Adam v Ace Demolition & Excavation Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Adam v ACE Demolition & Excavation Pty Ltd [2022] NSWPIC 179
APPLICANT:	Gabriel Adam
RESPONDENT:	ACE Demolition & Excavation Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	27 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of left shoulder surgery pursuant to section 60 of the Workers Compensation Act 1987; the applicant underwent one lot of surgery to the shoulder, not paid for by the respondent, which did not relieve his symptoms; he sought further surgery for a rotator cuff tear and adhesive capsulitis, not diagnosed by the original surgeon, but diagnosed by the current treating shoulder surgeon based on the results of ultrasound investigations as opposed to MRI investigations; discussion by doctors as to which type of investigation more reliable for diagnosis of the left shoulder injury; Held- acceptance of the injury diagnosed by the current treating shoulder surgeon, and that the surgery he proposes to repair the rotator cuff tear and adhesive capsulitis is reasonably necessary as a result of the injury to the left shoulder; the respondent ordered to pay for the costs of and incidental to such surgery.
DETERMINATIONS MADE:	1. The applicant sustained injury in the form of a partial thickness rotator cuff tear and adhesive capsulitis to his left shoulder arising out of or in the course of his employment on 2 April 2015. 2. The surgery proposed by Professor Murrell, namely rotator cuff repair and arthroscopic release, is reasonably necessary as a result of injury to the applicant’s left shoulder on 2 April 2015. 3. The respondent is to pay the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Gabriel Adam (the applicant/Mr Adam) seeks compensation pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery to his left shoulder as a result of injury to that shoulder on 2 April 2015 arising out of or in the course of his employment with ACE Demolition & Excavation Pty Ltd (the respondent). On that day Mr Adam was filling an excavator with diesel fuel, and when walking backwards whilst dragging and handling a heavy fuel hose, fell into a large hole.
The applicant saw his general practitioner, Dr Ismail, on 2 April 2015 who sent him to St George Hospital where his wounds were cleaned and dressed, and he underwent X-rays of the neck, left shoulder and lower part of the back.
On 15 April 2015 the applicant underwent a left shoulder ultrasound on the recommendation of Dr Ismail[1]. On 11 May 2015 Mr Adam underwent an MRI scan of the left shoulder ordered by Dr Ismail which showed no evidence of a rotator cuff tear[2].
[1] Application to Resolve a Dispute (ARD) p 209, noting that page references are to the electronic page numbers in the Commission’s records.
[2] ARD p 210.
In May and July 2015 the applicant was treated by Dr Diwan, orthopaedic and spine surgeon, and Dr Yu, pain management specialist.
On 28 July 2015 the applicant was seen by Dr Vickery, psychiatrist and pain management consultant, at the request of the respondent’s then insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz). Dr Vickery provided a report to Allianz on that day in which he expressed the opinion that the applicant met the DSM-IV criteria for a psychological diagnosis of Somatoform Chronic Pain Disorder, with psychological and medical factors for some of his symptoms. Dr Vickery provided a supplementary report on 7 August 2015 in which he said that the workplace injury suffered by the applicant was not the main contributing factor to such diagnosis, and that treatment with a pain psychologist was reasonable and necessary if there was an underlying work related medical issue causing widespread symptomology[3].
[3] Reply pp 73 and 82.
On 3 February 2016 the applicant was seen by Professor Murrell, orthopaedic surgeon, because of continuing problems he was experiencing with his left shoulder. With the benefit of an X-ray and diagnostic ultrasound of the left shoulder carried out on that day, Professor Murrell recommended a corticosteroid injection to the left shoulder. This was carried out on 22 February 2016, with the approval of Allianz, given on 10 February 2016.[4]
[4] ARD pp 212-218.
On 24 February 2016 the applicant was seen by Dr Rimmer, orthopaedic surgeon, at the request of Allianz. In a report of that date[5], Dr Rimmer diagnosed Mr Adam as suffering from abnormal illness behaviour/malingering as a result of the injury sustained on 2 April 2015, his reason for such diagnosis being “…gross inconsistencies in the history and the presentation..., bordering on the bizarre.” Dr Rimmer addressed a question put to him as to the reasonableness of lumbar spinal surgery, an L5-S1 microdiscectomy, recommended by Dr Diwan, saying “He does not require surgery… there are too many red flags present.”
[5] Reply p 46.
On 31 March 2016 the applicant underwent a further diagnostic ultrasound of the left shoulder[6], and on that day Professor Murrell recommended surgery to the shoulder in the form of arthroscopy and rotator cuff repair.[7]
[6] ARD p 220.
[7] ARD pp 221-223.
On 3 August 2016 Dr Rimmer again examined the applicant and provided a report to Allianz in which he stated, after reviewing an MRI scan of the left shoulder dated 11 May 2015, that “In general terms, ultrasounds are a very inaccurate imaging modality for rotator cuff repairs”, and “Mr Adam does not have a rotator cuff to be repaired.” Dr Rimmer also viewed DVD surveillance of Mr Adam on 13 April 2016, which he said “…overwhelming shows that he has no physical impairment whatsoever.”[8]
[8] ARD p 266.
On 25 August 2016 Dr Rimmer provided a supplementary report to Allianz in which he stated that there was no pathology in the left shoulder, and that therefore there was no pathology related to the alleged injury of 2 April 2015.[9]
[9] Reply p 54.
On 26 August 2016 Allianz issued a notice to the applicant pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it did not accept that the proposed left shoulder and/or rotator cuff repair was reasonably necessary treatment as a result of the accepted injury sustained to the left shoulder on 2 April 2015. On that day, Allianz also forwarded to Professor Murrell a DVD of surveillance in relation to the applicant.[10] Professor Murrell responded to this communication in a report dated 29 August 2016 in which he stated, inter alia, that:
“Ultrasound in the hands of an experienced musculoskeletal sonographer is more accurate than MRI (we have published on this). The fact that he was able to lift up a bonnet of a car is of no major consequence.”[11]
[10] ARD pp 6 &and 248.
[11] ARD p 74.
On 5 October 2017 the dispute between the applicant and respondent came before Arbitrator Sweeney (as he then was) in the former Workers Compensation Commission in proceedings numbered 3482/17. It proceeded to arbitration hearing on that day, at the conclusion of which the Arbitrator issued the following extempore orders and reasons:
“1. Amend the application by deleting the particulars of injury save for injury to the left shoulder.
2.     That the applicant suffered injury to his left shoulder arising out of and in the course of his employment on 2 April 2015.
3. Remit the matter to the Registrar for referral to an approved medical specialist to express an opinion for the purpose of section 60 (5) as to whether the arthroscopic surgery proposed by Prof Murrell of the applicant’s the left shoulder is reasonably necessary as a result of injury.
4.     Approved medical specialist to have access to the Application, the Reply and the Applications to Admit Late Documents of 27 September 2017 and 4 October 2017.
5.     The AMS is asked to review both the orthopaedic and the psychological/psychiatric medical reports in reaching a conclusion.
6.     Leave to the applicant to file and serve a report from the treating psychologist provided the same is done within 14 days under cover of an AALD.
7. On receipt of the MAC list of the matter for further telephone conference.”
On 20 November 2017, Dr Weisz, Approved Medical Specialist (AMS), issued a Medical Assessment Certificate (MAC) in respect of a General Medical Dispute.[12] In response to a specific question posed to him:
“Does the arthroscopic operation reasonably necessary as a result of the injury.” [sic]
He said:
“I consider today that no surgery is necessary: it will not improve the range of movements (now of full extent), will not ameliorate his symptoms (now treated, but apparently not controlled by heavy analgesics, opiates) and will not improve his chances to return to any employment. In fact, it might intensify the symptoms of ‘Pain disorder’ as diagnosed by a psychiatrist.”
[12] Reply p 62.
On 16 October 2018 the applicant consulted Dr Geoff Smith, orthopaedic surgeon, who offered him an arthroscope of his left shoulder with the following warning:
“I am happy to arthroscope Gabriel's shoulder but I have warned him that we may find that his shoulder is structurally normal. I will proceed with tendon and labral repairs or biceps tenodesis as required and, in the absence of any other significant findings, I will excise his distal clavicle as this is the most obvious pathology radiologically. He has a date for surgery. We will keep you informed of his progress.”[13]
[13] ARD p 323.
Dr Smith carried out the operation on 29 November 2018 and examined Mr Adam thereafter on 11 December 2018 and 8 January 2019.[14]
[14] ARD pp 324, 325 and 326.
The applicant was further examined by Dr Rimmer on 2 October 2019 who provided a report to “GIO” on that day. Dr Rimmer said that Mr Adam should never have undergone the surgery carried out by Dr Smith, in accordance with the conclusion of Dr Weisz in the MAC of 20 November 2017, and noted Mr Adam’s statement that “I wish I had never had it done.”[15]
[15] Reply p 67.
The applicant continued to suffer continued stiffness in his left shoulder and pain, particularly at night when he tried to sleep. He returned to see Professor Murrell on 12 October 2020, on referral by Dr Ismail. Professor Murrell requested the respondent’s then insurer, AAI Limited t/as GIO (GIO), for approval of further imaging to define the problem more clearly. On 26 November 2020 GIO approved a left shoulder X-ray and ultrasound.[16] These were carried out on 2 December 2020 followed by a report by Professor Murrell to GIO on that date requesting approval to surgery in the form of rotator cuff repair and arthroscopic capsular release (for the stiffness) to the left shoulder.[17]
[16] ARD pp 298 and 299.
[17] ARD p 302.
The applicant was independently medically examined by Dr Lee, orthopaedic surgeon, at the request of his solicitor on 2 August 2021. In a report of that date, Dr Lee found that the surgery proposed by Professor Murrell was reasonably necessary as a result of the left shoulder injury on 2 April 2015.[18]
[18] ARD p 354.
GIO declined liability for the surgery in a notice issued to the applicant on 20 October 2021 pursuant to s 287A of the 1998 Act.[19]
[19] ARD p 11.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) What is the nature of the injury to the left shoulder suffered by the applicant on 2 April 2015?
(b) Is the rotator cuff repair and arthroscopic capsular release proposed by Professor Murrell reasonably necessary as a result of injury to the applicant’s left shoulder on 2 April 2015?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

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.
The parties attended a conciliation conference and subsequent arbitration hearing on 8 March 2022 conducted via telephone conference. Dr Perry of counsel appeared for the applicant briefed by Mr Pena. The applicant attended on a separate line. An Arabic interpreter assisted. Mr Beran of counsel appeared for the respondent briefed by Ms Cant. Hearing of the matter did not conclude on that day, and a direction for written submissions was issued. These are listed hereunder.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the Reply and attached documents;
(c)    Application to Admit Late Documents dated 4 March 2022 with report of Dr Rimmer of that date attached, prepared following a further examination of the applicant on 2 March 2022;
(d)    the applicant’s written submissions dated 18 March 2022, and
(e)    the applicant’s written submissions in reply dated 22 April 2022.
On 6 April 2022 the solicitor for the respondent advised the Commission that the respondent did not require any further submissions in the matter. The applicant then completed his submissions in reply dated 22 April 2022.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The oral submissions of the parties made on 8 March 2022 are recorded, a transcript of which can be obtained on request. They will not be repeated in full. Those submissions, together with the written submissions, are summarised hereunder.

Applicant – oral submissions

The applicant refers to the history of the matter outlined above. He emphasises the importance of the “enlarging” of the bursal side tear from 40% shown in the previous ultrasound dated 31 March 2016, to 60%. This enlargement is referred to by Professor Murrell in his report dated 2 December 2020 based on the ultrasound of the same date. In his report, Professor Murrell notes the tear as “(enlarging)”, and also assesses of frozen shoulder/adhesive capsulitis of the left shoulder.
The applicant submits that the reason for the surgery carried out by Dr Smith was to address subpectoral biceps tenodesis and that this surgery, different from that proposed by Professor Murrell, failed. The applicant submits that the stiffness which has now emerged in his shoulder appears to have been caused by the capsulitis referred to by Professor Murrell. The arthroscopic capsular release is to address this stiffness.
The applicant refers to the relevant matters in the context of s 60 of the 1987 Act, according to the criteria of reasonableness, referred to by Roche DP in at [88] in Diab v NRMA Ltd[20]. The applicant submits that:
(a)    the treatment proposed by Professor Murrell is appropriate;
(b)    available alternative treatments have been unsuccessful;
(c)    the cost of the treatment is not an issue;
(d)    the actual or potential effectiveness of the treatment is in issue, and
(e)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective may refer to the possible effectiveness of the treatment, not general acceptance by the medical community. The treatment proposed in this case does not fall into this category.
[20] [2014] NSWWCCPD 72 (Diab).
The applicant also relies on what the Court of Appeal said on the issue of causation at [91] in Seltsam v McGuinness[21], that is, causation is established by a process of inference, drawing together items of evidence as in strands in a cable rather than relying on links in a chain. The applicant also relies on what Glass JA said at p 197 in Fernandez v Tubemakers Ltd[22].
[21] (2000) NSWCA 29.
[22] 1975 2 NSWLR 190.
The applicant submits that there is no doubt that the pathology demonstrated by Professor Murrell is a legacy of his injury on 2 April 2015.
With reference to his statement evidence dated 13 January 2022[23], the applicant emphasises that:
[23] ARD p 16.
(a)    he does reveal his encounter with the criminal justice system as part of the reason for the anxiety from which he suffers;
(b)    the fact of injury to the left shoulder is not in issue;
(c)    it was a significant fall on 2 April 2015 into a large deep hole. He fell between one and one and a half metres;
(d)    he suffered injury to his low back and right knee as well as his left shoulder;
(e) injury to the left shoulder was accepted by the respondent’s insurer in the s 74 notice dated 26 August 2016;
(f)    he has given consistent evidence of his left shoulder injury, and suffered no previous problems with that shoulder;
(g)    the circumstances of his examination by Dr Weisz, from his point of view, are relevant, without there being a need to enquire into the appropriateness of how Dr Weisz carried out the examination;
(h)    pursuant to s 326(2) of the 1998 Act, the opinion of Dr Weisz is evidence, but not conclusive evidence, of the issue on which he expresses his opinion;
(i)    the finding by Dr Weisz that when he was distracted he had a full range of shoulder movements was not noted by any other doctor who examined him;
(j)    Dr Riimmer’s comment that he was feigning his injury for financial advantage should be rejected as this was not the case. He was seeking that the respondent pay for the cost of surgery, noting that the surgery performed by Dr Smith was under the public health system;
(k)    all other treatment he has undertaken has failed to ameliorate his symptoms;
(l)    according to Professor Murrell, the rotator cuff repair and arthroscopic capsular release has the potential to ameliorate his symptoms;
(m)     it is a reasonable inference that his narcotic intake, about which Dr Rimmer expressed concern, will be reduced as a result of the amelioration of symptoms following surgery;
(n)    Professor Murrell raises the prospect of return to some form or employment following surgery;
(o)    his psychological condition has been controlled with the assistance of his psychologist, Mr D’Silva, who he has consulted since July 2021, and
(p)    Professor Murrell discounts any adverse inference being drawn against the applicant as a result of seeing the video depicting him lifting the bonnet of a car.
The applicant examines the radiological evidence in the clinical notes produced by Professor Murrell from the date of injury up to the date of initial consultation on 3 February 2016, noting that the left shoulder problem is recorded by the doctor as commencing with the fall on 2 April 2015, and that there was no appearance of frozen shoulder at that stage. Originally a 40% partial thickness tear of the supraspinatus is recorded by Professor Murrell, based on the ultrasound dated 31 March 2016.
The applicant submits that Dr Rimmer has recorded an incorrect history of the fall on 2 April 2015, noting that the hole was very much larger that the “pothole” recorded by the doctor. The applicant submits that the wording in Dr Rimmer’s report displays an attitude of hostility towards him, and questions why the doctor emphasised the fact that Mr Adam described his fall as an “…act of God” in his report dated 24 February 2016. The applicant submits that Dr Rimmer was not fully appraised of what happened to him in the fall.
The applicant submits that the negative impingement test recorded by Dr Rimmer in his report dated 24 February 2016 is not consistent with his clinical presentation, nor does this appear in the radiological evidence, and questions the doctor’s description of his presentation as “…bordering on the bizarre.”
The applicant submits that the report of Dr Rimmer must be balanced against the careful view of Professor Murrell on the current reasonable necessity for surgery, noting the Professor’s view that the earlier surgery has not been successful. Professor Murrell reports to Allianz in his handwritten report dated 27 April 2016[24] that the increase in the supraspinatus tear referred to in his report dated 31 March 2016 compared with the ultrasound conducted on 15 April 2016 [sic, 2015] does not reveal inconsistency.
[24] ARD p 240.

The applicant finally submits that the opinion of Professor Murrell as to the reasonable necessity of surgery is supported by Dr Lee in his report dated. Dr Lee is of the opinion that the surgery will assist in relieving his pain and increase the range of motion in the left shoulder. This submission is made in the context of the current surgery proposal is for capsular release as well as the rotator cuff surgery.

Respondent – oral submissions

The respondent opened its submissions with the observation that the current claim is being made in the historical context of a previous claim for compensation for the cost of the surgery now claimed, which came before the Commission, and in which Dr Weisz gave an unfavourable opinion as to the reasonable necessity for such surgery. Those previous proceedings were discontinued.
The respondent submits that the applicant then went and had rotator cuff the surgery at the hands of Dr Smith which was, according to Dr Rimmer, “an unmitigated disaster”, and which should never have been undertaken. He should never have had the surgery in the first place, and he should still not have the surgery.
The respondent submits that the evidence which suggests that the surgery should take place is ultrasound evidence, which multiple doctors say is secondary evidence to that shown in MRI scans, all of which show no rotator cuff tear. Dr Smith, who carried out the surgery on the applicant’s left shoulder, said that if he found pathology in the supraspinatus tendon, he would repair it, and that having carried out the surgery, was in the best position to determine what surgical repair was necessary. Dr Smith said that there was nothing in the shoulder that needed to be fixed.
The respondent notes Dr Vickery’s opinion that the applicant suffers from a Somatoform Chronic Pain Disorder, and that although the applicant has been treated by Mr D’Silva, psychologist, there is no evidence from him or anyone else to address the applicant’s psychological condition. In this regard, the respondent submits that the evidence of Dr Vickery was before the Commission on the previous occasion. The opinions of Dr Vickery are not rebutted by any evidence from the applicant.
The respondent reviews the radiological evidence, commencing with the ultrasound dated 15 April 2015[25] and subsequent ultrasounds and MRIs. The MRI scans, including that of 27 September 2016[26], show no evidence of a rotator cuff tear, although the ultrasound dated 15 April 2015 does show evidence of a small intrasubstance tear. Dr Smith operated on the labrum tear shown in that MRI, but there was no rotator cuff tear requiring surgery.
[25] ARD p 209.
[26] ARD p 278.
The respondent submits that the increase from 40% to 60% in the bursal tear revealed in the ultrasounds dated 3 February 2016,[27] 31 March 2016[28] and 2 December 2020[29] is unexplained by Professor Murrell or Dr Lee.
[27] ARD p 213.
[28] ARD p 220.
[29] ARD p 301.
The respondent draws attention to the reports of Professor Murrell dated 3 February 2016[30], in which the doctor states that ultrasound evidence (outside and own) shows partial thickness of supraspinatus, 22 February 2016[31], which contains a diagnosis of left shoulder impingement and a note that ultrasound showed rotator cuff to be intact ,and 31 March 2016[32], which records “Partial thickness – bursal side, 40% (10mm x 9 mm) rotator cuff (supraspinatus tear)”, and contains an assessment of “Rotator cuff tear left shoulder – unresponsive to non-operative treatment.” In that last report, Professor Murrell seeks approval from Allianz to surgery in the form of arthroscopy and rotator cuff repair to the left shoulder.
[30] ARD p 215.
[31] ARD p 217.
[32] ARD p 222.
The respondent relies on the report of Dr Rimmer dated 24 February 2016[33], and submits that muscle wasting is a sign of rotator cuff tear, and the doctor finds no such wasting. Dr Rimmer diagnoses abnormal illness behaviour/malingering, which is consistent with the diagnosis of Dr Vickery, and notes gross inconsistencies in the history and presentation of the applicant. He finds too many red flags in expressing his belief that Mr Adam is a not an acceptable candidate for surgery.
[33] Reply p 46.
The respondent refers to the examination of the applicant by the AMS, Dr Weisz, who also found on examination of the applicant that “He is athletic no muscular wastage was observed.”[34]
[34] Reply p 64.
The respondent submits that both Dr Rimmer and Dr Weisz support the unchallenged opinion of Dr Vickery that, having regard to the applicant’s presentation and the diagnosis of Dr Vickery, surgery is not indicated as being reasonably necessary for Mr Adam.
The respondent submits that Professor Murrell does not deal with the 2018 reports of Dr Smith, when that doctor operated on the left shoulder, but simply says that there is a tear in the rotator cuff that needs to be fixed.
The respondent emphasises Dr Rimmer’s opinion that there is no surgical pathology present in the applicant’s left shoulder, and that no further surgery should ever be contemplated for his left shoulder.
The respondent notes that Dr Lee in giving his report dated 2 August 2021[35], following his examination of Mr Adam on that day, was not provided with any reports other than those of Professor Murrell, Dr Ismail and results of ultrasound investigations. He was not provided with Dr Smith’s operative findings, nor the results of any of the MRI scans, and has not recorded any findings of scapular wasting in his report. He simply agrees with the opinion of Professor Murrell, and provides no reasons for his opinion that the left shoulder surgery proposed by Professor Murrell is reasonably necessary.
[35] ARD p 354.
Referring to the relevant matters in the context of s 60 of the 1987 Act, according to the criteria of reasonableness, referred to by Roche DP in at [88] in Diab, the respondent submits that:
(a)    the treatment is not appropriate;
(b)    the applicant’s opioid dependency needs to be addressed, as well as his Somatoform Chronic Pain Disorder;
(c)    the cost of the treatment is not an issue;
(d)    the actual or potential effectiveness of the treatment is in issue, and
(e)    the acceptance by medical experts of the treatment as being appropriate and likely to be effective is in issue, noting the divergence of opinion between Dr Rimmer, Dr Weisz and Dr Vickery on the one hand and Professor Murrell, and Dr Lee, who does not provide a rational opinion in respect of the proposed surgery, on the other.

Applicant’s written submissions dated 18 March 2022

In these written submissions the applicant resumed submissions made 8 March 2022.
The applicant refers to the MAC of Dr Weisz who saw him on 20 November 2017. Dr Weisz noted the age of the applicant and his previous good health, particularly the lack of any previous symptoms in the left shoulder. Dr Weisz also noted the special qualifications in shoulder pathology of Professor Murrell who had deduced from the radiology that there was a 40% tear of a tendon.
The applicant submits that Professor Murrell clearly concluded that the ultrasound performed by Premier Radiology on 3 February 2016, confirming a previous ultrasound, demonstrated a 40% tear of the supraspinatus on the bursal side. The applicant submits that it is important to note that, while at the ultrasound demonstrated pathology in the supraspinatus, posterior to the biceps, the biceps tendon itself was normal.[36]
[36] ARD p 220.
The applicant refers to the symptoms and signs found by Professor Murrell on his re-examination carried out on 31 March 2016 consistent with his first examination on 3 February 2016, and again on 14 August 2019 subsequent to the labral debridement and biceps surgery performed by Dr Smith on 29 November 2018. These same signs were present on further examination by Professor Murrell on 12 October 2020.
The applicant submits that Dr Weisz’ findings on physical examination contain no reference either to the presence or absence of signs of impingement, and that it seems clear that Dr Weisz has proceeded on the basis that there is an absence of objective signs. His opinion is weakened as a result. Professor Murrell, as the treating orthopaedic surgeon specialising in shoulder pathology, observed objective signs on no less than four occasions.
The applicant submits that Dr Weisz’ opinion is further weakened by his conclusion that the applicant suffered no direct injury to his left shoulder, whereas the matter has proceeded on the acceptance by the respondent that there was indeed an injury to the left shoulder when the applicant fell into a hole at work on 2 April 2015. Arbitrator Sweeney has in any event, made such a finding.
The applicant submits that the arthroscopy performed by Dr Smith on 29 November 2018 revealed significant pathology. He found a superior labrum anterior and posterior (SLAP) lesion at the biceps anchor, described as a “lesion type 2-fraying with detached anchor” (emphasis in submissions). The left biceps was the subject of a tenodesis performed by Dr Smith. He also found the shoulder capsule to be inflamed adjacent to the superior labrum.
The applicant submits that Dr Smith did not address ethe pathology at the supraspinatus. Professor Murrell is proposing two procedures, to be performed in a single operation, namely a rotator cuff repair and arthroscopic capsular release for the left shoulder stiffness. Dr Smith did not perform surgery which has been constantly advocated by Professor Murrell both before and after the surgery carried out by Dr Smith. Although, as is evident from the Operation Report, Dr Smith described the condition of the supraspinatus: PASTA (partial articular supraspinatus tendon avulsion).
The applicant refers to the findings of Dr Vickery on his examination on 28 July 2015, less than four months after the fall, noting that the account of injury is consistent with that given to other doctors and to the Commission by way of his statement. Dr Vickery found no evidence of melancholic depression, paranoia delusional ideation or formal thought disorder. There was no apparent cognitive impairment in concentration or memory.
The applicant, in response to Dr Vickery’s diagnosis of somatoform disorder, notes that Dr Ismail, Professor Murrell, Dr Smith and Dr Lee were each satisfied that the applicant’s left shoulder pain resulted from physical injuries sustained in the fall. On at least three occasions, ultrasonic testing has demonstrated physical damage to the supraspinatus, which although does not show up on MRI scanning, is consistent with the opinion of Professor Murrell of the efficacy of ultrasound testing.
The applicant submits that Dr Vickery’s opinion that there was an absence of significant underlying medical pathology to account for the degree of impaired functioning is outside his expertise, and should not be accepted, particularly when considered with the findings of Dr Smith of underlying medical pathology, confirming ultrasonic testing.
The applicant submits that, in the face of demonstrable organic findings, the opinion of Dr Vickery that the applicant’s workplace injury is not the main contributing factor to his diagnosis of Somatoform Chronic Pain Disorder becomes irrelevant. The workplace injury is the main contributing factor to the demonstrated pathology in the supraspinatus, as well as to the SLAP lesion to the biceps anchor, the inflammation of the shoulder capsule and the tear in the labrum which Dr Smith felt necessary to debride.
The applicant submits that the clinical notes of Dr Ismail, his general practitioner, are instructive in that they present an ongoing account from a doctor who knows the patient well. He saw the applicant on the day of his injury when he presented with severe pain in the left forearm/lower back and left shoulder. The left shoulder remained painful on subsequent visits on 15 and 16 April 2015, when an ultrasound taken of the left shoulder showed bursitis, tendinopathy and a small tear.
The applicant refers to Dr Ismail’s note dated 25 January 2016[37] where diagnosis of tendon tear in the left shoulder is recorded and referral to Professor Murrell is made.
[37] ARD p 69.
The applicant refers to the Verifact report depicting him lifting the bonnet of a motor vehicle about one year after his injury[38], and submits that it would appear likely that the inflammation of the shoulder capsule had not progressed to the point sufficient to support a diagnosis of adhesive capsulitis (frozen shoulder), Professor Murrell’s present diagnosis. The use of the left arm by the applicant leads it is submitted, to a conclusion that the absence of wasting in the shoulder, repeatedly stressed by Dr Rimmer, is in fact not determinative of any matter relevant to the Commission.
[38] Reply p 20.
The applicant submits that any concern that he is less likely to have benefit from the surgery proposed by Professor Murrell because he has been affected psychologically by his injury is diminished by his evidence that his attendances on Joseph D’Silva, psychologist, have been of benefit to him. The applicant submits that it is less likely that he will have an adverse psychological reaction to the surgery, particularly having regard to the evidence that the surgery is likely to have the effect of reducing his pain.
The applicant submits that consideration of the criteria in Diab will lead to the conclusion that the surgery proposed by Professor Murrell is reasonably necessary, and that the pathology in his left shoulder is the result of his injury on 2 April 2015.

Applicant’s submissions in reply

The applicant notes that the surgery performed by Dr Smith in 2018 did not provide the applicant with lasting relief from his symptoms, but submits that whether such outcome qualifies for the epithet of an unmitigated disaster (emphasis in submission) in accordance with the description thereof by Dr Rimmer and adopted by the respondent in submissions, is debatable. There is a more straightforward reason for the failure of the surgery to produce lasting relief. That is, the surgery Dr Smith carried out did not address the rotator cuff repair diagnosed by Professor Murrell and recommended by him in 2016, who was influenced inter alia (emphasis in submissions) by a diagnostic ultrasound performed on 31 March 2016 which demonstrated a 40% tear of the supraspinatus.
On 29 November 2018 Dr Smith performed labral debridement and subpectoral biceps tenodesis, but did not perform the rotator cuff repair recommended by Professor Murrell. That is, Dr Smith did not address the supraspinatus. There was therefore some pathology in the shoulder, recorded by Dr Smith as partial articular supraspinatus tendon avulsion (PASTA), which continued after Dr Smith’s intervention.
The applicant submits that this condition continued and worsened somewhat, with the ultrasound of 2 December 2020 showing a 60% tear, complicated by the development of a frozen shoulder.
The applicant submits that Dr Smith’s surgery did not make things worse. There was pathology both before and after that surgery, now complicated by capsulitis. There is expert evidence that such pathology can be beneficially addressed by the surgery proposed by Professor Murrell.
The applicant reiterates what he said in his principal submission that Dr Smith did find pathology in the supraspinatus when he operated on the left shoulder, as is evidenced by the operation report of Dr Smith dated 29 November 2018.[39]
[39] ARD p 324.
The applicant rejects the respondent’s submission that the evidence of Dr Vickery is un-rebuttable. That doctor’s diagnosis of somatic pain disorder is rebuttable and rebutted. By definition, such order exists only in the absence of demonstrable organic findings or known physiological mechanisms. In this case, the evidence of treating surgeons and experts qualified both by the applicant and respondent ( Dr Rimmer and Dr Lee) is that there are both demonstrable organic findings and known physiological mechanisms.

FINDINGS AND REASONS

The nature of the injury to the left shoulder suffered on 2 April 2015

The first specialist who saw the applicant was Professor Murrell, a shoulder surgeon, to whom Mr Adam was referred by his general practitioner, Dr Ismail, on 25 January 2016. Dr Ismail had seen the applicant on the day of injury, 2 April 2015, and regularly thereafter, including on 15 and 16 April 2015. On 15 April 2015 Dr Ismail recorded severe left shoulder pain and referred the applicant for an ultrasound, which was carried out on that day. On 16 April, with the result of that investigation, Dr Ismail noted that the ultrasound showed bursitis, tendinopathy and a small tear.
The applicant continued to see Dr Ismail throughout 2015 for a number of other medical conditions, including anxiety and depression, and complaints about back, neck, knee and shoulder pain.
An MRI scan of the left shoulder requested by Dr Ismail and carried out on 8 May 2015 revealed no evidence of a rotator cuff tear.
The initial consultation with Professor Murrell was on 3 February 2016, when he noted, on the basis of an ultrasound carried out on that day:
“Outside ultrasound shows: partial thickness tear of supraspinatus.
Our ultrasound shows: Partial thickness – bursal side, 40% (10 mm x 9 mm) rotator cuff (supraspinatus) tear.”
Professor Murrell’s assessment was “rotator cuff tear left shoulder.”
On 22 February 2016 Professor Murrell reviewed the applicant when he said:
“Ultrasound showed rotator cuff to be intact, but the bursa thickened. Under ultrasound guidance I injected the subacromial space with depomedrol and lidocaine.”
Professor Murrell’s assessment was “Impingement left shoulder.”
On 31 March 2016 Professor Murrell arranged a further diagnostic ultrasound of the left shoulder and reported thereon when he reviewed the applicant on that day. The ultrasound showed
“Left shoulder: Partial thickness - bursal side 40% (10 mm x 9mm) rotator cuff (supraspinatus) tear, 8mm posterior to the biceps.”
Professor Murrell noted in his report that the injection in February 2016 made the pain in the left shoulder worse. His assessment was “Rotator cuff tear left shoulder – unresponsive to non-operative treatment.” He sought approval from Allianz for surgery in the form of arthroscopy and rotator cuff repair to the left shoulder.
On the basis of the assessment of the applicant by Dr Rimmer on 24 February 2016, Allianz declined liability for the surgery request by Professor Murrell.
The applicant’s care was transferred to Dr Smith who first saw him on 16 October 2018. He reviewed the ultrasounds and MRI scans, which he said:
“...failed to show any significant pathology in the shoulder. In addition to the above noted minor findings about the rotator cuff and labrum, there is quite marked AC Joint arthrosis. Indeed, the AC arthrosis is by far the most marked pathology.”
Dr Smith offered to arthroscope Mr Adam’s shoulder but warned him that he may find that his shoulder is structurally normal.
Dr Smith operated on 29 November 2018, carrying out a left shoulder arthroscopy, labral debridement and subpectoral biceps tenodesis. As noted in the applicant’s submissions, he found a SLAP lesion at the biceps anchor and that the shoulder capsule was inflamed adjacent to the superior labrum.
The applicant submits that Dr Smith, although he carried out that surgery, did not address the pathology at the supraspinatus. That is correct, possibly because, although in his report dated 16 October 2018 referred to above at [14] he noted that there was raised a possibility of a bursal sided partial thickness tear of the supraspinatus on the ultrasound scans, all the MRI scans demonstrated a normal rotator cuff. Dr Smith accepted that the rotator cuff, of which the supraspinatus forms a part, was normal. On the other hand, Professor Murrell found a tear on the basis of ultrasound investigation. On 3 February 2016 on the basis of “Outside ultrasound” he found “partial thickness tear of supraspinatus.” he then said:
“Our ultrasound shows: Partial thickness – bursal side, 40% (10 mm x 9 mm) rotator cuff (supraspinatus) tear”.

The applicant submits, and I accept that, the 60% tear observed by Professor Murrell in 2020, again on the basis of an ultrasound dated 2 December 2020, is consistent with the 40% tear observed in 2016. In his report dated 2 December 2020, referred to above at [17], Professor Murrell notes that he reviewed Mr Adam following further imaging which was very helpful. The left shoulder X-rays showed evidence of impingement and mild glenohumeral arthritis. He then said:
“Our ultrasound shows: Partial thickness – bursal side, 60% (11 mm x 9 mm)rotator cuff (supraspinatus) tear and stiffness.”
Professor Murrell assessed an enlarging partial thickness rotator cuff tear and frozen shoulder/adhesive capsulitis in the left shoulder. He sought approval from GIO for the rotator cuff repair and arthroscopic capsular release, which was not forthcoming.
As early as 29 August 2016 Professor Murrell said in a report of that date to Allianz[40] that he believed that his assessment of the partial rotator cuff tear to the left shoulder was work related, and that significant partial rotator cuff tears do not heal on their own. He said that:
“Ultrasound in the hands of an experienced musculoskeletal sonographer is more accurate than MRI (we have published on this).”
[40] ARD p 274.
It is quite apparent that Professor Murrell adhered to this opinion when recommending surgery in 2020 and requesting approval thereto from GIO.
This belief in the accuracy of ultrasound investigation contrasts with the opinion of Dr Rimmer apparently expressed in his report dated 3 August 2016 (although that report does not appear to be in evidence), and affirmed in his supplementary report dated 25 August 2016[41] that ultrasounds are a very inaccurate imaging modality for rotator cuff tears. Dr Rimmer says that “Clinical studies have shown this overwhelmingly.” He goes on to say:
“There is no pathology in the left shoulder, there is no pathology related to the alleged injury of 2 April 2015.”
[41] Reply p 54.
At [34] above the applicant notes an incorrect history as to the nature of the fall recorded by Dr Rimmer and submits that the hole into which he fell was very much larger that the “pothole” recorded by the doctor, who also records Mr Adam describing the fall as an “…act of God”. Dr Rimmer diagnoses the applicant as suffering abnormal illness behaviour/malingering, not consistent with the mechanism of injury described by Mr Adam. He has been consistent in this diagnosis. However, I accept the applicant’s submission that he may have been influenced in this diagnosis by a misperception as to the severity of the fall on 2 April 2015 and the applicant’s description as to the reason for the fall.
Professor Murrell is a specialist shoulder surgeon and has been consistent in his diagnosis, based on the results of ultrasound examinations, investigations in which he has confidence. Although Professor Murrell does not comment on the nature of surgery carried out by Dr Smith apart from noting it as a “biceps tenodesis”, he has always recommended the surgery that he continues to propose, and that ultrasound examinations are more accurate than MRIs, “...in the hands of an experienced musculoskeletal sonographer.” Both in respect of his finding of a 40% partial thickness bursal sided tear and a later 60% such tear, he refers to what “Our ultrasound” shows, indicating confidence in the sonographer on whose reports he bases his diagnosis.
In my view, for the foregoing reasons, the diagnosis of injury made originally by Professor Murrell is to be accepted in preference to the diagnosis of Dr Rimmer. In my view, it is also not surprising that Mr Adam expressed the sentiment that he wished he had never undergone the surgery carried out by Dr Smith, and that it made his condition worse. If one accepts the diagnosis of Professor Murrell, the surgery carried out by him did not address the source of the shoulder pain.
I accept the applicant’s submission that Dr Weisz’ opinion is weakened by his conclusion that the applicant suffered no direct injury to his left shoulder. It appears that Mr Adam did not have a particularly pleasant experience with Dr Weisz when asked to undress. That may have influenced Dr Weisz’ assessment, although not to a significant degree. Dr Weisz identifies “The more superior MRI scan dated May 2015” as identifying no pathology, nor did “...the complex ateriogram/MRI test in December 2015.” Dr Weisz does identify Professor Murrell as an orthopaedic surgeon specialising in shoulder surgery, but bases his diagnosis, in part at least, on the absence of wasting in the shoulder and full movements therein.
The assessment of Dr Weisz predates the re-referral of the applicant to Professor Murrell on 2 December 2020, at which time the increased partial thickness tear on the bursal side to 60% was diagnosed. Professor Murrell has been consistent in his diagnosis of impingement in addition to that of the partial thickness tear.
I do not accept that the applicant is suffering from a somatoform disorder, and accept the applicant’s submissions at [61]-[63] above as to why this diagnosis by Dr Vickery should not be accepted.
I do not regard it as significant that the applicant has not produced evidence of his psychological condition to address the diagnosis of Dr Vickery. Mr Adam has acknowledged his previous psychological problems when he was feeling anxious and depressed in 2014 and was referred to a psychologist by Dr Ismail for treatment, and more recently in 2021 when he saw Mr D’Silva, psychologist, again on referral by Dr Ismail to improve his mood.
The onus remains on the applicant to produce sufficient evidence to show, on the balance of probabilities, that he suffered the injury to his left shoulder for which he now seeks the surgery proposed by Professor Murrell. He has discharged that onus, and there will be a finding in his favour that on 2 April 2015 he suffered a partial thickness rotator cuff (supraspinatus) tear in the left shoulder, and developed left shoulder stiffness, that is, adhesive capsulitis in the shoulder.
The respondent submits that the report of Dr Lee dated 2 August 2021 should not be given any weight because he was not provided with any reports other than those of Professor Murrell, Dr Ismail and results of ultrasound investigations. The submission is referred to in [50] above. However acceptance of the diagnosis of injury made by Professor Murrell means that it should be given some weight, particularly on the issue of the reasonable necessity for surgery as a result of injury.

Reasonable necessity for surgery

In Diab, Roche DP at [88] listed the following relevant matters, according to the criteria of reasonableness, as including but not limited to the following when considering the reasonable necessity for treatment pursuant to s 60 of the 1987 Act:
(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.
The Deputy President noted that these were not necessarily limited to the matters noted by Burke CCJ in Rose. In that case, his Honour stated:
“It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.”
At [89] in Diab Deputy President Roche said:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that 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. As always, each case will depend on its facts.”
In terms of the relevant matters noted at [88] in Diab, Professor Murrell is clearly of the view that the surgery he proposes is appropriate for the injury he diagnoses. He does not comment on the surgery carried out by Dr Smith apart from simply noting it. Dr Rimmer makes no comment on the diagnosis or opinion of Professor Murrell, but he is of the opinion that Mr Adam has not suffered any injury to his left shoulder. That is not in accordance with my finding.
Dr Weisz is of the view that surgery will not benefit the applicant, not improve the range of movements which he found to be of full extent, not ameliorate his symptoms and not improve his chances to return to any employment. He says surgery might intensify “...the symptoms of ‘Pain disorder’ as diagnosed by a psychiatrist.” Dr Weisz is obviously relying on Dr Vickery in accepting that the applicant was suffering a pain disorder, which I have not accepted. Acceptance of the diagnosis of Professor Murrell is an explanation for the continued pain from which Mr Adam suffers.
An examination of the report of Dr Lee reveals a range of motion in the left shoulder significantly less than in the right shoulder. Dr Lee says that the applicant will likely have less pain and achieve more mobility in the shoulder when asked as to the likely effectiveness of the shoulder surgery recommended by Professor Murrell. He does however say that the left shoulder will never be normal or comparable to the right side.
Dr Lee, in giving this opinion, accepts that the applicant suffered a rotator cuff tear and bicipital tendinitis, and is reliant on the reports of Professor Murrell for his opinion, as well as his examination of the applicant.
I accept the surgical treatment proposed by Professor Murrell is appropriate for the injury he diagnoses.
It is quite apparent that alternative treatment has not been effective in relieving Mr Adam’s symptoms, and the proposed surgery could be seen as a last resort for the applicant to obtain relief from the pain in he left shoulder. The cost of the proposed surgery has not been put in issue.
The actual or potential effectiveness of the treatment is very much in issue, but if one accepts the diagnosis of Professor Murrell, in my view the surgery has the potential to reduce the applicant’s pain and improve his quality of life. Absence of comment by Dr Rimmer in his report dated 4 March 2022 on the opinions of Professor Murrell and/or Dr Lee means that he does not make any comment on whether the surgical treatment proposed by Professor Murrell for the injury diagnosed by him is appropriate and likely to be effective.
In my view, the surgical treatment proposed by Professor Murrell, namely rotator cuff repair and arthroscopic capsular release, is reasonably necessary as a result of injury to the applicant’s left shoulder on 2 April 2015.

SUMMARY

The applicant sustained injury in the form of a partial thickness rotator cuff tear and adhesive capsulitis to his left shoulder arising out of or in the course of his employment on 2 April 2015.
The surgery proposed by Professor Murrell, namely rotator cuff repair and arthroscopic release, is reasonably necessary as a result of injury to the applicant’s left shoulder on 2 April 2015.
The respondent is to pay the costs of and incidental to such surgery pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 179

27 April 2022