Allan v State of New South Wales (Western Sydney Local Health District)
[2024] NSWPIC 327
•21 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allan v State of New South Wales (Western Sydney Local Health District) [2024] NSWPIC 327 |
| APPLICANT: | Kerrye Allan |
| RESPONDENT: | State of New South Wales (Western Sydney Local Health District) |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 21 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for proposed left shoulder surgery; evidence of conservative treatment; whether psychological overlay; where applicant’s expert did not conduct a physical examination; Held – applicant has discharged her onus of establishing that the surgery is reasonably necessary as a result of injury; respondent ordered to pay costs of and incidental to surgery. |
| DETERMINATIONS MADE: | The Commission determines: 1. The left shoulder arthroscopy +/- post labral repair, subacromial decompressions The Commission orders: 2. The respondent to pay the costs of and incidental to the left shoulder arthroscopy +/- post labral repair, subacromial decompressions +/- cuff/biceps repair surgery proposed by Dr Kuo in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Ms Kerrye Allan (the applicant) was employed by the State of New South Wales (Western Sydney Local Health District) (the respondent) as a wardsperson.
The applicant claims that due to the nature and conditions of her employment with the respondent over 24 years and, in particular, an incident on 2 November 2022, she sustained an injury to multiple body parts, including her left shoulder.
The applicant sought approval from the respondent’s insurer to undergo a left shoulder surgery as recommended by Dr Warren Kuo on 31 August 2023.
Liability to pay the costs of the surgery was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 21 September 2023 and 13 December 2023. The decision to dispute liability for the surgery was maintained following internal review on 8 February 2024.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 26 February 2024.
The applicant seeks compensation under s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr Kuo.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the left shoulder arthroscopy +/- post labral repair, subacromial decompressions +/- cuff/biceps repair surgery proposed by Dr Kuo is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 7 May 2024 via Microsoft Teams. The applicant was represented by Mr Hickey of counsel instructed by Ms Grant-Nilon. The respondent was represented by Ms Magee of counsel, instructed by Ms McDonald. A representative from the insurer was present.
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;
(b) Reply and attached documents (other than the report of Dr Lieng dated 18 January 2024);
(c) document attached to an Application to Admit Late Documents lodged by the applicant on 21 March 2024, and
(d) clinical records of Glenmore Park Mediclinic, lodged by the respondent on 7 May 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by her on 23 February 2024.
The applicant described the nature and conditions of her employment with the respondent including, pushing patients in beds to and from the x-ray department to their allocated areas, lifting and manoeuvring patients and lifting equipment.
The applicant described a particular incident on 2 November 2022 when she was transporting a patient who had just had hip surgery. The patient required an oxygen tank and an air mattress machine which were heavy. As the applicant was manoeuvring the bed into an elevator, she bent down and hit her knees on the bed causing immediate pain. The applicant described pain in multiple parts of her body. The incident on 2 November 2022 was “the final straw”.
The applicant underwent an x-ray of her left shoulder on 16 November 2022 and cortisone injections to her left shoulder on 23 November 2022. These only provided temporary relief of some of the applicant’s symptoms.
The applicant was referred to Dr Behzad Eftekhar, who recommended an MRI scan to the left shoulder as well as EMG and nerve conduction studies. The applicant underwent the MRI scan on 15 May 2023. The applicant attended a review with Dr Eftekhar on 9 June 2023, at which time he expressed the view that the risks outweighed the benefits of surgery. The applicant was referred to a pain management specialist and shoulder specialist for further treatment.
The applicant saw orthopaedic surgeon, Dr Warren Kuo, on 28 August 2023. Dr Kuo diagnosed left rotator cuff impingement/bursitis, posterior labral tear and acromioclavicular joint disease. Given the applicant had failed to respond to conservative treatment, Dr Kuo recommended left shoulder surgery.
The applicant said she continued to experience pain in her left shoulder. The applicant said she had trialled conservative treatment including three cortisone injections, physiotherapy and analgesic medication but these had not been helpful in reducing her shoulder symptoms.
Treating evidence
Clinical records from Glenmore Park Mediclinic record a consultation in which the applicant reported “L shoulder pain” which started a month earlier “after attending gym” on 13 November 2021. The applicant was referred for ultrasound.
An ultrasound of the applicant’s left shoulder performed on 2 December 2021 demonstrated bursal thickening and bursal bunching. The applicant was given a referral for ultrasound guided steroid injection to the left shoulder on 5 December 2021.
On 6 November 2022, the applicant reported to her general practitioner, Dr Amani Pathmanathan, that she was experiencing “sore hip/knee and shoulders due to lifts at work not working”.
Left shoulder pain for “months” which was said to be “related to work/overuse, due to understaffing” was reported to Dr Pathmanathan on 8 November 2022.
The report of an ultrasound of the applicant’s left shoulder performed on 16 November 2022 showed mild bursal thickening and bunching on abduction. There was degenerative disease in the acromioclavicular joint. No rotator cuff tears were identified.
In a consultation with Dr Pathmanathan on 20 November 2022, the applicant was referred for steroid injection. The injection was reported to have given no relief in a consultation on 27 November 2022. The applicant was referred for an MRI of the left shoulder.
Neurosurgeon and spine surgeon, Dr Behzad Eftekhar, noted the applicant was complaining of neck and left shoulder pain in a report to Dr Pathmanathan, dated 8 May 2023. He expressed the belief that left shoulder pathology was contributing to the applicant’s symptoms. Dr Eftekhar recommended an MRI of the left shoulder.
The report of an MRI of the left shoulder performed on 15 May 2023 found chronic deformity of the posterior labrum with flattening and subchondral cyst formation possibly from a previous shoulder dislocation. There were degenerative changes in the labrum and a small chondral labral cleft. There was degenerative change at the acromioclavicular joint with moderate subacromial spurring and synovitis and oedema.
In a further report dated 9 June 2023, Dr Eftekhar said that the MRI confirmed shoulder pathology. Dr Eftekhar advised:
“Considering her symptoms and reviewing her MRIs I was not convinced that the advantages of surgery outweigh the disadvantages and did not recommend it. I suggest referral to a pain specialist for pain management. Considering her shoulder pathology referral to a shoulder specialist should also be considered.”
Dr Kuo prepared a report for Dr Pathmanathan after seeing the applicant on 28 August 2023.
Dr Kuo noted that the applicant’s left shoulder had been painful anteriorly, posteriorly and laterally with radiation to the elbow, worse with abduction in overhead activities. There was pain at night and the shoulder was stiffer and weaker than normal. Functionally, the applicant had struggled with daily activities. The applicant’s treatment to date was described as “thorough”, consisting of three cortisone injections, physiotherapy and exercise physiology, as well as lyrica and panadeine.
Dr Kuo recorded his findings on physical examination and referred to the MRI scan of 16 May 2023, in respect of which he commented:
“MRI scan performed 16th May 2023 reports blunting to the posterior glenoid with posterior labral tear. Although there is a report of no bursitis, on personal inspection there is a signal change within the subacromial bursa which I feel is consistent with bursitis. There is also some thinning to the supraspinatus tendon which remains intact. There is AC joint disease. There is subacromial spurring.”
Dr Kuo gave the opinion that the applicant’s left shoulder pain was due predominantly to rotator cuff impingement. Dr Kuo said a posterior labral tear, which was difficult to assess, could also be contributing to the applicant’s pain given the restricted range of movement. The shoulder had failed to respond to a thorough non-operative management program over many months. Dr Kuo expressed the opinion that the applicant would benefit from a left shoulder arthroscopy, subacromial decompression and possible labral repair. A biceps tenodesis might also be required.
Dr Kuo responded to a series of questions from the insurer on 7 September 2023. Dr Kuo indicated that his diagnosis of left rotator cuff impingement and posterior labral tear was consistent with the history of doing a lot of repetitive lifting and loading. Clinical examination confirmed moderate to significant restriction of movement with positive impingement and biceps test with grade 4+ power of abduction with associated pain.
Dr Kuo gave the opinion that employment was “the substantial contributing factor” to the applicant’s current symptoms. The surgery requested aimed to relieve that the pathology. Dr Kuo said that alternative treatments had been trialled and the applicant had failed to respond to them, hence the request for surgery. The prognosis without surgery was poor. Surgery had a greater chance of improving the applicant’s symptoms towards normal.
Following a review on 26 October 2023, Dr Kuo reported that the applicant’s left shoulder remained symptomatic.
In a report prepared for the applicant’s solicitors dated 18 March 2024, Dr Kuo summarised the evidence and opinions given in his previous reports.
Dr Soo
The applicant relies upon a medico-legal report prepared by orthopaedic surgeon, Dr Gavin Soo, dated 27 December 2023. Dr Soo’s report was prepared following a telehealth consultation with the applicant and review of the documents provided to him.
Dr Soo took a history of the injury that was consistent with the other evidence before the Commission. Dr Soo noted that the applicant denied any previous history of pain or injury to the left shoulder prior to commencing employment with the respondent.
The applicant complained of constant pain and stiffness to the anterior, posterior and lateral aspects of the left shoulder, which radiated down her arm. The pain was constant and worse with physical activity. The applicant had marked difficulty sleeping and undertaking normal day-to-day activities.
The applicant was attending physiotherapy once a week and using Panadol and Voltaren regularly.
Dr Soo noted the formal examination performed by Dr Warren Kuo detailed in his report on 28th August 2023:and reviewed the MRI of the left shoulder performed on 16 May 2023. Dr Soo diagnosed an aggravation of underlying degenerative pathology to the left shoulder and left shoulder posterior labrum tear.
Dr Soo expressed the opinion that the surgery proposed by Dr Kuo was reasonably necessary as a result of injury:
“Yes I believe that the surgery proposed by Dr Kuo is reasonably necessary due to the lack of improvement with non-surgical measures and the longevity of her symptoms. It has been well over a year now since her injury and I believe that she has exhausted all non-surgical measures and that continuing with non-surgical measures is unlikely provide her with any significant improvement in her pain or function.”
Dr Soo confirmed his opinion that employment had materially contributed to the need for surgery.
Dr Soo was asked to comment on the opinions expressed by the respondent’s medico-legal expert, Dr Anthony Smith and responded:
“I have reviewed the Report by Dr Anthony Smith on the 14/2/2023. In the report he writes on page 5:
‘The MRI findings were suspicious of glenohumeral joint osteoarthritis. There is, in my opinion, no point operating on one’s shoulder for soft tissue injuries if there is glenohumeral joint osteoarthritis.’
Firstly, I have viewed closely myself the MRI scan performed on the 15/5/2023 at Castlereagh Imaging of the left shoulder. I cannot see any significant glenohumeral joint osteoarthritis in the shoulder. This is consistent with the MRI report. I am quite certain that even if there is some arthritis it is very very early, and not clinically significant or the cause of her symptoms.
Even if she did have glenohumeral arthritis, the generalised statement by Dr Smith I believe is wrong. Joint preserving surgery for glenohumeral osteoarthritis has long been described and reported in the literature. Many reports show good results of joint preserving surgery in improving pain and function for patients with arthritis. As is described by JAAOS in 2018.
In the past two decades, joint-preserving arthroscopic management options for GHOA, including debridement, have been used to treat different pathologies related to GHOA to reduce pain, to improve function, and to delay or even avoid arthroplasty. Key aspects of comprehensively addressing GHOA arthroscopically include chondroplasty, synovectomy, loose body removal, humeral osteoplasty with excision of the goat's beard osteophyte, capsular release, subacromial and subcoracoid decompression, axillary nerve decompression, and biceps tenodesis. Although data are still emerging, clinical studies report that an arthroscopic approach to glenohumeral arthritis using these various procedures reduces pain, improves function, and improves clinical outcome scores in the short- to mid-term follow-up period.”
Dr Smith
The respondent relies on medico-legal reports prepared by Dr Anthony Smith dated 14 February 2023, 3 November 2023 and 12 March 2024.
In his first report, Dr Smith took a history of the injury and subsequent treatment that was broadly consistent with the other evidence. Dr Smith referred to the ultrasounds of the left shoulder and recorded his findings on physical examination. There was normal range and rhythm of shoulder movement bilaterally. At the left shoulder, the only anomaly was early movement of the scapula on the chest wall.
Dr Smith recorded that the applicant had experienced symptoms at her shoulders in the past, in particular, at the left. He noted the limitations of the available radiological investigations and concluded on the balance of probabilities that the incident at work on 2 November 2022 resulted in an aggravation of degenerative abnormalities at the left shoulder.
In his second report, dated 3 November 2023, Dr Smith recorded the further history including the referral to Dr Kuo who had recommended an operation. Dr Smith referred to the findings of the MRI taken on 16 May 2023 and the reports of Dr Eftekhar and Dr Kuo. Dr Smith found the left upper limb to be weak on all movements without any wasting.
Dr Smith formed the view that the applicant had degenerative conditions at her left shoulder:
“With regard to the left shoulder, there is AC joint arthritis and bursitis. Everybody has that. It is part of the normal ageing process.”
Dr Smith also considered the findings on his examination to be abnormal:
“She has an unphysiological restriction in the range of movement of both shoulders, and the weakness she exhibits in the left upper limb is unphysiological and manufactured. There is no organic illness that could produce that pattern of weakness.”
Dr Smith noted there was no functional abnormality seen in the ultrasound taken two weeks post-injury and considered the applicant to be a poor candidate for surgery:
“There is, in my opinion, no objective evidence of any disability in the left shoulder and she requires no surgery. She is a very poor candidate to do any operation on.”
Dr Smith explained:
“The changes described in the ultrasound of the left shoulder on 16 November 2022 are within normal limits in her age group. The MRI findings were suspicious of glenohumeral joint osteoarthritis. There is, in my opinion, no point operating on one’s shoulder for soft tissue injuries if there is glenohumeral joint osteoarthritis, because a normal shoulder is not an achievable outcome.
Changes consistent with shoulder joint arthritis is the only pathology seen in the MRI that is of any significance and would be unrelated to the activities of 2 November 2022.”
Dr Smith found little difference between the left and right shoulders on examination.
Asked whether there was evidence of employment being the main contributing factor to an aggravation of pre-existing degenerative disease, Dr Smith responded:
“There is no post-traumatic lesion described in the investigations of the left shoulder to date. She is manufacturing physical signs and has an unphysiological reaction to her clinical situation.”
Asked to comment on Dr Kuo’s opinion regarding causation and the need for surgery, Dr Smith responded:
“With regard to the clinical examination of Dr Kuo on 28 August 2023, he describes Grade 4 power of abduction, Grade 2 anterior, and Grade 2 posterior. That basically means he said it was not possible to perform a formal apprehension test because of the restricted range of movement pain. With regard to the MRI examination of 16 May 2023, there are no post-traumatic lesions described. She had pathology in the cervical spine clinically. Dr Eftekhar considered she was not a suitable candidate for surgical intervention. I concur with that. There is no evidence of rotator impingement in the ultrasound examination two weeks post-injury.”
Dr Smith thought there was no evidence any treatment was required other than medication and physiotherapy, although it was thought the applicant might benefit from pain management or psychological treatment.
In his final report, Dr Smith was asked whether any work-related aggravation had ceased and responded,
“The aggravation to her several degenerative conditions occurring on 2 November 2022, in my opinion, have long since resolved and left no disability. There would be no occupational, recreational, or domestic activity that she could engage in that is free of the risk of exacerbating these various degenerative conditions.”
Applicant’s submissions
The applicant noted that there was no dispute that she sustained an “injury”.
The request for surgery was initially disputed on the basis that there had been no response from Dr Kuo to a request for further information. The applicant noted that that dispute seemed at odds with Dr Kuo’s written response to the insurer’s questions dated 7 September 2023.
In the more recent notice, the insurer relied on Dr Smith’s opinions.
The applicant referred to her written evidence as to the nature of her employment duties. The applicant said she had trialled conservative treatments without any reduction in symptoms. The proposed surgery was intended to alleviate her symptoms and help her return to work.
The applicant referred to the clinical notes. On 13 November 2021, there was a fleeting report of a left shoulder strain. This was investigated but there was no referral to a specialist or treatment recorded.
After the subject injury, the applicant undertook a sustained period of conservative treatment, ultimately with no relief, until the referral to Dr Eftekhar, which was made primarily with respect to her cervical spine condition. This led to further imaging and a referral to an orthopaedic surgeon, Dr Kuo.
Dr Smith relied on Dr Eftekhar’s report of 9 June 2023 in expressing his view on the appropriateness of surgery. Dr Eftekhar was, however, tasked with investigating the neurological issues arising from the cervical spine. The MRI scan he requested identified shoulder pathology for which the applicant was referred to Dr Kuo.
The applicant referred to the pathology identified in the report of the MRI scan and in particular the chronic thickening of the posterior labrum and the cleft. The applicant submitted that Dr Smith either did not read the report or did not read it properly. Dr Smith did not indicate that he looked at the images himself. Both Dr Kuo and Dr Soo confirmed the presence of a tear.
Dr Kuo reviewed the scans and considered there was evidence of positive impingement and bursitis. The surgery proposed was intended to provide relief from symptoms which had failed non-surgical treatment. Without the surgery, the prognosis was poor.
The applicant noted that Dr Smith’s first report was prepared before the MRI scan. Although the MRI scan was noted in his subsequent reports, Dr Smith made no reference to the tear or cleft. In light of Dr Smith’s failure to engage properly with the MRI scan, the Commission would place little weight on Dr Smith’s opinions.
The applicant submitted that the Commission would also have trouble accepting that the presence of arthritis at the shoulder would preclude surgery. Both of the applicant’s orthopaedic surgeons were of the view that the underlying arthritic condition would not prevent the surgery.
The applicant noted that although Dr Soo examined the applicant via telehealth, he relied on Dr Kuo’s examination and reviewed the treating material. The applicant’s symptoms and functional limitations were described. Dr Soo viewed the MRI scan.
The applicant submitted that Dr Soo and Dr Kuo gave a clearer explanation of the pathology shown on the MRI than Dr Smith. The Commission would prefer the opinion of Dr Kuo, as supported by Dr Soo.
There was no dispute as to “injury”. The relevant causal question was whether the need for surgery “results from” injury. The threshold was low and required only a “material contribution”. The applicant referred to the case of Taxis Combined Services (Victoria) Pty Ltd v Schokman[1] and noted that the presence of a pre-existing condition would not prevent the surgery being compensable.
[1] [2014] NSWWCCPD 18.
The applicant’s evidence provided a proper basis for the surgery requested and the Commission would find comfortably that the surgery was reasonably necessary as a result of the injury.
Respondent’s submissions
The respondent conceded that liability for injury was accepted but whether the proposed surgery was reasonably necessary as a result of the injury remained in dispute.
The respondent noted that Dr Kuo’s recommendation for surgery was made on 28 August 2023.
No information had been provided to confirm that the applicant continued to experience restriction of movement, or that the surgery was still likely to be of benefit.
The respondent submitted that the Commission would not be assisted by Dr Soo’s report as he conducted his examination by audiovisual link. Dr Soo was unable to physically examine the applicant himself and was reliant on Dr Kuo’s reported findings. The respondent observed that Dr Kuo conceded that it was difficult to assess whether there was a tear.
Although the applicant indicated that she did not experience pain prior to injury, the clinical notes revealed that that pain was reported in November 2021, without any connection to work. The shoulder was investigated and referred for steroid injection. It could be inferred that the applicant underwent the injection.
Dr Smith considered the applicant was a poor candidate to do any surgery. There was no great difference between the two shoulders on examination. The radiological investigations revealed no post traumatic lesions.
The respondent submitted that there was no evidence from the applicant to clarify when the three injections to the shoulder took place. It appeared the shoulder was injected prior to the injury on 2 November 2022. The Commission would not accept that all of the injections took place post-injury. That was significant because the Dr Kuo expressed the view that the applicant had exhausted conservative treatment. At best, it appeared the applicant had undergone two injections after the injury.
No evidence had been provided from the applicant’s physiotherapist. It was not known how often and when the applicant participated in physiotherapy or what the physiotherapist’s opinion was with regard to the efficacy of that treatment.
Addressing the considerations identified in cases such as Diab v NRMA Ltd,[2] and Rose v Health Commission (NSW),[3] the respondent submitted that there was no direct evidence regarding the extent and nature of the conservative treatment.
[2] [2014] NSWWCCPD 72.
[3] (1986) 2 NSWCCR 32.
With regard to the potential effectiveness of the surgery, the respondent submitted there was little likelihood of any improvement following the surgery.
Dr Soo also did not consider the applicant’s admission for psychological treatment. Those symptoms had the potential to impact on the effectiveness of the surgery.
The respondent submitted that there was a clear dispute between the medical experts and the Commission would not be satisfied that the surgery was reasonably necessary as a result of injury.
Applicant’s submissions in reply
The applicant submitted that the evidence with regard to the psychological impact of the applicant’s injury was irrelevant to the present dispute.
While there was no direct evidence from the applicant’s physiotherapist there was evidence that such treatment had been undertaken. Indeed, the respondent had disputed liability for ongoing physiotherapy in a dispute notice.
Part of the reason for the proposed procedure was to determine the pathology at the left shoulder. The doctors had noted the difficulty of assessing the condition based only on the radiological investigations.
While there was evidence of previous symptoms, the evidence demonstrated a clear contribution from employment to the proposed treatment.
FINDINGS AND REASONS
Section 60 of the 1987 Act relevantly provides:
“(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 the context of s 10
of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[4] where Burke CCJ stated:“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.”
[4] (1986) 2 NSWCCR 32.
Further, 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.
5. 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.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[5] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1.
In Diab v NRMA Ltd,[6] Roche DP provided a summary of the relevant principles as follows:
[6] [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 (see [76] above), 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.”[7]
[7] At [88] to [90].
Deputy President Roche commented further:[8]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[8] At [86].
It is the applicant who bears the onus of demonstrating that the proposed surgery is reasonably necessary as a result of injury on the balance of probabilities. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[9] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[9] [2008] NSWCA 246.
The respondent submits that the evidence on which the applicant seeks to rely is insufficient to discharge her onus.
While there is no dispute that the applicant has sustained an injury which satisfies the requirements of s 4 of the 1987 Act, there are differing views expressed by the medical experts as to the nature of that injury and whether surgery is required to treat the injury.
All of the doctors agree that the applicant has some degenerative pathology at her shoulder. There is also evidence that the applicant’s left shoulder was symptomatic prior to the date of injury. The clinical records in evidence suggest that the applicant experienced a period of left shoulder symptoms in late 2021 after attending a gym. The symptoms were sufficient to give rise to radiological investigations and a referral for ultrasound guided injection. It is unclear on the evidence whether that injection was in fact performed.
Notwithstanding that history of symptoms and investigation, the applicant continued to work in her employment with the respondent. The applicant’s uncontradicted evidence was that her work was heavy, physical work involving pushing and manoeuvring heavy hospital beds, patients and equipment. As the applicant’s submissions identified, there is no evidence that the applicant was referred by her general practitioner to a specialist or for further investigation or treatment beyond the injection that was recommended in December 2021.
After the applicant ceased work in November 2022, she reported experiencing shoulder pain due to work or overuse in the context of the lifts at work being out of order. This prompted further investigations through ultrasound which revealed similar pathology to the ultrasound performed one year earlier. The applicant was again referred for ultrasound guided injection, which was reported to have provided no relief. The applicant was referred for an MRI of the left shoulder in late 2022, although there is no evidence that it was undertaken.
The history is consistent with an aggravation of the pre-existing pathology at the applicant’s shoulder to which employment was the main contributing factor. This was the opinion of the respondent’s expert Dr Smith and, as noted above, the insurer has not disputed the occurrence of a compensable injury.
Around the same time, the symptoms at other parts of the applicant’s body were investigated, including at her cervical spine. The applicant was referred to Dr Eftekhar in this regard.
It is noteworthy that Dr Eftekhar is a neurosurgeon and spinal surgeon. His primary focus was investigating the symptoms at the applicant’s cervical spine. His clinical examination and investigation of the cervical spine led him to suspect that pathology at the left shoulder may be contributing to the applicant’s symptoms. This led to the applicant undergoing an MRI of the left shoulder in May 2023.
The MRI scan confirmed the presence of pathology at the left shoulder. Dr Eftekhar did not recommend surgery but suggested the applicant should be referred to a pain specialist for pain management as well as a shoulder specialist in light of her shoulder pathology. Dr Eftekhar’s comment in his 9 June 2023 report, that he would not recommend surgery, must, in my view, be read as a reference to surgery for the applicant’s cervical spine condition, being the body part in respect of which Dr Eftekhar was relevantly specialised.
The shoulder specialist to whom the applicant was referred was Dr Kuo. Dr Kuo’s report of 28 August 2023 recorded that, to date, the applicant had undergone a thorough program of treatment including three cortisone injections, physiotherapy, exercise physiology and medication.
The respondent’s submissions noted there was no direct evidence from the applicant’s treatment providers in relation to this conservative treatment program. It is not clear whether all of the cortisone injections to which Dr Kuo referred were performed after the date of injury. There is only evidence of one such injection which I can discern from the clinical records. There was also no direct evidence from any physiotherapist or exercise physiologist regarding the nature and duration of such treatment. I accept, however, that Dr Kuo’s report constitutes evidence of such treatment having been undertaken and give weight to the circumstance that Dr Kuo’s evidence is consistent with the applicant’s own statement and the histories provided to the experts in this case.
Dr Kuo recorded a detailed history of the applicant’s complaints of symptoms and functional limitations as well as his findings on formal physical examination. It is apparent from his report that Dr Kuo referred to both the report and the images of the MRI scan. He acknowledged the presence of acromioclavicular joint disease, considered there was evidence of bursitis and paid particular attention to the evidence of posterior labral pathology. Dr Kuo formed the view that the applicant’s left shoulder pain was due predominantly due to rotator cuff impingement but expressed the view that a posterior labral tear may also be contributing to the applicant’s pain, having regard to the radiological and clinical findings.
In his response to the insurer’s questions, Dr Kuo gave the opinion that this diagnosis was consistent with the repetitive lifting and loading the applicant performed in her employment with the respondent. Whilst the language employed was different, the opinion given was to the effect that employment was the main contributing factor to the applicant’s symptoms. The surgery proposed was intended to relieve those symptoms. Dr Kuo was satisfied that alternative treatments had been trialled and failed. Without surgery, the applicant’s prognosis was described as “poor”.
The respondent’s submissions highlighted the time that had elapsed since Dr Kuo’s recommendation for surgery. I do, however, note that Dr Kuo saw the applicant again on 26 October 2023, at which time he reported that the applicant’s left shoulder remained symptomatic. The applicant reported ongoing symptoms to Dr Soo in December 2023 and gave evidence as to her shoulder symptoms in her written statement made on 23 February 2024. Although it is not apparent that Dr Kuo reviewed the applicant again prior to his most recent report for the applicant’s solicitors, I accept that the evidence suggests, consistently with Dr Kuo’s prognosis, that the applicant’s symptoms have continued to the present time.
Dr Kuo’s recommendation for surgery is supported by the applicant’s medicolegal expert, Dr Soo. Dr Soo’s report was criticised by the respondent due to the absence of a physical examination. Dr Soo did, however, take a consistent history with regard to the nature of the applicant’s symptoms and their onset, her functional limitations and the conservative treatment undertaken including weekly physiotherapy. Dr Soo reviewed and adopted the findings of the formal examination performed by Dr Kuo. Dr Soo also indicated that he had “viewed closely” the MRI scan performed on 15 May 2023.
Dr Soo gave a diagnosis and prognosis that were both consistent with those expressed by Dr Kuo. Dr Soo concluded that the surgery proposed was reasonably necessary medical treatment for the applicant’s left shoulder condition and accepted that the work injury materially contributed to the need for surgery.
The respondent’s medicolegal expert, Dr Smith did not agree with the recommendation for surgery or the opinion on causation expressed by the applicant’s doctors.
At the time of Dr Smith’s first report, the applicant had not yet had the MRI or been seen by Dr Kuo. The recommendation for surgery was, however considered in Dr Smith’s second report. Dr Smith referred to Dr Kuo’s letter of 28 August 2023 recommending surgery as well as the other treating evidence, including the findings noted in the report of the MRI scan.
Dr Smith agreed that the applicant had acromioclavicular joint arthritis and bursitis but submitted that such pathology was part of the normal ageing process. Dr Smith did not refer to the posterior labrum pathology noted by Dr Kuo and Dr Smith.
Despite acknowledging the presence of pathology in the left shoulder, and taking a consistent history of symptoms, Dr Smith found no evidence of any disability in the left shoulder. Dr Smith considered that the weakness and restriction in range of movement demonstrated at the applicant’s shoulders was unphysiological and manufactured. This opinion appears to have been informed to a large degree by Dr Smith’s impression of a significant psychological overlay.
There is in the treating evidence a significant history of psychological symptoms. A psychological injury or condition has also been claimed. There is, however, a significant body of treating evidence consistent with there being genuine symptoms at the applicant’s left shoulder.
The applicant’s general practitioner, Dr Eftekhar and Dr Kuo all appear to have accepted that the applicant’s complaints of symptoms were explained by the radiological and clinical findings. Although I accept that Dr Soo has not directly addressed the evidence of psychological symptoms and treatment and did not perform his own clinical examination, I am satisfied that he was aware of Dr Smith’s view as to psychological overlay. His silence on the subject suggests he may not have considered it relevant.
Dr Smith also appears to have placed some emphasis on the ultrasound examination performed two weeks after the date of injury on 16 November 2022. In particular, it was noted that the ultrasound findings were within normal limits for the applicant’s age. Dr Smith made particular reference to there being no post-traumatic lesion described in the radiological evidence. The applicant’s evidence has, however, consistently been that her injury was due to repetitive heavy loading and manoeuvring over a period of time rather than a traumatic incident.
Dr Smith noted findings suspicious of glenohumeral joint osteoarthritis in the MRI scan. Dr Smith considered this to be the only pathology of any significance and said it was unrelated to the activities of 2 November 2022.
Dr Smith’s opinion in this regard has been addressed by Dr Soo who said that after closely viewing the scan himself he could not see any significant glenohumeral joint osteoarthritis in the shoulder. Dr Soo said this was consistent with the MRI report.
To a layperson, the report does not clearly identify glenohumeral joint pathology although there is reported degenerative change at the acromioclavicular joint. Dr Soo expressed the view that even if there was some arthritis at the glenohumeral joint it was “very, very early” and not clinically significant or the cause of the applicant’s symptoms.
The inconsistency between Dr Smith’s interpretation of the MRI scan and the interpretations given to the scan by Dr Kuo and Dr Soo, both with regard to the presence of glenohumeral joint osteoarthritis as well as the labral pathology, raises questions around whether Dr Smith’s interpretation is reliable.
Dr Smith’s view that the presence of osteoarthritic change would render the surgery ineffective in improving the applicant’s symptoms or functioning was also addressed by Dr Soo. Dr Soo referred to a body of literature showing good results from joint preserving surgery in improving pain and function for patients with arthritis. Dr Soo and Dr Kuo both regarded the surgery as appropriate and have described the potential benefits of the surgery.
While there is a clear dispute between the experts on the question of whether the surgery proposed by Dr Kuo is reasonably necessary as a result of the work injury, for the reasons given above I prefer the consistent opinions expressed by Dr Soo and the treating surgeon, Dr Kuo.
Applying the authorities described above, I am satisfied that the proposed surgery is appropriate and potentially effective.
While I accept that the direct evidence of alternative treatments undertaken to date is not as strong as it might have been, that course of treatment has been consistently described in the applicant’s evidence as well as in the histories provided to the specialist doctors involved in her case. The alternative treatments identified by Dr Smith, being medication, physiotherapy, pain management and psychological treatment all appear to have been previously recommended or trialled without success on the history provided.
While the cost of the proposed surgery is not insignificant, it is not unreasonable given the potential effectiveness of the procedure.
Having carefully considered all of the evidence and submissions, I am satisfied on the balance of probabilities that the surgery proposed by Dr Kuo is reasonably necessary as a result of the injury. There will be an order for the respondent to pay the costs of and incidental to the surgery in accordance with s 60 of the 1987 Act.
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