Adams v Bowral Management Company Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Adams v Bowral Management Company Pty Ltd [2022] NSWPIC 150
APPLICANT:	Sharrn Adams
RESPONDENT:	Bowral Management Company Pty Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	8 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for costs payable under section 60 of the Workers Compensation Act 1987 for proposed surgery in the nature left shoulder arthroscopy, biceps tenodesis and resuturing of rotator cuff and decompression; Held– the applicant requires medical and related treatment resulting from injury sustained on 23 April 2020 in the course of her employment with the respondent and the proposed surgical treatment is reasonably necessary treatment resulting from that injury.
DETERMINATIONS MADE:	1. The surgical treatment proposed by Dr Kinzel in the nature of left shoulder arthroscopy, biceps tendonesis, resuturing of rotator cuff and decompression is reasonably necessary treatment payable under s 60 of the Workers Compensation Act 1987 for injury the applicant sustained to her left shoulder on 23 April 2020 in the course of her employment with the respondent. 2. The respondent is to pay the costs associated with the surgical treatment proposed by Dr Kinzel in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

At the time she sustained injury the subject of these proceedings, the applicant, Sharrn Adams (Ms Adams) was a long time employee of the respondent, Bowral Management Company Pty Ltd (BMC). She was employed in the role of enrolled nurse. Ms Adams is currently 61 years of age.
Ms Adams sustained injury to her left shoulder on 23 April 2020 in the course of her employment with BMC and liability is accepted for this injury. While Ms Adams came to surgical treatment of her left shoulder on 2 June 2020 under the care of Dr Leicester, her left shoulder remained problematic.
In these proceedings Ms Adams claims medical and related treatment payable under s 60 of the Workers Compensation Act 1987 (1987 Act) for costs associated with surgical treatment proposed by Dr Kinzel, which is the nature of a left shoulder arthroscopy, biceps tendonesis, resuturing of rotator cuff and decompression, resulting from the injury she sustained on 23 April 2020 in the course of her employment with BMC. Ms Adams’ claim for compensation is declined and she has been issued with notice dated 10 March 2021[1] in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998. Following a request for review of the decision to decline her claim Ms Adams was issued with notice dated 17 November 2021[2] in which she was advised of the decision to maintain the decision to decline her claim. In essence, BMC disputes the recommended surgical treatment results from injury sustained by Ms Adams on 23 April 2020 as BMC is of the view the recommended surgical treatment results from injury sustained by Ms Adams on 10 February 2020 in the course of her employment with BMC, being an injury sustained when iCare NSW was not the insurer on risk.
[1] Application to Resolve a Dispute (ARD) at p 5.
[2] ARD at p 11.

ISSUES FOR DETERMINATION

The parties agree the following issue remains in dispute:
(a) Whether the surgical treatment recommended by Dr Kinzel in the nature of a left shoulder arthroscopy, biceps tendonesis, resuturing of rotator cuff and decompression is reasonably necessary treatment resulting from injury sustained by Ms Adams on 23 April 2020, being injury for which liability is accepted by iCare NSW.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

Ms Adams’ claim for compensation came before me for teleconference on 14 February 2022. Ms Smith appeared for Ms Adams and Mr Quillan appeared for BMC. Ms Adams was present. Ms Harris, a representative of the insurer was also present.
With Ms Adams’ claim unresolved at teleconference, her claim came before me for conciliation/arbitration hearing on 16 March 2022. Mr McMananey of counsel appeared for BMC, instructed by Ms Smith. Mr Hanrahan of counsel appeared for BMC, instructed by Mr Quillan. Ms Adams was present. Mr Macina, a representative of the insurer was present.
Following my discussions with counsel, 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) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statement of Ms Adams

Ms Adams provided a statement dated 12 January 2022[3]. Ms Adams said:
“On 23 April 2020, during the course of my usual duties, I was assisting a patient to transfer from standing to sitting. During the transfer the patient threw him himself back causing me to sustain an injury to my left shoulder”.
[3] ARD at p 2.
Ms Adams said she attended on her general medical practitioner, Dr Pinkerton and following diagnostic investigation demonstrating she had torn her left rotator cuff, she was referred for orthopaedic review with Dr Leicester, coming to surgical repair of her left rotator cuff on 2 June 2020.
Ms Adams explained:
“On or about 7 May 2020, I returned to work on restricted duties with a 2 kilogram lifting limit with my left arm.
On 29 June 2020, I came under the care of Mittagong Physio & Pilates for rehabilitation.
Despite the surgery and rehabilitation I continued to experience and complained to my treatment providers, including Dr Leicester, of problems with my left shoulder.
On 7 September 2020, I attended on Dr Leicester who I recall advised me that I was experiencing more pain than he would expect, so I was referred to undergo an MRI of my left shoulder. I underwent the MRI on 24 September 2020, following which Dr Leicester recommended that I have a manipulation under anaesthetic to help try and regain my movement. This was performed on or about 6 October 2020. Dr Leicester again requested approval for this procedure and same was granted by iCare.
I continued to experience some pain after the manipulation. I was referred by Dr Leicester to have a cortisone injection which I underwent in early November 2020. However, I only experienced temporary relief of my symptoms.
On 30 November 2020, I returned to see Dr Leicester who recommended that I undergo a repeat injection but also discussed with me that I may require further surgery, in the form of a bicep tenodesis.
Between November 2020 and February 2021, I continued in the care of Mittagong Physio & Pilates for rehabilitation. However, despite this I continued to experience pain and difficulties with my left shoulder.
By February 2021, I was certified fit for full time hours but still performed restricted duties. The pain and difficulties with my left shoulder continued. On 10 February 2021, I was at work performing those duties when I reinjured my left shoulder when a patient pushed me into a wardrobe.
I returned to see Dr Leicester on 17 February 2021 and underwent a further MRI on 19 February 2021, revealing that I had a re-tear.
Following the MRI, Dr Leicester recommended that I obtain a second opinion and he referred me to see Dr Kinzel, Orthopaedic Surgeon.. I first saw Dr Kinzel on 11 March 2021. After reviewing my recent imaging and examining me, Dr Kinzel recommended that I undergo further surgery and requested iCare's approve for me to undergo a shoulder arthroscopy,, biceps tendonesis , a possible re-suturing of my rotator cuff and a decompression..”
Ms Adams confirmed she remains symptomatic and is hopeful the surgical treatment recommended by Dr Kinzel will improve her symptoms. She said “I really want to undergo this treatment”.

Treating medical evidence
Imaging

A report of an ultrasound of the left shoulder rotator cuff dated 5 May 2020[4] provided clinical details of a rotator cuff injury with comment “there is a full thickness tear of the supraspinatus tendon which appears recent. There is associated bursal effusion”.
[4] ARD at p 321.
A report of an MRI of the left shoulder dated 24 September 2020[5] provided clinical details of recent cuff repair and referred to comparison with an MRI dated 13 May 2020, the report of which does not appear to be in evidence before the Commission. Conclusion is reported:
“Expected postsurgical appearance with thinned but intact supraspinatus and anterior infraspinatus. Ongoing acromioclavicular, glenohumeral and bursal inflammation”.
[5] Reply at p 13.
A report of an ultrasound guided injection – left biceps tendon and subacromial/subdeltoid bursa dated 12 November 2020[6] provided clinical details “Localised biceps tenosynovitis. For US guided injection with celestone and local anaesthetic”.
[6] ARD at p 197.
A report of an MRI of the left shoulder dated 19 February 2021[7] provided clinical details “rotator cuff repair, recent injury. Repair intact?” and referred to comparison with the MRI dated 18 September 2020 (which was reported on 24 September 2020). Conclusion is reported, in part:
“Small full-thickness defect within the posterior tendon, remainder of the repaired supraspinatus appears thinned but intact. Mild to moderate bursal thickening”.

Walker Street General Practice
[7] ARD at p 85.

Ms Adams has been under the general medical care of the doctors practising out of Walker Street General Practice for many years. Clinical records of the practice relevant to Ms Adams as at 5 May 2021 are in evidence before the Commission[8].
[8] ARD at p 104.
Ms Adams relevantly consulted with Dr Pinkstone on 5 May 2020 with Dr Pinkstone recording:
“Incident at work 23/4/20. Help patient into chair at work. Caught her left arm behind him when he threw himself back into chair. Sudden pain in shoulder. Since then pain radiated to deltoid and completely unable to abduct shoulder”.
Ms Adams continued to consult with Dr Pinkstone relevant to her left shoulder injury, and on 24 June 2020 Dr Pinkstone noted “prolonged stay in hospital due to post op pain and nausea and adverse reaction to analgesia”. It is evident from Dr Pinkstone’s clinical records that despite physiotherapy treatment, Ms Adams remained symptomatic and returned to her treating orthopaedic surgeon, Dr Leicester, for review and subsequent manipulation.
On 22 December 2020 Dr Tong, who also practises out of the medical centre, relevantly noted:
“Very slow progress with L shoulder
Had another cortisone injection to subacromial bursa & biceps tendon on 10/11/20
Continues to be very painful with quite limited ROM but Sharrn says this has improved from initial presentation, unable to carry weight at all.
Next review with Dr Leicester in Feb
Managing with work – at front door
Cont same restrictions
Is on leave after today until Feb”.
Ms Adams consulted with Dr Pinkstone on 18 January 2021. Dr Pinkstone noted:
“Not seeing physio. Movement slowly improving. Has about 60 deg abduction and forward flexion.
Sleep better – feels she could manage 8 hr day when she goes back from holidays”.
When Ms Adams next consulted with Dr Pinkstone on 15 February 2021 Dr Pinkstone noted:
“Had incident on Wed 10 Feb 2021 after she was placed back on ward duties where patient with behaviour problems grabbed her by the left shoulder and pushed her against wardrobe – caused immediate pain in left shoulder. ROM in flexion and abduction has deteriorated to 45 degrees. Previously was achieving 90 degrees. Another problem with returning to ward duties is bed making. Unable to exert any force with left hand. Not fit for physical patient handling at this time.
Able to do patient observations, medications, clinical records and ward administration. Managing light equipment – ecgs, Ivs, empty wheelchairs. Unfit for bed making, physical patient handling, using sling lifter, moving beds or heavy items”.
On review on 6 April 2021 Dr Pinkstone noted Ms Adams “was booked with Dr Kinzel to have further surgery”.

Bong Bong Orthopaedics

Dr Leicester and Dr Kinzel practise out of Bong Bong Orthopaedics. Clinical records of the practice relevant to Ms Adams as at 5 May 2021[9] are before the Commission.
[9] ARD at p 27.
Ms Adams initially came under the orthopaedic care of Dr Leicester following injury to her left shoulder on 23 April 2020. In his letter of referral dated 5 May 2020, Dr Pinkerton said of Ms Adams “clinically she has very limited active and passive ROM in the shoulder and a large supraspinatus tear is evident on ultrasound”. In his initial report dated 6 May 2020 Dr Leicester described Ms Adams as being in severe pain and noted:
“She has marked weakness of the supraspinatus and her ultrasound confirms an acute rupture supraspinatus. At her age and level of activity I would definitely recommend surgical repair. We discussed the surgery and the slow rehabilitation”.
In his post-surgical report dated 15 June 2020, while Dr Leicester made reference to the MRI having demonstrated “she had a large tear” he indicated he “was happy with the stability of the repair at the end of the procedure” and had referred Ms Adams for physiotherapy treatment.
In her initial report dated 15 July 202, Ms Adams’ treating physiotherapist, Anne Brady of Mittagong Physio and Pilates, said she understood “the extent of her cuff tears was greater than the pre-Op MRI revealed” and outlined the proposed physiotherapy treatment for Ms Adams.
In his report dated 27 July 2020, while Dr Leicester indicated he was happy for Ms Adams to “come out of her sling and start active mobilisation” he cautioned she was only fit for “very light duties at the moment” and made reference to her full recovery taking “about 6 – 12 months”.

30.In a report dated 1 September 2020, Ms Brady described Ms Adams as still experiencing significant symptoms in her left shoulder. She reported:
“She can sleep for 3 to 4 hours at a time. During the day she reports ongoing deep aching/throbbing and intermittent sharp pain around the shoulder”.

In his report dated 7 September 2020, Dr Leicester wrote:
“Sharrn is now 12 week post rotator cuff repair. She has more pain than I would expect for this. She has 45 degree abduction and 60 degree of forward elevation. I have referred her for an MRI to assess the integrity of the rotator cuff. I doubt that surgery will be indicated but will let you now the result of the MRI”.
In his subsequent report dated 28 September 2021 Dr Leicester described the MRI as showing the rotator cuff as being in tact but “a lot of inflammation present consistent with adhesive capsulitis” and recommended manipulation under anaesthetic “to try and regain her movement”. In his post manipulation report dated 2 November 2020 while Dr Leicester described Ms Adams as having reported “some improvement in her range of motion and pain” he noted:
“She is having a lot of pain along the biceps tendon. Her MRI shows that her rotator cuff repair is intact but there is some fluid in the biceps sheath. I have therefore referred her for a cortisone injection into the biceps sheath under ultrasound”.
In a report dated 18 November 2020, while noting Ms Adams reported a “positive response to the recent cortisone injection”, Ms Brady wrote:
“At 4.5 months post op Sharrn still has a surprising degree of pain, sleep disturbance and lack of active flexion capacity”.
In a report dated 30 November 2020, while again noting Ms Adams reported a positive response to the recent cortisone injection, Ms Brady referred to Ms Adams’ progress as “not as good as one might expect at this stage post op”.
In his report also dated 30 November 2020, Dr Leicester wrote:
“Sharrn had a good response to her cortisone injection into the biceps sheath and the subacromial bursa. She still has some pain. The ultrasound showed significant bicipital tendinitis. I have recommended a repeat injection into the sheath in 3 weeks’ time. I will review Sharrn in February. In the worse case scenario that the cortisone does not settle the tendinitis there is a small chance she will require a biceps tenodesis. Her physiotherapist is worried about traumatic arthritis but there was certainly no suggestion of traumatic arthritis on her MRI and the fact that she had a good response to the cortisone injection is indicative that the diagnosis is bicipital tendinitis”.
However following the scheduled review in February 2021, Dr Leicester reported on 17 February 2021:
“Unfortunately Sharrn had another injury to her left shoulder last Wednesday at work when she was pushed into a wardrobe by a patient. She is tender over both the supraspinatus and the biceps tendon. I am organising a repeat MRI to assess the integrity of her rotator cuff and I will let you know the result”.
On 26 February 2021, Dr Leicester reported:
“Sharrn’s new MRI suggests a new small tear of supraspinatus. She is still in quite a lot of pain. I am reluctant to recommend a revision rotator cuff repair. I have asked Vera to give a second opinion. It may be possible to perform an arthroscopic procedure which is less invasive than a revision repair”.
In his letter of referral to Dr Kinzel dated the same day, Dr Leicester referred to Ms Adams as having had “ongoing symptoms of bicipital tendinitis” since the injury she sustained on 23 April 2020 and surgical repair and noting Ms Adams had “had another fall at work and has a small near tear on her MRI” sought Dr Kinzel’s opinion as to whether she felt Ms Adams would benefit from a revision repair with biceps tenodesis.
Following review, Dr Kinzel provided a report dated 11 March 2021 in which she noted Ms Adams had sustained injury to her left shoulder in the incident occurring on 23 April 2021 and coming to surgical treatment under the care of Dr Leicester, after which Ms Adams “made some slow progress but had not reached a pain free status”. Dr Kinzel noted too “recently she had a further incident where a patient pushed her arm which caused a further increase in pain of her shoulder” and described Ms Adams has having “now worsened with this new incident”. Relevant to her review of the MRI scan, Dr Kinzel reported:
“…she has a large fluid collection around her biceps with tearing within her intersecisteence of the biceps. Her rotator cuff tendon looks intact with a tiny possible re-tear of the insertion. She also has a subacromial spur impinging on her supraspinatus tendon”.
Dr Kinzel expressed the view further surgical treatment in the form of a shoulder arthroscopy, biceps tenodesis, possible re-suturing of her rotator cuff tear and subacromial decompression “would be highly beneficial”. She considered Ms Adams had an excellent prognosis to return to full working duties within six months of the recommended further surgical treatment.
In her letter dated 15 June 2021 addressed to Ms Adams solicitors[10] Dr Kinzel provided a consistent history of initial injury occurring on 23 April 2020 (although she erroneously refers to the date of injury as 23 April 2021), subsequent treatment under the orthopaedic care of Dr Leicester and re-injury occurring on 10 February 2021, with subsequent MRI scan (erroneously referred to as being dated 9 February 2021) demonstrating a small retear of the supraspinatus and thickening of the long head of biceps in its intra-articular run with a bicipital sheath. Dr Kinzel reported that on review on 11 March 2021 (although she erroneously refers to the date of review as 11 February 2021) she suggested further surgical treatment. In response to specific question “did the original injury contribute to the current circumstances and particularly the need for the proposed surgery”, Dr Kinzel responded:
“The initial injury triggered the rotator cuff tearing as well as the biceps pathology. This was addressed during her previous surgery but unfortunately she retore her rotator cuff and now she has problems with her biceps. A biceps tenodesis at the first surgical procedure was not performed. She would greatly benefit from a biceps tenodesis which will address the pain in the anterior aspect of her shoulder”.

Independent medical evidence
Dr New
[10] ARD at p 18.

The applicant was orthopaedically assessed on 14 July 2021 by Dr New in his capacity as independent medical examiner. Dr New provided a report dated 16 July 2021[11]. Dr New recorded a consistent history of injury occurring on 23 April 2021 together with a consistent history of treatment under the care of Dr Pinkstone and Dr Leicester, with Ms Adams coming to surgical treatment, manipulation and cortisone injection. Dr New also noted:
“On 30 November 2020 Dr Leicester felt she would require an arthroscopy of the shoulder, repair of biceps tendon as well as a bicep tenodesis”.
[11] ARD at p 22.
Dr New provided a history of Ms Adams working with restriction of a two kilogram lifting limit, when she sustained further injury to her left shoulder on 10 February 2021 while in the course of her employment with BMC when she was pushed by a patient. He recorded a consistent history of Ms Adams returning to Dr Leicester for review, with Dr Leicester referring her for orthopaedic review by Dr Kinzel for the purpose of obtaining a second opinion.
Dr New noted at the time of assessment that Ms Adams continued to work with BMC but was working restricted duties. He described her as having been on restricted duties since April 2020. Ms Adams presented with pain over her left shoulder and biceps and on examination Dr New noted a surgical scar over the insertion of the biceps consistent with her surgical treatment. In response to specific questioning Dr New considered the surgical treatment proposed by Ms Adams’ treating orthopaedic surgeons to be reasonably necessary and provided opinion:
“i.      You have asked my opinion whether or not there is a causal relationship between the original injury and the need for surgery, and I would say yes.
ii.      You have asked whether the original injury contributed to the current circumstances, particularly with the need for the proposed surgery, and again I would say yes.
…
iv.      You have asked whether it was more probable than not that the current condition may have been as serious if not had it been for the first incident. As stated, the patient states she had a full range of movement, which was pain-free, before the incident and the history given is certainly consistent with her current clinical presentation with regard to restriction in range of movement etc”.

Submissions

Mr Hanrahan and Mr McMananey made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular matter. A recording of counsels’ submissions is available to the parties.

Determination
Treatment

Although liability is not disputed for the injury Ms Adams sustained to her left shoulder on 23 April 2020 in the course of her employment with BMC, liability is disputed for her claim for costs associated with surgical treatment proposed, which is in the nature of left shoulder arthroscopy, biceps tendonesis, resuturing of rotator cuff and decompression.
Section 60 of the 1987 Act provides:
“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in Rose v Health Commission (NSW)[12]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[12] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      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.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Ltd[13], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[13] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(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.
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.”
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case as discussed in Kooragang and in this matter Ms Adams must establish that the injury she sustained to her left shoulder in the incident occurring on 23 April 2020 materially contributed to the need for the surgical treatment proposed by Dr Kinzel. This was confirmed by former Deputy President Roche in Murphy v Allity Management Services Pty Ltd[14] where he stated:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ of the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[14] [2015] NSWWCCPD 49.
In the incident occurring on 23 April 2020 Ms Adams sustained a rotator cuff injury in the nature of a “large” full thickness tear of the supraspinatus tendon, with associated bursitis. She came to surgical repair under the care of Dr Leicester on 2 June 2020, with Dr Leicester previously discussing the surgery and “the slow rehabilitation” with her on or about 6 May 2020. In a post-surgical report dated 27 July 2020 Dr Leicester anticipated full recovery would take “about 6 – 12 months”. In a further report dated 7 September 2020, Dr Leicester said Ms Adams was in more pain than he would expect at 12 weeks post-surgery and Ms Adams came to manipulation under anaesthetic on 6 October 2020, with some improvement. However, in his post manipulation report dated 2 November 2020, Dr Leicester described Ms Adams as having “a lot of pain along the biceps tendon” and Ms Adams came to cortisone injection on 12 November 2020, with Dr Leicester reporting on 30 November 2020 that while she had a good response to the injection, she still had some pain. Dr Leicester recommended a repeat injection “in 3 weeks’ time” with review in February 2021. He cautioned at that time “in the worse case scenario that the cortisone does not settle the tendinitis there is a small chance she will require a biceps tenodesis”.
Ms Adams’ continuing difficulties with her left shoulder despite surgical treatment and manipulation under anaesthetic are also well documented in her statement and the clinical records of Walker Street General Practice, which include comment from her treating physiotherapist, Ms Brady.
I consider it of significance too that on review on 18 January 2021, which appears to be Ms Adams’ last medical consultation prior to the incident occurring on 10 February 2021, Dr Pinkerton made reference to Ms Adams’ left shoulder movement slowly improving and also made reference to abduction and flexion being at about 60 degrees. Clearly, at this point in time Ms Adams’ remained quite troubled by her left shoulder.
On review following the incident occurring on 10 February 2021, Dr Pinkerton described Ms Adams as having suffered “immediate pain” in her left shoulder in the incident, with her abduction and flexion now deteriorated to 45 degrees. Dr Leicester reported on 17 February 2021 that Ms Adams was tender “over both the supraspinatus and the biceps tendon” and with a subsequent MRI demonstrating “a new small tear of supraspinatus” Dr Leicester referred Ms Adams to his colleague, Dr Kinzel, for second opinion.
On 11 March 2021 Dr Kinzel reported a consistent history of the injury Ms Adams sustained to her left shoulder in the incident occurring on 23 April 2020 and her subsequent treatment under the care of Dr Leicester, including surgical treatment. Dr Kinzel referred to Ms Adams as having made some slow progress but not having “reached a pain free status”, with her shoulder having worsened with the incident occurring on 10 February 2021. Dr Kinzel expressed opinion Ms Adams would benefit from further surgical treatment in the nature of a shoulder arthroscopy, biceps tenodesis, possible re-suturing of her rotator cuff tear and subacromial decompression. She considered Ms Adams had an excellent prognosis to return to her full duties within six months of the proposed surgical treatment. While I accept Dr Kinzel’s response to specific questioning by Ms Adams’ solicitors for opinion as to whether the incident occurring on 23 April 2020 contribute to the current circumstances and need for the proposed surgical treatment could be expressed a little clearer than it is, it is evident Dr Kinzel is of the view the proposed surgical treatment will address those ongoing symptoms suffered by Ms Adams despite coming to surgical treatment under the care of Dr Leicester.
Dr New also recorded a consistent history of the injury Ms Adams sustained to her left shoulder in the incident occurring on 23 April 2020 her subsequent treatment under the care of Dr Leicester, including surgical treatment, the further incident occurring on 10 February 2021 and orthopaedic review by Dr Kinzel. Dr New also relevantly noted that on 30 November 2020 Dr Leicester cautioned that without improvement, Ms Adams may require further surgery to address her ongoing symptoms. In response to specific questioning about the further surgical treatment proposed by Dr Kinzel, Dr New in essence provided opinion it was reasonably necessary treatment for the injury Ms Adams sustained to her left shoulder in the incident occurring on 23 April 2020 and in essence accepted because of the incident occurring on 23 April 2020 her current condition was more serious than it otherwise may have been.
Following review of the evidence as a whole and following careful consideration of counsels’ submissions, having particular regard to the support afforded to Ms Adams by Dr Kinzel, (under whose care Ms Adams remains to date) and that of Dr New, I am of the view the surgical treatment proposed by Dr Kinzel in the nature of left shoulder arthroscopy, biceps tendonesis, resuturing of rotator cuff and decompression, is treatment proposed to manage injury sustained by Ms Adams to her left shoulder, which includes injury Ms Adams sustained to her left shoulder on 23 April 2020 in the course of her employment with BMC. Although it may be Ms Adams left shoulder injury “worsened” with the incident occurring on 10 February 2021, I am satisfied the initial injury she sustained to her left shoulder on 23 April 2020 “materially contributed” to the need for the surgery proposed by Dr Kinzel.
Following review of the evidence as a whole and again following careful consideration of counsels’ submission and the support afforded to Ms Adams by Dr Kinzel and Dr New, I am of the view the surgical treatment proposed in the nature of left shoulder arthroscopy, biceps tendonesis, resuturing of rotator cuff and decompression is reasonably necessary treatment for injury sustained by Ms Adams to her left shoulder, which includes injury Ms Adams sustained to her left shoulder on 23 April 2020 in the course of her employment with BMC. It is evident that despite surgical treatment and manipulation under the care of Dr Leicester, physiotherapy treatment and injection therapy, Ms Adams’ left shoulder remained symptomatic and Dr Kinzel has expressed opinion the proposed surgical treatment would be “highly beneficial” with an excellent prognosis Ms Adams would return to her full working duties within six months of the surgical treatment.
While Mr Hanrahan levelled some criticism at Dr New for failing to provide adequate reasoning for his support of a causal link between the injury sustained by Ms Adams to her left shoulder on 23 April 2020 and her current need for the surgical treatment proposed by Dr Kinzel, Dr New is an experienced orthopaedic surgeon who has been providing independent medical examination opinion for many years and in my view he is able to use his general experience and knowledge as an expert[15]. While Mr Hanrahan also correctly pointed out that in his report Dr New made reference to clinical examination of Ms Adams’ right shoulder rather than her left shoulder, in the context of Ms Adams’ complaints at assessment being restricted to her left shoulder and Dr New’s findings on examination of shoulder pain and restricted movement and “pins and needles globally over her left forearm and hand but with no weakness” it would appear to me Dr New’s reference to clinical examination of Ms Adams’ right shoulder rather than her left shoulder has been made in error, particularly so as Dr New’s opinion has been specifically sought relevant to injury sustained by Ms Adams to her left shoulder.

SUMMARY
[15] Australian Security and Investment Commission v Rich [2005] NSWCA 152.

It is not disputed Ms Adams sustained injury to her left shoulder on 23 April 2020 in the course of her employment with BMC. I have determined the surgical treatment proposed by Dr Kinzel is reasonably necessary treatment for that injury.
BMC is to pay the costs associated with the surgical treatment proposed by Dr Kinzel in accordance with s 60 of the 1987 Act.

[2022] NSWPIC 150

8 April 2022