Medium Neutral Citation [2002] VCAT 4

1. The decision of Respondent made on 28 November 2000 denying liability to pay the cost of discography of the applicant's lumbar spine is set aside.

2. Order that the respondent pay the reasonable costs of and incidental to discography.

1. This is an application for review of a decision of the respondent ("TAC") made on 28 November 2000 denying liability to pay the cost of discography of the applicant's lumbar spine.

2. The applicant, now aged 38, was injured in a transport accident on 12 July 1996. TAC has accepted liability for medical and like expenses in accordance with the Transport Accident Act 1986 ("the Act").

3. Section 60(2)(a) of the Act imposes on TAC a liability to pay the reasonable costs of medical services received in Australia because of the transport accident. Section 3 provides that, in determining what is reasonable, regard must be had to "the necessity of the service or provision, or of the incurring of the expense, in the circumstances".

4. The ordinary meaning of "necessity" is "an indispensable thing" (Oxford Dictionary). The liability under section 60(2)(a) is not limited to medical services which are a "necessity", in that sense. The obligation is to pay "reasonable" costs, though in determining what is reasonable, regard must be had to the "necessity of the service". It is not altogether clear where the line is to be drawn, though in the context of a legislative scheme providing no-fault compensation for victims of transport accidents, treatment obviously does not have to be life preserving. The treatment might merely be palliative, yet entirely appropriate by any yardstick.

5. It might fairly be said that the provision of appropriate medical treatment for injured persons is so central to purposes of the legislative scheme as to be "indispensable' and, therefore, a "necessity". This would not really be at odds with what was put to me Mr Rose, on behalf of TAC. He used the word "desirable". This seems sensible, though it does not perhaps come to grips with "necessity". But the result is much the same.

6. Consideration of what is desirable or appropriate in a particular case must, nonetheless, proceed in the shadow of the word "necessity". Therefore, if the appropriateness or desirability of particular treatment is dubious, its "necessity" will be even more so.

7. Although the critical issue in this case here is whether there is a need for discography, a further issue is whether there is a need for spinal fusion, this being the treatment in contemplation by the applicant's surgeon Mr Schofield, subject to the results of the discography.

8. Those opposed to discography say it is pointless, because fusion is not a viable option. Indeed, they say the investigative procedure is itself invasive and not without risk, especially having regard to the applicant's fragile psychological state.

9. I was referred to a decision of the former Administrative Appeals Tribunal given by Ms J Rosen (now Senior Member Preuss of this Tribunal) in 1986 in a case of Tomkins, where the following observation was made concerning similar provisions in the Motor Accident Act 1973:

"The necessity for some type of treatment for the applicant's problem was not in dispute; rather, the method of treatment was in issue. In this case whilst expert opinions differed as to the proper method of treatment it is clear that the applicant was treated by well qualified, properly motivated experts. The fact that the treatment does not accord with the treatment favoured by the respondent's experts does not make it unreasonable and indeed, I am not concerned to determine which treatment is best."

10. I endorse this view. Mr Schofield is one of Victoria's most experienced spinal surgeons. He has seen the applicant on five occasions. He has performed 800-900 spinal fusions "in the modern era". I am satisfied that he has carefully considered the applicant's medical history. This include, which includes five years of severe pain which has debilitated the applicant, physically and emotionally.

11. Against the background of the applicant's chronic pain and the side-effects of the strong analgesics he is digesting, Mr Schofield is of the view that spinal fusion offers reasonable prospects of relieving the applicant's pain and disability, if discography confirms the presence of internal disruption of one or more lumbar discs.

12. The applicant gave evidence on oath. He struck me as a very normal 37 year old man. He seems to appreciate the risks (and discomfort) of discography and back surgery, but wishes to proceed. He has had severe pain for five years. So far as he is concerned, his injuries and his pain have devastated his life. He is determined that something must be done.

13. Mr Schofield's view that there is operable organic damage derives some support from an opinion to that effect expressed by the orthopaedic surgeon Robert Howells in 1996.

14. There seems to be general agreement that there is a significant psychological overlay, though the applicant's sincerity does not appear to be in issue.

15. Mr Brendan Dooley is an experienced an orthopaedic surgeon, though his experience in spinal surgery is much less than Mr Schofield's. He is not convinced that the applicant would benefit from surgery and therefore regards the discogram as pointless. He conceded he is "relatively conservative" and said "the final decision depends on the patient and his treating doctor".

16. Dr Wilk is a TAC medical consultant, with post-graduate qualifications in musculo-skeletal medicine and pain therapy. Put simply, he thinks discography and surgery are likely to make the applicant worse, because of the non-organic component.

17. Professor Davis is a neurologist. Again, he is of the view that the applicant's presentation is dominated by non-organic features and believes surgery is likely to have a "poor outcome". He said he regards discography as an "outdated" procedure, though he acknowledged that not everyone shares this view.

18. Mr Peter Wilde, orthopaedic surgeon, writing in August 1998, thought it "unlikely" that any form of surgery would assist the applicant. The applicant has had more than three years of acute pain since then.

19. An issue of concern raised by this review raises is the extent to which TAC (and VCAT, standing in the shoes of TAC) should become involved in "directing" the course of an injured person's treatment. My very strong view is that where the injured person is being treated by a reputable clinician and the treatment proposed is within the range of treatment which a competent clinician might reasonably regard as appropriate in all the circumstances of the case, TAC (and VCAT) should be slow to declare the treatment inappropriate. The "circumstances of the case" will include the duration and level of the applicant's symptoms. These considerations may bring more radical treatment options within the range.

20. For the foregoing reasons, I am of the view that TAC's decision to deny liability for the cost of discography of the applicant's lumbar spine should be set aside.

21. Finally, I am more than a little alarmed by the scale and cost of this review. There was a full day of evidence in the course of which four doctors were called, including the treating surgeon. TAC delivered a section 49 statement in excess of 200 pages. Each side was represented by experienced counsel, who each presented a written submission. The combined cost may well exceed the cost of the discogram and the spinal fusion (if the latter proceeds).