Achille v Unilever Australia Limited
[2021] NSWPIC 248
•15 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Achille v Unilever Australia Limited [2021] NSWPIC 248 |
| APPLICANT: | Medgee Achille |
| RESPONDENT: | Unilever Australia Limited |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 15 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The applicant claimed to have sustained injury to her right shoulder as a result of the nature and conditions of employment as a machine operator; the injuries were claimed to be adhesive capsulitis and rotator cuff tear; the injuries were disputed by the respondent; claim for weekly benefits and medical expenses, including the cost of right shoulder rotator cuff repair with acromioplasty and associated costs; dispute as to whether the respondent had continued to pay weekly benefits in error after dispute notice issued; parties agreed that issues of injury and reasonable necessity of medical treatment be determined; and matter listed for telephone conference if issue of injury determined in applicant’s favour; Diab v NRMA Ltd considered; Held- the applicant sustained injury, being adhesive capsulitis and right rotator cuff tear as a result of nature and conditions of employment; the proposed surgery is reasonably necessary medical treatment as a result of injury; the matter is to be listed for telephone conference in respect of the claim for weekly benefits. |
| DETERMINATIONS MADE: | 1. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 2. That the respondent is to pay pursuant to section 60 of the Workers Compensation Act 1987 the cost of right shoulder rotator cuff repair with acromioplasty and associated costs. 3. That the matter is to be listed for telephone conference with respect to the claim for weekly benefits. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Medgee Achille (Ms Achille) is employed by the respondent, Unilever Australia Limited (Unilever) as a machine operator.
Ms Achille claims to have sustained injury to her right shoulder due to the nature and conditions of her employment, the deemed date of injury being claimed as 26 September 2018.
The applicant notified Unilever of an injury on 4 October 2018. The Provisional Notification of Injury Form was completed on 16 October 2018. The date of injury was recorded as 26 September 2018. Ms Achille was operating machinery and “removing inners from case packer after jam up”. The injury is described as right subacromial and subdeltoid bursitis. The applicant had lost five days from work.
On 23 October 2018, Ms Achille completed a Workers’ Compensation Claim Form (the Claim Form). The date of injury was stated to be 26 September 2018. The cause was “cleaning jammed product in the machine”. The injury was described as right subacromia [sic] and subdeltoid bursitis.
Unilever is a licensed self-insurer for workers’ compensation. Its claims are managed by Health and Injury Management Solutions Pty Ltd. I will refer to the insurer as Unilever.
On 20 November 2019, Unilever issued the applicant with a notice accepting liability for injury to her right shoulder subacromial and subdeltoid bursitis and notifying her of a work capacity decision. The notice stated that liability for her injury had been accepted from 26 September 2018 for the specific injury detailed above only (emphasis in original). The injury “detailed above” was subacromial and subdeltoid bursitis.
On 2 January 2020, Unilever issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed that she had injured her right shoulder, pursuant to section 4 of the
Workers Compensation Act 1987 (the 1987 Act), and that her employment was a substantial contributing factor to any injury, pursuant to section 9A of the 1987 Act. To the extent that the applicant relied on section 4(b) of the 1987 Act, Unilever disputed that her employment was the main contributing factor to any injury she had sustained. Liability for weekly benefits and medical expenses was disputed.By letter dated 3 September 2020, the applicant’s solicitors requested that Unilever review its decision to dispute liability for her claim.
On 17 September 2020, Unilever issued the applicant with a further notice pursuant to section 78 of the 1998 Act, incorporating a review pursuant to section 287A of the Act. The dispute was maintained. To the matters formerly advised to the applicant, the notice added that the nature/extent and ongoing effects of any right shoulder injury she had sustained was in issue. It was disputed that any proposed right shoulder surgery was reasonably necessary as a result of injury sustained in the course of her employment.
The applicant lodged an Application to Resolve a Dispute (the Application) on 18 March 2021. She claimed to have sustained injury to her right shoulder on 23 September 2018, when a machine she was using constantly jammed. She continued to work, but the pain became more severe and on 26 September 2018, with more jamming of the machine, she developed increasing pain. In the alternative, she claimed that she had sustained an injury to her right shoulder due to the nature and conditions of her employment. The injury was claimed to be due to the aggravation, acceleration, exacerbation or deterioration of a disease, deemed to have occurred on 26 September 2018.
The applicant claimed weekly benefits from 2 March 2020, ongoing, pursuant to section 37 of the 1987 Act; and medical expenses pursuant to section 60 of the Act, including the cost of right shoulder rotator cuff repair with acromioplasty and associated costs, estimated at $25,000.
The respondent lodged its Reply on 8 April 2021. It confirmed that the matters in dispute were those previously notified to the applicant, but added that the degree of her incapacity was in dispute; maintained that she had at all times been capable of earning her pre-injury average weekly earnings in suitable employment, as defined in section 32A of the 1987 Act; and disputed the wage schedule.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury arising out of or in the course of her employment with the respondent, including as a result of the nature and conditions of her employment;
(b) the nature and extent of the injury;
(c) whether the proposed surgery is reasonably necessary as a result of the injury, and
(d) the applicant’s work capacity.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing by telephone on 10 June 2021. Mr McManamey of counsel, instructed by Ms Khodr, appeared for the applicant, who was present. Mr Saul of counsel appeared for the respondent, instructed by Mr Thomas Murray.
During the conciliation phase, the respondent advised that, apparently through oversight or error, the applicant had been paid weekly benefits, despite liability having been disputed. The applicant provided instructions that she did not believe she had been paid weekly benefits.
The parties agreed that the appropriate course was for the issues of injury and the necessity for medical treatment to be determined, and if the issue of injury was determined in the applicant’s favour, for the matter to then be listed for telephone conference if the issue of the payment of weekly benefits had not been resolved. The applicant confirmed that she sought a general order for past medical expenses.
The applicant objected to the respondent relying on the evidence of both Associate Professor Michael Shatwell and Dr David Wilcox, as their reports were both forensic medical reports and offended Workers Compensation Regulation 2016, Part 9, clause 44.
The respondent submitted that, pursuant to clause 44(3), an additional forensic medical report may be admitted, where the applicant’s injury has involved treatment by more than one specialist medical practitioner. It submitted that the report of Dr Wilcox, who is a consultant surgeon, was this additional report.
The applicant submitted that, as she has not been treated by a consultant surgeon, the report of Dr Wilcox did not come within the exception for which clause 44(3) provides.
For reasons provided at the arbitration hearing, and which were recorded, I determined that the respondent was not able to rely on the evidence of both A/Prof Shatwell and Dr Wilcox. The respondent elected to rely on the report of A/Prof Shatwell.
This election raised the additional issue that Dr Jonathan Herald, in his report dated 15 January 2021, had commented on Dr Wilcox’s report dated 30 September 2020. The applicant did not press part of the report but pressed that part of it that provided commentary on abnormalities on the MRI scan.
The respondent objected to the admission of any part of Dr Herald’s report that provided a response to Dr Wilcox.
For reasons provided at the arbitration hearing, and which were recorded, I determined that the whole of Dr Herald’s response to Dr Wilcox should be excluded from the evidence.
A/Prof Shatwell had also commented on Dr Wilcox’s evidence, and I determined that any reference to that evidence should be excluded from A/Prof Shatwell’s report.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments; and
(b) Reply and attachments.
Oral evidence
There was no application by either party to cross-examine any witness or call oral evidence.
FINDINGS AND REASONS
Evidence of the applicant, Medgee Achille
On 3 February 2020, Ms Achille stated that she had been employed by Unilever for approximately 23 years. She was initially employed as a packer, working 40 hours per week. In 2017, her role changed to basic operator/machine operator; and her hours changed to 12 hour shifts, four days off and four days on.
From 2017, the applicant’s work was repetitive. She was stationed at the case packer and was required to check boxes. She had to lift, pull and push boxes full of ice cream. There were approximately six small boxes in one big box. The machine constantly jammed and on 23 September 2018 she experienced pain in her right shoulder. She “thereby sustained injuries” on that date. She reported this to First Aid and on 26 September 2018 her claim was accepted.
Ms Achille continued working, as she thought she simply had muscular pain. Thereafter, she sought treatment from general practitioner Dr Holmes at Minto Medical Centre. He arranged an ultrasound that disclosed bursitis. He also arranged a cortisone injection and referred her for physiotherapy.
The applicant then changed to her own GP, Dr (Raymond) Lau. He ordered an MRI that disclosed a tear in her shoulder. She was then referred to Dr Mekala (Thayalan) and Dr (Jay) Davé. Dr Davé administered three cortisone injections and performed a manipulation on 26 March 2019. The applicant had also had physiotherapy and consulted a psychologist, “Andrew”.
Dr Davé has recommended rotator cuff repair. The applicant “mistakenly” contacted the insurer to request a second opinion and was referred to Dr Shatwell. The appointment took approximately two hours, after which she was told her injury had nothing to do with her employment and was diabetes related. She wishes to proceed with the surgery.
The applicant is also experiencing pain in her left shoulder “on account of overuse”. She had some left shoulder pain in or about 2015, which was muscular in nature. It resolved after a course of acupuncture over a period of approximately three months.
As of 29 October 2019, the applicant had not returned to work. Her weekly payments were due to cease on 28 February 2020.
Approximately eight years ago, the applicant was diagnosed with diabetes type 2. She was not taking medication and it was diet controlled.
Medical evidence
Macquarie Fields Medical Centre/Dr Raymond Lau
The records of the Medical Centre are in evidence. They date back many years and are in parts difficult to read.
It does appear that Ms Achille presented on 13 November 2018 with right shoulder pain, described as subacromial/subdeltoid bursitis. It is noted “at work” and what may be “6/52 ago”. That would approximate to the time of the onset of symptoms on 23 September 2018. The applicant needed a WorkCover certificate.
The applicant has continued to consult Dr Lau and has been issued with WorkCover certificates.
There is a history of left shoulder and arm pain in 2000, consultations regarding the applicant’s left shoulder and elbow in 2015; and “sore shoulders” in 2007.
Dr Lau reported to the applicant’s solicitors on 12 October 2020.
Dr Lau recorded a history that on the date of the injury, the applicant was repetitively required to lift up the machine when it jammed. She needed to pull the cartridge out to get the boxes out, and then push it back in. She was doing the procedure four to five times an hour, up to 60 times per day, and was operating three machines.
Over a period of six weeks, the applicant progressively experienced right shoulder pain. She had a problem operating the machines, due to shoulder and arm pain. She was having difficulty lifting anything, performing domestic duties and even putting on tops or jackets. MRI revealed partial tear of the right supraspinatus tendon, bursitis and adhesive capsulitis.
Dr Lau opined that the applicant’s incapacity was the result of injuries sustained at Unilever. Her employment was a substantial contributing factor to the injuries. Her prognosis was guarded as she had not improved with physiotherapy, steroid injection and acupuncture. It was likely that she would need surgery.
Dr Lau noted that Ms Achille had a history of left shoulder pain in 2015 and was treated with acupuncture. She felt much better and had no further complaint. It was possible she had overused her left shoulder as a result of her right shoulder. She had not formally sought consultation or treatment for her left shoulder.
The applicant had exhausted all conservative treatment. Dr Lau opined that the proposed right rotator cuff repair with acromioplasty, as recommended by Dr Davé, was reasonably required as a result of the work-related injury.
Dr Mekala Thayalan – Rehabilitation Medicine Consultant Physician
Dr Thalayan reported to Dr Lau on 4 July 2019.
The applicant’s “pain-oriented problem list” was that she had right shoulder pain, depression and workers’ compensation. She was taking Lyrica, Panadeine Osteo and Celebrex. She had ongoing flareups and the pain was worse at night.
The applicant was performing modified duties, working three hours a day, three days a week. Dr Thayalan had commenced her on Palexia and recommended that she continue her other medication.
On 19 July 2019, Dr Thayalan reported that Dr Davé had recommended that the applicant continue pain management.
The applicant had ongoing flareups and had side effects of Palexia, which Dr Thayalan recommended she cease. She was regularly attending a physiotherapist and psychologist. She was performing the same duties for the same hours.
On 1 August 2019, Dr Thayalan reported that the applicant had commenced taking Zaldiar. Her pain had slightly improved, but she developed side effects. She had difficulty sleeping.
The applicant was still being treated by a physiotherapist and psychologist and was performing the same duties for the same hours.
Dr Thayalan recommended that the applicant cease Zaldiar and Lyrica and continue regular Panadol and Endep.
Dr Thayalan reported on 5 September 2019 that the applicant was taking Panadol and Celebrex and having physiotherapy and psychological treatment.
The applicant had ongoing flareups and restricted range of motion in her right shoulder. She had not made any notable improvement. She was not able to return to light duties, modified duties or a transitional role, and was awaiting review by Dr Davé on 5 October 2019.
Dr Jay Davé – Orthopaedic Surgeon
Dr Davé reported to Dr Lau on 12 December 2018.
Dr Davé recorded a history that the applicant started developing pain in her right shoulder from 26 September 2018. She did not recall any specific injuries but described her work as fairly repetitive. She was a type 2 diabetic.
The applicant had had physiotherapy and possibly a subacromial cortisone injection, without much success. She had pain over the top of the shoulder, radiating down her arm, and increasing stiffness. There were no neurological type signs or symptoms. Her pain was almost typical for adhesive capsulitis with increasing stiffness. Dr Davé diagnosed adhesive capsulitis of the right shoulder.
Dr Davé referred the applicant for hydra dilatation and encouraged physiotherapy and stretching. The natural history of adhesive capsulitis usually extends over 2.5 years. Occasionally a manipulation under anaesthetic may need to be considered. He was to see the applicant in six weeks.
Dr Davé performed a manipulation of the applicant’s right shoulder under anaesthetic and subacromial cortisone injection on 26 March 2019.
On 8 July 2019, Dr Davé reported that the applicant had had little improvement since her last visit. She complained of severe unremitting pain with any movement of the shoulder joint. She had tenderness over the top of the shoulder. The signs and symptoms suggested adhesive capsulitis.
The applicant was on a host of medications to manage her pain, having physiotherapy once a week and exercising daily. Dr Davé opined that she had established adhesive capsulitis. She did not require surgery and he referred her back to Dr Lau’s care.
Dr Davé again reported on 9 October 2019.
The applicant continued to have unexplained severe pain of her right shoulder and neck, with restricted range of motion.
Dr Davé noted that he had gone over all his previous findings, as well as the MRI scan done in November 2018. The applicant did have marked synovitis and large effusion with(in) the shoulder joint and possibly some partial tears of the supraspinatus, but her symptomatology did not explain the findings of the MRI scans. She had pain far in excess of her findings and the findings at manipulation under anaesthetic were not significant.
Dr Davé arranged for the applicant to have a repeat MRI of her right shoulder.
On 23 October 2019, Dr Davé reported that the MRI scan was somewhat progressive from that in November 2018. The applicant had a progression of the cuff tear and some further bursitis and tendonitis. She had had one cortisone injection that she did not tolerate well, and this was probably the biceps tendon sheath area. She required a cortisone injection into the subacromial space, followed by physiotherapy. If this did not improve, Dr Davé would proceed to subacromial decompression and cuff repair surgery.
Dr Davé diagnosed impingement syndrome of the right shoulder.
On 11 November 2019, Dr Davé reported that the applicant had two days of relief after the cortisone injection, but the pain had recurred. She had a lot of night pain, had difficulty lifting her arm past 70-80 degrees of abduction and flexion and external rotation of 20-30 degrees. Internal rotation was possible to the posterior axillary line and she was getting some pain along the base of the biceps.
The applicant had been “going on like this for well over a year” and Dr Davé thought it was time to think about surgery. He was to seek approval for an acromioplasty and cuff repair. The applicant would probably be off work for six months for pre-injury duties but may be able to do some light duties before this.
Dr Davé reported there was “obvious wasting or deformity on examination" (it appears he may have meant “no obvious wasting or deformity”, but Dr Smith, whose report is discussed below, did find wasting at the shoulder girdle). Tenderness was poorly localised and there was global restriction of shoulder movement.
The applicant had completed physiotherapy and four cortisone injections without much improvement in her symptoms. Dr Davé had recommended arthroscopic examination due to persistent symptoms of severe pain and stiffness with no resolution.
On 19 November 2020, Dr Davé provided a report to the applicant’s solicitors.
Dr Davé recounted the history he had taken when he first examined the applicant, and which he recorded in his report dated 12 December 2018. He noted that she had a typical presentation for adhesive capsulitis.
Dr Davé then referred to the applicant’s treatment. He reported that surgery is usually not indicated for adhesive capsulitis, although occasionally manipulation under anaesthetic may be required. He then set out the history that has been recorded in the above reports.
Dr Davé reported that the applicant’s diagnosis was adhesive capsulitis and subsequently a rotator cuff tear with bursitis, tendonitis and impingement. She also had severe undiagnosed pain of her shoulder, not matching the clinical findings.
The applicant was fit for light duties, not using her right arm, especially (for) any lifting above shoulder height. She had described her work as repetitive, with lifting. There was no other history of injuries. Dr Davé opined that the injury was related to her work with Unilever, due to its repetitive nature.
The applicant’s prognosis was somewhat guarded. She had undiagnosed pain, but she had a lot of stiffness, as well as MRI findings of a cuff tear, which could be addressed surgically. Dr Davé noted that the outcome of this “will remain to be seen”.
Dr Davé had seen the applicant only for right shoulder pain. She had never complained of her left shoulder. As her last visit was in November 2019, it was possible that she had developed this pain since then.
Dr Davé opined that the proposed right shoulder cuff repair with acromioplasty was reasonably required as a result of injuries sustained in the course of the applicant’s employment.
Dr Ian Smith – Injury Management Consultant
Dr Smith reported to Unilever on 9 August 2019.
The applicant had been on suitable duties but had been issued with an unfit certificate to 26 July 2019. Her suitable duties certificate was then reinstated to 2 August 2019. She was restricted to lifting 1 kg below shoulder height on the right and 5 kg below shoulder height on the left, with no use of the pallet jack, and lifting, pushing and pulling with the same weight limitations.
Dr Smith noted that Ms Achille had worked for Unilever for 22 years. She worked on a case packing machine that could jam multiple times a day. She described 75% of her duties as manual, involving cleaning machines and attending to jams. She had to complete some paperwork.
The applicant’s past medical history was recorded as non-insulin dependent diabetes and partial left supraspinatus tear with adhesive capsulitis.
Dr Smith recorded a history that on 26 September 2018 the applicant developed a painful restriction of her right shoulder after manipulating items due to a machine jam. She was initially managed with medication, physiotherapy and an unsuccessful subacromial injection.
Dr Davé had diagnosed the applicant with adhesive capsulitis. She had had unsuccessful hydro dilatation and unsuccessful manipulation under anaesthetic with a steroid injection. She had also been referred to Dr Thayalan.
The applicant complained of painful restriction of movement, to about half normal. She could not lie on her right shoulder without pain. She also had right paracervical pain across the right trapezoid ridge and pain all around the right shoulder girdle. At times she had numbness in her right thumb, going a little into the wrist. She felt she had full range of movement in her cervical spine. She had been using her left hand to compensate for her right and had some aching in her left shoulder.
The applicant was taking medication and having physiotherapy, after which she usually felt worse. She did home exercises. She had to wash her hair left-handed and her husband did most of the domestic chores.
Dr Smith noted the MRI scan on 23 November 2018 showed a partial thickness supraspinatus tear without retraction. There was subacromial and subdeltoid bursitis. The ultrasound on 8 October 2018 showed no rotator cuff tear, but subacromial and subdeltoid bursitis.
Dr Smith reported that the applicant presented with marked pain-focused behaviour and marked withdrawal response. There was some muscle wasting around the shoulder girdle. There was global tenderness around the shoulder girdle, but particularly the acromioclavicular joint, the supraspinatus insertion and the long head of the biceps. Movement was about one-third of normal, or less, with end-range pain. There was no neurological deficit or dermatomal sensory loss in the arms. Reflexes were brisk, symmetrical and intact.
Dr Smith diagnosed post-traumatic adhesive capsulitis. Although there was evidence of an underlying tear, that was not the cause of the applicant’s incapacity. There was no evidence of radiculopathy. The applicant was pre-disposed to this condition (that is, adhesive capsulitis) because of her diabetes. This may also result in a more prolonged course than would otherwise be the case.
The applicant was unfit for her pre-injury duties. However, Dr Smith opined that there were restrictions that would enable her to work full time. She was capable of working full time in a clerical role. She agreed with this, but her general practitioner would not amend her certificate until she had a trial of three hours/three days per week. Dr Smith did not regard this as medically reasonable.
Dr Smith concluded that the normal outcome from adhesive capsulitis is spontaneous recovery, which can take 12 to 24 months, or perhaps a little longer in Ms Achille’s case due to diabetes, from the date of onset. He opined that treatment was unnecessary and physiotherapy usually exacerbates the symptoms. The exercises were not achieving anything. There was no medical need to take medication. The main barrier to the applicant’s return to work was her adhesive capsulitis. Her anomalous illness behaviour was a secondary issue.
Mr Michael Ryan – Physiotherapist
Mr Ryan performed a review of the applicant’s physiotherapy treatment and provided a report dated 6 November 2019.
Mr Ryan recorded that the applicant had noticed occasional pain in her right shoulder over the weeks leading up to the documented date of injury. She would take some Panadol and her symptoms would settle.
The applicant started a new job in about May or June 2018. On reflection, this coincided with the onset of pain in her right shoulder. It progressively increased to the point where she recalled feeling quite frequent but transient pain over the weeks leading up to the September 2018 date of injury.
Mr Ryan opined that the applicant might well have a degree of symptomatic subacromial bursitis and perhaps a level of reactive frozen shoulder, but he could not explain her clinical presentation in terms of such a discrete orthopaedic diagnosis. His impression was that she presented with a primary dysfunctional pain syndrome.
Mr Ryan reported that radiographically, there was no evidence of frozen shoulder. This can sometimes be the case, but the applicant demonstrated no movement. This was inconsistent with the fact that Ms Achille was wearing a shirt that would have required some movement of her shoulder to don. He noted that “even the worst of frozen shoulder does not present this way”.
Mr Ryan concluded that no further physiotherapy or other treatment was recommended. He agreed that the applicant’s prognosis was for a return to working full hours and days but performing suitable duties.
Associate Professor Michael Shatwell - Orthopaedic Surgeon
A/Prof Shatwell was qualified by the respondent and reported first on 29 November 2019.
A/Prof Shatwell recorded a history of the onset of right shoulder pain on 26 September 2018, when the applicant was repetitively handling products during periods when a packing machine broke down. She had soreness in the anterior part of her right shoulder.
The applicant had had various treatments before coming under Dr Davé’s care. He had diagnosed adhesive capsulitis. Neither hydro dilatation nor manipulation under anaesthetic had improved matters. The applicant been off work since September 2019.
A/Prof Shatwell recorded the applicant’s subsequent treatment. More recently, Dr Davé had suggested surgical subacromial decompression or acromioplasty to improve function in her shoulder. He had also mentioned a possible rotator cuff repair.
A/Prof Shatwell noted that the MRI of 23 November 2018 showed a partial thickness interstitial “tear” of the supraspinatus tendon anteriorly with no fibre retraction and no muscle atrophy of the supraspinatus muscle. It was also felt that there was supraspinatus and infraspinatus tendonosis (minor degenerative change).
In association with the above pathology, Dr Morris, radiologist, advised there was moderate subacromial bursitis and some oedema in the rotator cuff interval, which he considered was a feature of adhesive capsulitis.
A/Prof Shatwell noted that the applicant’s main problems were with depression, which she had experienced since she was “laid off”. This was in part due to the chronicity of the pain, which had not been improved so far. She also reluctantly described altered sensation in her right hand, involving all the digits on the palmar side, which developed a few weeks ago. It was intermittent and not associated with any other symptoms. The applicant’s pain was very severe at present and she rated it around 8-9/10 at night when it was worst.
The applicant had been diagnosed with diabetes mellitus six years before. She controlled it with diet. She had spontaneous pain in her left shoulder about six or seven years before. This was diagnosed as frozen shoulder and she received regular acupuncture for three months. She performed her normal duties during this period. The symptoms slowly abated, and she regained full range of movement.
A/Prof Shatwell opined that if the diagnosis was adhesive capsulitis the applicant should continue with conservative measures, rather than compound matters regarding chronic pain with an operation. Although useful in many instances, in Ms Achille’s condition, it was likely to precipitate further depression and a “vicious spiral” toward the development of intractable pain syndrome.
A/Prof Shatwell’s prognosis if the applicant were to have the proposed surgery was that she would then have grave problems with mobilisation and he “would avoid it all costs”. Conservative treatment was likely to prove successful, as the applicant’s left shoulder was treated successfully by acupuncture.
A/Prof Shatwell did not consider the applicant’s condition was the result of overuse of her right upper limb on a particular day when “repetitive work” was done during a particular shift when a machine was faulty. Adhesive capsulitis develops insidiously in most instances, without obvious cause. It is more common in diabetics, smokers and patients with Dupuytren’s disease. There are often psychological factors, especially when pain is poorly controlled and treatment not explained carefully.
A/Prof Shatwell recommended that the applicant continue with the therapies suggested by
Dr Thayalan, if she was happy with her rapport with her advice. Her management involved not only physical remedies but careful psychological support and remedies to maintain an optimistic therapeutic environment. They must be absolutely sure there was no other cause for the applicant’s right upper limb pain, and it would be useful for her to have further MRI scan and whole body scan, to exclude other pathologies.
A/Prof Shatwell reported again on 29 January 2021.
He opined that the activity recorded by the applicant on 26 September 2018 would not have caused a rotator cuff tear of the right shoulder. He again referred to the MRI of 23 November 2018.
A/Prof Shatwell noted that Dr Davé considered the applicant had adhesive capsulitis and tried various treatments, none of which was successful in alleviating her pain.
When A/Prof Shatwell examined the applicant, he found restriction of movement consistent with a diagnosis of adhesive capsulitis. The short period of activity on 26 September 2018 did not involve strenuous use of the shoulder and the partial thickness “tear” was a coincidental finding that would be common in a lady of the applicant’s age. The nature and conditions of her work over the previous 22 years would not be likely to cause rotator cuff degeneration, as her work did not involve prolonged periods of use of the arms above shoulder level. The development of the “tears” was constitutional.
A/Prof Shatwell opined that the applicant’s symptoms were not related to the “tear” but were typical of adhesive capsulitis.
A/Prof Shatwell was referred to Dr Herald’s report dated 10 June 2020, discussed below.
Dr Herald referred to the rotator cuff tear increasing in size between 2018 and 2019.
A/Prof Shatwell opined that Dr Herald’s report comparing the MRI scans obtained in November 2018 and October 2019 did not correlate with the measurement of the “tears” described by the radiologists in the x-ray reports. Dr Herald’s statement that there had been an increase in size was not backed up by the figures he quoted.
A/Prof Shatwell opined that the insertional interstitial “tear” reported by Dr Morris was due to constitutional degenerative change; and there is often further disintegration, delamination or degenerating of the fibres of the rotator cuff with ageing. This is an inevitable slowly progressive sequence of events with degenerate rotator cuff tears. It is not likely to lead to significant problems unless the patient is involved with heavy overhead lifting.
A/Prof Shatwell was not able to explain Dr Davé’s rationale for offering surgery for this sort of “tear” in an individual with a chronic pain problem. He did not consider the applicant would benefit from surgery or that the need for it arose from a work-related condition. He did not consider the applicant had suffered an injury to her rotator cuff as a result of manual handling on or about 26 September 2018. She had developed idiopathic adhesive capsulitis, which she previously experienced on the left side and which had settled with conservative measures.
A/Prof Shatwell opined that there was no injury likely to cause aggravation, acceleration, exacerbation or deterioration of a pre-existing disease process. He did not consider that employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of any pre-existing disease, such as rotator cuff degeneration. It is known that rotator cuff degeneration and adhesive capsulitis occur in this age group quite commonly. One does not lead to the other. In most cases, rotator cuff degeneration and “partial tears” of the rotator cuff are asymptomatic.
As A/Prof Shatwell had not seen the applicant for over a year, he was not able to comment on her capacity for work. In general, many workers continue with suitable restrictions on activities while their adhesive capsulitis settles spontaneously. Restrictions would include no work above bench level and lifting of items less than 2 kg or 3 kg from floor to bench. If a worker has a good opposite shoulder, this is often therapeutic, as keeping active and social interaction in the workplace is of benefit.
A/Prof Shatwell did not consider the proposed surgery would be of any benefit to the applicant. Any need for surgery was not related to the activities of September 2018 or the nature and conditions of Ms Achille’s work.
Finally, A/Prof Shatwell opined that the progression of the size of a degenerative rotator cuff “tear” is not a reason to offer surgery. The main reason for operating is relief of symptoms. This may not achievable in grossly degenerate tendons where re-rupture is a common outcome, even after initial satisfactory repair.
Dr Jonathan Herald – Orthopaedic Surgeon
Dr Herald was qualified by the applicant and reported first on 10 June 2020.
Dr Herald recorded a consistent history of the injury and the applicant’s treatment. She had had two cortisone injections but still developed a frozen shoulder; and underwent manipulation under anaesthetic, with a third injection, on 26 March 2019.
When a fourth injection did not work, Dr Davé finally recommended surgical repair of the rotator cuff tendon. Serial MRI scans revealed the rotator cuff tear to be getting bigger. The applicant was having intermittent periods of numbness and tingling down her upper limb, and MRI scan in March 2019 showed mild to moderate C4/5 stenosis with mild canal stenosis and mild bilateral foraminal stenosis at that level.
The applicant continued with analgesics, having Panadeine Forte at night to help her sleep, as the pain seemed to be getting worse over time. She had difficulty lifting at or above shoulder height and required assistance with hanging clothes and housework such as vacuuming. She did home exercises as she could not afford physiotherapy. She had had to cease work.
Dr Herald noted the applicant had type 2 diabetes. It was initially diet controlled, but over the last three months she had started metformin. She had had left shoulder pain in 2015 that settled with acupuncture. She also had neck and left arm pain and MRI revealed C5/6 prolapse with impingement around the left C7 nerve root. That resolved over three months.
Dr Herald had available investigations including MRI scans of the applicant’s right shoulder on 20 November 2018 and 21 October 2019. He diagnosed rotator cuff tear “(most likely full thickness by now)”. She also had possible biceps tendinitis.
Dr Herald opined that the applicant’s symptoms were consistent with a full thickness rotator cuff tear, rather than adhesive capsulitis. Her employment was a substantial contributing factor to the injury or rotator cuff tear. It appeared to be increasing in size and causing further deteriorating symptoms. Ms Achille’s condition was likely to slowly deteriorate over time. Full thickness tears progress at approximately a 50% rate over a three-year period.
Dr Herald concluded that the applicant required right shoulder arthroscopic rotator cuff repair and biceps tenodesis. The tear was likely to continue to progress and become irreparable if not repaired.
The applicant was not fit for her pre-injury occupation. Dr Herald suspected she would be fit for light duties only or desk type duties, with no lifting more than about 1 kg with the affected arm. It was likely she would return to her pre-injury duties approximately six months after successful surgery.
Dr Herald again reported on 15 January 2021.
Dr Herald was asked to provide his opinion as to whether the applicant’s condition was caused and/or materially aggravated by the general nature and conditions of her employment as previously described to him, rather than by a frank injury; and if so, what was the relevant period of employment?
Dr Herald responded that he had seen the applicant almost two years after the injury. The date of injury was reported as 26 September 2018. However, it was picked in order to lodge a claim as there needs to be an exact date. The applicant told him it could have been 23 September 2018. “Either way”, the injury must have occurred around that time, in late September some time prior to 26 September 2018. He commented that “it can be hard to remember dates exactly when you are suffering with pain two years after the injury.”
SUBMISSIONS
Counsels’ submissions have been recorded so I will summarise them only briefly.
Applicant
The applicant submitted that there is no description of her duties that disputes her evidence. Dr Lau’s report contains a history that is consistent with that recorded by Mr Ryan. Her work was repetitive and there was a change in May/June 2018 that was associated with pain in her shoulder.
The applicant submitted that Dr Lau has opined that her incapacity results from the injury and supported the need for surgery, as she had exhausted conservative treatment. Her left shoulder was also significant.
The applicant referred to the history recorded by Dr Morris, who performed the MRI on 23 November 2018, of repetitive lifting and pushing at work. She submitted that there was a significant finding of a tear of the supraspinatus tendon. There is no record of the width, except that it was more than 50% of the tendon thickness. It is clear there is a tear.
The applicant submitted that Dr Davé found she was showing signs of adhesive capsulitis. He treated her with injections and manipulation under anaesthetic, but it was not resolved. She referred to his report dated 19 November 2020. The diagnosis was not explaining her condition, so he looked for other conditions. The positive test for impingement is significant, telling us it is probable that the rotator cuff is the underlying cause.
When the applicant had left adhesive capsulitis, it completely resolved after treatment. She submitted that it had not resolved this time, so Dr Davé asked for other reasons, and the rotator cuff was identified. His opinion was that it was related to the repetitive nature of her work. There was a causal connection, consistent with the temporal connection of a change in her work and the machine jamming.
The applicant submitted she has had “an awful lot of conservative treatment” without any benefit. Surgery is reasonably necessary. This was consistent with Dr Davé’s initial note on 23 October 2019 that she may need surgery. He did not leap straight into surgery.
Dr Herald examined the applicant most recently. She submitted that he recorded a consistent history of the nature of her work and the onset of symptoms. She had pre-existing diabetes and had moved onto medication after being examined by A/Prof Shatwell but before being examined by Dr Herald. Her right shoulder had a full thickness tear. Her frozen shoulder had resolved, as would be expected. The cause of her ongoing disability was not frozen shoulder. A/Prof Shatwell expressed the opinion that her frozen shoulder was related to her diabetes. She submitted that it seems odd that it resolved at the same time her diabetes was getting worse.
Dr Herald diagnosed the applicant with a rotator cuff tear, not adhesive capsulitis. He was of the opinion that the tear had progressed, as shown on the MRI scans, and surgery was appropriate treatment. She submitted that he was optimistic about the result.
The applicant submitted that a condition developed that was closely associated with work; the adhesive capsulitis had resolved; and at the least the rotator cuff was made symptomatic. Surgery is the appropriate treatment for her rotator cuff.
The applicant submitted that A/Prof Shatwell had not taken the time to record the details of her duties. He had not since seen her, to understand that the adhesive capsulitis had resolved, as he expected it would. Since he recommended conservative treatment, she had had significant treatment, without benefit. In his second report, he reviewed Dr Davé’s contemporaneous reports that showed adhesive capsulitis at that time. He did not address the developments thereafter. The question is not what caused adhesive capsulitis, but what caused the rotator cuff tear. The applicant submitted that if one looks at the history properly, the activities she was required to perform fall squarely within those described by
A/Prof Shatwell in his first report. The evidence is sufficient to satisfy “injury” and “main contributing factor”.
As for the proposed surgery, the applicant submitted that, if it is accepted that her injury is the aggravation of a rotator cuff tear, all the opinions that accept that injury say that surgery is reasonably necessary.
In reply to the respondent, the applicant submitted that, with one exception, there is no recorded history of the circumstances of the adhesive capsulitis in 2015. We don’t know what caused it. A/Prof Shatwell states that it was spontaneous. This should be measured against his opinion that the condition was spontaneous in 2018, in circumstances where there was a clear relationship to work. It is circular to rely on this as a reason to accept his opinion.
The applicant submitted that the only person who commented on the difference between the MRI scans was Dr Herald, and his opinion was that there had been progression of the tear. A/Prof Shatwell did not seem to dispute this, as he said progression was not a reason for surgery. He seems to accept that there was progression.
The applicant submitted that the respondent made a lot of A/Prof Shatwell’s opinion. He looked at a point of time when the applicant had adhesive capsulitis, which accounted for everything. When the applicant saw Dr Herald, it had resolved. As regards causation, the applicant referred to Dr Smith’s opinion of post-traumatic adhesive capsulitis.
The applicant finally submitted that her adhesive capsulitis has resolved. A tear of the rotator cuff is her condition and surgery is the appropriate response. A/Prof Shatwell is not qualified to comment on psychological issues. No one else suggested she needs psychological treatment. She has a rotator cuff tear made symptomatic by work, in the opinion of
Dr Herald.
Respondent
The respondent submitted that, whatever occurred in the workplace, I would not be satisfied that it resulted in rotator cuff tears; and the adhesive capsulitis is also not related to work. The applicant’s statement does not go into detail about her duties. Dr Davé says they were fairly repetitive, which is fair, but not that they involved overhead work, which was crucial to A/Prof Shatwell.
The applicant had an ultrasound that showed degenerative changes in her left shoulder in 2015, notwithstanding the change of duties. The respondent submitted this was spontaneous and not related to employment.
The respondent referred to Dr Davé’s report dated 9 October 2019, which it submitted was not a ringing endorsement of what was going on with the applicant’s shoulder then. In July 2019, he found that she had established adhesive capsulitis, did not require surgery, and referred her back to Dr Lau.
The respondent submitted that if the tear was progressive, as reported by Dr Davé on 23 October 2019, this was more than a year after the applicant ceased work. He recorded no history of a specific incident or the jamming of the machine in his report dated 19 November 2020.
The respondent submitted that Dr Davé’s proposal for surgery was “almost throwaway”. He did not say why the applicant would have relief, particularly as adhesive capsulitis was her main or only problem on presentation.
The respondent submitted that Dr Herald supported the surgery, but on the basis of the scans. The applicant had degenerative changes in her cervical spine as well as in her right shoulder. The ultrasound dated 8 October 2018 showed no actual tear. At the time her complaints took her to the doctor, the applicant had no tear. Her condition was all adhesive capsulitis. A/Prof Shatwell opined that the tears were of no clinical significance. Lots of people have them and are asymptomatic.
The respondent submitted that the symptoms that put the applicant off work were from frozen shoulder, and her complaints were far in excess of what would be expected. On one view, the most recent MRI, dated 21 October 2019, shows the tear is smaller. Its reduction is not explained. Dr Herald believed the tear had increased, but A/Prof Shatwell did not agree. The radiological investigations do not marry up with the applicant’s complaints of pain, and there is disagreement as to how to interpret them. Dr Herald did not address these issues.
Dr Smith and A/Prof Shatwell found pain behaviour, as did Dr Davé.The respondent submitted that I would not be satisfied that the applicant’s work caused a rotator cuff tear. If it was an aggravation, I would have to be satisfied that employment was the main contributing factor, and the radiology does not establish aggravation. If the condition is adhesive capsulitis, it does not result from work. The applicant had the same condition spontaneously in her left shoulder in 2015 when her duties were the same. The respondent submitted that the applicant fails on the issue of injury.
As regards the reasonable necessity for surgery, the respondent relied on the decision in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) and the cases summarised therein. It submitted there is no material connection regarding anything at work and the surgery. If the injury is found to be adhesive capsulitis, surgery is not reasonably necessary and is contra-indicated.
The respondent summarised the various medical opinions. It finally submitted that I must decide whether what appears on the radiology to be tears of the rotator cuff is related to employment. The respondent asked, is there an injury? If so, what is it? If it is adhesive capsulitis, does it have sufficient connection to the surgery? It submitted it is a “leap” to find there is a rotator cuff injury, and if so, that the repair is going to have any effect on the applicant’s condition, given the psychological issues.
SUMMARY
The applicant claims weekly benefits and medical expenses, including the cost of right shoulder rotator cuff repair with acromioplasty, and associated costs.
The applicant’s condition was initially diagnosed as adhesive capsulitis (frozen shoulder). The respondent disputed liability for that condition, relying on the opinion of A/Prof Shatwell, who regarded it as idiopathic, noting that the applicant suffers from diabetes. The condition is more common in diabetics.
The applicant’s case is that she has recovered from the effects of adhesive capsulitis. However, she claims that as a result of the nature and conditions of her employment, with a deemed date of injury of 26 September 2018, she has also sustained a torn right rotator cuff. Dr Davé has recommended that she undergo repair with acromioplasty. The respondent disputes that the applicant’s employment caused a rotator cuff tear. If the condition is an aggravation, it disputes that employment was the main contributing factor to the aggravation.
Having regard to the applicant’s evidence and the medical evidence, in particular that of
Dr Davé, I am satisfied that the applicant has sustained injury arising out of or in the course of her employment with the respondent, due to the nature and conditions of her employment, with the deemed date of injury of 26 September 2018.The respondent submitted that the applicant has not gone into detail about the nature of her duties. However, she has given evidence about her work since 2017, describing it as repetitive, and involving lifting, pushing and pulling. Dr Lau reported that she performed a pulling and pushing procedure up to 60 times a day, operating three machines. She described her work to Dr Davé as fairly repetitive. Dr Smith reported that 75% of her duties were manual and included cleaning machines and attending to jams. A/Prof Shatwell referred to her repetitively handling products when a machine broke down.
I accept that the applicant’s duties were repetitive and involved considerable manual handling, including lifting, pushing and pulling.
Dr Davé initially diagnosed the applicant with adhesive capsulitis, for which she did not require surgery. However, when her symptoms did not improve with time, he went over “all his previous findings”. It must be assumed he was searching for an alternative explanation for her continued severe pain and restricted range of motion.
Dr Davé then diagnosed a rotator cuff tear with bursitis, tendonitis and impingement. The applicant had described her work as repetitive, with lifting. I have already said that I accept this as an accurate description of her duties. Importantly, Dr Davé opined that the injury was related to the applicant’s work for Unilever, due to its repetitive nature. There was no other history of injuries. As her treating specialist, Dr Davé was well placed to reach this conclusion. A/Prof Shatwell opined that the applicant’s condition (adhesive capsulitis) did not result from overuse of her right arm on a particular day, but that is not the case on which she relies.
The other practitioners who have examined the applicant have at various times diagnosed bursitis (Dr Lau), an underlying tear (Dr Smith, although he did not regard it as the cause of her incapacity) and subacromial bursitis (Mr Ryan). Her condition does not appear to have been easy to diagnose.
Dr Davé noted that the applicant’s tear progressed between the MRI scans in November 2018 and October 2019. The respondent submitted that, even if the tear had progressed, this was more than a year after the applicant ceased work. However, her evidence is that she ceased work in October 2019. Dr Smith reported that she had had been issued with variable certificates over the life of the claim. She had had an exacerbation while on suitable duties on 17 July 2019 and was certified as unfit to 26 July 2019.
Dr Herald agreed with Dr Davé that the tear had progressed. As the applicant submitted, he is the only one who commented on the difference between the MRI scans. A/Prof Shatwell appears to have disagreed that the tear had progressed, but at the same time opined that progression is not a reason to perform surgery. That is not the only reason that Dr Davé recommended surgery, and I do not believe that whether or not the tear has progressed determines the issue of the reasonable necessity of the surgery.
The parties did not refer to section 9A of the 1987 Act as being in issue. However, as it was raised in the dispute notice, I propose to deal with it in these reasons.
The applicant’s employment need only be “a” substantial contributing factor to her injury. She does not need to establish that it was “the” substantial contributing factor. “Employment” for the purposes of section 9A of the 1987 Act is the same “employment” that is under consideration in sections 4 and 9: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWWCCPD 324. I have already determined the nature of the applicant’s duties.
I accept that the applicant’s employment was a substantial contributing factor to both the adhesive capsulitis condition and the rotator cuff injury. The only competing factor to the injury of adhesive capsulitis is the applicant’s diabetes. However, Dr Davé accepted that the injury was related to her work, as did Dr Smith (describing it as post-traumatic). The applicant’s adhesive capsulitis also appeared to improve as her diabetes worsened.
The next issue to be considered is whether the proposed surgery is reasonably necessary medical treatment as a result of the injury.
The applicant referred to the decision of Deputy President Roche in the matter of Diab.
In Diab, Roche DP discussed the authorities relating to section 60 of the 1987 Act. He said “it is not simply a matter of asking, as was suggested in Bartolo (Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233) is it better that the worker have the treatment or not” (at [90]).
Roche DP held(at [88]) that the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32, that is:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Roche DP said that while the above were “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204).
The applicant’s treatment has included cortisone injections (with about two days relief), physiotherapy, home exercises, pain management and medication. She has also consulted a psychologist, although there is no evidence from him.
Dr Davé, who has been the applicant’s treating specialist since 2018, reported in November 2019 that she had been “going on like this for well over a year”. She had a lot of night pain and difficulty lifting her arm past 70-80 degrees of abduction and flexion and external rotation of 20-30 degrees. Dr Davé has opined that the proposed surgery is reasonably necessary as a result of injuries sustained in the course of employment.
Dr Lau, who has treated the applicant for many years, reported that she had exhausted all conservative treatment.
Dr Herald opined that the applicant required right shoulder arthroscopic rotator cuff repair and biceps tenodesis. The tear was likely to continue to progress and become irreparable if not repaired. Her condition was likely to slowly deteriorate over time.
With the exception of A/Prof Shatwell, those practitioners who accept that the applicant has a rotator cuff tear also accept that the proposed surgery is reasonably necessary medical treatment. I therefore find that it is appropriate treatment for her condition.
As noted above, the applicant has had extensive conservative treatment over several years. It has been largely ineffective. The only available treatment therefore appears to be the surgery proposed by Dr Davé.
The cost of the treatment is estimated as $25,000. That is not inconsiderable. However, the alternatives are that the applicant continues to suffer pain and incapacity, and to pursue conservative treatment that does not alleviate her condition. I therefore accept that the cost of the treatment is reasonable.
The consideration of the actual or potential effectiveness of the treatment is somewhat more problematical.
Dr Davé found in October 2019 that the applicant had pain far in excess of her findings, and those at manipulation under anaesthetic were not significant. Dr Smith reported that she was pain-focused, but the main barrier to her return to work was (then) her adhesive capsulitis. Her illness behaviour was a secondary issue. Mr Ryan diagnosed primary dysfunctional pain syndrome.
Dr Thayalan, who is a rehabilitation consultant, reported that the applicant had ongoing flareups and had not made any notable improvement. Her “problem list” included right shoulder pain, depression and workers’ compensation. A/Prof Shatwell opined that her main problems were with depression. Dr Herald did not note any issues of illness behaviour or excessive pain focus.
The applicant submitted that A/Prof Shatwell is not qualified to comment on psychological issues. However, I accept that, as a surgeon, he would be required to assess whether there are matters other than a patient’s physical condition that may affect the outcome of surgery. I do not, however, accept that the applicant’s “main problems” are with depression.
The evidence of the other practitioners does not support the proposition that the applicant’s main problem is depression. She has been treated by a psychologist, but that is not unusual in circumstances of ongoing pain and the ineffectiveness of treatment. Dr Davé even having found that Ms Achille had pain that exceeded her findings, still opined that the proposed surgery is reasonably necessary.
Dr Davé has noted that the outcome of the surgery remains to be seen. As Roche DP said in Diab, all treatment, especially surgery, carries a risk of a less than ideal result. A poor outcome does not necessarily mean that the treatment was not reasonably necessary, and “as always, each case will depend on its facts”.
Having considered the evidence, I am satisfied that the surgery proposed by Dr Davé is reasonably necessary medical treatment as a result of the injury.
I therefore determine that the applicant sustained injury arising out of or in the course of her employment with the respondent, as a result of the nature and conditions of her employment. deemed to have occurred on 26 September 2018, to which her employment was a substantial contributing factor. The injuries were right adhesive capsulitis and a torn right rotator cuff.
The applicant is entitled to a general order for medical expenses; and an order that the respondent pay the costs of right shoulder rotator cuff repair with acromioplasty and associated costs, pursuant to section 60 of the 1987 Act.
The matter is to be listed for telephone conference with respect to the claim for weekly benefits.
The orders are as set out in the Certificate of Determination.
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