Bond v Blacktown Area Community Centres Inc
[2023] NSWPIC 390
•4 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Bond v Blacktown Area Community Centres Inc. [2023] NSWPIC 390 |
| APPLICANT: | Doreen Bond |
| RESPONDENT: | Blacktown Area Community Centres Inc |
| Member: | Paul Sweeney |
| DATE OF DECISION: | 4 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker claims cost of proposed left shoulder surgery pursuant to section 60; employer denies injury and causal nexus between injury and need for surgery; Commission accepts that the contemporaneous evidence establishes injury; absence of signs on clinical examination and absence of complaint over a period of five years inconsistent with causal nexus.; Held – need for surgery does not result from proven injury. |
| determinations made: | The Commission determines: 1. Award for the respondent |
STATEMENT OF REASONS
BACKGROUND
Doreen Bond (the applicant) sustained serious injuries when she tripped and fell on a concrete path on 16 May 2016. As a result of these injuries she has undergone several surgical procedures including a right rotator cuff repair under Dr Gothelf in 2017, a lumbar fusion at L3 to S1 under Dr Matthew Tait in 2019, and a left total hip replacement under Dr Simon Coffey in 2021. The applicant has not worked since April 2019.
The severity of the applicant’s injuries is emphasised by a Medical Assessment Certificate dated 29 September 2022 by which a medical assessor certified that she suffered 50% whole person impairment as a result of the injuries sustained on 16 May 2016.
On 14 November 2022, the applicant came under the care of Dr Michael Stening, an orthopaedic surgeon. On 5 December 2022, Dr Stening recommended that she undergo a left rotator cuff repair and excision of the outer end of her left clavicle. The applicant sought approval for the cost of the proposed surgery from the worker’s compensation insurer of the Blacktown Area Community Centres Inc. (the respondent), GIO.
On 20 December 2022, the GIO issued a s 78 Notice by which it disputed that the applicant suffered left shoulder injury either on 16 May 2016 or a consequence of her accepted injuries. It also stated:
“We do not believe that the claimed medical or related treatment is reasonably necessary as a result of an injury as required by s 60 of the Workers Compensation Act 1987.”
By a review notice dated 20 April 2023, the respondent’s insurer canvassed some aspects of the evidence in the case. It again concluded that the applicant had not suffered injury to her left shoulder at the time of, or as a consequence of, the injury on 16 May 2016. Alternatively, it stated the need for surgery did not result from an injury sustained at that time.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
By these proceedings, the applicant claims an order that the respondent pay the cost of the left shoulder surgery proposed by Dr Stening pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
When the matter came on for a conciliation conference and an arbitration hearing in the Personal Injury Commission (Commission) on 17 May 2023, Mr Horan, of counsel, appeared for the applicant and Mr Grimes, of counsel, appeared for the respondent. The conference and hearing took place audio-visually.
During the conciliation conference, I was informed by counsel that the parties were unable to reach a mutually satisfactory agreement in respect of the threshold issue of causal nexus between the work incident and the need for the proposed shoulder surgery. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to reach a settlement of the dispute prior to the arbitration hearing.
During the conciliation conference, I was informed by Mr Horan that the applicant put her case entirely on the basis of a direct injury to the shoulder at the time of the incident on 16 May 2016. He did not propose to argue that the condition of her left shoulder resulted from the accepted injuries she received on 16 May 2016 to the right shoulder or other body parts.
EVIDENCE
The documents before the Commission are as follows:
(a) Application to Resolve a Dispute and the documents attached, and
(b) the Reply and the documents attached.
There was no objection to the evidence referred to above at the arbitration hearing. There was no application to adduce further written or oral evidence.
SUBMISSIONS
The submissions of the parties are recorded and I do not propose to reiterate each of the arguments of counsel in these short reasons. However, I will address the main thrust of the parties case when resolving the issues in dispute.
On the issue of injury, Mr Horan argued that a photograph of the applicant’s left shoulder taken after the incident and the references to “left shoulder” in the medical certificates furnished by the applicant’s general practitioner in the months following the incident were compelling evidence.
On the issue of causal nexus, he relied on the opinions of Dr Sipeli, the applicant’s general practitioner, and Dr Gehr. However, his primary submission was that the opinion of the treating orthopaedic surgeon, Dr Stening, was cogent evidence of a connection between injury and the need for surgery.
Mr Grimes relied on the opinion evidence of Dr Courtenay, an orthopaedic surgeon. He also relied on the absence of any clear account of a left shoulder injury in the various descriptions of the incident given by the applicant over the years. Importantly, he emphasised the absence of any complaint of left shoulder pain in the extensive clinical and medical record over a period of 5 years between 2017 and 2022.
Before attempting to resolve the issues in dispute it is necessary to set out the evidence of the applicant and of the specialist medical practitioners on which the parties rely, Dr Stening, in the applicant’s case, and Dr Courtenay in the respondent’s case.
What follows is not intended to be a comprehensive survey of all of their evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.
Applicant
The applicant’s evidence is contained in statements dated 31 August 2021 and 16 May 2023. By her initial statement, the applicant describes the injury which occurred on 16 May 2016 at Doonside Public School. She states:
“I walked around the side of the building when I tripped and fell on a raised concrete ledge. I fell forward, striking my head on a brick pillar and landing heavily on my right knee before falling to my side. I tried to break the fall with my right hand. The entire area had been painted grey and the ledge was unmarked. I was unable to see the trip hazard and as it came as a shock (sic). I fell heavily. I do not believe I lost consciousness at the time however I was dazed and confused.
I was taken by ambulance to Blacktown Hospital. As a result of the fall, I sustained various injuries to my head, right shoulder, lumbar spine, thoracic spine and bilateral hips.”
The applicant then addresses her attempts to return to work on part-time selected duties and the extensive treatment she has undergone all, culminating in right shoulder and low back surgery. As this statement was taken prior to the applicant’s hip surgery, it specifically addresses the development of symptoms in her left hip and her need for the hip surgery which was eventually undertaken by Dr Coffey. There is no reference in the statement to an injury to the applicant’s left shoulder or to symptoms or restriction of movement in that shoulder.
By her supplementary statement, the applicant gives the following account of the incident on 16 May 2016 and the injuries she sustained at that time:
“I was walking around the side of a building when I tripped over a raised concrete ledge. As I tripped, I fell forward and the top of my left shoulder and my head collided with brick column (sic). I continued to fall ‘bouncing’ off the column and landed heavily on my right knee before falling to my right side.
An image of my bruised left shoulder which was taken shortly after the incident is annexed to my statement and marked with the letter ‘A’.”
The applicant says that following the incident, her left shoulder bruising subsided and the right shoulder, cervical spine, lumbar spine and left hip were the areas where she was experiencing “persistent and intense” pain.
The applicant also says that there were references to a left shoulder injury in the earlier certificates of capacity issued by her general practitioner. She states that:
“The references to the left shoulder was included in the earlier certificates of capacity but was later omitted from the certificates thereafter.”
The applicant gives the following account of the development of her left shoulder symptoms:
“I always had some minor pain in the shoulder. It was intermittent and was not intense and I did not do anything about it. I didn’t need to really.
However, I started to experience more constant pain in my left shoulder in June 2022 particularly when I attempted to lift or use my left arm above shoulder height.
I consulted my general practitioner, and I was referred for an ultrasound on my left shoulder which I underwent on 8 July 2022.”
Dr Stening
By a report of 16 December 2022, Dr Stening addressed a series of questions posed by the respondent’s insurer which questioned the relationship between the incident on 16 May 2016 and the at the applicant’s complaint of left shoulder pain. In answer to a question as to whether the incident was the main contributing factor to the condition, Dr Stening replied:
“If she did fall on to her left shoulder as I’ve been told the injury has injured the acromioclavicular joint either by aggravating – exacerbating pre-existing degenerative change or caused type 1 acromioclavicular injury that has resulted in progressive traumatic degenerative change with time. The degenerative change is now causing subacromial impingement symptoms from inferior spur crowding the subacromial space.”
Dr Stening stated that a direct blow to the tip of the shoulder is a “classic mechanism for injury to the acromioclavicular joint.”
By a report dated 16 March 2023, Dr Stening outlined his findings on his examinations of the applicant on 14 November and 15 December 2022. He stated that on each occasion examination of the left shoulder demonstrated a painful arc of active abduction limited to 90 degrees. He thought that the applicant was suffering from persistent subacromial impingement from bursitis. He noted that an MRI prior to the second consultation:
“…demonstrated a partial articular-sided tear supraspinatus with subacromial bursitis and advanced degenerative change of the acromioclavicular joint.”
Dr Stening reiterated his opinion that the condition was attributable to the injury and that the need for surgery resulted from the injury. He continued:
“I believe the articular-sided tear is directly attributable to the injury at work. The tear has partially defunctioned the supraspinatus muscle increasing the risk of persistent subacromial impingement. The supraspinatus is an important muscle in shoulder dynamics preventing superior subluxation of the humeral head on active abduction if functioning normally. The acromioclavicular joint would have had some pre-existing arthritic change however the fall definitely had the potential to exacerbate/aggravate the changes and over the subsequent years contributed to progressive degeneration to a more advanced stage.”
Dr Courtenay
Dr Courtenay initially saw the applicant on 18 June 2021 and provided a report of 28 June 2021. He recorded the following history of injury:
“She was walking on the side of an administration building when she didn’t see a small lip. She kicked that lip and it caused her to fall. She put out her arms to stop her fall and landed heavily. She landed on both knees and she hit her head. She wasn’t knocked out at the time but she wasn’t able to get up without assistance. She was then taken to the staff room and an ambulance was called. She had quite a lot of swelling and a bruise on her forehead.”
As the primary concern of the doctors at that time was the issue of hip surgery, much of the report is directed to an examination of the low back and the left hip. However, Dr Courtenay also recorded his examination of the applicant’s shoulder movement.
Right
Left
Abduction
130
170
Adduction
40
40
Flexion
150
170
Extension
40
50
Internal rotation
50
70
External rotation
70
80
Dr Courtenay expressed the opinion that there was a causal relationship between the incident in 2016 and the need for surgery of the left hip. He expressed the opinion that surgery was reasonably necessary as the applicant was getting “progressively more symptoms from that leg”.
Dr Courtenay saw the applicant again at the request of the respondent’s solicitor on 22 July 2022 and provided a report of 3 August 2022. The doctor recorded that the applicant had undergone the repair of her left hip and gluteal muscles but was still experiencing sharp pains and a restriction of movement. She was using a crutch when “out and about the house.” In respect of her shoulders Dr Courtenay observed that there was “still some restriction.” He recorded shoulder movement as follows:
Right
Left
Abduction
130
90
Adduction
30
20
Flexion
150
120
Extension
40
30
Internal rotation
60
70
External rotation
80
70
While Dr Courtenay thought that there was some scope for improvement, he assessed 34% whole person impairment in respect of body parts other than the left shoulder. By a supplementary report dated 7 June 2023, by which he addressed the issue of the applicant’s left shoulder, he said this:
“In my initial examination in 2021, I noted a virtually full range of movement in the left shoulder, and certainly consistent with a normal shoulder for a lady of her age. However, on the further consultation in 2022, there was a significant deterioration in the left shoulder. She attributed that, to the fact that she had to use it, and the fact that she was using crutches. That is a significant deterioration and I note there have been no investigations of it.
There certainly is some concern, however, with other disabilities she has had, she denies any other particular injuries, and I suspect that is correct.
When I reviewed her two ranges of motion from 2021 and 2022, I find that with her right shoulder, there has been no change, but certainly, there was change with the left as outlined. Further, in the absence of any injuries, which I consider is correct because of her other disabilities, I have to go with the history as provided, saying that it is due to excessive use of her left shoulder as a result of the other injuries.”
Dr Courtenay commented on the absence of any complaint of left shoulder problems to Dr Gothelf, the surgeon who had treated the applicant’s right shoulder injury. He referred to Dr Stening’s findings of “advanced osteoarthritis of the acromioclavicular joint” and stated:
“The reporting of it indicates a moderate degree of arthritis and that is not uncommon for that joint, particularly on the non-dominant side. The two do not really cause a great deal of functional impairment and certainly, it is not consistent with the level of function I was able to observe.”
Dr Courtenay expressed the opinion that it was unfortunate that he had not had the opportunity to re-examine the applicant so that these issues could be clarified. However, he opined that the applicant had not suffered an injury to her left shoulder, that surgery was not reasonably necessary, and that non-operative treatment was the way forward for the applicant “at her age with the non-dominant shoulder”. He thought that the tear of the acromioclavicular joint was consistent with “a lady of her age.” He said this:
“I do not see any evidence of any injury to the left shoulder from the incident on 16 May 2016, that in any way persisted. It certainly did not lead to any loss of movement of the shoulder when I examined her.”
FINDINGS AND REASONS
The issue of whether the applicant suffered an injury to her left shoulder on 16 May 2016 is far easier to resolve than the issue of causal nexus between such an injury and the need for surgery proposed by Dr Stening in 2022. It is true, as Mr Grimes submitted, that the applicant made no reference to an injury to her left shoulder in her initial evidentiary statement. The medical histories prior to the applicant’s attendance on Dr Stening do not specifically record an injury to the left shoulder and some of the medical histories are seemingly inconsistent with such an injury. However, there is unequivocal contemporaneous evidence of such an injury.
The medical certificate issued by the applicant’s general practitioner on 24 May 2016 refers to injury to the “left shoulder/right wrist, both knees, soft tissue injury”. The certificate recorded that the:
“pt tripped hit her head and shoulder on a brick wall.”
As Mr Horan submitted the reference to an injury to the left shoulder is reiterated in the medical certificates of capacity over the next several months. In my opinion, it is improbable that the reference to left shoulder was recorded in error. Curiously, the clinical notes of the Windsor Street Family Practice were not in evidence. However, I draw no adverse inference against the applicant on this count. The notes of the medical practice, the ambulance record and the hospital discharge summary were equally available to both parties and, for reasons which were not explained at the arbitration, were either not obtained or not adduced in evidence.
The other compelling aspect of the evidence which leads me to the conclusion that the applicant suffered a left shoulder injury is the photograph and the applicant’s evidence in relation to it. At the arbitration hearing, the respondent did not challenge the applicant’s evidence that the photograph depicted the condition of her left shoulder following the fall. I would infer that the bruising in the photograph suggests a significant impact in the region of the applicant’s shoulder at the time of her fall as she suggests in her statement. I am satisfied that the applicant has established that she suffered injury to her left shoulder on 16 May 2016.
At the arbitration hearing, it was conceded that there was an absence of complaint concerning the applicant’s left shoulder in the extensive medical record from 2017 until 3 July 2022. On that day Dr Sipeli, the applicant’s general practitioner recorded that the applicant was seen on 3 July 2022. He recorded that the applicant had been experiencing pain in her shoulder since having surgery to her right shoulder in 2017. Her left shoulder “was gradually getting worse and she was referred for an ultrasound.” In a brief report, Dr Sipeli expresses the following opinion on causation:
“The left shoulder arose related to her fall on 16/05/2016 and as a consequence of the accepted injuries. It is not uncommon for opposite joints to be affected as well through compensating.
The surgery recommended by Dr Stening is deemed necessary to reduce the pain to her left shoulder which arose as a result of Doreen’s work-related injury.”
Dr Gothelf, a shoulder surgeon, initially saw the applicant on 2 March 2017. He operated on the applicant’s right shoulder on 11 July 2017. He saw the applicant on multiple occasions following surgery. On 14 February 2018, he reported that the applicant could do most of her work duties but he would “recommend avoiding heavy lifting”.
On 20 November 2018, Dr Gothelf recorded that the applicant felt her right shoulder was “somewhat stiff and wants it improved”. Dr Gothelf referred the applicant for physiotherapy. On 16 January 2019, Dr Gothelf recorded that the applicant had persistent stiffness of the shoulder, especially posterior capsular tightness.
On 26 February 2019, Dr Gothelf recorded complaints noting that the applicant had only had physiotherapy twice recently as “she had had back problems since then”. Dr Gothelf thought that the right shoulder had good movement but persistent stiffness “especially posterior capsular tightness.” Dr Gothelf did not record any examination of the left shoulder, probably because the applicant did not complain of symptoms at that site.
From 1 March 2018, the applicant was treated for her physical and psychological injuries at the Western Sydney Pain Centre by Dr Sushama Deshpande. Treatment was intended to improve the applicant’s response to pain, to wean her off opiate medication, and to improve her psychological health. The serial reports of Dr Deshpande between 1 March 2018 and 12 November 2020 do not contain any reference to a left shoulder condition.
Dr Sheehy, a neurosurgeon, saw the applicant on 10 July 2019 at the request of the respondent and provided a report of 16 July 2019.
Dr Sheehy’s instructions related to the question of the reasonable necessity of a lumbar fusion proposed by Dr Tait. However, he also noted the applicant’s shoulder and neck problems. On his examination of the applicant, he recorded that:
“She is limited in being able to abduct her right shoulder only to 90 degrees but has 180 degrees on the left. Flexion and extension were limited in their terminal 20 degrees. There is no restriction of internal and external rotation of either shoulder.”
Dr Sheehy does not specifically address the import of these findings.
Dr Gehr, an orthopaedic surgeon qualified by the applicant’s solicitor, initially saw the applicant on 2 June 2021 and provided a report of that date. He took a very detailed history of the applicant’s complaints at multiple body sites. He also examined the applicant’s shoulders and recorded the following findings:
“Right rotator cuff muscle wasting.
Normal examination and range of motion of left shoulder, left elbow, left wrist, left hand, able to bury fingertips left hand.
Arthroscopic portals over the right shoulder anteriorly, laterally, and posteriorly measuring approximately 1 cm.”
On 26 May 2022, Dr Gehr saw the applicant again and provided a medical report of that date. He recorded that on examination the applicant had muscle wasting of the right shoulder. He also recorded that:
“She has normal examination and range of motion of left shoulder, left wrist, left hand, able to bury fingertips in the left hand.”
Dr Gehr recorded a significantly diminished range of movement of the right shoulder. He noted that it had deteriorated since 2 June 2021 when he had last examined her.
On 3 April 2023, Dr Gehr provided a further medico-legal report after a re-examination of the applicant. In respect of her current symptoms, the doctor recorded:
“In regard to her left shoulder, she tells me she became symptomatic in September or October 2022.
She tells me the problems with the left shoulder probably developed as a result of being more dependent on the left shoulder as a result of problems with the right shoulder.”
Dr Gehr recorded an improved range of motion of the right shoulder after a significant diminution in the range of movement of the applicant’s left shoulder. In answer to a question as to whether the applicant’s condition arose “directly as a result of the fall on 16 May 2016?”, the doctor stated:
“The left shoulder has arisen as a result of the fall on 16/5/2016.
The medico-legal literature supports involvement of the contra lateral joint in 20% to 40% of cases.”
Dr Tim Anderson, a Medical Assessor, examined the applicant on 6 October 2022. He examined the applicant in respect of several body parts/systems other than the left shoulder. While he examined both the right and left shoulders and recorded a range of movement, he does not comment on the significance of these findings. He recorded abduction on the right of 90 degrees and on the left of 120 degrees.
As Mr Horan submitted, Dr Stening’s opinion on causation is emphatic. As the treating surgeon his opinion is entitled to considerable weight. On the issue of whether left shoulder surgery is reasonably necessary medical treatment, I have no hesitation in preferring his opinion to that of Dr Courtenay. Acceptance of his opinion on the issue because nexus between injury and surgery, however, is more challenging.
When Dr Stening saw the applicant on 14 November and 15 December 2022, he recorded a painful arc of an abduction limited to 90° “with passive ranges of motion greater than active in all directions”. He postulated that an articulated sided tear of the applicant’s supraspinatus had been caused by the injury, which had also caused some aggravation of degenerative changes in the acromioclavicular joint.
Dr Stening’s hypothesis must be tested against the other evidence. Dr Sheehy noted full abduction of the left shoulder on the 16 July 2019. Dr Gehr reported a normal examination and range of movement of the left shoulder in 2021 and again on 26 May 2022. Dr Courtenay recorded 170° of abduction in June 2021. He thought his examinations were not consistent with the tear being caused by injury in 2016.
While the applicant complained of bruising of her arm in 2016 following the injury, she did not complain of any abnormality of left shoulder function at the time and did not complain to a medical practitioner of diminishing function in the left shoulder until five years after the injury. If, as Dr Stening postulates, the articular sided supraspinatus tear was caused by the accident it seems to have had no apparent effect on the applicant’s function throughout this period. In particular, it does not appear to have precluded normal abduction of the shoulder. As Dr Stenning postulates a properly functioning supraspinatus prevents ”subluxation of the humeral head on active abduction.” In these circumstances, I doubt that Stening’s theory convincingly explains the delayed onset of restriction of movement in the applicant’s left shoulder.
Whilst the evidence of Dr Gehr in his ultimate report supports a connection on the basis of the direct injury, it is not possible to understand the logic by which he has arrived at this conclusion in view of the contents of his earlier reports. He provides no explanation of why the applicant’s left shoulder symptoms, which he recorded arose in 2021, resulted from the injury. He made no attempt to reconcile his diagnosis with his previous examination findings of a normal examination and range of movements of the left shoulder.
In my opinion, the applicant’s medical case does not adequately explain the absence of signs on medical examination and the absence of complaint over a period of five years prior to June 2021.The applicant has not made out a case that her need for left shoulder surgery results from injury on the balance of probabilities. There must be an award for the respondent.
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