Amos v Bretlife Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Amos v Bretlife Pty Ltd [2024] NSWPIC 9
APPLICANT:	Warren Amos
RESPONDENT:	Bretlife Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	9 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4 and 60; injury to the left shoulder; injury not disputed; dispute as to whether proposed left total shoulder replacement including any associated rotator repair surgery is reasonably necessary as a result of the work related injuries; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Ltd considered and applied; Held – that pursuant to section 60 the left total shoulder replacement surgery, including any associated left rotator cuff repair proposed by Dr Tack Shin Lee, is as a result of an injury received by the applicant and is reasonably necessary.
DETERMINATIONS MADE:	The Commission determines: 1. That pursuant to s 60 of the 1987 Act the left total shoulder replacement surgery including any associated left rotator cuff repair proposed by Dr Tack Shin Lee is as a result of an injury received by the applicant reasonably necessary. The Commission orders: 2. The respondent to pay the costs of and associated with the left total shoulder replacement surgery including any associated rotator cuff repair proposed by Dr Tack Shin Lee.

STATEMENT OF REASONS

BACKGROUND

Warren Amos, the applicant, who is currently 79 years of age was at all relevant times employed by Bretlife Pty Ltd, the respondent, as a truck driver.

The applicant alleges that he suffered injury to both his shoulders on the deemed date of 30 August 2017 due to the nature and conditions of his employment with the respondent which involved repetitive heavy work. The applicant also alleges that in October 2017 he suffered a further aggravation of the condition when whilst unloading sawdust with the assistance of a colleague they ran into each other.
The respondent does not dispute that the applicant sustained injury as alleged.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) the costs of and incidental to total left shoulder replacement arthroplasty surgery including any associated rotator cuff repair.
The only issue in dispute is whether pursuant to s 60 of the 1987 Act the proposed surgery is reasonably necessary as a result of the alleged injury.

ISSUES FOR DETERMINATION

The following issue remains in dispute:
(a) whether pursuant to s 60 of the 1987 Act the proposed total left shoulder replacement arthroplasty surgery including any associated rotator cuff repair is reasonably necessary as a result of the alleged injury

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 5 December 2023. Mr Bruce McManamey, counsel, instructed by Ms Basema Elmasri, appeared for the applicant, who was present. Mr John Gaitanis, counsel, appeared for the respondent, instructed by Ms Jaclyn Ferry. The proceedings were conducted by audio visual link. 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 Personal Injury Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    attachments to the respondent’s Application to Admit Late (AALD) Documents dated 29 November 2023.
There was no objection to the documents attached to the respondents AALD being admitted into evidence. As the documents are potentially relevant to the issues in dispute they were admitted into evidence.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

The applicant alleges that he suffered injury to both his shoulders on the deemed date of 30 August 2017 due to the nature and conditions of his employment with the respondent which involved repetitive heavy work. The applicant also alleges that he suffered further injury to his left shoulder in October 2017 when whilst in the course of his employment with the respondent unloading sawdust with the assistance of a colleague, they ran into each other.
The applicant’s treating orthopaedic surgeon, Dr Tack Shin Lee, has recommended total left shoulder replacement surgery including any associated rotator cuff repair. The applicant wishes to have the surgery proposed by Dr Lee. The applicant seeks pursuant to s 60 of the 1987 Act the costs of and incidental to the total left shoulder replacement arthroplasty surgery including any associated rotator cuff repair.
The only issue in dispute is whether pursuant to s 60 of the 1987 Act the proposed surgery is reasonably necessary as a result of the alleged injury.
The respondent does not dispute that the applicant sustained injury to his left shoulder as alleged.
Section 60(1) of the 1987 Act states:
“(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).
Note—
Compensation for domestic assistance is provided for by section 60AA.”
The applicant bears the onus of proving that the proposed surgery is reasonably necessary as a result of an injury. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Bates).

Injury

The first requirement of s 60 for the respondent to be liable for the costs of the proposed surgery is that the proposed surgery is reasonably necessary “as a result of an injury received by a worker”.
Section 4 of the 1987 Act defines injury and relevantly states:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and …”
As previously noted, the respondent does not dispute that the applicant sustained injury to his left shoulder as alleged.
The respondent in essence submits that the condition that the proposed surgery will treat is not the work injury. In the respondent’s submission the applicant’s left shoulder is affected by more than one condition and the proposed surgery is to treat a degenerative condition, osteoarthritis, which is unrelated to the accepted work injury. That the osteoarthritic condition which the surgery is to treat is a degenerative age-related condition.
In support of this submission the respondent relies on an analysis of the qualitative nature of the applicant’s left shoulder pain as well as the opinions of Drs Nair, Smith, Hammond and Jovanovic. The respondent also relies on the fact that the applicant’s right shoulder is affected by a similar condition to his left shoulder and that he also suffers from arthritis in both his knees.
I do not accept the respondent’s submission for the following reasons.
It is the applicant’s evidence that he commenced employment with the respondent as a full-time truck drive in or around 2007. His primary duty was to drive a semi-trailer to deliver material. As part of his work duties the applicant was required to roll a heavy canvas tarpaulin over the trucks load, which was physically demanding, particularly on both of his shoulders.[1]
[1] ARD p 1.
It is the applicant’s evidence that he gradually developed discomfort in both his shoulders in around 2015. At the time, he reported his symptoms to his Allocators, namely Ben Wheaton and Don Scott. He was provided with an electric motor that could roll the canvas tarpaulin over the load. However, when the motor broke, he was not provided with a replacement. It is the applicant’s evidence that in or around 2016, he again reported his symptoms to his Allocators and consulted his general practitioner (GP), Dr Siva Muppala of Restore Medical & Skin Centre who recommended physiotherapy. He had approximately six to eight sessions of physiotherapy and noticed some improvement.[2] Whilst there was a slight improvement there was still residual discomfort in both shoulders, right shoulder worse than the left.[3]
[2] ARD p 1.
[3] ARD p 2.
It is the applicant’s evidence that in or around October 2017, he was unloading saw dust when a colleague accidentally ran into him suffering a direct blow to his left shoulder and immediately experiencing severe pain, discomfort, and stiffness in his left shoulder. It is the applicant’s evidence that he attended on his GP and an ultrasound guided Cortisone injection to the left shoulder was recommended and subsequently performed on 18 October 2017.[4] Due to persisting pain an ultrasound of the left shoulder was performed on 16 January 2018 and on 13 March 2018 the orthopaedic surgeon, Dr Alex Jovanovic, performed a left shoulder rotator cuff repair and subacromial decompression. Following the surgery the applicant attended approximately 12-14 sessions of physiotherapy. The left shoulder pain was not relieved and there was no improvement in shoulder movement.[5] About two to three months post-operation, in or around June 2018, he began to experience stiffness in the left shoulder.[6]
[4] ARD p 2.
[5] ARD p 2.
[6] ARD p 3.
It is therefore the applicant’s evidence that his work duties with the respondent were physically demanding and that he gradually developed discomfort in both his shoulders in around 2015 which he reported. He consulted his GP who recommended physiotherapy and had six to eight sessions of physiotherapy treatment with some improvement but not full resolution of his symptoms. Whilst the clinical records of the GP, Dr Muppala, are in evidence before me those records do not record any attendance prior to 30 September 2017 in respect to any shoulder complaints. However, the clinical notes of Dr Muppala that are before me do not commence until 4 August 2016 whilst it is clear from the records that the applicant attended the practice of Dr Muppala from at least 21 April 2015. The clinical records in evidence are therefore incomplete.
In any event the respondent does not dispute that the applicant sustained injury due to the nature and conditions of his employment and there is no evidence from the respondent that contradicts the applicant’s evidence that he reported his shoulder problems to his Allocators and that his work duties required the covering of loads with heavy tarpaulins. It was not submitted on behalf of the respondent that the applicant’s evidence as to the nature of his work duties or his history in respect to the onset of his symptoms should not be accepted.
I therefore accept the applicant’s evidence that his work duties were heavy in nature especially in respect to the covering of loads and the rolling of tarpaulins and that he developed shoulder symptoms in or around 2015 which improved with treatment but did not fully resolve. It is not disputed that the applicant sustained injury due to the nature and conditions of his work duties.
A clinical note by Dr Muppala records that on 30 September 2017 the applicant attended on the doctor complaining of severe left shoulder pain. The doctor noted that the applicant sustained trauma three weeks prior when he was run into by another person.[7]
[7] ARD p 288.
The clinical note of Dr Muppala supports the applicant’s history that in or around October 2017 the applicant collided with a work colleague injuring his left shoulder however the collision appears to have occurred in early September 2017. It is not disputed that the applicant sustained injury to his left shoulder in such a collision. The collision with the co-worker appears to have caused a significant increase in the left shoulder symptoms and on 13 March 2018 the applicant underwent arthroscopic subacromial decompression and rotator cuff repair at the hands of Dr Alex Jovanovic.
The next issue to consider is what is the pathology of the injuries sustained to the left shoulder as a result of the nature and conditions of the applicant’s work duties and the collision with the co-worker.
It was submitted on behalf of the applicant that there are two conditions of relevance impacting the applicant’s left shoulder being firstly an injury to the rotator cuff for which Dr Jovanovic performed the rotator cuff repair on 13 March 2018 and secondly osteoarthritis.
On 16 January 2018 an ultrasound was performed of the applicant’s left shoulder which was reported on 12 February 2018 as displaying a full thickness tear of the anterior/mid supraspinatus tendon as well as subacromial bursitis and bursal impingement. An X-ray of the left shoulder was also reported as displaying mild degenerative arthrosis in the glenohumeral and acromioclavicular joints.[8]
[8] ARD pp 55-56.
The applicant submits that the opinion of Dr Mohammed Assem should be accepted.
Dr Assem, rehabilitation specialist, provided a forensic medical report to the applicant dated 21 July 2021. Dr Assem took a history that the applicant worked as a truck driver and that the most physically demanding task was the securing of heavy tarpaulins over the load. Dr Assem also took a history of the applicant experiencing a gradual onset of discomfort in both shoulders in or around 2015 which the applicant attributed to the nature and conditions of his employment and in particular the rolling of heavy tarpaulins on top of the load, that the symptoms improved with physiotherapy but did not resolve and that in or around October 2017 the applicant sustained a direct blow to his left shoulder which caused immediate discomfort when he ran into a colleague at work whilst unloading sawdust.[9]
[9] ARD p 21.
The history taken by Dr Assem is consistent with the applicant’s evidence and includes both the direct blow to the left shoulder in the collision with the co-worker as well as the earlier onset of symptoms in or around 2015 due to the nature and conditions of employment.
Dr Assem observed that an ultrasound of the left shoulder performed on 6 January 2018 identified a full thickness supraspinatus tendon tear with no atrophy or tendon retraction as well as subacromial bursitis.[10]
[10] ARD p 21.
In the opinion of Dr Assem the applicant developed pain in both his shoulders in around 2015 most likely due to the nature and conditions of his employment which most likely accelerated, aggravated or exacerbated mild age related degenerative changes. In the opinion of Dr Assem the blow to the left shoulder when he ran into his work colleague caused or aggravated rotator cuff pathology with the tear of the rotator cuff most likely being acute as there was no evidence of tendon atrophy or retraction.[11] Dr Assem was also of the opinion that mild osteoarthritic changes in the left glenohumeral joint were unrelated to the acute rotator cuff injury that occurred in the collision with the work colleague.
[11] ARD p 24.
Dr Assem in his further report of 25 May 2023 provided an opinion that given that the applicant’s work involved physical labour, specifically the repetitive action of rolling a heavy canvas tarpaulin on top of the load, it is reasonable to accept that his employment could have contributed to his shoulder condition. In the doctor’s opinion such repetitive heavy lifting and overhead activities can over time lead to wear and tear of the shoulder joint and surrounding muscles and tendons, potentially leading to conditions such as rotator cuff tears and osteoarthritis. In addition, Dr Assem noted that the applicant had suffered a direct blow to his left shoulder when unloading sawdust at work that likely contributed to an exacerbation or aggravation of his shoulder condition.[12]
[12] ARD p 32.
Dr Assem is of the opinion that the applicant’s employment likely played a significant role in the development and progression of the shoulder pathology. In the opinion of Dr Assem the rotator cuff tear identified on radiological imaging was most likely acute as there was no evidence of tendon atrophy or retraction.[13] Dr Assem observed that the relationship between osteoarthritis and rotator cuff tears is not entirely straightforward. Rotator cuff tears can exacerbate or aggravate symptoms of arthritis and vice versa. Therefore, while the initial injury was a rotator cuff tear, it is possible that the osteoarthritis was subsequently exacerbated by the injury or surgery.[14]
[13] ARD p 32.
[14] ARD p 33.
Dr Assem opined that while some of the symptoms may be related to glenohumeral osteoarthritis, early radiological imaging only revealed mild arthropathy of the acromioclavicular joint and glenohumeral joint. In the opinion of Dr Assem the applicant’s employment has most likely accelerated, aggravated and exacerbated the underlying degenerative pathology and rendered it symptomatic.[15]
[15] ARD p 34.
Therefore, in the opinion of Dr Assem the nature and conditions of the applicant’s employment with the respondent likely aggravated, accelerated and exacerbated the osteoarthritic condition of the left shoulder whilst the blow to the left shoulder in the collision with the work colleague caused or aggravated rotator cuff pathology with the tear of the rotator cuff most likely being acute as there was no evidence of tendon atrophy or retraction.
Dr Anil Nair, orthopaedic surgeon, provided a forensic medical report to the respondent dated 31 December 2019. Dr Nair took a history that the applicant had been a truck driver most of his adult life and that he injured his left shoulder in August 2017 when he struck a colleague and experienced significant left shoulder pain. In the opinion of Dr Nair the clinical features are of both, a left shoulder rotator cuff tear as well as left shoulder acromioclavicular joint and glenohumeral joint arthritis.[16] In the opinion of Dr Nair the left shoulder condition is principally degenerative in aetiology.[17]
[16] Reply p 34.
[17] Reply p 35.
Dr Nair takes no history in respect to the nature of the applicant’s work duties other than that the applicant was a truck driver. The doctor does not refer to the applicant’s duties covering loads or rolling heavy tarpaulins. Dr Nair also takes no history of injury to the left shoulder prior to the collision with the co-worker. Dr Nair also provides no opinion as to causation.
On 12 November 2018 Dr Anthony Smith, orthopaedic surgeon, provided a report to the respondent. Dr Smith records a history in respect to the collision with the co-worker and notes that Dr Jovanovic in a report dated 14 February 2018 referred to some pain in the left shoulder about five years prior to the collision with lifting pushing and pulling.

In the opinion of Dr Smith, the applicant has a problem primarily with his glenohumeral osteoarthritis. In the doctor’s opinion it is more likely than not that the rotator cuff tears that were seen on the pre-operative ultrasound and the subsequent rotator cuff tears seen on the post-operative MRI, all predated the collision with the co-worker. Dr Smith observed that rotator cuff disease is increasingly common with the ageing process in asymptomatic people.[18]
[18] Reply p 39.
Dr Smith takes no significant history of the nature of the applicant’s work duties including the rolling of the heavy tarpaulins. Dr Smith provides no explicit opinion as to causation, particularly in respect to any causal connection between the nature of the applicant’s work duties and the left shoulder osteoarthritic condition. However it would appear that Dr Smith is of the opinion that the blow to the left shoulder in the collision with the co-worker must have aggravated the osteoarthritic condition given the increase in symptoms caused by the accident and his opinion that that the applicant primarily has a problem with glenohumeral joint osteoarthritis and that the rotator cuff tears identified on the radiology prior to the surgery in March 2018 likely pre-dated the collision with the co-worker.
Dr Smith appears to base his opinion that the rotator cuff tears predated the collision with the co-worker on statistical likelihood observing that studies had found that rotator cuff disease is increasingly common with the aging process in asymptomatic people. In contrast Dr Assem forms his opinion that the applicant suffered an acute injury to the rotator cuff on the basis of the actual radiology noting that there was no evidence of tendon atrophy or retraction. I prefer the approach taken by Dr Assem to that taken by Dr Smith in determining whether the applicant suffered a tear of the rotator cuff due to the collision with the co-worker. In doing so I note that Dr Smith observed that in one study undertaken of those in the 50 to 59 age group 13% had tears whilst of those over 80 years of age 51% had tears. The applicant at the time of the surgery in March 2018 was over 59 years of age and is currently less than 80 years of age and therefore statistically it would appear that at worst there was approximately a 50% chance of the applicant having an asymptomatic rotator cuff tear.
On 7 January 2019 Dr Jovanovic, who performed the left shoulder surgery in March 2018, reported to the workers compensation insurer. In response to a question as to the relationship between the left shoulder osteoarthritis and “his workplace injury of rotator cuff” Dr Jovanovic advised that in his opinion there was no direct relationship between the osteoarthritis and the workplace injury to the rotator cuff.[19]
[19] Reply p 44.
Dr Jovanovic is not asked and does not provide an opinion as to the causal connection between the osteoarthritic condition of the left shoulder and the nature and conditions of the applicant’s employment or whether the blow to the left shoulder sustained in the collision with the co-worker may have aggravated, accelerated and / or exacerbated the left shoulder osteoarthritic condition.
Dr Terry Hammond, specialist orthopaedic shoulder surgeon, in a response to a letter from the applicant’s solicitors dated 30 April 2020 agreed that the applicant had mild osteoarthritis of the glenohumeral joint. In the opinion of Dr Hammond the arthritis of the glenohumeral joint is unrelated to the workers compensation claim.[20]
[20] ARD p 42.
Dr Hammond when reporting on the applicant on 30 September 2019 had taken a history of the applicant having suffered a direct blow to his left shoulder in or about October 2017 when he collided with another worker as well as the applicant having some left shoulder symptoms for about two years prior to the said collision related to heavy work in his job as a truck driver.
When responding to the letter from the applicant’s solicitors dated 30 April 2020 Dr Hammond repeats the contents of his report of 30 September 2019. However, when providing a summary of the case in response to the applicant’s solicitor’s letter of 30 April 2020 Dr Hammond only refers to the direct blow sustained to the left shoulder in the collision with the co-worker. Dr Hammond does not appear to consider, nor does he comment on the cause of the symptoms prior to the collision with the co-worker. On the face of the report from Dr Hammond there is no indication that the doctor considered whether the arthritic condition could have been caused, aggravated, exacerbated or accelerated by the nature of the applicant’s work duties with the respondent.
Dr Lee on 27 October 2022 reported to the workers compensation insurer that the applicant as a manual labourer/truck driver had a moderate to high chance of developing an osteoarthritic shoulder.[21]
[21] AALD p 33.
Dr Assem is the only medical expert to have considered the entirety of the applicant’s history including not only the collision with the co-worker but also the nature of the applicant’s work duties, the onset of the applicant’s left shoulder symptoms in 2015 as well as both the osteoarthritis and rotator cuff pathology.
For the above reasons I prefer and accept the opinion of Dr Assem that the nature and conditions of the applicant’s employment with the respondent likely aggravated, accelerated and exacerbated the osteoarthritic condition of the left shoulder whilst the blow to the left shoulder in the collision with the work colleague caused or aggravated rotator cuff pathology with the tear of the rotator cuff being acute as there was no evidence of tendon atrophy or retraction. I accept the opinion of Dr Assem that the applicant’s employment has most likely accelerated, aggravated and exacerbated the underlying degenerative pathology and rendered it symptomatic.

Reasonably necessary

The next issue to consider is what condition of the left shoulder is the proposed surgery intended to treat and is the condition which the proposed surgery is intended to treat the injury.
On 15 September 2022 Dr Lee sought permission from the workers compensation insurer to proceed with left total shoulder replacement surgery including any associated rotator cuff repair.[22] Dr Lee was of the opinion that the repair of the torn rotator cuff had failed, and that the applicant also had underlying osteoarthritis in the left shoulder.[23]
[22] ARD p 19.
[23] ARD p 140.
On 5 September 2022 Dr Lee had observed that an X-ray and MRI scan of the left shoulder had shown marginal osteophytes involving the glenohumeral joint and an intact rotator cuff. At that time Dr Lee was of the opinion that the applicant may benefit in the future from reverse total left shoulder replacement due to the osteoarthritic changes in the left shoulder.[24]
[24] ARD p 141.
Dr Lee on 15 September 2022 did not elaborate on his opinion that the rotator cuff repair had failed, an opinion which would appear to be inconsistent with his observation of 5 September 2022 that the radiology showed an intact rotator cuff. Dr Lee however does clearly state on 5 September 2022 that the applicant would benefit from the reverse total left shoulder replacement due to the osteoarthritic changes in the left shoulder.
That the proposed left shoulder replacement surgery is required due to the osteoarthritic changes appears to be confirmed by Dr Lee on 27 October 2022 when the doctor reported to the workers compensation insurer that the applicant has left shoulder osteoarthritis. That he was experiencing pain and would benefit from a total shoulder replacement. Dr Lee reported to the workers compensation insurer that in his opinion a reverse total shoulder replacement would relieve the applicant of shoulder pain.[25]
[25] AALD p 33.
It is the applicant’s evidence that he gradually developed discomfort in both his shoulders in 2015 and that whilst the symptoms improved with treatment, in particular physiotherapy, they never fully resolved. That as a result of the collision with the co-worker he experienced immediate severe pain, discomfort and stiffness in his left shoulder and due to persisting pain an ultrasound of the left shoulder was performed on 16 January 2018 and on 13 March 2018 the applicant came to left shoulder surgery at the hands of Dr Jovanovic who performed a left rotator cuff repair and subacromial decompression.
It is the applicant’s evidence that following the left shoulder surgery performed on 13 March 2018 his left shoulder pain was not relieved and there was no improvement in shoulder movement.[26] It is also the applicant’s evidence that about two to three months after the surgery, in or around June 2018, he began to experience stiffness in the left shoulder.[27]
[26] ARD p 2.
[27] ARD p 3.
The applicant’s evidence that his left shoulder pain was not relieved following the surgery is inconsistent with the contemporaneous medical evidence. On 29 March 2018 Dr Jovanovic reported to Dr Muppala that two weeks following the surgery the applicant reported excellent progress with no pain.[28] I note however that at this point in time the applicant’s left arm was in a sling which he used for approximately six weeks following the surgery. On 14 May 2018 the applicant attended on Dr Muppala and the clinical note from that attendance records that the applicant was slowly recovering from the left shoulder surgery and was “still not comfortable in using the shoulder.”[29]
[28] ARD p 58.
[29] ARD p 164.
The contemporaneous medical evidence supports the applicant’s evidence that in or around June 2018, two to three months after the surgery he began to experience stiffness in his left shoulder. At this point there also appears to have been an increase in left shoulder pain.
On 5 June 2018 the applicant attended on Dr Muppala complaining of left shoulder pain and restricted movement. The doctor observed that examination suggested possible commencement of frozen shoulder.[30] On 28 June 2018 Dr Jovanovic reported to Dr Muppala that the applicant had been doing extremely well following rotator cuff repair in March 2018 until three to four weeks prior when he suddenly developed anterolateral shoulder ache associated with difficulty elevating his arm.[31] On 24 July 2018 Dr Muppala referred the applicant to Dr Lee noting that following the surgery the applicant had been progressing well before developing painful limited range of motion.[32]
[30] ARD p 293.
[31] ARD p 59.
[32] ARD p 151.
On 10 September 2018 Dr Lee reported to Dr Muppala that after the left shoulder surgery on 13 March 2018 the applicant had good relief from pain, however the range of motion of the left shoulder which had improved with physiotherapy following the surgery had waned and he had developed pain in the anterior part of his arm.[33]
[33] ARD p 149.
Following the deterioration in the left shoulder symptoms in or about June 2018 there was a difference of medical opinion as to the cause of the deterioration and the appropriate treatment options. This difference of opinion seems to have largely stemmed from the interpretation of radiological imaging and a difference of opinion as to whether the applicant had suffered a re-tear of the rotator cuff.
On 10 September 2018 Dr Lee observed that an MRI of the left shoulder on 4 September 2018 showed a large full-thickness tear of the supraspinatus tendon as well as tendinosis of the long head biceps. Dr Lee diagnosed a re-tear of the left rotator cuff tendon as well as tendinosis of the long head biceps.[34]
[34] ARD p 149.
On 20 September 2018 Dr Jovanovic reported to Dr Muppala that the applicant presented after having an MRI which in the opinion of Dr Jovanovic showed good repair of the rotator cuff. Dr Jovanovic did not see what had been reported as tears of the supraspinatus and subscapularis. Dr Jovanovic did however observe that the radiology did show osteoarthritis in the glenohumeral joint and noted that Grade I-II osteoarthritis of the glenohumeral joint had been identified at the time of the arthroscopy which the doctor believed could explain why the applicant was still having some pain in his shoulder. Dr Jovanovic noted that the applicant did not have the constant throbbing ache that he had before surgery which he was happy about as he was able to sleep well. However, use of the arm could be difficult from time to time.[35]
[35] ARD p 60.
Dr Jovanovic did not believe that the applicant required any further surgery at that point in time. The doctor was however of the opinion that given the significant osteoarthritis in the glenohumeral joint the left shoulder may never be completely pain free with a full range of movement.[36]
[36] ARD p 60.
On 8 October 2018 Dr Lee reported to Dr Muppala confirming his previous diagnosis of a re-tear of the left shoulder rotator cuff tendon repair and recommended a further repair of the rotator cuff tendon.[37]
[37] ARD p 148.
On 21 November 2018 Dr Jovanovic reported to the workers compensation insurer that in his opinion the rotator cuff repair recommended by Dr Lee was not reasonably necessary confirming his previous opinion that the previously performed rotator cuff repair appeared intact and that the main reason for the continuing pain was glenohumeral joint osteoarthritis. The doctor was also of the opinion that the pain related to the rotator cuff tear had improved although the applicant continued to have a dull ache in the shoulder that is often seen with glenohumeral joint osteoarthritis.
Dr Jovanovic agreed with Dr Smith that the osteoarthritis of the glenohumeral joint could be treated with anti-inflammatory medications and an occasional injection with local anaesthetic and Cortisone. Dr Jovanovic was however of the opinion that it was likely that the shoulder would deteriorate over the longer term to the point that he may require joint replacement surgery.[38]
[38] Reply p 43.
On 7 December 2018 Dr Lee again reported to Dr Muppala that in his assessment the applicant had a re-tear of the left shoulder rotator cuff tendon but also diagnosed underlying glenohumeral joint osteoarthritis.[39]
[39] ARD p 147.
On 10 April 2019 Clarence Valley Imaging reported on a left shoulder MRI which had been performed on 4 September 2018 noting the previous left total cuff repair and identifying a large full thickness tear anterior left “SST” and large full thickness tear left subscapularis extending from insertions suggesting re-tears. Mild subacromial bursitis as well as mild osteoarthritis of the left acromioclavicular and glenohumeral joints was also noted.[40]
[40] ARD p 48.
On 23 May 2019 Dr Sahim Taheri reported on an ultrasound of the left shoulder observing that the supraspinatus repair was intact and that there was tendinosis of the subscapularis tendon as well as degenerative changes of the acromioclavicular joint.[41]
[41] ARD p 320.
Dr Terry Hammond, specialist orthopaedic shoulder surgeon, in response to a letter from the applicant’s solicitors dated 30 April 2020 reported that he agreed that the applicant had mild osteoarthritis of the glenohumeral joint. The doctor also agreed with an MRI report which detailed a large full thickness re-tear of the supraspinatus tendon. In the opinion of Dr Hammond, given that the arthritis of the glenohumeral joint was mild, a significant amount of the symptoms was related to a re-tear of the rotator cuff.[42]
[42] ARD p 41.
On 12 August 2022 North Coast Radiology Group reported on left shoulder MRI and X-ray observing thinning of the distal supraspinatus compatible with the previous repair however no tear, moderate non acute atrophy of the supraspinatus muscle, moderate acute tendinosis of the cephalad margin of the long head of biceps, severe osteoarthritis of the acromioclavicular joint, moderate osteoarthritis of the glenohumeral joint, likely labral tear posteriorly at the level of the mid glenoid with a paralabral cyst and mild subacromial bursitis.[43]
[43] ARD p 143.
Following the MRI and X-ray of 12 August 2022 it appears to have been accepted by Dr Lee that it was likely that the applicant had not suffered a re-tear of the rotator cuff. However, Dr Lee does not appear to have fully dismissed the possibility of a re-tear. The opinion of Dr Hammond that a significant cause of the pain was a re-tear of the rotator cuff would also lack support if no such re-tear had occurred.
Dr Assem in his report of 21 July 2021 observed that the applicant may eventually require a left total shoulder replacement.[44] Dr Assem in his further report of 25 May 2023 noted that the applicant had reported a gradual deterioration in his condition.[45] In the opinion of Dr Assem shoulder replacement is an established treatment for patients with end stage glenohumeral osteoarthritis or rotator cuff arthropathy which manifests with severe pain, stiffness and weakness. Dr Assem observed that the research evidence available shows that it can significantly improve pain and function in patients with rotator cuff arthropathy or severe shoulder arthritis.[46]
[44] ARD p 25.
[45] ARD p 31.
[46] ARD p 33.
The opinion of Dr Assem supports that the proposed surgery is to treat the arthritic condition affecting the left shoulder or at least the symptoms arising from that condition.
Dr Nair does not comment on the proposed surgery. The surgery was proposed after the applicant was examined and reported on by Dr Nair. Dr Nair was however of the opinion that the clinical and radiological features are both of a large cuff tear, which is not supported by the most recent radiology, as well as underlying glenohumeral and acromioclavicular joint osteoarthritis.

Dr Smith who reported on the applicant on 12 November 2018 did not comment on the proposed surgery. Dr Smith like Dr Nair reported on the applicant prior to Dr Lee proposing the surgery. However, Dr Smith was of the opinion that the applicant’s problem was primarily with his glenohumeral osteoarthritis. In the opinion of Dr Smith if the glenohumeral osteoarthritis had been treated rather than the operation having been performed on the rotator cuff tendons the applicant would have been left with a tolerable nuisance and would have been fit to engage in his usual occupation. At that stage Dr Smith suggested that the applicant, with appropriate conservative treatment, may be able to achieve an improvement of the left shoulder condition to the point where it was a tolerable nuisance.
I have previously accepted the opinion of Dr Assem that the applicant’s employment aggravated, exacerbated and accelerated the osteoarthritic condition of the left shoulder. I have also previously accepted the opinion of Dr Assem that the blow to the left shoulder sustained in the collision with the co-worker caused or aggravated rotator cuff pathology most causing the tear of the rotator cuff which was surgically repaired on 13 March 2018 by Dr Jovanovic.
The respondent submits that the osteoarthritic condition of the left shoulder is age related and has been deteriorating overtime with its natural progression. The respondent submits that this conclusion is supported by the fact that the applicant suffers a similar arthritic condition in the right shoulder as well as arthritis of both knees.
I do not accept the respondent’s submission. As previously noted there is no dispute that the applicant sustained injury as alleged both due to the nature and conditions of his employment as well as due to the collision with his co-worker and for reasons previously given I accept the opinion of Dr Assem that the applicant has as a result of the nature of his employment duties suffered an aggravation, acceleration and exacerbation of the osteoarthritic condition of the left shoulder. There is no medical opinion to support that the work aggravation and exacerbation of the arthritic condition has ceased or that the acceleration has been subsumed by the natural progression of the degenerative osteoarthritic condition.
The respondent points to the fact that the applicant suffers from a similar osteoarthritic condition of his right shoulder and that he also suffers from arthritis of both knees as supportive of the submission. However, there is little in the way of opinion in the medical evidence as to the cause of the right shoulder and knee conditions. It is the applicant’s belief that the right shoulder condition has developed as a result of his favouring his injured left shoulder. There is no evidence available on which to conclude that the right shoulder and knee conditions are solely caused by the aging process there is also no medical evidence to indicate that the applicant has a systemic osteoarthritic condition. There is also no evidence on which to conclude that simply because the applicant may have developed osteoarthritis in other joints as a result of the aging process that he also developed such a condition in the left shoulder.

The evidence, as discussed above, supports that the aim of the left total shoulder replacement surgery is to treat the symptoms arising from the osteoarthritic condition of the left shoulder. The weight of the medical opinion supports that the osteoarthritic condition is a generator of symptoms.
In addition to the proposed left shoulder replacement Dr Lee recommends any associated rotator cuff repair. There has been a great deal of dispute as to whether the applicant has suffered a re-tear of the rotator cuff. The radiological imaging has at times been reported as demonstrating such a re-tear. Dr Lee now appears to accept that there has not been a re-tear without fully dismissing that such a re-tear may have occurred.
There has also been a significant difference of opinion among the medical experts as to whether a further rotator cuff repair should be performed. The arguments against a further rotator cuff repair essentially fall into two categories. The first being that such a repair is not required as there has not been a re-tear and secondly that in the words of Dr Smith such a repair would be a waste of time as due to the applicant’s age and underlying pathology the repair would most likely fail.
What is being proposed by Dr Lee is that the rotator cuff be assessed and repaired if a re-tear is identified at the time that the left shoulder replacement is being performed. If such a re-tear is identified at that point in time, then obviously the previous objection to further rotator cuff repair on the basis that no re-tear had been sustained can no longer be supported. As to the objection that the procedure is not justified on the basis that the repair is likely to fail, the proposal as I understand it, is that the repair surgery would be performed secondary to the left shoulder replacement and not as an individual procedure.
For the above reasons I am satisfied that the left total shoulder replacement surgery including any associated rotator cuff repair proposed by Dr Lee is intended to treat the work injuries to the left shoulder.
The next issue to be considered is whether the proposed treatment is “reasonably necessary”.
Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) when considering s 10(1) of the Workers Compensation Act 1926 (the 1926 Act) 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.”
Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], 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, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party 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.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where Roche DP stated at [86]:
“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.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] 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.
[89] 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.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] ….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 28 at [25] and [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.
[58] Ms Murphy only has to establish, applying the commonsense 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’ 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 the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
It is the applicant’s evidence that following the surgery on 13 March 2018 he regularly attended on his GP and complained of ongoing pain and the restricted movement he was experiencing with his left shoulder. He also regularly attended physiotherapy treatment and tried shoulder taping techniques in an attempt to alleviate stress and pain in the left shoulder. He did not benefit from ongoing physiotherapy treatment and he did not find that it improved his condition.[47] It is the applicant’s evidence that on 18 June 2019, he had an ultrasound guided cortisone injection. This treatment helped reduce the pain however it only provided temporary relief for 2-3 weeks.[48]
[47] ARD p 4.
[48] ARD p 4.
On 21 July 2021 Dr Assem recorded that the applicant continued to experience intermittent discomfort in both his shoulders with restriction of shoulder motion. His symptoms regularly interfered with his sleep. The applicant had difficulty lifting items weighing more than 5kg at waist level and was unable to perform any activities above shoulder height. Dr Assem also recorded how the shoulder conditions affected the applicant’s ability to perform domestic duties.[49]
[49] ARD p 22.
In the opinion of Dr Assem the applicant had the option of continuing with conservative management consisting of simple analgesia, non-steroidal anti-inflammatory medication, occasional sessions of physiotherapy treatment during exacerbations and ultrasound guided cortisone injections to reduce any residual inflammation. Dr Assem advised that the applicant may eventually require a left total shoulder replacement.[50]
[50] ARD p 25.
On 27 October 2022 Dr Lee reported to the workers compensation insurer that the applicant was experiencing pain and would benefit from a total shoulder replacement. Dr Lee reported that all non-operative treatment including rest, physiotherapy and oral pain medication had been exhausted. In the opinion of Dr Lee, a reverse total shoulder replacement would relieve of shoulder pain.[51]
[51] AALD p 33.
On 19 December 2022 Dr Muppala reported that following the surgery on 13 March 2018 the applicant had never been able to use his left upper limb comfortably and that he constantly reported pain that had not responded to steroid injection or pain killers.[52] In the opinion of Dr Muppala the proposed surgery is entirely appropriate, with no alternative options.[53]
[52] ARD pp 46-47.
[53] ARD p 47.
On 21 July 2023 Dr Lee reported to the applicant’s solicitors that he had requested approval for a left reverse total shoulder replacement. However, as there had been no reply to the request for surgical approval Dr Lee had recommended a lateral clavicle excision which was performed on 18 April 2023.[54] Dr Lee reported that post-surgery there had been a good reduction in the shoulder pain without full resolution whilst his strength had not changed.[55] Dr Lee does not record in the report when he had last reviewed the applicant following the surgical procedure however on 16 June 2023 Dr Lee had reported to Dr Muppala that following the excision of the lateral end of the left clavicle the applicant’s pain had significantly improved however had not completely resolved.[56]
[54] ARD p 36.
[55] ARD p 37-38.
[56] AALD p 29.
Dr Lee also observed in his report of 21 July 2023 that the aim of a reverse total shoulder replacement in the setting of cuff arthropathy was to reduce pain and improve function. Dr Lee advised that such surgery is standard practice and is effective.[57]
[57] ARD p 38.
On 25 May 2023 Dr Assem noted that on 4 April 2023, the applicant underwent surgery on his left shoulder presumably an arthroplasty or distal clavicle excision without any significant benefit.[58]
[58] ARD p 31.
On examination, which was conduct by audio visual link, Dr Assem noted that the applicant continued to have similar restrictions as had previously been documented with difficulty elevating the left arm more than 90 degrees.[59] The applicant reported that he was keen to proceed with the proposed reverse shoulder replacement surgery as he was experiencing constant discomfort in both his shoulders rating his pain at 3-4 out of 10 on a visual analogue scale. The pain increases to 6 out of 10 at night and interferes with the applicant’s sleep.
[59] ARD p 31.
Dr Assem is of the opinion that if the applicant continues with conservative management, his condition may not significantly improve and could potentially worsen over time. His chronic left shoulder pain and restricted range of motion will continue to impact his daily activities and quality of life. However, if the applicant proceeds with a left reverse total shoulder replacement, there will be likely improvement in his symptoms and function.[60]
[60] ARD p 32.
In the opinion of Dr Assem shoulder replacement is an established treatment for patients with end stage glenohumeral osteoarthritis or rotator cuff arthropathy which manifests with severe pain, stiffness and weakness. In Dr Assem’s opinion the proposed surgical procedure is appropriate given that the symptoms are worsening despite previous treatment. Dr Assem observed that the applicant has already undergone conservative management and previous surgical procedures to his right shoulder without any significant improvement. In the opinion of Dr Assem it is unlikely that any alternative procedure will result in the improvement of symptoms or functional limitations. In the opinion of Dr Assem a reverse total shoulder replacement could be cost effective as it could lead to a reduction in the applicant’s intake of analgesia and utilisation of healthcare resources. In the opinion of Dr Assem the research evidence available shows that the proposed procedure can significantly improve pain and function in patients with rotator cuff arthropathy or severe shoulder arthritis. Dr Assem also advised that reverse total shoulder replacement is widely accepted as an effective treatment for conditions like rotator cuff arthropathy and severe shoulder arthritis when other treatments have failed.[61]
[61] ARD p 33.
It is the applicant’s evidence in his statement made 23 August 2023 that although the surgery provided him with some pain relief, it did not resolve his condition and he continues to experience left shoulder pain and restriction.[62] It is also the applicant’s evidence in his statement made 23 August 2023 that he can no longer hold objects for long periods of time without feeling pain in his shoulders. He fears doing anything that may make his condition worse. He is unable to adequately attend to personal hygiene as he cannot scrub himself for extended periods of time as he feels as though there is heat radiating from his shoulders. He finds it difficult to get dressed on his own and requires assistance from his wife. He must sit down and carefully dress himself as he is fearful of lifting his arms for an extended period beyond what he can bare in case he will cause further injury. He feels a tingling sensation down his left shoulder which causes him to constantly turn and twist in the middle of the night, which disrupts his sleep. It is the applicant’s evidence that he can no longer bare the pain.[63]
[62] ARD p 7.
[63] ARD p 8.
Drs Nair and Smith do not comment on the proposed surgery. The surgery was proposed after the applicant was examined and reported on by them.
The only medical opinion in respect to the proposed treatment is that it is appropriate, that it is an accepted treatment for the applicant’s injury condition, that the applicant has exhausted all other treatment options and that the aim of the proposed treatment is to reduce if not eliminate the applicant’s left shoulder pain and improve function.
Whilst the applicant did undergo alternate surgery on 18 April 2023 this was only adopted as a treatment option as liability for the left total shoulder replacement procedure had not been accepted by the respondent. It was submitted on behalf of the respondent that the reports in respect to the impact of the alternate surgery performed on 18 April 2023, particularly the reports in respect to pain, are confusing as to the results with Dr Lee reporting at least as at 16 June 2023 reporting that the applicant had experienced a significant improvement in his pain without full resolution whilst Dr Assem had reported on 25 May 2023 that the applicant had obtained no improvement in function and continued to have significant levels of pain. However, the most recent evidence in respect to the applicant’s condition is that contained in the applicant’s statement made 23 August 2023 in which it is the applicant’s evidence that the left shoulder remains painful with significant functional restrictions with a significant negative impact on his ability to undertake basic personal care as well as negatively impacting on his sleep. It is the applicant’s evidence that he can no longer bare the pain.
For the above reasons I find that the work injuries have materially contributed to the need for the proposed surgery. For the above reasons I am also of the view and find that the proposed left total shoulder replacement surgery including any rotator cuff repair is reasonably necessary treatment as a result of the applicant’s accepted work injuries to his left shoulder.

SUMMARY

I find that:
(a) pursuant to s 60 of the 1987 Act the left total shoulder replacement surgery including any associated rotator cuff repair proposed by Dr Tack Shin Lee is as a result of an injury received by the applicant reasonably necessary.

[2024] NSWPIC 9

9 January 2024