Whitton v Ready Workforce

District Court of NSW|2023-11-30

Background

HIS HONOUR: The Plaintiff was employed by the Defendant as a dump truck operator. She commenced that employment in April 2016. The Plaintiff drove the dump truck at the Mount Arthur Coal Mine at Thomas Mitchell Drive near Muswellbrook. The inference to be drawn is that the Defendant was a contractor to the mine owner/mine operator at the Mount Arthur Coal Mine.
There is no dispute that on 12 December 2018 the Plaintiff was injured arising out of and in the course of her employment with the Defendant. According to the Statement of Claim, the worker was walking over a mound of dirt to access a crib hut when her left foot slipped from underneath her, causing her to fall and injure her left leg. The injury to her left leg included injury to the medial meniscus of the knee, an injury to the anterior cruciate ligament of the left knee, and an injury to the medial collateral ligament of that knee.
The Plaintiff remains in receipt of workers compensation payments from the Defendant through its insurer, Coal Mines Insurance. The application before me seeks this relief: "(1) A declaration that the proposed medical treatment of left above‑knee amputation proceeding to transfemoral osseointegration and targeted muscle reinnervation (saphenous nerve, tibial nerve and deep peroneal nerves) is reasonably necessary medical treatment for the worker's injury. (2) An order that the respondent pay the worker's expenses associated with the left above‑knee amputation and ancillary rehabilitation thereto."

Post-injury history

The parties have, thankfully, not put before me many of the treating medical reports prior to the suggested need for the surgery now sought. It is common ground that on 30 January 2019, an arthroscopy was practised by Dr Berton, and that he did not suggest any reconstruction. However, an MRI scan showed internal damage to the knee, including a torn anterior cruciate ligament ("ACL"). Eventually the Plaintiff saw Associate Professor Nigel Hope, who. on 11 April 2019, carried out an ACL reconstruction. However, the Plaintiff developed chronic pain soon after that, and was later seen by Dr Jun Nagamori, who diagnosed a "tight" ACL reconstruction, and who elected to practice revision surgery of the ACL reconstruction using a patella tendon graft. That procedure was carried out at the Sydney Adventist Hospital on 1 April 2021. According to a history given by the Plaintiff to Professor Ian Harris, who examined her on 6 October 2022 essentially for the Defendant, the revision reconstruction made no difference to her symptoms, and she eventually saw a pain specialist and was diagnosed with a Complex Regional Pain Syndrome ("CRPS"). I know from MFI-1 that the Plaintiff was referred to a Dr Marc Russo, a pain management specialist at Newcastle in October 2021. In December 2021, Dr Russo performed radiofrequency procedures on the Plaintiff's left leg. The formal diagnosis of CRPS was made by Dr Nikunj Parikh.

Complex Regional Pain Syndrome

It is convenient at this time to discuss that condition. The condition was initially called "Reflex Sympathetic Dystrophy". This is undoubtedly an organic condition, albeit that why it occurs is largely unknown. One of the medical articles before me is headed "Complex Regional Pain Syndrome: An Evolving Perspective". It was published in the Postgraduate Medical Journal in 2021. The background to the article contained in the abstract on its first page is this: "Complex regional pain syndrome (CRPS) is a heterogeneous and poorly understood condition that can be provoked by quite minor injuries. The symptoms and signs of CRPS persist long after the patient has recovered from the inciting event. In some cases, there is a clear association with a peripheral nerve injury. The degree of disability produced by CRPS is often out of proportion to the scale of the original insult and the condition is associated with protracted recovery times and frequent litigation." Conveniently, that paper contains a "History of CRPS", which in itself is fascinating.
The same article gives the following description of the signs and symptoms of CRPS as at the date that the article was made: "We now believe that CRPS represents a heterogenous collection of conditions, all of which can be considered under the same heading. The condition usually affects the distal part of a limb and is associated with swelling, altered blood flow and hyperaesthesia. The symptoms associated with CRPS are wildly out of proportion to the original insult. Progression is distal to proximal. Unlike the localised changes we might expect in a specific peripheral nerve injury, the changes in CRPS are often more diffuse. For example, a patient with either an ulnar or median nerve injury might go on to develop generalised swelling in the entire hand if they developed CRPS. Cyanosis, oedema and altered skin temperature soon follow and the adjacent joints become stiff. Some patients describe extreme pain in response to non‑painful stimuli (allodynia). Pain in CRPS may also be spontaneously evoked. The average age at diagnosis is 42. Between 2% and 5% of people with peripheral nerve injuries will develop CRPS, as will 13‑70% of people with hemiplegia. According to Schwartzman, 35% of CRPS patients describe symptoms throughout their body. Cigarette smoking plays a role in the development of CRPS, but the exact role remains controversial. Depression has also been cited as a potential risk factor in CRPS, but again, its exact role continues to be debated. Chronic pain can negatively impact resilience, compromise coping mechanisms and reduce social engagement, all of which may be linked to the onset of depression. CRPS is more common in women than men and has a peak age of 61‑70 years. The prognosis has been shown to [be] worse in people who smoke. Other risk factors include the menopause, a history of migraine, osteoperosis, asthma and ACE inhibitor therapy. The upper limb is more commonly affected than the lower limb, with fracture being the single most common association. In orthopaedics, there is an additional risk from elevated intra‑cast pressure due to a tight cast or extreme positions. Sarangi has reported that as many as 30% of tibia fractures treated in cast develop some CRPS like symptoms, although most of these had resolved within six months. At first sight, this figure sounds very high. Persistent changes in diagnostic criteria and the wide differences in threshold for diagnosis may explain why some authors report a high prevalence of CRPS in patients with a fracture while others see it only as a recurrence. CRPS has been reported in leprosy, as a sequelae [sic] to herpes zoster and in the aftermath of a chemical burn."
At the time of the injury on 12 December 2018, the Plaintiff was 29 years old; she is currently 34 years old. When the CRPS was diagnosed on 30 March 2022, the Plaintiff was 32 years old. There is no evidence before me that the plaintiff is a smoker of cigarettes, and there is no evidence of any other risk factor mentioned in that article. There is no suggestion of leprosy or the Plaintiff having herpes zoster, or there having been any chemical burn. The only suggestion here is that the origin of the CRPS is in the injury that the Plaintiff sustained on 12 December 2018.
The article which I have just recently quoted continues by discussing the pathogenesis of CRPS, which begins in this fashion: "The pathogenesis of CRPS is not understood. However, evidence now emerging from a number of different fields suggests a multifactorial disorder that is triggered by an initial often sometimes quite minor injury. There is then an aberrant response by the body with exaggerated immune response, maladaptive neuroplasticity and abnormal vasomotor function within the tissues of the affected limb. Tumour, rubor, calor and dolour are all present in abundance, and it is widely accepted that CRPS represents an exaggerated inflammatory response to trauma." The article goes on suggest how that inflammatory response may arise chemically.
Commencing on the third page of the article, there is a discussion of treatments available for CRPS. It commences with this statement: "There is no consensus as to the optimum treatment for CRPS, and many authors argue that better constructed and much larger‑scale studies are required to give us any real confidence in the efficacy of one treatment over another." The article goes on to say that physiotherapy is the mainstay of treatment, and has been shown to be more effective when initiated early in the natural history of the disease. It then discusses "plasma exchange", but that has a variable response. The article then says that historically sympathectomy has been used to treat CRPS, and that can now be performed using radiofrequency, chemicals and surgery. There is then a number of discussions of other treatments, including drug treatment, and the article then continues with this: "For patients that seem to be resistant to all other forms of therapy, some doctors argue that there is a case for amputation of the affected limb. Amputation for therapy‑resistant CRPS remains an area of controversy. The Dutch published a review article in 2016 looking at 26 papers involving 111 amputations in 107 patients. The authors noted that most of the papers identified in this study represented Level IV evidence, and often used different diagnostic criteria for CRPS1. All of the patients receiving amputation had already failed to respond to other modalities of treatment, with the most common indications for amputation being pain (80%) and dysfunctional limb (70%). Almost half of the patients experienced recurrence of CRPS1 after amputation, with a significant minority developing symptoms of phantom limb [pain]. The authors noted poor levels of postoperative employment and poor uptake of a prosthesis. When amputation is performed as treatment for intractable CRPS, it should be performed in a tertiary referral centre with Multi‑Disciplinary Team involvement both before and after surgery. Psychological support for the patients would appear to be mandatory. From a surgeon's perspective, the challenge here is how to obtain informed consent from the patient in a scenario where the data on the results of amputation in therapy‑resistant CRPS are so clearly limited. Even after amputation, a significant number of patients continue to have a poor outcome and poor quality of life." That gives something of the background to the current proceedings.

Plaintiff's symptoms (1)

The first thing to note is the extent of the Plaintiff's symptoms. On 18 July 2022, the Plaintiff was seen at the Norwest Clinic at the Norwest Private Hospital at Bella Vista by Professor Munjed Al Muderis, an orthopaedic surgeon. Dr Al Muderis was accompanied by Dr Karan Doshi, who wrote a report following the consultation which report bears the date of the consultation. Dr Doshi described himself as an "Orthopaedic Fellow" acting for Dr Al Muderis. Evidence has been given orally by Dr Mustafa Alttahir, also an orthopaedic surgeon, that Dr Doshi was an Indian orthopaedic surgeon who was studying under Dr Al Muderis, in particular studying osseointegration surgery. The report of 18 July 2022 contains this history of the Plaintiff's symptoms: "She says currently she feels she has significant pain in her left lower limb distal to the suprapatellar area down to the foot. There is significant swelling and sweating. She feels hot and cold. The foot turns purple quite often, and she has difficulty in putting any weight across it. She feels that her knee is always in a bent posture. It is very difficult for her to straighten her knee, and a position of ease for her, as what she shows to me, is approximately 50 degrees of flexion, and it is very difficult for her to straighten it and get full flexion as well. She feels that her knee pops out and dislocates as per when she tries to put some weight across it. She is currently limited to using either a walker or another assisted device at home, as well as outside. She is on regular pain management. She cannot even put a sheet on herself at night to sleep. She has built a contraption out of PVC pipes that will cover her, and she does wear a shoe on her foot, however she does not wear a sock, and the moment she takes her shoe off, her foot goes purple, which she demonstrated. She has also showed us photos of her foot and leg with discolouration primarily in the foot which was purple. She said she cannot shave her leg as it causes her significant pain." The next paragraph of this report then refers to the Plaintiff's taking multiple painkillers, but none of those had given her any relief.
The Plaintiff said that she had come to discuss the matter with Dr Al Muderis and his colleagues see whether any reconstructive option was possibile, or an amputation. According to the report, the Plaintiff preferred to undergo an amputation as she has reached "the end of the tether with her CRPS".
As I have already mentioned, the Plaintiff has seen Professor Ian Harris, an orthopaedic surgeon for the Defendant, on 6 October 2022, but his history of the Plaintiff's current symptoms is sparse. On 16 November 2022, the Plaintiff saw Dr Rishi Narasimhan, an orthopaedic surgeon, for a second opinion. Dr Narasimhan's report of 16 November 2022 is Exhibit D. That contains this: "She has developed intractable CRPS, which hasn't responded to multiple pain therapy interventions. She has been reporting recurrent falls as her knee feels unstable and CRPS‑related pain inhibits normal gait mechanics. She has pain even with a light touch on the skin. She has allodynia from lower thigh onwards. The entire left lower limb appears to be affected. She is unable to tolerate clothing, air and pressure on the skin, classical hallmarks of CRPS. She ambulates with a four‑wheel walker and uses a wheelchair which is not suited for her. Her mobility is severely restricted. She has a tenant living with her who helps her out with shopping and other outdoor activities. Kira is struggling with all her activities of daily living, and has perceptual neglect of her left lower limb due to pain. She has exhausted all modalities, it seems, and is now seeking an amputation to alleviate her suffering. She has seen and met amputees and has undergone psychological assessments in preparation for a possible amputation and osseointegration. She is lightly built. She came in with a four‑wheel walker. She is pleasant to interact with. Her left lower limb is the obvious source of her pain. She is unable to weight bear on the left leg, let alone do a functional range. The left lower limb appears swollen and warm. It was hard to examine her as she has causalgia [a hot, burning pain] and allodynia. She is showing trophic changes in the lower limb and well‑healed scars. She demonstrates complete functional neglect of the left lower limb due to pain. It essentially serves only as a peg and a pivot. I had a detailed discussion with her about this. She is clear that after researching all options, she feels that getting an amputation is the best way forward for her, and she is keen to reintegrate in the society and contribute economically. Quite frankly, her pain is so bad, that she sees this as a viable relief."

Macquarie University Hospital Limb Reconstruction Centre

Dr Al Muderis appears to be the leader of the Limb Reconstruction Centre ("LRC") at Macquarie University Hospital. The core team consists of Dr Al Muderis, who is a professor, Dr Tim O'Carrigan, Dr Razvan Stoita, Dr Kevin Tetsworth and Dr Mustafa Alttahir. That core of orthopaedic surgeons is assisted by a multidisciplinary team ("MDT"), including infectious diseases consultants, psychologists, physicians, pain specialists, physiotherapists, rehabilitation specialists, limb reconstruction trained clinical nurses, prosthetists, and spinal, plastic and vascular surgeons. It is the role of the MDT to provide the patient with education and close support during any treatment journey with the LRC. The Plaintiff has been seen on multiple occasions by Dr Al Muderis, or other members of the LRC since the initial consultation with Dr Al Muderis and Dr Karan Doshi on 18 July 2022.
A comprehensive report has been provided by Dr Mustafa Alttahir, it is Exhibit F, and Dr Alttahir gave oral evidence before me. Because of other legal commitments, Dr Al Muderis was not available to give evidence in this Court. Dr Alttahir is a young orthopaedic surgeon. He obtained his Fellowship with the Royal Australian College of Surgeons and a Fellowship of the Australian Orthopaedic Association in 2019. He now specialises in limb reconstruction surgery, including osseointegration and surgery of the foot and ankle. He has appointments at the Macquarie University Hospital, the Norwest Private Hospital, Campbelltown Private Hospital and East Sydney Private Hospital.

Plaintiff's symptoms (2)

Dr Alttahir's report also discusses the Plaintiff's symptoms from time to time. The report contains this matter: "On 4 August 2022, Kira visited the [LRC]...and was assessed by multiple specialists, including Professor Munjed Al Muderis, Dr Tim O'Carrigan, Dr Razvan Stoita, Dr Kevin Tetsworth and myself, as well as other members of the MDT team. Her pain was noted to be severe, with her left lower limb being hypersensitive to the point where even the wind against her hair triggers pain. There are also visual signs of the condition, such as swelling and colour changes in her leg. Activities like walking and sleeping are significantly affected due to the pain. Despite various treatments, including medication, nerve ablation, and cortisone injections, relief from pain has been elusive. On 18 August 2022, she was reviewed again by the same panel or orthopaedic surgeons, and note was made of extreme sensitivity of her left lower extremity, which had become hypersensitive. The limb was noted to have become unsalvageable due to CRPS, and was significantly affecting her quality of life. She was reviewed on 20 October 2022, with symptoms noted to include severe hypersensitivity from her knee to her foot, allodynia, and discomfort wearing certain clothes and shoes. Notable differences in the appearance and health of her left foot compared to the other leg was apparent. A review on 10 November 2022 was scheduled due to recurring falls caused by her left leg issues. These falls had resulted in significant injuries, such as facial trauma and a head injury. Her balance and gait were adversely affected, leading her to resort to a wheelchair for mobility. However, the wheelchair she had at the time was problematic and not suitable for her home environment, and although she had an assessment for a better wheelchair, her request had been declined. Her pain was severe, scoring 7/10 on the Hunter Integrated Pain Service system, and her daily life was heavily affected by it. She was experiencing various pain sensations like burning and electric shocks, and she also felt tingling and numbness in the affected left leg. Pain management measures at the time, including medications, were only marginally effective, reducing her pain by just 20%. A telehealth consultation was conducted on 14 January 2023 as Kira had seen a rapid decline in her physical condition since her last review. She had been experiencing frequent spasms, abnormal postures in her left foot, and unstable walking, leading to multiple falls. Her symptoms of CRPS had persisted, significantly impacting her sleep and overall quality of life. Despite using a walking aid, she struggled with mobility, and due to severity of her symptoms, a wheelchair was recommended. A review on 16 January 2023 show that she remained unable to bear weight on her left leg, which continued to swell, turn blue, and was showing curled toes. During the examination, the leg showed significant signs of CRPS, including shininess, hair loss, and scars resembling healed blisters. The skin appeared extremely thin, and Kira had reported a sensation of potential skin splitting when touched. A review on 9 May 2023 showed Kira remained unable to bear weight on her left leg. She reported worsening pain, swelling, and discolouration. Her pain was severe (10/10), starting above her left knee and extending to her toes, disrupting sleep and daily activities. Despite seeing multiple pain specialists and trying various treatments, including nerve ablation, her pain had only worsened. Touch, movement and even wind exacerbated her pain. She was wheelchair‑bound, with various mobility challenges. Her left knee range of motion was noted to be 20 to 90 degrees of flexion. She was also noted to have skin breakdown, severe dryness and some purple discolouration primarily on the left ankle."
Unfortunately, a transcript of the Plaintiff's oral evidence is not presently available to me. However, as she described many of the symptoms, I have recounted from the histories recorded that I have cited. For example, as far as her sleep was concerned, she told me that she would only sleep for between one and one and a half hours each night. If anything touched her leg, such as a sheet, she felt pain which would cause her to wake. She said that eventually she would pass out from exhaustion due to lack of sleep. She also told me about problems with showering. The falling of water on her leg causes her extreme pain. She can no longer shower, at least with her left leg involved. Eventually, she was given a new wheelchair, which was approved in December 2022.
There are in evidence five photographs which are Exhibit J. The working copies given to me are only in black and white, but it is clear from the actual exhibit that clear trophic changes can be seen in the first, second and third photographs and also the fifth photograph, showing marked areas of purple skin on her left foot. The Plaintiff's ability to do things is so strictly limited that it is almost negligible, and I believe the best description of the Plaintiff's current life due to her symptoms at its best was given by her counsel; her life is currently a "miserable" one. One can understand, therefore, the Plaintiff seeking the order which she does, because she perceives that with an above‑knee amputation of her affected left leg, the amputation being immediately above the area currently affected by CRPS, there is a distinct possibility that much of her pain will be relieved. Even if that not occur, with osseointegration, she would be able to ambulate, to move around, and to be able to care for herself, and albeit that she probably would not be able to return to dump truck driving, there are other forms of work which she could do if she could ambulate.
After all, as I have pointed out on many, many occasions, the purpose of the lower limb in the bipedal animal is locomotion. We have legs so that we move ourselves about so that we can go from one place to another, so that we can reach up and catch things above our head, so that we can reach down and pick things up off the floor, so that we can go to places to attend to our daily wants and needs.

Dr Alttahir's diagnosis and opinion

In his report, Dr Alttahir answered a question as to what is the diagnosis for the Plaintiff's condition. He had no hesitation in accepting the diagnosis of CRPS. It was based on these observations: "Debilitating pain: Kira experiences severe pain in her left leg that is aggravated by touch, movement and even wind. The pain has persisted since her injury in 2018 and subsequent surgeries. Swelling: Kira's left leg frequently swells throughout the day. The swelling is notably significant in her left leg on multiple reviews. Discolouration: Kira's leg demonstrates episodes of discolouration, turning blue and purple, which is a characteristic symptom of CRPS. Temperature Sensitivity: Kira has difficulty allowing water to run down her during showers as it significantly exacerbates her pain, including sensitivity to temperature changes. Allodynia: Kyra displays severe allodynia, experiencing pain from stimuli that should not typically cause pain, notably from the above knee level down to her foot. Kyra also reports sensations such as pins and needles, especially when her leg swells, another indication of neural involvement. Motor Dysfunction: There is evidence of motor impairment with Kira being unable to weight bear on her left leg, coupled with clawing of her toes. Changes in Skin: Kira exhibited signs of skin breakdown, severe dryness, and some purple discolouration mainly over the left ankle. Failure of Other Treatments: Kira has undergone numerous non‑surgical treatments, pain management techniques, medications, all of which have been ineffective. Her persistence of symptoms despite extensive therapeutic interventions is consistent with CRPS. Symptom Persistence: Despite the length of time since the initial injury and surgery, Kira's symptoms have not regressed, and in fact have progressively worsened, which indicates a chronic pain condition like CRPS."
Suffice to say that Dr Alttahir, on behalf of the LRC doctors and the MDT which supports them, recommends the amputation and osseointegration. That is also supported by Dr Rishi Narasimhan in his report, Exhibit D. The same is supported by Professor Ian Harris, an orthopaedic surgeon who saw the Plaintiff on 6 October 2022 at the request of the Defendant. The surgery is opposed by the Defendant, which relies on opinions expressed by Associate Professor Brett Courtenay, an orthopaedic surgeon, and by Dr David Gorman, a physician in general medicine, medical oncology, and a pain medicine specialist. Dr Gorman does not have any post-graduate surgical qualifications.

Medical articles

I have also had put before me a large number of medical articles which discuss CRPS and its treatment, including the role of amputation in the treatment of CRPS. Perhaps I should refer briefly at this time to some of the medical articles that address the topic of surgery. Dr Gorman has put before me two abstracts from two scientific articles. The first is from the Journal of Bone and Joint Surgery, published on 5 October 2011. The authors of the article all have Dutch names, so I assume, but I will persist with the presumption nevertheless, that they are all from the Netherlands, and perhaps represent a cohort from a Dutch institution. The article is headed "Therapy‑Resistant Complex Regional Pain Syndrome Type 1: To amputate or not?" The abstract is this: "Background: Amputation for treatment of long‑standing, therapy‑resistant complex regional pain syndrome type 1 (CRPS‑1) is controversial. An evidence‑based decision regarding whether or not to amputate is not possible on the basis of current guidelines. The aim of the current study was to systematically review the literature and summarise the beneficial and adverse effects of an amputation for the treatment of long‑standing, therapy‑resistant CRPS‑1. Methods: A literature search using MeSH terms and free text words was performed with use of PubMed and EMBASE. Original studies published prior to January 2010 [my emphasis] describe CRPS‑1 as a reason for amputation were included. The reference list of the identified studies were also searched for additional relevant studies. Studies were assessed with regard to the criteria used to diagnose CRPS‑1, the level of amputation, amputation technique, rationale for the level of amputation, reason for amputation, recounts of CRPS‑1 after the amputation, phantom pain, prosthesis fitting and use, and patient functional ability, satisfaction and quality of life. Results: 160 articles were identified, and 20‑6 studies with level (IV) evidence (involving 111 amputations in 107 patients) were identified. Four studies applied CRPS‑1 diagnostic criteria proposed by the International Association for the Study of Pain,...Thirteen studies described symptoms without noting whether the patient met diagnostic criteria for CRPS‑1, and nine studies stated the diagnosis only. The primary reasons cited for amputation were pain (80%) and a dysfunctional limb (72%). Recounts of CRPS‑1 in the stump occurred in 31 of 65 patients, and phantom pain occurred in 15 patients. 30‑6 of 40‑9 patients were fitted with a prosthesis, and 14 of these patients used the prosthesis. 13 of the 43 patients had paid employment after the amputation. Patient satisfaction was reported in eight studies, but the failure of the satisfaction was often not clearly indicated. Changes in patient quality of life were reported in three studies (15 patients); quality of life improvement in five patients, and the joy of life improved in another six patients. Conclusions: The previously published studies regarding CRPS‑1 as a reason for amputation all present level (IV) evidence, and they do not clearly delineate the beneficial and adverse effects of an amputation performed for this diagnosis. Whether to amputate or not in order to treat non‑standing, therapy‑resisted CRPS‑1 remains an unanswered question."
There are two types of CRPS, known as CRPS-I and CRPS-II. The difference is this, and in this regard I am returning to an article I have also previously cited, "Complex Regional Pain Syndrome: An Evolving Perspective". That paper tells me this: "CRPS begins with an initial, noxious event, but the long-term manifestations are out of proportion to the initial injury. CRPS-I is not associated with an identifiable nerve injury, whereas CRPS-II is associated with a nerve injury. NCRPS-II, a careful clinical examination often determines the injured nerve due to the anatomical pattern of sensory loss. However, both peripheral and central sensitisation processes cause widening of the involved zone, and coupled with the over-response to examination, the individual nerve injury may be missed. The patient may inappropriately be categorised as CRPS-I and the opportunity for surgical intervention to correct a nerve lesion may have been lost. Under the Budapest Criteria, the term CRPS-I covers Sudeck's Atrophy and RSD [Reflex Sympathetic Dystrophy] whereas CRPS-II would now cover what was traditionally referred to causalgia. The vast majority of cases are classified as CRPS-I, so much so that our understanding of CRPS-II is limited by lack of data."
Here, there appears to be no dispute that I am dealing with CRPS-I. The second article referred to by Dr David Gorman, the Defendant's qualified pain specialist, was published on 4 June 2014. It has the same authors as the paper published on 5 October 2011, plus two others, but again the further two authors have Dutch names and I assume they come from the same institution in the Netherlands as the earlier article of 5 October 2011. The abstract for the paper published on 4 June 2014 is this: "Background: Literature on Complex Regional Pain Syndrome Type I...discussing the decision to amputate or not, the level of amputation, or the timing of the amputation is scarce. We evaluated informed decision-making regarding amputation for CRPS-I. Methods: We describe our findings in a retrospective study of the decision-making processes of 36 patients who underwent amputation for CRPS-I at our university medical centre from 2000 to 2012 [my emphasis]. Additionally, we present the incidents preceding the CRPS-I, the reasons for and the levels of the amputation, and the outcome after the amputations. Results: Team members and the patient decided together whether or not to amputate and the level of amputation. Issues such as the level of pain or allodynia, infection, desired length of the residual limb, joint range of motion, strength of all extremities, ability to use walking aids, and psychological 'green, yellow, and red flags' were weighed in this process. There were no complications during the amputation surgery. A 22% rate of complications (infections in all but one patient) immediately postoperatively (re-amputation not required), a 72% rate of phantom pain immediately after or within the first three months after the amputation, and a 77% rate of phantom pain more than one year after the amputation. Conclusions: Informed decision-making regarding amputations for CRPS-I remains a complex process for which little evidence is available to support patient choices; patient-specific outcomes are not predictable. However, amputation should not be ignored on a treatment option for long-standing therapy resistance CRPS-I. Level of Evidence: Therapeutic Level IV. See instructions for authors for a complete description of levels of evidence."
I have put an emphasis in each of these two Dutch articles to show that they have collected data ending in 2012, and data which commenced to be collected probably in around about the year 2000. In other words, this epidemiological evidence is over 20 years old, and to use the vernacular, a lot of water has flowed under the bridge in the last 20 years in many disciplines, including medicine.
One of the articles which is of some moment, in my view, is an article headed "Amputation in Patients with Complex Regional Pain Syndrome" published in the Bone and Joint Journal, vol 98-B issue number 4 on 4 April 2016. According to the first page of the article, it was received by the Journal from the authors on 28 April 2015 and accepted after revision on 5 October 2015. The article is made by practitioners from the Rambam Health Care Campus in Haifa in the State of Israel. The abstract is this: "Aims: Amputation in intractable cases of CRPS remains controversial. The likelihood of recurrent CRPS, residual and phantom limb pain, and persistent disability after amputation is poorly described in the literature. The aims of this study were to compare pain, function, depression and quality of life between patients with intractable CRPS who underwent amputation, and those in whom amputation was considered but not performed. Patients and Methods: There were 19 patients in each group, with comparable demographic details. The amputated group included 14 men and five women with a mean age of 31 years...at the time of CRPS diagnosis. The non-amputated group consisted of 12 men and seven women and their mean age of 36.8 years...at CRPS diagnosis. The mean time from CRPS diagnosis to (first) amputation was 5.2 years...and the mean time from amputation to data collection was 6.6 years... All participants completed the following questionnaires: Short-Form 36, Short-Form McGill Pain Questionnaire, Pain Disability Index, the Beck Depression Inventory, and a Clinical Demographic Questionnaire. Results: The amputation group showed consistently better results compared to the non amputation group in the following parameters: [Mathematical data redacted]. Take Home Message: Amputation should be considered as a form of treatment for patients with intractable CRPS." It would appear that at the time that article was compiled, osseointegration was not an available method of treating those whose limbs had been amputated.
Another paper was published in September 2019. It is headed "Quality of Life After Amputation in Patients with Advanced CRPS: A Systematic Review". The authors of this report are either from the Department of Orthopaedics, the Blackpool Teaching Hospital's NHS Trust in the United Kingdom, or from the Edge Hill University at Ormskirk, also in the United Kingdom. The abstract is this: "The majority of included studies (8 out of 11,...) supported the concept of considering amputation for selected, unresponsive cases of CRPS as a justifiable alternative to an unsuccessful multi modality non-operative option. Of patients who underwent amputation, 66% experienced improvements in quality of life and 37% were able to use a prosthesis, 16% had an obvious decline in quality of life, and for 12% of patients, no clear details were given, although it was suggested by authors that these patients also encountered deterioration after amputation. Complications of phantom limb pain, recurrency of CRPS and stump pain were predominant risks and were noticed in 65%, 45% and 30% of cases after amputation, respectively and two-thirds of patients were satisfied. Amputation can be considered by clinicians and patients as an option to improve quality of life and to relieve agonising, excruciating pain of severe, resistant CRPS at a specialised centre after multi-disciplinary involvement, but it must be acknowledged that evidence is limited, and that there are risks of aggravating or recurrence of CRPS, phantom pain and unpredictable consequences of rehabilitation. Amputation, if considered for resistant CRPS, should be carried out at specialist centres and after multi-disciplinary team involvement before and after surgery. It should only be considered if requested by patients with poor quality of life, who have found to improve after multiple treatment modalities. Further high quality and comprehensive research is needed to understand the severe form of CRPS which behaves differently from less severe stages."
The final articles to which I should refer are, firstly, a paper published in March 2020 by the Journal of Bone and Joint Surgery. The authors of the report were all at the time working at the Macquarie University Hospital here in Sydney. The authors included Dr Al Muderis, Dr Jason Hoellwarth, and Dr Kevin Tetsworth. The abstract is this: "Osteo integrated prostheses provided a rehabilitation option for amputees offering greater mobility, better satisfaction, and a higher use than traditional socket prostheses. There are several different osteo integrated implant designs, surgical techniques, and rehabilitation protocols with their own strengths and limitations. The two most prominent risks, infection and peri-prosthetic fracture, do not seem unacceptably frequent or insurmountable. Proximal amputations or situations leading to reduced mobility are exceptionally infrequent. Osteo integration implants can be attached to advanced sensory and motor prostheses."
The final article to which I should refer is one published by again a number of authors from the Macquarie University Hospital here in Sydney, including Dr Al Muderis, Dr Hoellwarth and Dr Tetsworth. The article is headed "Amputation with Osteo integration for Patients with Intractable Complex Regional Pain Syndrome". The article has a subheading, "A Report of Three Cases". It was published on 14 January 2021 in the Journal of Bone and Joint Surgery. The extract is this: "Cases: Three patients with knee-level Complex Regional Pain Syndrome type I, recalcitrant to conservative interventions, elected for transfemoral amputation and osteo integration. Two patients gained independent ambulation; the third remains on crutches after a disrupted sciatic nerve targeted reinnervation. One uses no pain medication, one is weaning off, and one requires a reduced regimen after revision nerve innervation. Conclusion: Osteo integration seems suitable to optimise rehabilitation after amputation for CRPS-I." Clearly, the case study relies on only the study of three patients, and, accordingly, as epidemiological evidence, it is of no great assistance. I have quoted the articles, however, to show that amputation of legs and arms afflicted by CRPS has been occurring for at least a quarter of a century. The proposition itself is not novel. What, perhaps, could be seen as being relatively novel is osseointegration, that is, having a prosthesis fitted, in the current case, and the cases referred to in the last article to which I have referred, into the stump of the femur, such that the patient does not need to have a socket that fits over the amputation stump to carry the prosthesis. This is perhaps for CRPS patients a "boon". Indeed, that is an opinion expressed specifically by Associate Professor Courtenay in his first report of 20 February 2023, which is part of Exhibit 1. On p 2 of that report, the doctor says this: "The procedure of osteo integration is certainly a very new procedure, and it has been very effective in reducing some of the problems that other patients have had with a stump and the use of standard prostheses. However, it is not without its issues. There is reported up to 20% deep infection risk, of which half of these will actually need to have the implant removed. There is the possibility that it will need to be re-inserted later. That is a 10% incidence. There is also a risk of superficial infections as well. [This] is something that needs to be considered in these circumstances."

Medical opinions of Drs Doshi and Al Muderis

I now turn to the various opinions before me on the surgery proposed. The first is in the report under the hand of Dr Karan Doshi on the report of Dr Al Muderis dated 18 July 2022, which is Exhibit B, and the history recorded which I quoted yesterday. Under the heading "Opinion and Plan of Management" the authors said this: "We had a long chat with her about her situation and told her that currently her options of management would be pain management and conservative measures through the help of pain specialists. If at all, we were to go down the path of reconstruction, we would also need a new MRI. If there is any failure associated, however, from the previous MRI in June 2021, there does not seem to be any issue that we could see. We have recommended that she do a new MRI, however considering that she has CRPS, we have told her that even though we may be able to solve the instability, but the CRPS may progress further, and the primary driver of pain currently is the CRPS. That may not be solved. The next surgical option would be to do an above-knee amputation and use a socket prosthesis, however the socket can call skin-related issues, especially in the setting of CRPS which could actually worsen it, and cause it to head more proximal, so that it is not the most advisable option. The next surgical option is to do osteo integration associated with above-knee amputation. In the setting of CRPS, an osteo integration implant would be more beneficial when we associate the above-knee amputation. We have published papers on CRPS with above-knee amputation and osteo integration, and patients have had relatively good outcomes. There is, however, a possibility of the CRPS spreading more proximal, but the predictability of that is very subjective, and we have had a good success rate with patients that we have dealt with and published on. At this point we have asked her to do a PED-CAT CT to get an idea of her alignment, as well as a repeat MRI of her left knee to assess the integrity of the reconstructions done previously, and we will see her again with the limb reconstruction team where multiple surgeons will assess her clinically and radiologically, and we will come up with a plan that will best suit her in her overall outcome."

Medical Opinions of Dr Attahir and LR

That opinion must be followed by the opinion expressed on behalf of the LR team and Dr Alttahir in his report of 5 October 2023, Exhibit F, and by his oral evidence before me last Monday. In his report, Dr Alttahir was asked to answer a number of questions. I cite a number of those questions and the doctor's written response: "5. What is the treatment which the team have recommended that Kira undertake, and do you support the treatment recommendation? There was a discussion regarding non-surgical and surgical management options for Kira's presentation. She has seen multiple pain specialists and used various medications (eg Endone, Palexia, Pregabalin, and Gabapentin) which have been largely ineffective. Nerve ablation and cortisone injections also had not provided any relief. She was referred to Dr Tim Ho, pain specialist member of the LRC MDT team who had emphasised that Kira, at only 33 years of age, should not need such intense pain relief or mobility aids. The consulting group concluded that an above-knee amputation was the best option for Kira to move forward with her life. It was believed a socket-mounted prosthetic limb would trigger further pain due to skin contact and may cause progression of the CRPS to a higher level, leading to the potential inability to use a socket prosthesis, and needing a higher type of amputation. Instead, the team recommended a transfemoral osteo integration, attaching a prosthetic leg directly to the skeleton, to avoid skin contact. This treatment option could potentially improve her mobility, function and reduced pain. The clinic has prior positive experience with this treatment for CRPS patient, and findings have been published...The group's unanimous opinion was that treatment had the potential to significantly enhance Kira's quality of life. I fully support the recommendation for above-knee amputation with transfemoral osteo integration surgery as a means of improving her mobility, function, quality of life. 6. Should there be continuing delays in Kira undertaking the proposed treatment, what effects may result? My opinion is that Kira has had a deteriorating condition for over four years, with no end in sight. I have witnessed her unfortunate deterioration in physical and mental state firsthand. The current state of her mobility and pain severely affects her quality of life and ability to work, making the situation urgent and ethically pressing. Given her young age and the worsening state of her physical and mental health, delays in providing her with a viable and effective treatment option in the form of above-knee amputation and transfemoral osteo integration will continue to have detrimental and potentially irreversible effects on her health. Without treatment, Kira faces continuous worsening of her symptoms, social exclusion, and severe psychological challenges. She will remain a falls risk, wheelchair bound, excluded from the workforce, reliant on pain management options which do not address her pathology, and this will have a persistent progressive negative impact on her mental health. The proposed treatment aims to decrease or alleviate her pain, and prevent further degradation of her overall strength and musculoskeletal health, and to allow her to re-integrate into society and the workforce once more. 7. It has been suggested that there may be an underlying psychological/psychiatric condition which would indicate that the proposed treatment should not take place. How has this been considered by the team? Dr Chris Basten, Psychologist Member of the LRC Team, has addressed this issue in his three consultations dated 12 August 2022, 16 August 2022 and 20 August 2022. In particular, he noticed that 'Kira is well-suited' as a candidate for above-knee amputation and transfemoral osteo integration. Dr Chris Basten has been a core member of the LRC team as a psychologist for many years and has tremendous experience dealing with amputees within our practice who have also underlying psychological or psychiatric conditions. Kira is no different and Dr Basten has consulted with her long-term psychologist and psychiatrist in coming to this conclusion as noted in his report. As a result in that field, I would defer that assessment to him, and given the fact that he is of that opinion, then I am confident that Kira would be a suitable candidate for above-knee amputation and transfemoral osseointegration. Additionally, I have witnessed first-hand her agony and severe psychological impact resulting from her CRPS manifestations on her quality of life and function, and I believe that the proposed treatment would assist her in overcoming some of the psychological challenges she is facing as a direct consequence of her persistent, debilitating pain, immobility and social exclusion."
In his oral evidence Dr Alttahir made it clear to me that at least in his view the proposed surgery would assist the Plaintiff with her functioning. It would restore to a large extent her mobility because even if she is left with some residual pain or is indeed affected by phantom pain. Regardless, she will still be able to place weight on her prosthesis and therefore be able to ambulate. The mere ability to ambulate, to move around to care for herself will improve her psychological condition, and may make it easier for her to deal with residual symptoms of pain.

Medical Opinion of Dr Narashimhan

Dr Rishi Narashimhan was a doctor to whom the Plaintiff was referred for a second opinion. In his report of 16 November 2022, which is Exhibit D, Dr Narashimhan said this this: "In my opinion she should do well post transfemoral osteo integration. It is up to her insurance provider now who would be in a position to change the course of her trajectory with necessary approvals and support. She also mentioned struggling with an appropriate wheelchair as the current one in her possession is ill fitted and ill-suited to give her small size and deconditioning. I wish her the best and hope she is able to receive the best treatment possible following her protracted suffering with knee injury and CRPS." I have bothered to quote the last sentence of that opinion, which may be thought to be merely a pious expectation for the Plaintiff's good health, but clearly boosts the doctor's opinion that he thinks the Plaintiff will do well if transfemoral osseointegration is indeed practised as proposed.

Medical Opinion of Professor Harris

The other doctor who supports the proposal is Professor Ian Harris, an orthopaedic surgeon who was qualified by the Defendant or its insurer. Like other practitioners, Professor Harris was asked a number of questions. Some of those questions and answers are these: "(a) Whether the recommendation for this procedure is as a direct consequence of the injury reported on 12 December 2018? Please provide your clinical rationale to support why or why not. The recommendation for the procedure is a direct consequence of the injury reported on 12 December 2018. There were no symptoms in the left leg prior to that injury and it is likely that the CRPS has developed as a result of the injury and associated surgical procedures to the knee. Any psychological contribution to the diagnosis has also been a direct or indirect result of the injury from 12 December 2018. (b) Whether the recommendations for this procedure are reasonable and necessary, or whether there are other treatment modalities that Ms Whitton can undertake? Please provide your clinical rationale to support why or why not, and details of any further treatment modalities Ms Whitton can undertake. There are very few other treatment modalities that Ms Whitton could undertake. I note that spinal cord stimulation has been recommendation, but the evidence for this is poor, and it is also associated with a high cost and possible complications. Therefore, I do not consider spinal cord stimulation to necessarily be a reasonable treatment option for her. Regarding above knee amputation and osseointegration, I will deal with these separately. The main treatment recommendation is amputation and this has been offered to treat the CRPS. Osseointegration is simply a way of connecting an artificial leg after an amputation has been performed, and on its own, does not treat the CRPS. Whether or not she requires osseointegration is less of a pertinent point at this junction compared to whether or not amputation should be performed. Regarding the evidence for amputation in patients with CRPS, there are case studies and several publications reporting the results of amputation for lower limb CRPS. One review that attempted to summarise the literature suggested that two-thirds of patients improve, but one-third do not. Professor Al Muderis has published a series of three cases (from 2016) in which two improved. He was also quoted in 2018 as having performed 'a handful' of cases for CRPS. A comparative study of treatment-resistant CRPS patients treated with or without amputation showed modest advantages in the group that underwent amputation. For example, the median pain intensity in the non-amputated group was 91 out of 100, and the amputated group was 80 out of 100. The most recent study (from 2021) also suggested that approximately two-thirds of patients undergoing amputation for CRPS report an improvement in pain or mobility. There is no high quality evidence comparing amputation to non surgical management from treatment-resistant CRPS. My opinion of the evidence that is available is that it is a treatment option that probably provides, on average, some improvement in symptoms. I doubt that it provides a cure, and it is likely that further treatment, including further surgical treatment, may be necessary after the amputation. Given that Ms Whitton is treatment-resistant, amputation (with or without osseointegration) is a reasonable treatment option that may provide her with some improvement in pain. I believe that the probability of improving her mobility over her current level is somewhat lower than the probability of improving her pain. (c) Should you consider the above recommendations to be reasonably necessary, and as a consequence of the injury reported to have occurred on 12 December 2018, can you please outline the following: success rate, risks, and anything else that may be relevant to our consideration. Please see my previous section for my review of the available literature. I judge the surgery to have a two-thirds (67%) probability of resulting in an "improvement" in either pain or mobility. My opinion is that the proposed surgery is highly unlikely to provide a complete cure or restore normal mobility. It should be noted that success rates of two-thirds in case reports, without high quality comparative studies, do not prove that the improvement was caused by the surgical procedure. For example, two-thirds of patients may have improved over the same time, without amputation."
The final matter addressed by Professor Harris in his report was the prognosis. Tn that the doctor said this: "The prognosis for CRPS is poor. Although cases may burn out over time, many cases persist with chronic pain. There is a 25-50% chance that Ms Whitton's symptoms will significantly improve over time with her current treatments."

Medical Opinions of Associate Professor Courtenay and Dr Gorman

I now turn to the opinions expressed by Associate Professor Courtenay and Dr Gorman. The first thing to note is that neither Associate Professor Courtenay, nor Dr Gorman, examined the Plaintiff. They merely provided a review of the literature and medical reports available concerning the Plaintiff. Associate Professor Courtenay, very properly in my view, conceded that he may have been assisted if he had the opportunity of interviewing and examining the Plaintiff, but he did not have that opportunity. Dr Gorman, however, did not believe that he would be assisted by interviewing and examining the Plaintiff, and he made it quite clear in his oral evidence that what he had read was sufficient for him to maintain the view that he had expressed. I find that intransigence on Dr Gorman's part difficult to accept.
In his first report, Associate Professor Courtenay says this before answering the questions asked of him: "My final comment, before I wish to address your specific questions, is that this young lady is quite desperate. In my opinion, that she's focusing too much on the possible fair-good outcome of the surgical procedure. However, I believe she seriously needs to consider the implications of a failure of this procedure. An above-knee amputation does not have any salvage. It is a one-way direction that cannot have any alternate sequelae [sic], other than she can manage a prosthesis, or if she cannot, the above-knee, she will be wheelchair bound. I believe that her underlying depression and mental health situation, this aspect of the very real outcome, has not been fully addressed. I have noted the correspondence that some psychologists say she is ready. Her own psychiatrist, Dr Stuart Saker, would imply that she probably needs to have other things done before she proceeds, but again there is a very significant difference of opinion. One of the concerns raised in all of the literature regarding osseointegration is the mental health of the patient, and that there is certainly a real issue with this lady. Even as recently as December 2022, there appears to be a very significant flare in her underlying condition."
Having quoted what Associate Professor Courtenay said about the Plaintiff's mental health, it is appropriate at this time to say something further on that subject. There is no suggestion that at any time prior to the onset of the Plaintiff's knee problem, and the development of the CRPS, that the Plaintiff had any psychiatric or psychological problem. The major reason for my referring to the earlier spinal surgery was to show that the Plaintiff was able to endure that, to undergo the process, and to recover remarkably well without there being any suggestion of any need for psychological or psychiatric assistance.
In cross-examination the Plaintiff admitted that she had attempted, in the recent past, on three occasions to harm herself. One of those incidents was relatively minor, but two of them were significant. It is clear that the Plaintiff's psychiatric or psychological condition has been greatly disturbed by her experience of chronic pain. However, in addition to what Dr Alttahir said about the psychological assistance given to the Plaintiff by the multidisciplinary team at the LRC, I have been provided with the three reports of Professor Chris Basten, bearing date 12 August 2022, 16 August 2022 and 4 October 2022 (they are Exhibit H). In his report of 16 August 2022 Dr Basten said this: "I write with a further note about Ms Whitton after a phone call today with Kira's clinical psychologist, Fiona Mackenzie. Ms Mackenzie confirmed that Ms Whitton's mood is 'stable', her depression is less severe than it was one or two years ago, and there is minimal risk of any self-harm or suicidal action in the foreseeable future. Ms Mackenzie stated that she thinks Kira has some sound coping resources, and she has considered this major decision very thoroughly, including the small possibility that the procedures may not go exactly as planned. She did not express any reservations about amputation as an option. They have a series of appointments booked in. So, in addition to social supports, Ms Whitton also has mental health supports in place. Ms Mackenzie noted that Kira's outlook on her future is helped a lot by thinking of all the things that a prosthetic limb would enable her to do that the CRPS currently prevents her from ever doing. This affirms my recommendation that Ms Whitton is a suitable candidate from a psychological point of view and that the proposed amputation and osseointegration are likely to lift her emotional, social, and vocational functioning."
The letter from Dr Basten of 24 October 2022 is addressed not to Dr Al Muderis, but to an officer of Coal Mines Insurance. In that letter Dr Basten remained of the view that the Plaintiff's emotional, social, and vocational, functioning cannot conceivably improve without the surgical intervention proposed. He continued with this: "Kira knows that, in addition to the chance of having a very good outcome, there is a risk she may still have chronic pain condition after the planned surgery. My understanding and hers is that the likelihood of any post operative pain being as severe and disabling as her current condition is negligible." However, it is clear that the risk of there remaining disabling pain may remain, but that would not interfere with an increase in function. Also before me is one report from Dr Stuart Saker bearing date 23 October 2022 (Exhibit E). I believe that is the report to which Associate Professor Courtenay was referring in the last quotation which I made from his first report. It would appear that Dr Saker's first examination of the Plaintiff was on or about 23 November 2022. Dr Saker's report, inter alia, says this: "She is having psychotherapy. She has a history of major depressive disorder, post-traumatic stress disorder, and OCD [obsessive compulsive disorder]. She was injured on 12 December 2018. She slipped in the mud and damaged her left leg on a rock. Due to the injury she has been unable to work. When she was working she was being paid $3,000 per week, and now she's getting paid $400 per week. She tried to claim her long service leave but was told she was terminated 12 weeks after she left work. She has had her mental health claim rejected after seeing [Coal Mine Insurances] Independent Medical Examiners (a psychiatrist) and had three consultations with the same person that were unsatisfactory for her. She is depressed most of the time. Her energy levels and motivation are low. Her memory and concentration are poor. Her sleep is poor and she gets three four hours of broken sleep. Her appetite is low and she has lost 11 kg. She was sectioned [under the Mental Health Act] by the police from August 2019 to mid-2021. She was hospitalised in the Mater in PICU [Psychiatric Intensive Care Unit]. She has nightmares and flashbacks about the accident and problems with anger. She avoids the rain. She has OCD symptoms and washes her hands 40 times per day. She is worried about germs. She is on Duloxetine 330 mg in the morning. She has also been on Quetiapine 25 mg at night. She has been on Mirtazapine 15 mg at night. She has previously seen Emma Doolan through Lake Macquarie Mental Health, and Fiona Mackenzie (clinical psychologist). As she was previously on Fluvoxamine and Mirtazapine, she has now had three failed antidepressants. My view is that she still needs surgery on her foot (above-knee leg amputation). I have patients with similar problems who have had amputations with great results in terms of chronic regional pain syndrome. She needs transcranial magnetic stimulation for her mental health problems. It seems that CMI has sidestepped their obligations towards her under the Workers Compensation Commission/Act. If CMI is not going to assist, we need to work out whether we can get her treatment under Medicare and what the attitude of Medicare is to paying for medical treatment for someone who is under a Workers Compensation claim."
One of the "other things" that ought be done, before the Plaintiff proceed to operative treatment, that are referred to by Associate Professor Courtenay in the last quotation I made from him, was referred to as a "Transcranial Magnetic Stimulation", which the doctor explained to me as akin to placing the Plaintiff's head between magnets in order to try to, perhaps, rectify brainwaves or the like. Associate Professor Courtenay thought this was a novel procedure. He clearly expressed his scepticism about it, and it is certainly a treatment of which I have not previously heard. In any event, it appears that the Plaintiff remains under both Dr Saker and Ms Mackenzie, her clinical psychologist, as well as receiving assistance from the psychiatrist and psychologist of the MDT which assess the LRC.
The Plaintiff gave oral evidence. She could not enter the witness box because of being confined to a wheelchair, and so she gave her evidence from her wheelchair, which, for that purpose, was parked between the Bar Table and the Associate's Bench. I found her to be a perfectly acceptable witness. I had no hesitation in accepting what she told me. She appeared to be intelligent and alert. She has clearly researched thoroughly the issue of CRPS, the proposed surgery, and the potential benefits, and the potential detriment that she might suffer if things do not work out as she would hope. She was not present when Dr Alttahir gave his evidence, because the Defendant raised the point that she had not given evidence before the doctor, and for certain other reasons which I need not mention.
Dr Alttahir made it clear that there were certainly potential complications of the proposed surgery that may not alleviate all her chronic pain, or indeed may merely change the nature of the pain into being phantom pain, but he nevertheless thought that there would be an improvement in function which would assist the Plaintiff to lead a normal life, and would certainly boost her psychological state. I do not believe that the Plaintiff's condition is overly affected by her psychological condition. One can completely understand as natural debilitating pain causing some form of depressive illness, and of a patient being keen to improve her condition so that the oppressive illness may be relieved, or depressive symptoms eased. However, that is a viable expectation rather than a pious expectation in the current case, on the evidence available. I do not believe that there is any need at the current time for the plaintiff to undergo any further psychiatric treatment prior to the surgery proposed.
In his first report, Associate Professor Courtenay was asked whether he believed Ms Whitton had exhausted all conservative methods of treatment. He only referred to having the impression from Dr Saker's report that there were still things that could be done to improve the plaintiff's mental health. He mentioned no other specific conservative form of treatment. The Associate Professor was then asked whether the proposed above-knee amputation and osseointegration were "reasonably necessary treatment as a result of the injury on 12 December 2018". He was asked to comment on a number of different aspects of that question. What he said is this: "(a) The appropriateness of the amputation. I would most definitely not regard it as reasonably necessary. The most it could offer is a possibility of improvement, but improvement that is not based on high level medical evidence. As I have said above, there is no second chance to salvage the situation, it is totally finalised. (b) The appropriateness of the osseointegration. Osseointegration is certainly a procedure that is being used. It is very good in traumatic amputations, that is where it gained a lot of results. Its results in CRPS, I do not believe, are any better than case reports or anecdotal reports. The concern is, not so much those who say that they have had an improvement, is the number of people who have failed, and the outcome of the failures. That is what needs to be seriously addressed with this claimant. I believe there is a very high risk that it will fail. (c) The availability of alternative treatment, specifically a spinal cord stimulator, conservative therapies, other surgeries. I strongly believe that all of the alternatives should be trialled. I would suggest, possibly even an anaesthetic to determine whether the knee has clinical signs of instability, or whether it is due to muscle weakness. Again something like a spinal cord stimulator is best addressed by the pain specialist. Again, I stress, a spinal cord stimulator can be removed, and we can return to the status quo, as distinct to an amputation. (d) The actual potential effectiveness of the proposed treatment for CRPS. The effectiveness of the proposed treatment for CRPS is not level 1 or level 2 evidenced-based clinical trials, it is no more than anecdotal. Again, as I stressed, anecdotal only reports the good results, it will not do an analysis of the poor results. I suspect that there are more poor results than have been indicated. (e) The acceptance of the proposed treatment by medical experts for CRPS. There would be a very small group of people who would suggest, in my opinion, amputation for CRPS."
The next major question asked of Associate Professor Courtenay was this: "Do you believe Ms Whitton's condition has the same likelihood of improving whether she proceeds with conservative treatments or the proposed amputation? Please provide your reasoning."
The doctor answered that question with this: "I really cannot clearly answer this, it is really a mental health issue. It is a patient becoming aware of what her condition is, the implications of what she thinks it can offer her, and she needs to realise that there is a high chance for her that it will fail, and whether she's prepared to accept that support from a psychological point, is what is needed in that space."
Again, that comes back to the question of the plaintiff's mental health, the psychological and psychiatric aspects of this case. It is something which Associate Professor Courtenay, an orthopaedic surgeon, cannot address. He does not address it, very properly so. However, no one addresses it in the defendant's case. There is no expert medical evidence of a psychiatric or psychological nature called by the defendant. It ought be clear from the report of Dr Saker which I quoted earlier today that the plaintiff made a claim for her mental health issues to be covered by her workers compensation claim, but that claim was rejected after the plaintiff had had three consultations with a psychiatrist. Who that psychiatrist might be I do not know, but he or she has not been called, nor has his or her absence been explained, nor was there any attempt to tender his or her medical reports. Accordingly, on this issue I must be guided by what is said by Dr Saker, by Professor Basten, and by the reports from the Limb Reconstruction Centre, and by own assessment of the plaintiff having seen her and heard her in the witness box, and taking into account all that I have read in these proceedings.
In Associate Professor Courtenay's second report, that of 31 August 2023, he commented on the views expressed by Dr Gorman. In answer to the first question asked of him, Associate Professor Courtenay said this: "My opinion is that an above-knee amputation is an extremely high risk, with very low evidence to support its success, and its completely non-reversible situation. I have reviewed the documentation. I agree with Dr Gorman that other avenues should be tried, and I opine that even in the most extreme, the chances of above-knee amputation, especially with this lady and her history, where surgery has not served her well ever, it is likely to cause a problem. And, given the fact that there have been two significant depressive episodes with significant attempts at self-harm, I believe there is a huge risk of that occurring again."
Again, this comes down to the plaintiff's psychiatric history. In cross-examination Associate Professor Courtenay had to concede that when he referred to surgery not ever having served the plaintiff well, he meant the surgery that had been practised on her knee since the injury of 12 December 2018. He was unaware of the earlier spinal surgery. That seems to have served the plaintiff well. Therefore, the history of surgery does not appear to be germane to whether the proposed surgery would be successful or not. In answer to a further question Associate Professor Courtenay said that there is no guarantee that the proposed surgery will stop the CRPS. That is quite correct, and no surgeon can ever guarantee anything. Indeed, the CRPS may continue as a form of phantom pain, and it is possible that the CRPS may be found in the amputation stump after amputation, albeit at the present time it is proposed that the amputation be practised above the area currently affected by the CRPS.
However, to try to obviate the plaintiff's still being affected by CRPS, in particular by the irritation of the skin of the stump by a socket fitting, there is the benefit of osseointegration. In the same answer, Associate Professor Courtenay acknowledged that osseointegration has been a "great advance" in dealing with amputations, but he pointed out that there were significant risks of developing infections. I am acutely aware that there are risks of infection around the stoma into which the prosthesis is inserted in the remnant of the femur. Previously when sitting in the Civil jurisdiction of this Court I dealt with one gentleman who as a result of a traumatic injury required transfemoral amputation of a leg and osseointegration. There were recurrent infections postoperatively but they were all relatively minor and could be readily cured with courses of antibiotics. The risk of there being a major infection, the risk of the need to remove the prosthesis cannot be stated with any certainty, but the impression I am left with here in the evidence of, in particular, Dr Alttahir here, is that it is not a major risk. Ongoing minor infection is a distinct risk, but that can generally be treated conservatively and fairly rapidly.
Again, in the second answer Associate Professor Courtenay said that he thought that the plaintiff's "fundamental problem is her mental health". I do not share that view on my review of the evidence. In answer to the fifth question asked of him, Associate Professor Courtenay referred to having read correspondence that had been signed by the plaintiff. That has not been put before me, nor was it the subject of any cross-examination of the plaintiff. Associate Professor Courtenay believed that it shows that the plaintiff did not understand the risks involved or was "glossing over, in her mind, the potential risk" which I believe is the doctor's way of saying that he thought she was minimising the risks. However, having heard the plaintiff's evidence, I did not form that view at all. In answer to the sixth question asked of him on this occasions, Associate Professor Courtenay said this: "With only a 66% result, my opinion is that this is a totally unnecessary, dangerous, and a procedure fraught with potentially even worse outcomes than we are currently viewing for Ms Whitton."
It appears that the two-thirds positive result is based on the article by Professor Al Muderis and others published on 14 January 2021, to which I have earlier referred. In his oral evidence Associate Professor Courtenay reduced that percentage from 66% to 50% because of his view as to the rate of infection following osseointegration. However, that appears to me to be not consistent with such material as is available in the short study made in Australia, and in the studies referred to by the Dutch, English and Israeli authors of articles to which I have referred.
The final report of Dr Courtenay, that of 20 November 2023, is his comments on the report of Dr Alttahir, to which I have earlier referred. Again, the doctor refers to risks and to certain comments made by Dr Alttahir about the proposal of spinal cord stimulation, which I shall address in due course. Essentially, the position adopted by Associate Professor Courtenay is that the treatment is radical, and one must accept that it is. Removing a person's leg is a procedure that cannot be undone. However, if the osseointegration is not successful, and if the pain is not relieved because it is replaced by phantom pain, and if the plaintiff does not improve her function, as Dr Alttahir expects, then where will the plaintiff be? The answer is in exactly the same position as she now is. That is, I find it difficult to see how she will be worse off, other than that she has lost the chance of having a leg and expecting the CRPS to spontaneously recover, despite there being very little likelihood of that ever occurring.
I turn then to the opinions expressed by Dr Gorman.
Like Associate Professor Courtenay, Dr David Gorman has prepared three reports. They bear dates 28 February 2023, 1 September 2023 and 15 November 2023. They are together exhibit 2. In his first report Dr Gorman set out the documentation which he reviewed. It contains a list of 34 earlier medical reports, the vast majority of which have not been put before me. He then provides a clinical summary. After setting out the orthopaedic treatment that the plaintiff had for her left knee injury, his summary continues in this fashion: "In 2020, Ms Whitton was referred to Northern Integrated Pain Management with Dr Prickett. Unfortunately, she also had a deterioration in mental health with self-harm and depression in May 2020 and September 2020. In October 2021, Ms Whitton was referred to a second pain specialist, Dr Marc Russo, at Hunter Pain Specialists. Dr Russo diagnosed Chronic Refractory Complex Regional Pain Syndrome Type I of the lower limb. In December 2021, Dr Russo performed a left L2 sympathetic chain radio frequency lesioning procedure, and also a left saphenous nerve radio frequency lesioning procedure. This did not help. On 31 December 2022, Dr Russo recommended that Ms Whitton complete a spinal cord stimulator trial. Dr Parikh in a report dated 30 March 2022 diagnosed CRPS but did not support the proposed spinal cord stimulator trial. He felt that she was not psychologically an appropriate candidate for a spinal cord stimulator. He did, however, feel that after attending an intensive three-week pain management program along with further appointments with a psychiatrist, then she may be an eventual candidate. Dr Russo in his reply of 22 June 2022 stated that she would be able to get appropriate psychological support if needed. In July 2022, Ms Whitton sought an opinion from Professor Al Muderis. Professor Al Muderis had performed amputation with osseointegration on a number of patients with CRPS. He felt that she would be an appropriate candidate. I note the report from Professor Harris dated 7 October 2022. He did not feel that spinal cord stimulation was a reasonable treatment option. He outlined a number of research reports, but also mentioned that there was no high-quality evidence comparing amputation to non-surgical management for treatment resistant CRPS. He assessed the surgery to have a two-thirds probability of resulting in an improvement in either pain or mobility."
There are a number of things to observe from that summary. Firstly, I was told, as set out in MFI 1, that the CRPS was originally diagnosed by Dr Parikh on 30 March 2022, but according to the summary provided by Dr Gorman, it was first diagnosed by Dr Marc Russo in October 2021. The second thing one will note is that initially Dr Parikh disagreed with Dr Russo's suggestion of a spinal cord stimulator, but recommended that such treatment might be available if the plaintiff underwent further psychiatric treatment. One will also note, as ought be clear from what I have cited earlier, that Professor Harris did not recommend spinal cord stimulation.
The next section of Dr Gorman's first report concerns the relevant medical literature. He only provides the abstract of the two papers prepared by the Dutch teams in the abstracts of 5 October 2011, and 4 June 2014, which I have already discussed. The next comment made by Dr Gorman is this, "I note that Ms Whitton has had significant depression." Clearly, the history of a depressive illness has raised with Dr Gorman a "red flag". Dr Gorman was then asked the same initial questions as had been asked of Associate Professor Courtenay. He did not believe the plaintiff had exhausted all conservative methods of treatment. He recommended spinal cord stimulation. He pointed out that spinal cord stimulation was a "conservative option when one compares it to an above-knee amputation". Eventually the defendant, through its learned counsel Mr Rowles, argued that the contest before me was really a choice as to whether the plaintiff ought have spinal cord stimulation, or ought have the surgery that she asked me to make the declaration about in the Statement of Claim.
Dr Gorman went on to say that he believed that Professor Harris and Professor Al Muderis had downplayed the severity of phantom limb pain, and downplayed the severity of the chance of CRPS recurring in the amputation stump. I know that last clause is inelegant, but I am only quoting what the doctor said, including he meant to say that the two professors had downplayed the risk of CRPS recurring in the amputation stump. Because all methods of conservative treatment had not been tried, Dr Gorman did not recommend the proposed operative treatment. At the end of his report he said this:
I believe the chances of improvement with spinal cord stimulation is [sic] reasonable, particularly if her mood is improved. I believe that both Dr Russo and Dr Parikh would agree with this. "To proceed with a [sic] irreversible amputation with the high chance of phantom pain and recurrence of CRPS in the stump, when more conservative treatments have not been completed, would be extremely unwise."
There is, of course, the emphasis on the plaintiff's psychiatric state. In his second report of 1 September 2023 Dr Gorman commented upon the report prepared by Associate Professor Courtenay of 20 February 2023. In answer to the third question asked of him, Dr Gorman said this: "I would defer to Associate Professor Courtenay with regard to any assessments and treatment of her lower limb pain and whether instability is the cause of some of her symptoms and whether it can be treated. However, please note that this is one of the alternative measures which are available. Another alternative would be the spinal cord stimulator. These treatments are appropriate, but I believe that the amputation will never be appropriate as it is unlikely to help her pain management."
Again, Associate Professor Courtenay had raised further investigations into the state of the plaintiff's left knee, to see whether there was an orthopaedic problem which could be improved surgically, and might relieve some of the symptoms. However, it has never been suggested that that would eliminate the CRPS or do anything at all to cause a major decrease in the plaintiff's symptoms or any major increase in her functionality. Dr Gorman's statement that he believed that amputation would never be appropriate because it was unlikely to help in the management of the plaintiff's pain is of course inconsistent with many of the articles to which I have referred, and clearly with other opinions. In his third report of 15 November 2023 Dr Gorman commented upon his views of the report of Dr Alttahir of 5 October 2023. Essentially that did not cause him to change his view. He agreed with a statement made by Associate Professor Courtenay that the proposed surgery was a "very radical approach to this lady's problem". It certainly was not a conservative approach to the plaintiff's problem.
A dispute has arisen between Dr Alttahir and Dr Gorman as to the effectiveness of spinal cord stimulation. Clearly, Dr Gorman believed it was a more conservative treatment than the proposed surgery. Dr Alttahir believed that the doctor was saying that spinal cord stimulation was a conservative mode of treatment, but it clearly is not. It requires implantation of material in the spine to interfere with the electrical supply which is designed to lessen the patient's experience of pain. This is merely a dispute about the use of the word "conservative" in lieu of the words "more conservative". Dr Alttahir raised the issue that it is possible that spinal cord stimulation can result in a bad case of paraplegia. That is so, but the likelihood of that occurring, if the spinal cord stimulator be inserted by a professional neurosurgeon, is highly unlikely.
Dr Gorman, whilst a pain specialist, has no post graduate surgical qualifications. I asked him at what level the stimulation would need to be implanted and he referred to wires at the level of T8/T9 and going to T10. Of course, that is near the area where the plaintiff has had the subarachnoid shunt. The shunting is between T12 and L1. It is noted that the laminectomies had been performed at T8 and T9. In the radiological investigation of 21 March 2018, which I quoted yesterday, it was pointed out that the prior thoracic syrinx had initially extended between T5 and T12 was now shown to be between T7 and T10. Whether there could be a successfully implanted spinal cord stimulator, given the plaintiff's prior spinal surgery is a matter of speculation and is a matter that I cannot take into account.
Although Dr Gorman thought it would be possible to insert a spinal cord stimulator, I would need to have before me an opinion from a neurosurgeon that that would not be inconsistent with the plaintiff's prior spinal surgery, and indeed with any residual syrinx in the thoracic area of the plaintiff's spinal cord. Without any such evidence, I am afraid that I cannot find, as I have been urged to find by Mr Rowles, that the plaintiff ought have spinal cord stimulation rather than the surgery that she desires. The evidence is just not sufficient for me to so find, and furthermore, Dr Gorman's opinion about the provision of spinal cord stimulation is again based on his scepticism about the plaintiff's mental state, and of course one might need a psychiatric opinion on that issue. I have a psychiatric opinion on the issue of the proposed surgery, but not any psychiatric opinion on proposed spinal cord stimulation.

Legal Principles

I turn then to the relevant legal principles by which I am guided. I have held that this Court has power to make a declaration that proposed medical treatment is reasonably necessary as a result of injury: Perrin v SAS Trustee Corporation [2014] NSWDC 203 at [24]-[30]. Ultimately in that case I made a conditional finding that the proposed spinal surgery was reasonably necessary: Perrin v SAS Trustee Corporation (No 2) [2015] NSWDC 345. However, that case was the subject of a successful appeal, the Court of Appeal holding that I was not entitled to make a conditional finding but there was no challenge in the Court of Appeal to this Court's power to make such a declaration: State Super SAS Trustee Corporation Ltd v Perrin [2016] NSWCA 232. It has not been disputed by Mr Rowles that I have the power to make the declaration sought, or a finding to the same effect.
The locus classicus for the content of whether medical treatment is reasonably necessary as a result of injury is the decision of Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32. Commencing at page 43, His Honour said this: "Necessity" is defined in the Macquarie Dictionary to include "something necessary or indispensable ... an imperative requirement or need for something". A particular treatment is necessary when it is indispensable or imperative. What further limitation stems from the modifying adverb "reasonably"? The relevant treatment is not required to be absolutely, indubitably or unquestionably necessary. It must be reasonably necessary. "Reason" is defined in the Macquarie Dictionary as including "sound judgment or good sense". Reasonably, therefore, connotes conformably with such sound judgment and good sense. A treatment is reasonably necessary when the exercise of common sense would adjudge it to be so. The exercise of whose common sense? The patient? The doctor? or the tribunal? I would tend to the view that it is a matter to be determined by the tribunal on the totality of the relevant facts as found by it. It is difficult to give any definitive effect to the adverb "reasonably" in the context of section 10(1). For many years the section provided: " (1) Where an injury is received by a worker, and medical or hospital treatment or ambulance service thereby becomes necessary, the employer shall ..." (Emphasis added) Not "reasonably necessary", merely "necessary". Section 10(1a) in relation to travelling expenses incurred in undergoing relevant treatment still applies "where it is necessary for a worker to travel in order to receive any [medical] treatment". Sections 10a(1) and 10a(3) still provide for the cost of replacement of certain items "if necessary" that they be replaced rather than repaired. Are different criteria applicable to determining whether a particular service is reasonably necessary as distinct from merely necessary? Perhaps it was this type of perception which evoked the expostulation 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." The phrase or fragment "reasonably necessary" appears in many statutes. If one looks at Stroud's Judicial Dictionary, or Words and Phrases Judicially Defined, there are a few score examples of its use in other statutory contexts. Such cases generally tend to interpret the words in terms of the specifics of the particular right or duty being considered, rather than any generic connotations of the words themselves. So, in Stanford v. Roberts [1901] 1 Ch 440, Buckley J, considering a provision of the Settled Land Act concerning additions to or alterations in a building "reasonably necessary" or proper to enable the same to be let, was of the view that the criterion was not absolute necessity but rather "what a reasonable and prudent owner would do if he were absolutely entitled to the property." That suggests the additions or alterations are reasonably necessary if a reasonable and prudent owner would in all the circumstances effect them. Similarly, in Re Chemists' Federation Agreement (No. 2) [1958] 1 WLR 1192, when considering whether a restriction was reasonably necessary under the Restrictive Trade Practices Act 1956, it was indicated that the Court must consider whether a reasonable and prudent man who is concerned to protect the public against injury would enforce such a particular restriction. Again that tends to suggest that a restriction is reasonably necessary if a reasonable and prudent man in all the circumstances would take the action envisaged. It can be very difficult to adapt judicial observations on the use of the same words or phrase in a particular statutory context to the use of the same words or phrase in a different context. This difficulty has quite recently been adverted to by the Court of Appeal in Canterbury Municipal Council v. Moslem Alawy Society Ltd (1985) 1 NSWLR 525; Amco Wrangler Ltd v. Sukkar (1985) 1 NSWLR 577. However, the concept of prudence introduced in these cases does not appear to add or subtract anything. Prudence includes in its meanings "cautious practical wisdom; good judgment; discretion". It connotes making a decision with discretion, circumspection, judiciousness or commonsense. Whether one is adjudging necessity by reason or with prudence, the criteria would appear the same. In Sukkar's case (ubi cit supra) Kirby P observed, generally, concerning the rules of statutory construction: "These rules include giving the language used its ordinary and natural meaning, considering the context in which it is used, considering any legislative or other history and, particularly in a matter of practice and procedure, avoiding anomalies and injustices which may arise from particular constructions ... (and) one of the most important rules of construction is that the Court will give effect to the perceived purpose of the statutory provision." Some guidance in determining the parameters by which one judges whether treatment is or is not reasonably necessary may be gleaned from comparing section 10(1)(a) with section 10(1)(b). The former imposes a liability for medical treatment etc. upon the employer where the particular treatment is "reasonably necessary". The latter imposes a liability for a particular type of treatment, rehabilitation, where it is "appropriate" that such is undertaken. Does Parliament intend the test of liability for medical treatment and for rehabilitation to be different? Prima facie, different words, used in the same subsection would suggest a different meaning was intended. A particular course is "appropriate" when it is expedient, desirable, opportune or meet; where it tends to promote a desired objective; where it is fit and suitable for a particular purpose; where it is proper in all the circumstances. A particular course is "necessary" where it is indispensable, requisite, essential, imperative, mandatory or obligatory; where it cannot be foregone. There appears to be a different order of magnitude involved when one is considering whether something is "necessary" as distinct from merely "appropriate". It would seem anything that is necessary to attain a desired end must be appropriate for that purpose but the converse may not be so. While it is exceedingly dangerous to argue from analogy or from isolated example, perhaps the difference is illustrated by the case of a headache. If it be assumed that there are a variety of drugs available to alleviate headache from simple proprietary analgesics to expensive, exotic preparations evolved to deal with particular segments of the headache problem, then to relieve the particular headache there is a choice of drugs to prescribe. All may well be appropriate to achieve that goal. Even assuming there are degrees of necessity, are they all equally necessary? If it be a simple headache, not hypertensive or a migraine etc. then simple analgesia would appear both appropriate and necessary. The more exotic preparations may be appropriate, that is competent to alleviate the problem, but hardly seem necessary, that is cannot be done without. It must be borne in mind that the evaluation is being made in the context of liability being imposed on someone else to pay for the treatment and that the liability is limited to the cost of treatment that is reasonably necessary. C.P. Mills, in his practice book Workers Compensation (2nd ed) Sydney, Butterworths, 1979, at 273 adverts, en passant, to the distinction between "necessary" and "appropriate" in this context, commenting: " ... it may be argued that it will be slightly easier for the worker to establish that the affording of rehabilitation treatment to him is 'appropriate' as a result of injury." In comparing the nuances of "appropriate" and "necessary", no account has been taken of the modifying adverb "reasonably". Is there a distinction between something being necessary and the same thing being reasonably necessary? In common parlance, "reasonably" is sometimes used as a diminutive. A comment often heard is that someone has had a "reasonably hard day at the office", suggesting it was not a hard day nor was it an easy day but that it was something in between. Whatever might be said of that usage, it does not appear to me that it was so used by the legislature in this particular provision. Inferentially, C.P. Mills (ubi cit supra) at 273 suggests there is no difference between something being necessary and being reasonably necessary: "There is no reason to suppose that the words 'reasonably necessary as a result of the injury' were intended to mean anything different from the former phrasing 'thereby becomes necessary'." By what criteria is a particular treatment to be evaluated to determine whether it is necessary, whether it is essential or whether it should not be done without? That judgment would appear to me to include prudent consideration of medical opinions as to appropriateness; alternative treatments; cost; degree of effectiveness - actual or potential; its usage in similar cases. Fairly clearly, if there are two potential lines of treatment and one is low-cost, highly effective, and the other high-cost, minimally effective, it would be difficult to adjudge the latter necessary. That is an extreme example. Some of the considerations adverted to above are perhaps particularly appropriate to what might be termed unusual treatments. Obviously the more widely used a particular regimen is in relation to the particular condition, the more likely it is to be a reasonable necessity. The converse also applies. However, all therapies must have a beginning. Medicine is an evolving field. Pasteur's antisepsis was not quickly and unanimously embraced by the profession of his era. Novelty, per se, may weigh against necessity but certainly does not exclude it. Necessity is, in the end, an empirical evaluation. If, after all, orthodox regimes have been ineffective or, even before they have been tried some radical new treatment which is perhaps disparaged by the medical profession at large, is tried and does work in the case of a particular patient with a particular problem, then it seems to me there may be some difficulty in saying it was not necessary. In medicine, as in other fields, the unorthodoxy of yesterday can be the orthodoxy of tomorrow. That may still leave its position today ambivalent but, speaking of the good trees, it is said: "By their fruits shall ye know them". In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated: 1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment. 2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act. 3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury. 4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker. 5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition."
That decision was followed soon after by His Honour in Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264. The worker in that case, Jon Blake, was an Australian movie actor. He was employed by the respondent. He was a principal actor in the Australian film, "The Lighthorsemen". In December 1986 in compensable circumstances he was involved in a motor vehicle accident and sustained a very serious brain injury. He was treated in a number of hospitals until August of 1987. A little prior to that time his situation was assessed by the Institute for Achievement of Human Potential. Acting on the advice that she received from that institute, the worker's mother removed him from the hospital environment and returned him to the family home and instituted the course of treatment at the centre of that dispute. It was not the common treatment of a brain damaged quadriplegic. It was described in the worker's case as alternative medicine. It was costing something in the order of $3,000 per week.
His Honour was not dealing with the matter de novo. The matter had been determined by Grayson C and the matter that was before His Honour was an appeal from that Commissioner's decision. His Honour said this: "Principle The criteria for determining whether treatment was reasonably necessary were considered in Rose v. Health Commission of NSW, Compensation Court, No. 9237/82, Burke J, 4 July 1986, unreported. During the appeal, counsel were referred to the judgment. There being no reports of decisions of this Court (or the Workers' Compensation Commission) after 1979 they were not aware of it. The only formal dissent expressed by Nicholas QC was to one of a series of tabulated conclusions which suggested: "3. Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of injury." Nicholas QC emphasised that the appellant did not concede that the capacity to alleviate meant the treatment was reasonably necessary. The gravamen of the statement was not intended to suggest such. It proposed merely that if it were granted that a particular treatment was reasonably necessary then the "results from" test would be satisfied if the treatment was directed to alleviating the effects of the work injury. The determination of reasonable necessity required consideration of a variety of other factors. Those other factors were suggested to include consideration of: • appropriateness • alternatives • cost • effectiveness • acceptance. There is a deal of overlapping and each factor is not separate and distinct. Briefly the scope of these criteria was suggested to be as follows: Appropriateness It was suggested that all medical treatment was purposive. It sought to mitigate the effects of injury; sometimes to cure; sometimes to alleviate; sometimes to merely sustain status quo; sometimes merely to retard accepted progressive deterioration. If a particular regime lacked the capacity to achieve these aims it was inappropriate. Alternatives Consideration of other avenues of treatment was required in determining whether the particular form undertaken was reasonably necessary. If the treatment in question merely retarded progression of the consequences of injury and other treatments would cure the condition or substantially alleviate the problem it was incumbent to make the value judgment concerning necessity with this in mind. Cost If various alternatives existed for treatment the relative costs were a factor to be evaluated. There must be some cost/benefit analysis. If a high cost, minimally effective regime had been instituted where a low cost, maximally effective alternative existed the former may well be adjudged not reasonably necessary. Even where but one avenue of possible treatment existed it may be that its effectiveness was so minimal and its cost so great that it could not be considered reasonably necessary. Effectiveness Implicitly in what was just stated, the degree to which the treatment could alleviate the consequences of injury was a factor in assessing its necessity. Acceptance Acceptance of a particular regime of treatment by the medical profession was to be considered. Treatment regarded as routine by the medical profession was unlikely to be considered other than reasonably necessary. The probabilities were otherwise where what was being considered was not a medically accepted regimen. Rose v. Health Commission of NSW was such a case. Some substantial parts of the treatment undertaken there were rejected by a number of Royal Colleges, including those of Physicians, Psychiatrists and Pathologists, as having any sound medical bases. And, indeed, there had been minimal, if any, response by the patient apparent as a consequence of the treatment. In general it was suggested that a particular form of treatment would be regarded as reasonably necessary where prudent consideration of the various factors lead to the conclusion that such treatment should be afforded to the worker."
His Honour went on to say this commencing at 278: "For reasons stated above, and more fully in Rose v Health Commission (NSW) I do not believe that the Legislature did, or intended to, limit medical treatment to forms of treatment usually or ordinarily adopted by the medical profession generally for treatment of the particular injury. The grounds of appeal raise no question of whether this particular form of treatment was in fact medical treatment. Apparently no such submission was made to the Commissioner. Insofar as any such submission may have been imported on the appeal, it appears to fail for outside the grounds of appeal and no amendment of such was sought, and consequently not open to the appellant to so argue. Insofar as the appellant submitted that only usual and ordinary forms of treatment can be found to be reasonably necessary, I do not agree. As adverted to in Rose's case, today's novelty may be tomorrow's orthodoxy. Pasteur's concept of antisepsis is now accepted whereas, when proposed, it was not universally or readily accepted. A highly unorthodox treatment may be found to be reasonably necessary though, probably not so in most cases. In my view a quite impressive factor in evaluating such a form of treatment would be its effectiveness in alleviating the patient's problems. The more so where more conventional treatments had been essayed unsuccessfully. I do not feel that the Commissioner was precluded by the unorthodoxy of the form of treatment from finding it to be reasonably necessary. It was a matter for his judgment applying the proper criteria in law. That he appears to have done. Insofar as the appellant submits the marginality of improvement and the lack of industrial utility of such improvement preclude the treatment from being reasonably necessary, again, I cannot agree. I do not regard the treatment of a quadriplegic as needing to restore some industrial utility. Such is inconsistent with a number of decisions, including Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 and Migge v Wormald Bros Industries Pty Ltd [1972] 2 NSWLR 29 is clearly distinguishable. It concerned "a treatment" of a man who was fully and unrestrictedly fit with no diminution of capacity. Again, while the Act imposes prima facie limits on the total costs of medical or hospital treatment, there is a discretion to extend those limits which has been repeatedly exercised over a long period of time. I do not believe that such prima facie limits suggest that very expensive forms of treatment cannot or should not be found to be reasonably necessary."
The next relevant decision is another decision of Burke CCJ of Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233. Again, relying upon what his Honour said in Rose v Health Commission (NSW) His Honour discussed in Bartolo the appropriateness of the treatment, available alternatives, the relative cost, the potential effectiveness, and the unusualness of the treatment, as well as its overall impact. His Honour visited the same issue in Bennett v Gary Bennett Holdings Pty Ltd (1997) 14 NSWCCR 317. There, the major discussion was the overall cost of the treatment and his Honour made orders to in effect grant the applicant the relief which he was seeking.
In Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 the question of medical treatment was discussed by Campbell CJ of CC. His Honour cited with approval the decisions in Bartolo v Western Sydney Area Health Service and the earlier decision of Burke CCJ in Pelama Pty Ltd v Blake. There, the issue was the psychological treatment of the applicant for compensation, the treatment being afforded in the USA, together with related travel and other costs. His Honour found for the applicant. He distinguished the decision of Williams J in Taylor v Ron Taylor Film Productions Pty Ltd (1973) 47 WCR(NSW) 112, where his Honour declined to make an order for the payment of treatment expenses in the United States of America.
A case which is referred to in the current Practice, Mills Workers Compensation NSW is my unreported decision in Cheng v Sivieng, a decision given on 22 April 1998 in matter number 17252/96/1 in the Compensation Court. That was an appeal from a decision of Commissioner Turner given on 15 October 1997. The appeal was limited to error of law. Commencing at the foot of page 14 of my decision, I quoted the decision of Burke CCJ in Rose v Health Commission (NSW) and set out the five points set out in the headnote of that report. I then went on to say this: "His Honour clearly was of the view that the purpose of treatment was to alleviate the consequences of the injury. That may be too narrow a statement of the law. Mr J O Anderson [for the Applicant] has rightly pointed to a passage in the decision of Hutley JA in Thomas v. Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216. In that case the worker had been rendered a spastic paraplegic and the question was whether an aboveground heated swimming pool used for hydrotherapy prescribed by the worker's doctor was within s 10 of the then Act (Workers Compensation Act 1926). At 219F Hutley JA said: 'The pool is a special hydrotherapy pool, constructed aboveground, though attached to the premises. His Honour found that, by reason of the respondent's special complications over and above those of an ordinary paraplegic, she needed hydrotherapy on an emergency basis from day to day as required. This treatment maintains her health and slows, or perhaps prevents, its deterioration. Two attacks were made on this reasoning - first, it was said that it was not curative and, second, it was not apparatus. As to the first, the argument was that to keep an incapacitated person in the same state was not to cure him and an apparatus which did not cure, was not curative. This is a petty frogging argument - the process of dealing with an incapacitated person involves a continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of a lack of something to do. Any apparatus which helps in this way is a curative apparatus.' Of course, those comments were made in the case of a very severely injured worker. Mr Anderson relies on what fell from Hutley JA to maintain his position, that not only is treatment which alleviates the condition compensable, but also treatment that maintains the worker from degenerating further."
I maintain that, of course I am bound by the decision of the Court of Appeal in Thomas v Ferguson Transformers Pty Ltd. The case that was then before me was, however, quite a different case to that.
Another case, of course, is Casey v NSW Police Department (1999) 18 NSWCCR 592, a decision of Bishop CCJ. Again, commencing at [45] his Honour set out applicable provisions and commenced with Rose v Health Commission (NSW) and other decisions of His Honour as well as the decision in Cheng v Sivieng with which he agreed. His Honour referred to that broad approach being preferable, bearing in mind his acceptance in a large number of decisions, and His Honour referred to an unreported decision of Egan CCJ in Brespro Pty Ltd v Keenahan which he refers to at [49] of his reasons.
The current Practice refers to two decisions of the Court of Appeal, but each of them deals not with the provisions of s 60 of the Workers Compensation Act 1987 or s 10 of the Workers Compensation Act 1926, but with s 88K of the Conveyancing Act 1919. The first decision is ING Bank (Australia) Pty Ltd v O'Shea [2010] NSWCA 71. There were three issues involved in that appeal: 1. Whether relief against forfeiture is available to prevent the owner of a servient tenement from exercising a contractual right to put an end to an easement, and whether unconscientiousness is required before the Court will grant relief. 2. Whether the judge erred in finding an absence of unconscientious conduct on the part of the respondent. 3. Whether the Court should grant an equivalent easement under s 88K of the Conveyancing Act 1919.
At [43] Giles JA with whom Campbell JA agreed set out the terms of s 88K(1), which is in the following terms: "The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement."
At [48] his Honour said this: "'Reasonably necessary' is a composite phrase, in which the necessity is qualified so that it must be a reasonable necessity. Necessity is quite an absolute concept. The qualification is not of the use or development, so that it must be reasonable, although no doubt reasonableness of the use or development comes into reasonable necessity for that use or development. It is of the necessity."
The same formulation is discussed by Young JA at [155] of his reasons. The same provision was raised in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, a joint judgment of Bathurst CJ, Beazley JA (as her Excellency then was) and Meagher JA. Their Honours commenced to discuss the concept of "reasonable necessity" at [108] and continued to discuss that issue until [117]. However, at [114] their Honours said this: "It seems to be abundantly clear from the passages to which we have referred that the Court in O'Shea decided that the question of reasonable necessity requires that there be taken into account the effect that the easement would have on the enjoyment of the servient tenement including the property rights of the owner thereof. That would seem to include economic effects, including diminution in the value of the property."
In the following paragraph they also said that there was no reason to distinguish between the physical and economic impacts on the servient tenement if affected by the proposed easement. To a large extent they do not advance the concept of what is "reasonably necessary". For my own part I always believed and still believe that necessity is an absolute word. Something is necessary or it is not. There are other absolute words often used. Something is essential or it is not. Something is unique or it is not. However, modifying the adjective "necessary" with the adverb "reasonably" in my view modifies the absoluteness of the necessity. Something may not be necessary but it might be reasonably necessary when one takes into account all the relevant factors. The test "reasonably necessary" must be distinguished from the concept arising in motor vehicle law of medical treatment being "reasonable and necessary". That is a much more stern test. Not only must the treatment be absolutely necessary, it must also be "reasonable", meaning it limits the necessity. The findings made by Burke CCJ in Pelama Pty Ltd v Blake may not have been available if the test were that it was both "reasonable and necessary".

Application of these Principles

I turn then to consider the relevant principles. The first one is appropriateness. As I have already said, the plaintiff's life can currently be described as "miserable". She is in a severe amount of pain, and her mobility is extremely limited. She is dependent upon a wheelchair to be able to move herself about, but even so her ability to do things is limited. The proposed treatment may, and I stress may, relieve some of her symptoms. On the evidence available to me, it will nevertheless increase her mobility. The increase in mobility will enable her to care for herself, to be able to live a relatively normal life. It clearly would not enable her to go back to dump truck driving in a mine, or even driving trucks, because drivers of trucks often have to get out and do things such as repair them, change tyres, make sure that the goods being carried have been properly stored in the truck, make sure that any barriers around the sides of the truck are in order, or that the goods are tied down, or that any covering of them is correctly tied down. That would be difficult for any person with a prosthesis. However, it would enable the plaintiff to go out into the world at large and perhaps to have some form of employment.
It is, in my view, appropriate treatment. The only alternative suggested is spinal cord stimulation. There is a divided opinion about that, but as I pointed out, there is no evidence which would persuade me that it is a viable treatment, because there is no opinion from a neurosurgeon to enable me to find that the spinal cord stimulation would not interfere with the earlier spinal surgery that has been carried out. Furthermore, there is no psychiatric opinion or psychological opinion that this would be an effective form of treatment from which the plaintiff could receive benefit. Furthermore, the evidence tells me that spinal cord stimulation would not affect function. Exhibit L is a document headed "Spinal Cord Stimulation in Patients with Chronic Reflex Sympathetic Dystrophy", a paper published in the New England Journal of Medicine on 31 August 2000. Dr Gorman pointed out that the old name for CRPS was used in that paper showing that it was a matter of some antiquity. However, equally as I have sought to point out, the two abstracts relied upon by Dr Gorman have their own semblance of antiquity. In any event, the abstract commences thus: "Chronic Reflex Sympathetic Dystrophy (also called the Complex Regional Pain Syndrome) is a painful, disabling disorder for which there is no proven treatment. In observational studies, spinal cord stimulation has reduced the pain associated with the disorder."
However, the same abstract tells me that there was no clinically important improvement in the functional status of the patient. Dr Gorman said it was, but he does not say in what way Exhibit L is erroneous, nor could he point to any other paper. I accept that spinal cord stimulation might reduce the plaintiff's pain, but it would not increase her mobility and the major purpose of the surgery proposed is, according to Dr Alttahir, an improvement in the plaintiff's function.
The next item to consider is cost. There can be little doubt that the cost of the surgery proposed is substantial. I have marked as Exhibit G a series of documents which relate to cost. An account from the Macquarie University Hospital for a proposed admission on 10 September 2020 provided an estimated cost of $83,569.30. However, no doubt the cost would be much larger than that. There is a two-page quotation from Osseointegration International Pty Ltd for surgery commencing on 14 December 2023. It appears to be for the hardware involved in the prosthesis. That amounts to $63,329. There is also a quotation for take home spare parts on top of the theatre items quoted in the last quotation, to which I have referred. That is for the sum of $8,600. There is a quote for an anaesthetist of $5,472. There are other items in Exhibit G but they have not been properly collated.
On the other hand, Dr Gorman when discussing cost in his report of 16 November 2023 said this: "The cost of the implant will be no higher than the amputation and associated rehabilitation. This is not an 'experimental' treatment, but a treatment which is used frequently for Complex Regional Pain Syndrome in both the upper and lower limbs. While it is not a guaranteed cure, it is reversible and the implantation of the permanent stimulator only follows a trial where the effectiveness is tested."
Accordingly, there is no evidence before me that the cost of the proposed alternative treatment, that is the spinal cord stimulator, would be substantially less than the cost of the surgery proposed.
The next item to be discussed is the effectiveness of the treatment. That is largely what has been discussed in these reasons. It appears to me that overall there is about a two-third chance of the plaintiff's symptoms being ameliorated, and a greater chance probably of the plaintiff's mobility improving.
The other item is acceptance. Clearly Dr Gorman has a set view about the treatment not being effective, and to put it mildly, Associate Professor Courtenay is diffident about it. However, I have quoted the Dutch, English and Israeli studies, and other articles to show that amputation for CRPS is not uncommon, and is regularly practised. It appears from the evidence before me that it may not have been regularly practised heretofore in Australia, but it has now been practised by the doctors at the Macquarie University's Limb Reconstruction Centre. Novelty, as has been pointed out in the authorities I have cited, is not a sufficient reason to deny the plaintiff the opportunity to undergo the treatment.
That leaves me to consider the matter overall, as had been done by the late Burke CCJ on many occasions. The plaintiff is still a relatively young woman. She is now 34 years of age. Her life is what could be described currently as miserable. The proposed surgery offers her hope. A hope of at least increased mobility, and a hope of a decrease in the symptoms of CRPS. I have considered the extent of the likelihood of there being success. The likelihood of there being some success is that it is more probable than not.
The defendant submits that I would have grave concern as to whether the plaintiff was properly well-informed of the potential risks of the surgery. That is not something that I am determining in proceedings in the Coal Miners Workers Compensation List. That might have to be determined by another judge in another jurisdiction of this Court, or the Supreme Court, if things went gravely wrong. However, the onus of course rests on those performing the surgery to make sure that the plaintiff has adequate and informed knowledge, and that her consent to the operative treatment is well-founded. Having heard Dr Alttahir in the witness box, I believe that the plaintiff has had full advice. She made it clear from her own private inquiries, including discussions with patients who have had osseointegration as late as ten years ago or as more recently as a few months ago, looked at all the pros and cons and determined that she wishes to proceed with this proposed surgery.
There is nothing in law or the facts which would cause me to refuse the plaintiff the relief which she seeks. Accordingly, I find that it is reasonably necessary that the plaintiff undergo a transfemoral amputation of her left leg, to be followed by osseointegration of a prosthesis, together with targeted muscle reinnervation, or such other nerve therapy as appears appropriate to the operating surgeon. I make the declaration sought in para 3(f)(i) of the statement of claim. I order the defendant to pay the plaintiff's costs of these proceedings.
HIS HONOUR: Any other orders sought?
OWER: So far as it may be necessary, and your Honour is aware I am not terribly conversant with the jurisdiction, I seek your Honour's certification for additional conferences.
HIS HONOUR: I do not think I need to do that.
ROWLES: I do not think your Honour does, and we would have thought that the conferences would have been necessary in any event, and it was a difficult and involved case.
HIS HONOUR: Yes.
OWER: Thank you, your Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2024

(1997) 14 NSWCCR 233

(1997) 14 NSWCCR 317

(1999) 18 NSWCCR 592

(1997) 15 NSWCCR 204

At a glance

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Judgment (17 paragraphs)

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Cases Cited (13)