Bland v State of NSW (Mid North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bland v State of NSW (Mid North Coast Local Health District) [2022] NSWPIC 191
APPLICANT:	Neil Bland
RESPONDENT:	State of NSW (Mid North Coast Local Health District)
MEMBER:	Philip Young
DATE OF DECISION:	2 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60(5) of the Workers Compensation Act 1987 declaration regarding cost of future left shoulder surgery; applicant’s credit regarding reporting of left shoulder injury in issue; held on the facts left shoulder ultrasound taken 2 weeks post injury and fellow worker”s account of incident consistent with applicant’s version of events; Dr Hyde page’s opinion concerning pain “masking” because of opiod medication for an unrelated injury regarded as a plausible explanation; Held- left shoulder surgery reasonably necessary resulting from 16 July 2020 injury; declaration in favour of the applicant.
DETERMINATIONS MADE:	1. Declaration in favour of the applicant pursuant to section 60(5) of the Workers Compensation Act 1987 that the respondent is liable to pay the costs of and incidental to left shoulder surgery as recommended by Dr Jovanovic on 14 July 2021.

STATEMENT OF REASONS

BACKGROUND

Neil Bland (the applicant) is a 48-year-old man who was employed by State of NSW (Mid North Coast Local Health District) (the respondent) as a mental health nurse at the respondent’s Coffs Harbour mental health unit.
The applicant alleges that on 16 July 2020 whilst attempting to subdue an aggressive patient he was pulled to the ground when the patient grabbed his left arm and as a result the applicant suffered injury to his left shoulder.
The claim resolves to a section 60 claim for left shoulder surgery described as an arthroscopic sub-acromial decompression and mini open rotator cuff debridement.
The applicant’s claim is the subject of a demand issued by his solicitors to QBE Insurance (Australia) Limited dated 23 November 2021.[1] The quotation for future left shoulder surgery relies on a request for approval and quotation of the applicant’s treating surgeon, Dr Jovanovic supported by an independent medical opinion of Dr Hyde Page dated 2 November 2021.
[1] Application to Resolve a Dispute (Application) at page 5.
The insurer by section 78 notice dated 4 January 2022 disputes the applicant’s entitlement to the compensation claimed, relying upon several sections of the Workers Compensation Act 1987 (1987 Act) including section 4, section 9A, section 4(b), section 33 and sections 59 and 60.

ISSUES

The respondent’s main case is an attack on the applicant’s credit, suggesting that notwithstanding a number of matters raised by the applicant concerning his alleged injury, many of these events simply did not occur and the applicant’s evidence should not be accepted. Second, the respondent takes issue with the assumptions made by Dr Hyde Page in his report of 2 November 2021. Third, the respondent takes issue with whether the applicant suffered any injury within the meaning of section 4(a) or 4(b) and finally the respondent relies upon section 60 by saying that the applicant has not established that any need for surgery was materially contributed to by any injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter came for conciliation and arbitration hearing by teleconference on 8 March 2022. On that occasion Ms Compton of counsel instructed by Ms Kava, solicitor, appeared for and with the applicant. Mr Grimes of counsel instructed by Mr Marhaba, solicitor, appeared for the respondent. Ms Holland was present on behalf of the insurer.
The matter had previously been listed for teleconference on 22 February 2022 at which time a number of issues were discussed. One such issue was that the applicant claims that his injury on 16 July 2020 was personally witnessed by a security officer, Mr Pennington. The second aspect concerned the applicant’s claim that he attended that morning on the Emergency Department of Coffs Harbour Hospital for treatment. Coffs Harbour Hospital could not locate any such attendance documents. Mr Marhaba confirmed at the teleconference that he would investigate these matters because they might be central to the applicant’s claim and important information for the Commission to have before it.
When the matter came for conciliation on 8 March 2022 the issues about Coffs Harbour District Hospital records and evidence from Mr Pennington were again raised and ultimately because there was insufficient time to hear oral submissions, a direction was made that the parties lodge and serve written submissions on the issue of liability. Additionally, a direction was issued that the respondent was to file and serve within seven days of 9 March 2022 a copy of the respondent’s request for records from the Emergency Department of Coffs Harbour Hospital, or similar entity, concerning the applicant’s admission in July 2020.
Subsequently the respondent filed a copy of an email addressed from the insurer’s manager, Ms Holland, to the hospital dated 8 March 2022 and requesting that the hospital double check whether there was any documentation concerning the applicant’s presentation in July 2020. The respondent by its case manager Ms Ryan appears to have earlier been referring to records of the hospital concerning incidents both on 16 July 2020 and on 26 August 2020.[2] However, the applicant in these proceedings has consistently claimed that the only injury relied upon is that which occurred on 16 July 2020 being aggravation, acceleration, exacerbation or deterioration of the applicant’s underlying degenerative left shoulder condition, consistent with section 4(b)(ii) of the 1987 Act.
[2] Correspondence lodged 15 March 2022.
These matters are mentioned because at the end of the conciliation on 8 March 2022 and when directing written submissions and a timetable for those submissions I did direct the respondent to produce its request for records, which emerged as mentioned above. After the conciliation the respondent produced a factual investigation report of Lee Kelly Commercial Investigators dated 14 March 2022.
Having reviewed documents the subject of the respondent’s Application to Admit Late Documents (AALD) dated 21 March 2022 and the respondent’s “correspondence” dated 15 March 2022 I have determined that the documents are relevant and it is appropriate that those documents be admitted into evidence.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission.
(a)    Application and attachments lodged 24 January 2022;
(b)    Reply and attachments lodged 15 February 2022 (Reply),
(c)    correspondence (emails) lodged by the respondent on 15 March 2022, and
(d)    AALD and attachments lodged by the respondent on 21 March 2022.

ORAL EVIDENCE

No oral evidence was given.

SUBMISSIONS

Counsel for both parties lodged written submissions. The applicant’s submissions were lodged on 22 March 2022 and followed by correspondence from the respondent’s solicitors of 24 March 2022. The applicant’s representatives then filed amended submissions on 24 March 2022 and then the respondent’s representatives filed final submissions on 29 March 2022.

DISCUSSION AND REASONS

The respondent has taken issue with the applicant’s credit. In summary, the respondent suggests that the applicant has been untruthful because a number of contemporary materials allegedly do not support the claim that the applicant injured his left shoulder. These include the following:
(a)    The applicant’s statement of 3 August 2021 refers to the incident as having occurred “in the early months of 2020, not on 16 July 2020”.
(b)    The applicant’s statement alleges that prior to 16 July 2020 he was not carrying any left shoulder injury, whereas the applicant’s general practitioner’s notes and his statement of 19 January 2022 confirmed that he was treated for bilateral shoulders prior to 16 July 2020.
(c)    A statement obtained from the security officer, Mr Pennington, says that Mr Pennington did not witness the applicant injuring himself on 16 July 2020 and does not recall the applicant complaining about a left shoulder injury.
(d)    Although the applicant claims he sought treatment from the emergency department on 17 July 2020, no documents have been found supporting that attendance.
(e)    The applicant mentions an incident notification of 16 July 2020 but this description completed by the applicant contains no allegation of injury and claims “no injuries to staff member”.
(f)    The applicant saw his general practitioner on 23 July 2020 but in his statement of 19 January 2022 concedes that he cannot recall what he told this general practitioner and the doctor’s notes mention that the left shoulder pain is “recurrent” and subsequent attendances through until 28 April 2021 although mentioning the left shoulder make no mention of the alleged injury of 16 July 2020.
(g)    The general practitioner’s notes of 30 June 2021 make the first mention of work injury but allege that it occurred on 27 August 2020.
(h)    Judith McNeil’s clinical notes[3] confirm treatment of the applicant from 1 July 2020 to 2 August 2021 but make no mention of the alleged injury of 16 July 2020.
(i)    A clinical note of Judith McNeil of 1 July 2020 (15 days prior to the alleged injury) confirms “left shoulder really bad”.
(j)    A second clinical note of 22 July 2020 (six days after the alleged injury) states “left shoulder still problematic” so the findings on examination of Ms McNeil are the same prior to and after 16 July 2020.
[3] Reply at pages 39-41.
It is clear from a reading of the incident report completed by the applicant and corroborated by other staff members on 16 July 2020 that a hostile incident occurred involving a female patient on that date. It is also clear from the statement of Mr Pennington[4] that the patient was extremely aggressive and that both the applicant and Mr Pennington fell to the ground in the process of restraining her. The applicant in his second statement acknowledges his prior complaints of left shoulder pain and pain into his left elbow and he acknowledges that on 1 July 2020 he consulted his general practitioner.[5] The fact that Coffs Harbour Hospital found no documents concerning the applicant’s attendance is not necessarily conclusive in the light of the applicant’s clearly stated evidence that he did so attend.
[4] AALD at page 9.
[5] Reply at page 39.
In relation to the absence of injury recorded on the 16 July 2020 incident report, the applicant has submitted that this report was completed from a patient-incident perspective, not as a formal report of injury. The narrative in the form is consistent with the statement of Mr Pennington. The applicant’s explanation in my view is plausible because the questions to be answered the subject of the form address specific matters such as “aggressive act”, “the problem”, “self-harm” and “Action taken”[6].
[6] AIMS form at Reply from page 1.
The applicant underwent a left shoulder ultrasound on 30 July 2020 where full thickness tearing of the anterior to mid portion of the supraspinatus tendon was found. The pathology found on that ultrasound is clearly before the further incident suffered by the applicant on 26 August 2020, so that this pathology pre-dated the August event.
At the time of his injury on 16 July 2020 the applicant was taking opiate medication because of problems with his lower back. It is his case, mentioned by Dr Hyde Page in his report of 2 November 2021, that the applicant’s pain in both of his shoulders had settled with anti-inflammatory medication but since 16 July 2020 the left shoulder pain, stiffness and weaknesses failed to settle.[7] Dr Hyde Page believed that the strong narcotic pain medication helped to mask the applicant’s left shoulder pain and that after injections to his lower back in October 2020 the applicant went off the strong pain medication and “his left shoulder pain and stiffness was much more apparent”.[8]
[7] Application at pages 34-35.
[8] Application at page 35.
There is no medical evidence to refute Dr Hyde Page’s opinion concerning the effect of pain “masking” because of the medication. Indeed, on one view the absence of specific history in the general practitioner’s notes is consistent with this opinion.
Rather than being unsupportive of the applicant’s claim of injury, I take the view that the statement of Mr Pennington and the incident notification report of 16 July 2020 in fact corroborate the applicant’s account of injury on that date. Whatever was the condition of the applicant’s left shoulder prior to 16 July 2020 would appear to have not affected his ability to physically engage with an aggressive patient on that date. There is little reason to doubt the applicant’s account that he attended the emergency department as he suggests. The incident was clearly not manufactured (see Mr Pennington’s statement) and the presence of a tear of the supraspinatus tendon revealed on ultrasound 30 July 2020, coming as it does two weeks after the incident and before the August 2020 incident, support the applicant’s account of injury on 16 July 2020.
Dr Hyde Page is the only medical evidence to address the effects of the 16 July 2020 incident. In his report of 2 November 2021 he expresses the following opinion:
“I consider the incident on the 16 July 2020 is the main contributing factor to aggravation of his pre-existent left shoulder condition. This pre-existent condition was only ‘intermittent pain and discomfort to the left shoulder where had some bursitis’. However, with the incident on the 16 July 2020, he suffered a significant strain to the left shoulder that caused a full thickness tear of the rotator cuff. As a consequent of that injury, he now has persistent pain, stiffness and weakness in his left shoulder that was not evident prior to this incident.”
Dr Hyde Page’s diagnosis is consistent in my view with the applicant’s statement of 19 January 2022, in particular certain paragraphs.[9] The applicant claims:
“…7. I had a prior history of chronic low back pain going back a few years after a gym mishap and this is managed under the care of Dr Shaun Clarke. I had required opoid [sic – opiod] narcotics to manage the pain at times, on and after for over two years. As at 16 July and thereabouts I was on pain medications for my back”.
[9] Application at page 2 [7]-[8].
In his latest statement the applicant also confirms that he had been working as a registered nurse in the Coffs Harbour Mental Health Unit for the “past five years”.[10] He reveals his prior bilateral bursitis and in paragraph eight of the same statement the applicant says:
“8. I had been treated for bilateral bursitis in both shoulders prior to 16 July 2020. I had experienced mild pain in both shoulders with the right worse than the left. This has never prevented me from working”.
[10] Applicant’s statement at [6].
The respondent has not advanced any evidence to refute the applicant’s assertion that prior to 16 July 2020 the applicant had no problems attending work whether because of pain in both shoulders, or otherwise. Such evidence, for example, could have been production of certificates or other records from the applicant’s personnel file indicating periods of sickness or other leave, or occasions of report of injury to the applicant’s shoulders prior to 16 July 2020. The applicant had been working there for five years.
In the applicant’s statement the applicant provides some explanation which when read with Mr Pennington’s statement is consistent with Mr Pennington’s view that the applicant was not injured. The applicant at paragraph nine of his statement says:
“9… the patient pulled us both to the ground. She had a hold of my left arm when I went to the ground. I felt a jarring sensation in my left shoulder”.
It will be observed that the only immediate left shoulder problem referred to by the applicant was a “jarring sensation in my left shoulder”. The applicant then goes on to state the following:
“10. Shortly after this and once the incident was de-escalated and everything on the ward settled down I noted that the shoulder ache was pretty bad. I reported this to the After Hours Nurse Manager, I can’t recall who. She told me to go to ED and get it checked out”.
In my view two inferences can be drawn from the applicant’s evidence in paragraph 10 of his statement. The first is that the aching of his left shoulder was only noticed by him after the incident was de-escalated and “everything on the ward settled down”. That may well account for Mr Pennington’s observation that the applicant did not complain of any injury as a result of the incident. It is unclear to what extent Mr Pennington remained present after “everything on the ward settled down” and in view of the timing of the applicant’s “pretty bad” shoulder ache it is understandable in my view that the applicant would report that ache to the After Hours Nurse Manager, rather than (necessarily) to Mr Pennington.
The second aspect of paragraph 10 of the applicant’s statement relates to the report to the After Hours Nurse Manager. There is no statement produced by the respondent from this manager, nor any evidence from the applicant’s colleagues, namely Maureen Simmons, Edwina and John. The factual investigation report of Lee Kelly dated 9 August 2021[11] confirms that the investigators were aware that the applicant’s incident was witnessed by Mr Pennington but also by three registered nurses, yet the respondent has not sought, it would seem, statements from those three registered nurses despite Lee Kelly being requested to provide a further investigation report which was dated 14 March 2022.[12]
[11] Reply at page 20.
[12] Respondent’s AALD at page 2.
Dr Hyde Page obtained a history[13] that the applicant had problems with his left shoulder over a period of years, including bursitis. That history included the applicant’s viewpoint that “the big difference after his injury in July 2020 was the consistent pain, stiffness and weakness that he developed that was not present prior to then…”.[14] Dr Hyde Page was therefore aware of the applicant’s pain and symptoms in his left shoulder prior to 16 July 2020 and the applicant’s uncontroverted evidence is that he was able to go about his normal duties prior to that date.
[13] Application at page 33.
[14] Application at page 33.

Reasonably necessary medical treatment

Although the respondent points to the applicant’s subsequent injury of 26 August 2020 as causing his present presentation and need for surgery, it must be remembered that the radiological evidence, namely the left shoulder ultrasound of 30 July 2020[15] identified full thickness tearing of the inter-mid portion of the supraspinatus tendon. As I have earlier indicated, Dr Hyde Page has noticed that this radiological evidence pre-dates the 26 August 2020 incident.
[15] Application at page 39.
The applicant has the benefit of the opinions of his treating specialist, Dr Jovanovic as well as Dr Hyde Page, on the question of whether the proposed surgery is reasonably necessary medical treatment. The respondent offers no evidence disputing the opinions of those doctors that surgery to decompress and repair the left shoulder rotator cuff is reasonable and necessary having regard to the full thickness tear which occurred on 16 July 2020.
Dr Hyde Page adds[16] that “with this surgery, the rotator cuff repair and decompression should settle the worst of his pain, stiffness and weakness in the left shoulder.
[16] Application at page 36.
In view of these opinions I have no hesitation in accepting that the various criteria in Diab[17] are satisfied and that the appropriate declaration is that the respondent is to pay the applicant’s reasonable medical and incidental treatment expenses, namely those recommended by Dr Jovanovic on 14 July 2021 and identified at pages 60-62 of the Application, pursuant to section 60(5) of the 1987 Act.
[17] Diab v NRMA Limited [2014] NSWWCCPD 72.

[2022] NSWPIC 191

2 May 2022