Back surgery compensable as medical evidence outdated

By Andrew Douglas*
Thursday, 08 October, 2009

In the recent Administrative Appeals Tribunal of Australia case of ‘Bunyi and Australian Postal Corporation’ in Melbourne, the employer was found liable for $50,000 back surgery to an injured employee.

The employee injured his back at work when he lifted a 35 kg mail bag in 2001. After a series of operations, the employee was still experiencing severe back pain. After each operation, the employee returned to work on modified duties. A physician recommended to the employee the insertion of a spinal chord stimulator, an operation costing $50,000 for which the employer refused to pay.

The employer sought to rely on information from a neurosurgeon, who gave evidence the employee overstated his pain and that the operation would be ineffective. The evidence was based on journals and reports which the neurosurgeon did not produce and evidence based on the ineffectiveness of the operation which was predicated on outcomes from years earlier. The neurosurgeon’s research was outdated and largely unsupported, and therefore could not be relied upon.

The employee, on the other hand, had sought all reasonable forms of treatment and should not be expected to tolerate the pain. The Tribunal found the operation came within the meaning of ‘medical treatment’ within the Safety, Rehabilitation and Compensation Act and was compensable.

It is important for employers to have accurate medical information and diagnosis for injured workers. Reassessment of individual progress is important to identify relevant and appropriate return to work. It is most important for any medical advice produced by medical experts or the rehabilitation provider to be complete and accurate.

*Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers.

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