McEvoy v Southern Cross Homes (Broken Hill) Inc [2001] NSWCC 168

Reported Decision : (2001) 22 NSWCCR 415

Compensation Court of New South Wales

CITATION : McEvoy v Southern Cross Homes (Broken Hill) Inc [2001] NSWCC 168 PARTIES : Allison L McEvoy v Souther Cross Homes (Broken Hill) Inc MATTER NUMBER(S) : 33175 of 2000 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/6/01 DATE OF JUDGMENT: 06/22/2001

FOR APPLICANT: Mr T Rowles instructed by Paul J Keady and Associates LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Graham instructed by Moray and Agnew

JUDGMENT: 1. In these proceedings the applicant seeks payment of physiotherapy expenses in the sum of $272, and a declaration in respect of future medical expenses, principally being for a hip replacement operation and its associated costs. The applicant alleges the need for such surgery arises as a result of injury in the employ of the respondent as a result of the nature and conditions of her employment from approximately November 1993 to 6 February 1998. 2. In issue is the question of whether the treatment afforded was reasonably necessary, and whether the need for future treatment and expenses demonstrates a nexus between any injury which may have been received in the employ of the respondent and such operative treatment, and is reasonably necessary treatment. The applicant remains in receipt of voluntary payments of compensation. 3. The applicant was born 19 January 1964. She is a widow who has a dependant child. She commenced employment with the respondent in November 1993 working as a general services officer. At the time of commencing that employment she said she had no problems with her back, right hip, or right leg. 4. It was her evidence that she was employed to work in the kitchen of the respondent's premises between 6.30 am and 3.30 pm. She was required to prepare and serve breakfast, taking the trolleys containing trays of food to patients, and thereafter clean up and set up the kitchen for the next meal, and for afternoon and morning tea. She said the work involved a lot of bending and twisting and pulling of trolleys. A substantial part of her work involved packing dirty dishes into the dishwasher and then unloading those dishes when clean. She said she took the dishes from her left side to place the load into the washer, twisting to her right side. She said she worked holding the materials at or above waist height and estimated the weight of the crate of dishes to be above twenty kilograms. She said she was also required to lift boilers of vegetables such as potatoes from one side of the oven to the other, and to dish up meals. 5. She gave evidence she experienced severe pain in her right buttock to her right leg which began over a period of time leading up to August 1997. She reported this to her supervisor and was given a rubber mat to stand on. This did not provide much assistance. She continued in her employment and said her pain worsened. She attended her general practitioner and also for physiotherapy. By 6 February 1998 she was experiencing extreme pain lasting for longer periods and she was unable to continue her employment. She said the pain extended from her waist to her right foot. She was thereafter off work and was paid workers' compensation. Payments continue to this time. 6. She was referred to Dr Hall and she was given injections into her right hip. She also saw Dr Lewis. An arthroscopy of her right hip was performed in June 1999. Her employment with the respondent terminated on 29 March 1999. She attended physiotherapy some three times a week at that stage and said this afforded her some relief. After some discussion with Dr Lewis, she advised him she was prepared to undergo surgery to her right hip which had been suggested by him. She was accordingly prepared for operation including having blood collected for autologous transfusion. Her operation was booked for 12 January 2000, but was then cancelled as the insurer refused payment of such treatment. Payment of physiotherapy expenses ceased after 1 August 2000. 7. Since experiencing right hip and leg problems the applicant has gained weight principally because of her inability to exercise, and is now markedly overweight. 8. The applicant called evidence of Dr Peter Lewis. He is an orthopaedic surgeon who has a particular interest in hip and knee replacement surgery. His reports were tendered. He initially saw the applicant on 26 August 1998. At that time he recorded consistent complaint of right hip pain. He performed an arthroscopy which revealed a small area of chondromalacia which he thought consistent with her complaints. Bone scan was undertaken on 24 March 1999 which showed increased uptake in the right hip area. He thought there had been marked deterioration since his first consultation, noting the applicant to advise an inability to stand or sit for more than twenty minutes at a time and that she experienced difficulties in everyday activities such as dressing or getting into a motor vehicle. In his view the need for physiotherapy is reasonable and necessary treatment. He also thought hip replacement surgery was reasonable in that it would provide pain relief for the applicant and noting the applicant to have expressed a desire to undergo that surgery. 9. In cross examination he agreed he had last seen the applicant on 3 November 1999 and that as far as he was aware no further x-rays of her right hip had been taken since that time. He gave evidence that the applicant had telephoned him a number of times advising him of increasing pain and of her wish to have operative treatment. He agreed her description of the areas of pain was not always consistent and that her initial complaints had been such that he did not believe on first consultation she had a hip problem, but rather her pain was emanating from another area. He agreed the applicant to be obese. He thought it likely that at a time in the future further hip surgery would need to be undertaken. He agreed it unusual for hip replacement treatment to be performed at such a tender age, but thought the operative treatment should be performed. He agreed that some of her complaints of symptomatology were not consistent with a hip problem and agreed that as at 3 November 1999 he was not certain there was hip pathology warranting operative treatment. He thought the repetitive twisting movements at work described by the applicant were significant in relation to her onset of pain, and thought her symptoms had arisen as a result of those work activities. In his view it was more likely there would be deterioration of either a degenerative process or a secondary process in an obese person. 10. In his reporting of 7 January 1999 he recorded her initial complaints had been of pain through the whole of the right leg radiating down the posterior thigh and calf to the ankle, but that this pain later seemed to change so that the pain was felt more in the groin, and in the buttock on the right. He noted there had been some temporary relief from a steroid injection to the hip. On examination he noted hip movements produced pain, with pain on flexion past 80 degrees felt in the groin, and pain on attempts at rotation in flexion particularly at the end of motion range. He thought there to be some slight restriction of abduction in flexion. He also noted a small click in the hip with about 30 degrees of flexion when moving from the flexed to the extended position palpable over the trochanter. He noted x-rays of the hip to show no bony abnormality. He reported that MRI scan of the hip performed 28 October 1998 showed quite a normal acetabular labrum and what appeared to be quite a smooth and normal looking femoral head and acetabulum. 11. At arthroscope on 6 January 1999 no definitive labral lesion was seen but there was some evidence of degenerative type chondromalacia affecting the superior portion of the acetabulum in one small area, roughly 5 mm in diameter, with the remainder of the hip being normal. At the time of consultation in January 1999 he noted her symptoms had changed again to be more of the whole of her leg with associated paraesthesia which he thought may suggest more of a neurological cause. He thought the applicant should be reviewed by Dr Hall in relation to continuing lower leg symptoms. 12. On further reporting of 31 March 1999 he noted further examination and investigation by MRI scan and bone scan had all failed to reveal any distinct pathology, and thus a true diagnosis was not evident. He thought physiotherapy and analgesics to be warranted and also thought a diagnostic intra-articular local anaesthetic block may be of use. That was performed on 23 June 1999. Following injection he noted that almost all hip pain except for some slight groin and buttock radicular pain was eliminated and he thought this confirmed that a good proportion of her pain was coming from the hip joint. By reporting of 3 November 1999 he thought that even though no accurate tissue diagnosis had been made it seemed likely her pain had been abolished by the intra articular anaesthetic and it seemed that hip movements triggered pain. He noted the applicant was willing to undergo hip replacement surgery. 13. His reporting of 4 April 2001 records his opinion that the condition of the applicant's hip had deteriorated such that she had osteo-arthritis. However, from Dr Lewis' evidence, it seems no further investigative procedure has been done to substantiate such comment, and it also appears he has not re-examined the applicant, but has relied upon telephone conversations with her in relation to her pain and disability. He thought it difficult to be certain about the causation of hip arthritis, but thought it would seem her work had substantially contributed to the deterioration of her hip joint. 14. The respondent called evidence of Dr Simon Spedding. He is a sports physician at the South Australian Sports Medicine Centre. He was present during the evidence given by Dr Lewis. Having heard that evidence, Dr Spedding adhered to his own view that the principal diagnosis was sacro-ilitis and pubic symphysitis due to chronic pelvic instability, muscle weakness and excessive body weight. He had the opportunity of viewing bone scans performed in May 1998 and March 1999 and thought that whilst the second scan showed some increased uptake in the right hip joint in comparison to the left, this was a fairly subtle increase. He thought the finding consistent with some early degenerative change and did not believe it accounted for the applicant's right sided symptoms. He noted that second scan to have occurred after injection into the hip joint and thought there may have been some leakage of anaesthetic to the tissues. In his view the applicant suffers from a back condition rather than any hip problem although he agreed it was not inconsistent that she suffered from problems both of her hip and back. In his view there was no need for hip replacement surgery. 15. In his reporting Dr Spedding notes a history of employment as a kitchen hand with the respondent, standing for most of her shift, washing dishes and turning to the right to fill and empty the dishwasher and that the applicant had performed this work for at least five years on average 40 hours a week. He described the work as being "light repetitive". I do not believe that an accurate description. He did not believe there to be any specific incident or accident at work identified as causing the present problem. He noted there had been slowly increasing pain in the right buttock from September 1997 and that her pain did not improve, but had become more constant spreading to the right leg down the lateral aspect of the thigh to the calf and ankle associated with paraesthesia in foot and numbness around the lateral aspect of the hip. He noted various investigations had been undertaken including epidural steroid injection and cortisone injections around the hip. He noted that at arthroscope a small area of chondromalacia of the right acetabulum 5mm in diameter had been identified and debrided, and no other lesion had been found. At the time of examination he noted pain radiating from her right buttock down the right leg to the lateral aspect of the calf and ankle of a very severe and continuous kind and associated with paraesthesia in the foot, and a feeling of numbness in the hip. He also noted there to be pain radiating from the low back to her neck and that the applicant attended physiotherapy on an almost daily basis. He thought the applicant to be severely obese. He thought her presentation to be sincere. 16. He considered the principal diagnosis to be sacro-ilitis with pubic symphysitis due to chronic pelvic instability associated with muscle weakness and contributed to by strain imposed by her body weight. He also felt there to be chronic strain of the lumbar spine and a chronic pain syndrome with associated depression, anxiety, and sleep disturbance. He thought she required future treatment including physiotherapy, exercise programme and pain medication, and was strongly of the view that hip replacement surgery was unwarranted. 17. The applicant has tendered medico legal reporting of Dr A Girgis of 21 June 1999. He obtained a history of employment with the respondent from 1993 in work involving extensive bending and continuous twisting from side to side. He recorded that right leg and buttock symptoms had started in late 1997, with sharp burning pain in the right buttock and this pain had extended all the way to the ankle without pins and needles. He noted that various investigative procedures had been undertaken including epidural injection, injections into the right trochanteric bursa and arthroscopy. He noted two MRI examinations had been undertaken neither of which showed any abnormality. He also noted two bone scans had been taken. 18. Following examination Dr Girgis was of the view there was no clinical or radiological evidence of any nerve root involvement from the lumbar spine. Clinically, he thought her symptoms were due to the involvement of the right hip itself, probably in the form of some degenerative changes. He felt the diagnosis to be uncertain and thought further investigation by Dr Lewis should be done. In accordance with the history given to him by the applicant, he thought her condition to be as a result of her work 19. Dr J Rolleston is the applicant's general practitioner and is the successor to Dr J Wilson at the Broken Hill Medical Centre practice. He noted consultation at the practice on 9 February 1998 with complaint of pain in the low back extending down the right leg present since September 1997. He recorded that at work the applicant did a lot of twisting. He referred the applicant for x-rays and to Dr Hall and Dr Lewis. 20. Reporting of Dr D Hall was tendered. His initial reporting is of 16 April 1998. At that time he recorded there had been no problems with the applicant's back until August 1997 when she noticed onset of right leg pain with no precipitating event. At the time of examination he noted complaint of pain in the low buttock radiating down the right leg to mid calf level with no real complaint of back pain and no neurological symptoms apart from generalised altered sensation in the right leg. He initially recommended epidural injection and noted by reporting of 12 May 1998 there had been no relief from such a procedure. On 18 June 1998 he performed injections to the right greater trochanter noting this did not give immediate relief but that it was difficult to reach down to the bursa with an ordinary needle. He therefore arranged for further injections with a longer needle under x-ray control. Subsequently he referred the applicant to Dr Peter Lewis for opinion. Whilst noting some early degenerative changes in the right hip joint, he thought it remained uncertain as to whether the symptoms in the right leg were attributable to those degenerative changes. 21. Dr C Thoo saw the applicant on behalf of the insurer providing a report of 25 May 1998. His report was tendered by the applicant. He obtained a history of onset of pain in the right buttock in approximately August 1997, of spontaneous onset, which the applicant felt was due to repetitive twisting to the right whilst loading and unloading a dishwasher and washing dishes at work. He noted that in September 1997 there had been development of pain in the right leg. Following examination and perusal of x-ray and other material he thought the applicant to be generally incapacitated with buttock and leg pain and also found objective signs of weakness of right plantar flexion indicating a possible right S1 nerve root radiculopathy. He reviewed the applicant on 14 December 1999, noting in the interim there had been arthroscopy of the hip, and injection of local anaesthetic into the right hip joint which had totally relieved pain for 12 - 15 hours. He noted that as a result of those investigations and response to the anaesthetic injection the applicant had been booked to have a total right hip replacement. 22. He thought that whilst the initial diagnosis of the applicant's condition was unclear, it appeared that investigations and her response to the injection of local anaesthetic was strongly suggestive that her symptoms emanated from the right hip joint. He agreed that given her high level of pain and disability, surgery to her right hip was indicated. He thought that whilst her employment with the respondent had been a contributing factor that contribution was likely to be minor in comparison to her weight, which he thought to be a major cause of her hip problem. 23. The respondent tendered medical reporting of Dr R Parkington relating to his examination of the applicant on 27 April 2001. He noted the applicant initially developed discomfort in her lower back and right buttock which gradually became worse. He noted that various investigations and procedures had been undertaken, and that it had now been suggested the applicant undergo total right hip replacement. He was not satisfied the applicant was suffering from hip pain and thought no satisfactory diagnosis had been made. Under those circumstances he did not believe the hip replacement surgery should be undertaken. He thought her to be suffering from a trochanteric bursitis and did not believe her employment to be a cause of the condition and thus not a substantial contributing factor. 24. Dr Kirychenko saw her on behalf of the insurer providing a report of 14 September 1998. He obtained a history of employment of a fairly heavy kind involving cleaning, washing dishes, and food preparation, with gradual onset of pain in the right buttock in August 1997. He noted various investigations and treatment which had been undertaken. He did not believe the pain to be emanating from her hip joint and noted her to have quite severe myofascial trigger points over her buttocks with radiation of pain down the right leg. He thought the condition could have resulted from the work performed and thought the nature and conditions of her work were such that it could have resulted from that work. 25. Dr Hart saw her and reported on 12 October 1999. He had available to him reporting of Doctors Hall, Lewis, Thoo and Kirychenko and had the opportunity of sighting x-rays, MRI scan, and bone scan. He recorded a history of gradual development of pain in the right buttock unassociated with any specific injury which the applicant attributed to repetitive twisting to the right side when cleaning dishes, loading and unloading a dishwasher and subsequent packing of dishes. He noted that by November 1997 there was also radiation of pain to the right lower limb as far as the ankle. In his view the applicant is an obese woman who developed gradual pain in her right buttock and lower limb which she attributed to her employment, however despite intensive investigation no abnormality had been demonstrated, apart from a small area of degenerative change in the right acetabulum and some suggestion on bone scans of sacro-ilitis. He had difficulty in reaching a firm diagnosis, but thought conservative management should continue. He also believed the aetiology of the condition to remain unclear. 26. The applicant was a very pleasant woman who appeared to be in great discomfort and seemed very distressed whilst giving her evidence. I accept her as a witness of credit. 27. At the conclusion of evidence, Counsel for the respondent no longer placed in issue payment of s 60 expenses claimed in relation to physiotherapy. However, the respondent strongly contends there is no power to make a declaration in respect of s 60 expenses not yet incurred, and there is no reasonable requirement for the proposed operative treatment to be undertaken, nor has the applicant's medical condition arisen as a result of her employment with the respondent. 28. Both Counsel have referred me to some authorities which in a general sense refer to the making of declaratory orders. In Gunter v H.J. & A.H.J. Gunter and Anor (1966) WCR 21, the applicant suffered recurring dislocations of his shoulder which temporarily incapacitated him. Pending operation to remedy the unstable shoulder joint he sustained further injury to that shoulder and Ferrari J considered the question of whether operative treatment was reasonably necessary . At p27 he said: "I do not desire to say anything as to whether the Commission has power to make declaratory awards in advance of the accrual of a right to a money sum, or as to an award to provide the cost of future hospital or medical treatment. What s. 10 is concerned with, however, is actual treatment, not hypothetical treatment. An operation which may have become necessary, or reasonably necessary, by reason of an injury may not remain necessary, even if not performed; an operation that may have become necessary, or reasonably necessary, by reason of one injury may remain unperformed to become necessary, or reasonably necessary, by reason of a later injury." 29. In Chapman v Director General of School Education (Campbell CJ, unreported, 19 November 1999) the Chief Judge referred to the question of the power to make a declaration in relation to reasonable medical treatment in the future, saying: "The question of whether I should make a declaration and as to for what period I should make it is not quite so simple. The Court unquestionably has the jurisdiction to make declarations in respect of future medical expenses. Customarily that sort of declaration is normally made in relation to relatively finite and specific matters such as operations. It is a discretionary remedy and I think should be used with appropriate care, particularly when one is talking about general areas of treatment rather than more specific events....." 30. He went on to say that in his view it would be appropriate to make a declaration for a period of 12 months from the date of judgment, but that was not to say the payments may not continue beyond that time, expressing a hope there may be agreement between the parties in relation to such a matter. 31. From my own research I have found a number of matters which more fully traverse the question of the power of the Court to make declaratory orders. 32. A further decision of Campbell CJ, Meredith v Barratt and Smith Pathology Pty Limited (17 February 1997, unreported) relates to this issue. This was a claim for section 60 expenses and included a claim seeking a declaration the respondent pay the reasonable medical expenses and treatment and other expenses associated with an outpatient rehabilitation programme of not less that eight weeks duration, physiotherapy in the gymnasium and pool, occupational therapy and clinical psychology including a pain management programme, together with associated travel expenses. Payment in relation to household help and the like was also sought. It was submitted by the respondent the Act did not place upon the respondent an obligation to pay the expenses sought. Campbell CJ made a declaration in the terms sought, noting however, that the respondent did not submit the Court did not have the power to make such a declaration. 33. In Brespro Pty Limited v Garry John Keenahan (unreported, 12 May 1992, Egan J) His Honour ventilated the question of the power of the Court to make declaratory orders. In that claim the employer to the application submitted that the Court, whether it be constituted by a Judge or a Commissioner, had no power to make a declaratory order. Egan J said: "..........The power of the Court is set out in s 107 of the Workers' Compensation Act, 1987. S 107 provides that the Court shall have exclusive right to examine and hear and determine all matters arising under the Act except those under Part 5 which are the Common Law Remedies Provisions. The Authorities referred to by the Employer while casting doubts upon the making of Declaratory Orders are not in reality dealing with the Orders made in this particular case nor indeed do they say that the Court has no power to make Declaratory Orders but rather that the making of such was inappropriate in the circumstances of the particular case. Indeed if one looks at the practice of the Court and that of its predecessor the Workers' Compensation Commission it would appear that every day the Court makes Declaratory Orders. In every case of a continuing claim the Court orders that the Employer is liable to make weekly payments to the injured worker in the future until such time as the Award is terminated or varied by reason of an Order of the Court or the operation of the Statute. It would seem to me that this is a Declaratory Order. Secondly as far as claims under Section 10 of the former Act or Section 60 of the current Act are concerned the Court makes Orders that the Employer shall be responsible to pay hospital, medical and like expenses in accordance with Section 60. It does not make Orders that the Employer shall be liable to make those payments up to the date of hearing but not thereafter making it necessary for the Applicant to come back in relation to each and every item under Section 60. This means that the Court is declaring until otherwise ordered that the Employer continues to be liable for medical and the like expenses under Section 60 in the future. There are occasions when disputes arise as to whether expenses later incurred fall within the terms of the Orders made and the matters are put back before the Court for the purpose of determining whether or not the Applicant or the Employer is correct in its submissions. If further fortification in my view is needed the Act now provides that the Court may make Orders for payment of compensation in the future until a certain date. Surely that must be considered a Declaratory Order. Therefore so far as the first submission of the Employer is concerned in the current matter it is my view that it should fail.................................." 34. In Carle v Readiskill Pty Ltd (unreported, Curtis J, 4 September 2000) a declaration was sought that proposed surgery was reasonably necessary. Curtis J considered the question of whether it was reasonable in all circumstances taking into account the applicant's circumstance and the opinion of the doctors that a drastic remedy by way of operation be performed. Accepting that the treating surgeon was a competent neurosurgeon and that there had been prudent measures previously, His Honour accepted it was reasonable the applicant undergo the operative treatment. He therefore made a declaration that the surgical procedure of lumbar discectomy and fusion was medical treatment reasonably necessary on account of the injury suffered by the applicant. 35. In Lupton v Better Care Pty Ltd (1996) 13 NSW CCR 246, Bishop J considered the power of the Court to make declaratory orders. He determined the resolution of questions that come before the Compensation Court for determination involve the making of a species of declaratory orders. Under the legislation over which the Court has jurisdiction these issues are determined and orders are made which if favourable to the claimant, have an ongoing effect, unless the Court on application varies its earlier orders. Accordingly the Court is empowered by incidental "statutory powers" to make declaratory orders. (Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSW LR 508 at 514 per Kirby P considered, Telicki v Tennyson Textiles Pty Ltd (1960) 34 WCR NSW 119, Fathaliziadeh v Health Commission, Compensation Court No 6589/87, Burke J, 18 September 1989, unreported, Paull v Water Board (1989) 5 NSW CCR 23 and Brespro Pty Ltd (supra) referred to.) 36. In Lupton, a claim was brought by way of notice of motion with the applicant purporting to represent large numbers of applicants claiming compensation under the Workers Compensation Act from whom a company had recovered costs without an order of the Court, and seeking declaratory orders. His Honour noted that in the decisions previously referred to, the Court had no difficulty in finding power to make what could be (loosely) described as declaratory orders, noting it was of assistance also to note the remarks of Kirby P in Linprint Pty Limited (supra). 37. Clearly from the analysis of the above matters there is a body of judicial opinion to the effect that this Court does have the power to make declaratory orders particularly in relation to the cost of future expenses. 38. S 60 provides: Compensation for cost of medical or hospital treatment and rehabilitation etc (1) If, as a result of an injury received by a worker, it is reasonably necessary that: (a)any medical or related treatment be given, or (b)any hospital treatment be given, or (c)any ambulance service be provided, or (d)any occupational rehabilitation service be provided, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2). (2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are: (a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and (b) if the worker is not reasonably able to travel unescorted the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service. (3) Payments under this section are to be made as the costs are incurred, but only if properly verified. (4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section. 39. The expression "medical or related treatment" is defined (inclusively) in s 59 as follows: Medical or related treatment includes: (a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a registered chiropractor or osteopath, a masseur, a remedial medical gymnast or a speech therapist, (b) therapeutic treatment given by direction of a medical practitioner, 40. The respondent has submitted that pursuant to s 60 (3) no obligation arises until the expenses have been incurred and verified, and in support of that position referred to Saad v J Blackwood & Sons Ltd (1997) 15 NSW CCR 215. In that claim, Neilson J held that before Court proceedings in respect of claims under s 60 of the Act may commence, there must be a dispute about the compensation claimed and in the instant case there was no dispute other than about the method of verification required under s 60 (3) of the Act. The applicant submits that this does not apply to the present case. Neilson J was of the view on the evidence before him no dispute had arisen between the applicant and the respondent as to the respondent's liability to pay compensation under s 60, or for any particular item, and the only disagreement was as to whether the costs incurred had been properly verified and in such circumstances there was no dispute about compensation as such but merely dispute as to the mode of verification. I do not believe this is applicable to the present claim. 41. NSW Sugar Milling Co-operative Ltd v Manning (1998) 16 NSW CCR 606 considered the question of whether nursing or therapeutic services provided voluntarily by an injured workers' wife, are costs within the meaning of s 60 of the Workers Compensation Act, 1987 and whether the common law principal in Griffiths and Kerkemeyer (1997) 139 CLR 161 had any application to the statutory provisions under s 60. 42. The Court of Appeal held that such services provided voluntarily to an injured worker were not a cost within the meaning of s 60, finding the section to be an indemnity section empowering the making of orders that the employer pay his employees bills and the application of s 60 is the interpretation of an indemnity clause in the statute. 43. The determination of whether treatment is 'reasonably necessary' within the meaning of s 60 involves an analysis of a number of factors. This was considered by Burke J in a number of decisions. In Rose v Health Commission (NSW) (1986) 2 NSW CCR 32 Burke J set out a number of general principles in determining the question. These were: "1.Prima facie, if the treatment falls within the definition of medical treatment in s 10(2), it is relevant medical treatment. 2.However, though falling within the ambit of that subsection and thereby presumed reasonable, that presumption is rebuttable - there being an evidentiary onus on the party seeking to do so. If it is shown that the particular treatment afforded is not appropriate 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 injury to the worker if its purpose and potential effect is to alleviate the consequences of the injury. 4.It is reasonably necessary that such treatment be afforded a worker if the Compensation Court concludes - exercising prudence, sound judgment and good sense - that it is so. That involves the Court in deciding, on the facts of the case found, 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 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. ....................................." 44. He discussed the matter further in Pelama Pty Limited v Blake (1988) 4 NSW CCR 264, in that matter finding the determination of whether treatment was reasonably necessary within the meaning of s 60 involved a consideration of appropriateness, alternatives, cost, effectiveness, and acceptance by the medical profession. 45. Mrs McEvoy is now undoubtedly in a parlous situation. As I have said, I found her to be a witness of credit, and I have no doubt she is suffering much pain and distress as a result of her injury and from the siutation she now finds herself to be in. She is presently 35 years of age and is a widow with a dependant child. As has been noted in the medical reporting, she is an obese woman, and this appears to have occasioned some difficulty in medical examiners coming to an appropriate diagnosis of her condition. I am concerned with the reporting of Dr Lewis and from his oral evidence, that no investigations have been undertaken since mid 1999, and the applicant has not been re-examined by him, but rather he has accepted her telephone confirmation of the fact she would now like to undergo hip replacement surgery. Clearly there is much divergence of opinion as to the correct diagnosis as to the source of her pain. There has been some finding of a small area of degenerative type chondromalacia over a small area of the right hip. Various treatment modalities have been attempted with little effect. 46. On the other hand Dr Spedding was firm in the view that the applicant suffers a sacro-ilitis and pubic symphysitis due in part to excessive body weight and to muscle weakness and chronic pelvic instability. I am not satisfied Dr Spedding's diagnosis is one which I should necessarily adopt, but in my view, submitting this applicant to operative treatment by way of hip replacement surgery seems to be an enormously invasive procedure, done more as a speculative matter, rather than as one which would appear to give any great prospect of relief to this lady. 47. In the present case, it seems to me there is considerable doubt in the minds of all medical practitioners as to any proper diagnosis of the applicant's condition. I am not satisfied the proposed treatment by way of total hip replacement surgery is appropriate to alleviate the effects of the applicant's injury, noting lack of any proper diagnosis. I am also concerned her treating doctor has accepted the applicant's telephone confirmation of her desire to undergo such speculative surgery as a reason for performing the surgery. Additionally, it seems to me given the applicant's excessive bodily weight, that to undergo such surgery at a tender age is ill advised treatment for this worker at this time, and it does not seem to me there is any real prospect of a successful outcome given the lack of firm diagnosis, nor do I accept such surgery would alleviate the consequences of the applicant's injury and bring her any relief of pain. 48. It may well be that such surgery is found to be an appropriate method of treatment following further investigations and/or medical opinion. It is my view there is a need for further investigation and also for physiotherapy treatment, which seems to be a treatment modality which all medical reporters accept to give some relief to this applicant. For those reasons, at this point in time, I am not prepared to determine the treatment proposed is reasonably necessary treatment within the meaning of s 60. 49. Whilst I am satisfied the applicant suffered an injury to her back and/or her right hip as a result of the nature and conditions of her employment with the respondent in the manner described by her, I am not satisfied she should now undergo right hip surgery by way of hip replacement. I am satisfied she continues to be totally incapacitated as a result of her injury. I am of the view further investigative procedures should be undertaken, and it would appear to me to be prudent for the applicant to now be re-examined by Dr Lewis and further investigation or referral be undertaken. 50. By way of judicial comity I adopt the views expressed by this Court in the judgments cited in relation to the power to make a declaration of the kind sought, however I decline to make any declaration at this time in respect of the cost of hip replacement surgery or its associated costs. 51. I note the applicant seeks payment of physiotherapy expenses in the sum of $272. These expenses have been incurred and I believe they are appropriate expenses and should be met by the respondent. Counsel for the respondent in addresses conceded such payment. I believe physiotherapy is a reasonably necessary treatment for her and that opinion is one shared by medical reporters. 52. Accordingly there will be an award for the applicant in the sum of $272 in respect of payment of physiotherapy expenses, as sought, pursuant to the provisions of s 60. 53. Costs pt 29. Mr T Rowles instructed by Paul J Keady and Associates appeared for the applicant. Mr G Graham instructed by Moray and Agnew appeared for the respondent.