that Dr Volschenk had been seeing Ms Wilcox for many years, and Dr Needham has not seen the applicant physically, only via telehealth. The applicant was critical of the fact that Dr Needham recommended Ms Wilcox undergo an MRI, which, because of the presence of the spinal stimulator, would be impossible – something Dr Needham should have been aware of. 
33.	The applicant refers to Dr Needham’s commentary about whether or not the treatment would improve Ms Wilcox’s functionality, which is the wrong question. It was also noted that in any event, the treatment would provide some symptomatic benefit. Dr Needham did not even know whether they were to be performed concurrently, but obviously they were. In respect of the opinion of Dr Volschenk, it was submitted that he has provided treatment to Ms Wilcox that has improved her pain, and has provided chapter and verse to the insurer. 
34.	It was noted that the respondent had agreed to pay for the epidural, but that was an injection to the spine that relieves all feeling, and that it was not intended to be a permanent solution. 
35.	The applicant submits that she has complied with every request made by Dr Needham, and that what she is after is some pain relief, even if temporary. She has been on pharmacological pain relief on and off, which has had a deleterious effect on her mental health. It was submitted that this would improve with the provision of the treatment.
The respondent 
36.	The respondent commenced submissions by acknowledging that there was no issue in relation to the principles as outlined in Diab and Rose. The respondent also accepted that there was no causation issue (being the “results from” question in s 60), and that the dispute was limited to whether the proposed treatment was reasonably necessary. The respondent also accepts that the principles are not directed to whether Ms Wilcox would be able to return to work, but if it would be sufficient to relieve pain. 
37.	The respondent accepts that the reference of Dr Needham to improvement in a functional way is probably clumsily expressed, but that should be read in context, and that the opinion concerns the efficacy of the treatment. 
38.	The respondent submits that there are two Diab considerations that loom large – whether the treatment is appropriate in light of existing treatment, and whether there are alternatives. Dr Needham suggests that multidisciplinary pain management would be an appropriate alternative. 
39.	The respondent referred to the criticisms of Dr Needham, and submits that without more, it is not enough to accept an opinion just because an expert is a treating expert. In a case such as this, Dr Needham is an objective third party, and is not relevant that he did not see her physically. It was acknowledged that the applicant wants the treatment, but that is not determinative. 
40.	The respondent then worked through the reports of Dr Volschenk. The respondent submits that they can’t really contest that it will give pain relief, but Dr Volschenk hasn’t explained why it is appropriate given the short-term relief it will give, nor why it will give relief given there is a spinal cord stimulator. 
41.	In respect of the reports of Dr Needham, the respondent urged me to resist the applicant’s suggestion that I should give less weight to his opinion on the basis that he recommended an MRI, as there was no real evidence as to why the applicant could not undertake that procedure, and there is not enough from an evidentiary basis that could undermine Dr Needham’s opinion. The respondent submits that it is important to consider the opinion of Dr Needham that the treatment will give localised benefit but the symptoms are general, an opinion which Dr Volschenk does not engage with. The respondent also submits that the literature doesn’t grapple with the fundamental issue, being the recommendation of treatment where the spinal cord stimulator is present. 
42.	The other key aspect of the respondent’s case is said to be the recommendation of ongoing multidisciplinary pain management, which is more appropriate in the circumstances. 
Applicant in response
43.	The applicant submits that Dr Volschenk believes that Ms Wilcox has scarring, which would not disincentivise the treatments. Dr Needham says she has scarring, and studies say the treatment will be effective. 
44.	The applicant has had every pain management therapy known to man, and has been through psychological treatment. The spinal cord stimulator is one method of treatment that has worked, but that the proposed treatment is statistically proven based on the result of the hip injections. The applicant submits that she has not just proved her case on the balance of probabilities, but proven it scientifically. To not give her an award would be contrary to the legal interpretation. 
FINDINGS AND REASONS 
45.	The parties agree that the relevant legal principles to apply are those set out in Diab, particularly with reference to [88] of that decision, and Rose. I note however that DP Roche went on to qualify the factors set out in [88]: 
“While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). 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. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
46.	Having regard to the cautionary principle expressed above, I will proceed though the steps set out in Diab at [88]. 
The appropriateness of the particular treatment
47.	This aspect of the of the dispute is at the forefront of the medical evidence. Indeed, the respondent submitted that this aspect “looms large”, along with whether there are any available alternative treatments. 
48.	The dispute on the evidence in relation to this question arises from Dr Needham, who expressed the view that spinal cord stimulation is “generally envisaged to be a definitive intervention”, and requested supporting literature. In his final report, following consideration of the literature, Dr Needham opines that none of the treatments “has given any improvement in function”. Both parties made submissions on this point; the applicant suggesting that he asked himself the wrong question, whilst the respondent suggested that it should be seen as a clumsy expression. 
49.	It is apparent that in his comments, Dr Needham was specifically responding to a question that asked about “sustained improvement in function or return to work”. I agree with the applicant that that is not the appropriate test. Dr Needham has not led himself astray – he has answered the question asked of him in the referral. That question was not entirely irrelevant, although as the applicant submits, considers just one aspect of whether the treatment be appropriate. Other considerations include whether there would be a reduction in pain. 
50.	Conversely, Dr Volschenk was asked specifically why the treatment is appropriate, responding: 
“Ms Wilcox has responded to these procedures in the past indicating a high chance of her having a further response to the recommended treatment.”
51.	The previous treatment was targeting pain in her hip, which was reported to have “significantly less pain” following the procedure. 
52.	It appears that one of the substantial issues Dr Needham has with recommending treatment is the idea that a spinal cord stimulator be a “definitive intervention”, and that no further treatment should be contemplated. He requested literature in support. The issue is that Dr Needham has not really explained why – he has provided and referred to no such literature himself. It is accepted that as a medical expert he is entitled to express an opinion based on his expertise, but where Dr Volschenk has gone to lengths to explain why he recommends treatment, including providing literature in support, whilst Dr Needham provides very little, I find that it lessens the weight that I can give to Dr Needham’s opinion. 
53.	There is one aspect of Dr Needham’s opinion that gives me pause, and that is his view that the treatment is localised, whereas Ms Wilcox’s symptoms are generalised. I accept the submission of the respondent that this is not addressed by Dr Volschenk. This is a factor that I will have to weigh in determining whether the treatment is reasonably necessary. It does not defeat the applicant’s claim, as there are other considerations that I must take into account, including the apparent success of previous treatment of this nature. 
54.	I have treated the literature provided with caution. Dr Volschenk provided it at the request of Dr Needham, but provides no commentary on it. Both studies involve medical terminology and seem to focus on the use of a product called hyaluronidase in certain circumstances. I do not agree, as the applicant submitted, that they were “simple”. I am not a medical expert and do not intend to put myself in the shoes of one. I find the literature neutral on the point, as it does not answer the particular question being asked – whether the proposed treatment in this case is reasonably necessary. 
Alternative treatment options 
55.	This factor is described in Diab as “the availability of alternative treatment, and its potential effectiveness”. Part of the respondent’s case relies on this criterion. 
56.	Dr Needham recommends that Ms Wilcox pursue “conservative pain management with education, physical recondition and in particular effective psychiatric treatment”. This is the multidisciplinary pain management referred to by the respondent in submissions. The applicant in response referred to Dr Volschenk, who considered alternative treatment options in his report dated 23 November 2023. He considers an “intensive outpatient cognitive behavioural therapy pain management program”, and states that it is “unlikely to chance [sic, change] her pain levels as such… but is design to optimally improve her level of functioning for the given level of pain that she has”. In other words, the alternative treatment option is unlikely to result in symptomatic improvement for Ms Wilcox (in comparison with the treatment options in dispute), but may improve her level of functioning. 
57.	In spite of this alternative option, Dr Volschenk still recommends that the treatment is “the most rationale and appropriate use of pain clinic therapy”. He notes that Ms Wilcox has pursued passive rehabilitation and psychology. There is evidence of this in the form of the report of Dr Beiers dated 12 May 2023. Ms Wilcox was reviewed as part of a day rehabilitation program. Dr Beiers recommends engagement with pain management psychology, but notes that success in the program may be limited due to reliance on injection procedures (which I take to be the procedures currently under dispute). This is consistent with the applicant’s statement, who said she found the program “of little benefit”. 
58.	Having considered the above evidence, I am of the view that an alternative treatment option exists. However, there are issues with the viability of that treatment option at this stage. Ms Wilcox found a similar program of little benefit, and that is borne out by the medical evidence in this case. Whilst Ms Wilcox still has the option of medical intervention through the proposed alternative treatment, it appears unlikely that a pain management program will be of assistance. The consideration, as set out in Diab, is the availability of alternative treatment and its potential effectiveness. In present circumstances, alternative treatment exists but it is unlikely to be effective. 
The cost of the treatment
59.	The treatment claim, based on the quote of Dr Volschenk is quoted to be $4,856. There will be some ancillary expenses associated with that cost, including anaesthetists fees and day stay at the hospital. In the scheme of treatment provided to Ms Wilcox, most notably the failed fusion surgery, these expenses are on the lower end. Neither party made submissions about the cost of the treatment, suggesting that there is little relevance to this criterion. 
The actual or potential effectiveness of the treatment
60.	Here, there is some dispute on the medical evidence. Dr Needham raises concerns about the effectiveness of the treatment on two bases: that the treatments are localised, and Ms Wilcox’s symptoms are generalised, and there is an absence of radiculopathy present on nerve conduction studies. 
61.	Dr Volschenk, on the other hand, suggests that the proposed treatment is similar to that previously undertaken on her left hip (evidence of effectiveness on Ms Wilcox), that it will result in a reduction of neuropathic leg pain and some improvement in functionality for a period of 6 to 18 months. 
62.	Based on the above and weighing the competing opinions, I am of the view that there are reasonable prospects that the treatment will result in symptomatic improvement for Ms Wilcox, which could potentially lead to functional improvement. I am doubtful that it will lead to a change in work capacity as originally postulated by Dr Volschenk. However, there is evidence that this type of procedure has been successful, not just in a hypothetical sense based on studies, but clinically in the individual being treated. Ms Wilcox has received benefit from this type of treatment in the past; I give great weight to that evidence. 
The acceptance by medical experts as being appropriate and effective
63.	There is a dispute on the material before me. I have competing opinions from medical experts in relation to the appropriateness and effectiveness of the treatment. On that basis, I must consider the weight I give to each opinion. 
64.	Dr Volschenk provides some literature in support of his opinion, but as set out above I have difficulty placing much weight on that material. It does not seem directly relevant to the question being asked, and in circumstances where there has been no medical expert explanation of the material (in spite of counsel for the applicant attempting to do so during the hearing of this matter), I must approach consideration of that material with caution. 
65.	I do not think I should disregard Dr Needham’s opinion entirely, as suggested by the applicant, on the basis that he recommended an MRI in circumstances where it was not possible for one to be undertaken. 
66.	What does give me pause is the commentary of Dr Needham concerning his expertise as a pain management specialist. Both Dr Needham and Dr Volschenk are specialists in pain and pain management; Dr Volschenk is described as a specialist pain medicine physician and Dr Needham as a pain management and rehabilitation specialist. However, Dr Needham provides a specific caution to the reading of his opinion on the basis of his clinical expertise, where he states: 
“I am a rehabilitation medicine pain practitioner and input from an independent interventional practitioner could additionally be considered in this situation if required.”
67.	The respondent did not obtain any further material from an “interventional practitioner” and elected to rely solely on the material of Dr Needham. There may have been a forensic or logistical reason behind that election, and I place no weight on that decision. However, I do place weight on the fact that Dr Volschenk is involved in the procedures being recommended, as a surgeon, as part of his clinical practice. Because of this he would have greater familiarity and knowledge of the clinical basis for the recommendation made, which by Dr Needham’s admission he may be lacking. 
Conclusion
68.	Based on my consideration of the above factors, I am satisfied that the treatment proposed is reasonably necessary treatment, as envisioned in s 60 of the 1987 Act, for the following reasons: 
(a)	the treatment finds support in the opinion of Dr Volschenk; 
(b)	whilst it may not return Ms Wilcox to work, or greatly increase her functionality, it is appropriate to treat the ongoing pain Ms Wilcox suffers with; 
(c)	Ms Wilcox has a proven track record of success in similar procedures;
(d)	it is not prohibitively expensive; 
(e)	it will likely lead to symptomatic improvement for Ms Wilcox, and as a person who has suffered great pain for a long period of time since her index injury and subsequent failed back surgery, this is likely to have on flow effects for other areas of her life, including her mental health;
(f)	whilst other treatment options exist, at this point they are unlikely to be as effective and have previously been trialled without great success, and
(g)	the treatment is accepted as being appropriate and likely effective by a medical expert. 
69.	Accordingly, I will make an award that the respondent pay for the treatment as claimed in the Application.