Pre-approval application for spinal cord stimulator – was it reasonable and in consequence of a work injury?
Georgoudis v Return to Work SA [2022] SAET 105
In a decision delivered 9 August 2022 His Honour Deputy President Judge Crawley considered whether the insertion of a spinal cord stimulator was reasonable and in consequence of a work injury.
On 10 October 2017 Mr Georgoudis suffered a fall at work injuring various body parts including his coccyx, suffered left sided radiculopathy and a mild L5 disc protrusion.
He made an application pursuant to Section 33(17) of the Act for the insertion of the spinal cord stimulator. That application was rejected by the Corporation on the basis it was not reasonably necessary either at all or in consequence of a work injury.
In that case Dr Simon Sandler gave evidence that a spinal cord stimulator may be a viable option and might be used for improving chronic pain symptoms. Dr Osti gave evidence that a surgically implanted neuro-stimulator would have a realistic probability of helping both the back and leg pains. Professor Nigel Jones also gave evidence and explained that the indications for a spinal cord stimulator were tenuous and that there was insufficient clinical evidence to support the use of a spinal cord stimulator.
His Honour DPJ Crawley referred to Banjanovic and quoted the following passage:-
“…the reasonableness of the action of the working incurring the liability must be determined having regard to all the circumstances of the case. Although the test of reasonableness is essentially an object, a subjective element is involved. In deciding the reasonableness of his actions, the worker must be accepted as he is. What is to be determined is the reasonableness of the actions of particular worker having regard to his temperament, personal background, means of knowledge and professional advice. The worker is not obliged to elect the cheapest available treatment or the most confession. He must be allowed reasonable freedom of choice. Generally speaking, a worker who acts upon apparently reputable medical advice will be regarded as acting reasonably even though the advice turns out to be incompetent. But a worker who obstinately insists on undergoing diagnostic tests or unconventional treatment contrary to advice, or who opt for unnecessarily expensive method of obtaining diagnosis and treatment, is likely to be judged to have acted unreasonably. Each case must be decided upon his own circumstances and the test is the reasonableness of action particular worker incurring the expense in the circumstances”
In that case the Tribunal held that the service was supported by reputable expert advice, the subjective circumstances of the worker were relevant (but not decisive), and that the worker should be permitted a reasonable freedom of choice.
As the treatment was supported by two reputable experts the Tribunal found the cost of the service incurred by the Applicant was reasonable and in consequence of a work injury.
Disclaimer: this does not constitute legal advice and we do not represent it to be legal advice. If you seek advice, please contact us on 7093 2350 or mail@melinolegal.com.au
