Bourke v Cabneemm Pty Ltd t/as Canberra Hire

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bourke v Cabneemm Pty Ltd t/as Canberra Hire [2025] NSWPIC 6
APPLICANT:	William Bourke
RESPONDENT:	Cabneemm Pty Limited t/as Canberra Hire
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	7 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dispute as to whether the respondent had placed “injury” to the shoulders in issue under section 4 of the 1987 Act where the section 78 notices of the 1998 Act did not refer to the same; consideration of the requirements in section 79 of the 1998 Act; Held – the respondent had not disputed injury however, in any event, the applicant had established injury to his shoulders under section 4(a) of the 1987 Act; respondent disputed liability under section 60 of the 1987 Act for the proposed bilateral arthroscopic decompression and AC joint debridement and associated costs; the proposed bilateral arthroscopic decompression and acromioclavicular (AC) joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees are reasonably necessary treatment expenses as a result of injury sustained by the applicant on 9 November 2022 in the course of his employment with the respondent; pursuant to section 60 of the 1987 Act the respondent is liable to pay the costs of bilateral arthroscopic decompression and AC joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees; pursuant to section 60 of the 1987 Act the respondent agrees to pay the costs of bilateral C3/4, C4/5, C6/7 facet radiofrequency denervation and steroid injections as a result of injury on 9 November 2022; pursuant to section 60 of the 1987 Act the respondent is to pay for incurred treatment for the applicant’s bilateral shoulder injury and cervical spine treatment expenses on production of accounts, receipts and/or Medicare notice of charge.
DETERMINATIONS MADE:	The Commission determines: 1. The proposed bilateral arthroscopic decompression and acromioclavicular (AC) joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees are reasonably necessary treatment expenses as a result of injury sustained by the applicant on 9 November 2022 in the course of his employment with the respondent. 2. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is liable to pay the costs of bilateral arthroscopic decompression and AC joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent agrees to pay the costs of bilateral C3/4, C4/5, C6/7 facet radiofrequency denervation and steroid injections as a result of injury on 9 November 2022. 4. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay for incurred treatment for the applicant’s bilateral shoulder injury and cervical spine treatment expenses on production of accounts, receipts and/or Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

William Bourke, the applicant, commenced work for the respondent, Cabneemm Pty Limited t/as Canberra Hire, in about January 2022 driving equipment including Portaloo toilets to construction sites. On 9 November 2022 he slipped and fell backwards when alighting from a Portaloo sustaining various injuries. The respondent agrees that Mr Bourke sustained an injury to his cervical spine on 9 November 2022. In these proceedings he claims the cost of bilateral C3/4, C4/5, C6/7 facet radiofrequency denervation and steroid injections. The respondent has now agreed to pay for this treatment.
The dispute requiring determination relates to an allegation that Mr Bourke also sustained injury on 9 November 2022 to both of his shoulders. The claim for compensation in relation to those alleged injuries is for bilateral arthroscopic decompression and acromioclavicular (AC) joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees. Mr Bourke also seeks a general order in relation to incurred s 60 expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed before me for conciliation/arbitration hearing on 23 October 2024 on the MS Teams platform. Mr Graham Barter, counsel, instructed by Ms Rachel Abouchrouche, solicitor, appeared for Mr Bourke who was present. Mr Brendan Jones, counsel, instructed by Ms Cherrie Tippett, solicitor and Abi from the insurer represented the respondent.
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 (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence. The parties made oral submissions which were recorded and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Mr Barter raised a preliminary argument, that the insurer had not disputed that Mr Bourke sustained injury to both his shoulders on 9 November 2022. Mr Jones argued that “injury” was in issue because the notices served pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) asserted that the claimed treatment was not reasonably necessary as a result of an injury as required by s 60 of the Workers Compensation Act 1987 (the 1987 Act).
I proposed that counsel make submissions about this preliminary issue first and I would determine it before dealing with the balance of the dispute. However, Mr Barter proceeded to make submissions about all areas of dispute, so I invited the respondent to do the same.
As the submissions of both parties have been recorded, I will not recite them verbatim but I have referred to the main thrust of their arguments, where relevant, below.

Legislative requirements

Section 78(1) (a) of the 1998 Act requires an insurer to give notice of any decision to dispute liability in respect of a claim or any aspect of a claim. Section 79(2) provides that the notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision. Section 79(3) provides the notice must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.

Section 78 Notices

The respondent’s workers compensation insurer issued a notice dated 11 September 2023 Under the heading “Summary of the decision” it is stated that
“We do not believe that the claimed medical or related treatment is reasonably necessary as a result of an injury as required by section 60 of the Workers Compensation Act 1987.”
Under the heading “Reasons for the decision” the insurer referred to on 11 November 2023 having received notification of an injury Mr Bourke sustained to his lower back on 9 November 2022 when he stepped out of a portable toilet, losing his footing and landing on his back. The insurer noted on 15 November 2022 Mr Bourke attended on Dr Lachlan Facey who diagnosed a low back strain. The insurer then set out evidence about neck and back pain and examination by Dr Ow Yang in May 2023.
The insurer also recorded that on 23 May 2023 Mr Bourke was referred to Dr Sindy Vrancic, orthopaedic surgeon, for review of bilateral shoulder pain which Dr Facey attributed to the fall at work in November 2022. The insurer set out the results of the MRI bilateral shoulder scans and noted that on 11 July 2023 Dr Vrancic opined that Mr Bourke had developed bilateral post-traumatic impingement syndrome on a background of early degenerative arthritis, left side worse than the right side. And as a result Dr Vrancic requested bilateral shoulder arthroscopic decompression and AC joint debridement surgery.
The insurer advised it had sent Dr Vrancic questions on 30 August 2023,
“…in order to gather further information into how the incident on 09 November 2022 in which you fell at work, has substantially contributed to the need for bilateral shoulder surgery. We have attempted to enquire into why the shoulder injury was not reported until 6 months after the workplace fall, what specific areas the surgery is aiming to treat given the large amount of diagnosis found on the MRI and how the fall either caused these injuries or potentially aggravated them. We are yet to receive a response from Dr Vrancic.”
After referring to the proposed cervical spine treatment (which is now agreed) the insurer advised:
“Under s60(2A) of the Workers Compensation Act 1987, we will also be disputing the requested Bilateral Shoulders arthroscopic decompression + AC joint debridement, as we have insufficient evidence to confirm whether this surgery is required as a result of an injury arising out of your employment with CABNEEMM PTY LIMITED, you will not be entitled for compensation for any costs incurred in relation to the above without our prior approval”.
The insurer then sets out the steps necessary for them to provide pre-approval for the treatment and they include sending questions to Dr Vrancic for her to provide further information and advising they had appointed a medical examination with Dr Anthony Smith.
On 18 March 2024 the insurer advised Mr Bourke’s lawyers that they had completed a review of their decision and maintained their decision of 11 September 2023. The insurer noted that their independent medical examiner (IME), Dr Casikar, in report dated 7 September 2023 diagnosed soft tissue injuries to the shoulders and IME Dr Smith in report dated 19 October 2023 opined that it was more likely than not that the symptoms in the shoulders are referred in large part from the cervical spine and Mr Bourke could have aggravated his glenohumeral joint arthritis at the same time and the AC bilateral joint arthritis pre-dated the accident by five or six years and is highly unlikely to be producing any symptoms. The insurer also noted that Dr Smith thought that there was almost no likelihood of that Mr Bourke could have sustained any injury to his rotator cuff in the circumstances he described.
The insurer then set out the findings of Dr Bodel from his report for Mr Bourke dated 18 January 2024. The insurer stated it was not satisfied that the proposed bilateral shoulder procedures were reasonably necessary because the medical evidence did not provide a clear and determinative opinion regarding the reasonable necessity of the proposed treatment, particularly noting Dr Casikar’s diagnosis of soft tissue injury to the shoulders and his recommendation of appropriate alternative conservative management including physiotherapy. The insurer also noted that Dr Smith, in contrast to Dr Casikar, considered the shoulder symptoms were coming from the cervical spine and while he recommended shoulder treatment he found they were not related to the work injury. The insurer also considered that Dr Bodel had not provided convincing evidence about the history of pre-existing pathology.
The insurer concluded this notice by stating “Noting the above, the insurer’s decision dated 11 September 2023 is maintained pursuant to section 60 of the 1987 Act”.
The respondent’s counsel’s submission is that the dispute notices do focus on whether the surgery is required as a result of an injury arising out of employment. He argued that when the notices are collectively read the existence or otherwise of an injury in the sense contemplated by s 4 was canvassed in the notices. I do not accept that submission for the following reasons.
It can be seen that both notices issued by the insurer do not refer to s 4 of the 1987 Act as required in s 79(3) of the 1998 Act. In my view this is a powerful reason why I should determine that the insurer has not placed liability under s 4 in issue. Furthermore, the reasons for the decisions made by the insurer do not refer to an argument that Mr Bourke did not sustain an injury to his shoulders on 9 November 2022. Such an argument is not readily understandable from the reasons given by the insurer. In fact, the insurer references both the opinions of Dr Casikar and Dr Smith who found some injury to the shoulders.
Therefore, I have come to the view that the insurer cannot now argue that Mr Bourke did not sustain injury to his shoulders on 9 November 2022. No application was made by the insurer under s 289A(4) of the 1998 Act to raise an unnotified dispute.
Section 60 of the 1987 Act does have a causal aspect. Not only does it require the treatment to be reasonably necessary, it has to be as a result of injury.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts in each case as discussed in Kooragang Cement Pty Ltd v Bates[1] and in this particular matter Mr Bourke is required to establish the work-related injury he has sustained materially contributes to the need for the proposed arthroscopic decompression and AC joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees. This requirement was confirmed in Murphy v Allity Management Services Pty Ltd.[2] In Murphy Roche DP at [57] also stated that a condition can have multiple causes and 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 the treatment is recoverable under s 60 of the 1987 Act.
[1] (1994) 35 NSWLR 452, (Kooragang).
[2] [2015] NSWWCCPD 49, (Murphy).
In the event that others may take the view that “injury” to the shoulders was in dispute, I am satisfied that injury under s 4(a) of the 1987 Act has been established. Mr Bourke in his statement at [12] says when he fell he landed on his back and slamming his head, neck and both shoulders on the ground. At [13] he referred to having pain around the whole of his shoulders including between his shoulder blades. He explains in his second statement that he did not have recall of having right shoulder pain and seeing the doctor in July 2022.
In the Brindabella Family Practice records it is noted that on 29 July 2022 Mr Bourke consulted Dr Soe complaining of right shoulder pain and injury while at work, fencing two months earlier. It is states “few weeks ago work and lifting and feel pop in right shoulder, pain down the right arm”. An ultrasound of the right shoulder was ordered. The Canberra Imaging Group have advised Mr Bourke did not attend any of their practices in 2022.[3]
[3] ARD p 30.
There is no evidence before the Commission of an ultrasound report from this referral and the next consultation recorded in the clinical notes is not until 11 November 2022 when Dr Facey records “fall at work 2 days ago. Cleaner- cleaning bathroom, slipped on floor, landed backwards on back…ongoing low back pain and neck pain. No limb weakness/ paraesthesia/numbness…”. Dr Facey was concerned about back injury because Mr Bourke previously had undergone back surgery. On 14 February 2023 the doctor records neck pain “with bilateral arm paraesthesias and subjective weakness”. Dr Facey does not make reference to Mr Bourke’s shoulders until the consultation on 10 May 2023 when the doctor recommends bilateral shoulder MRIs to rule out the shoulder as the cause for his pain. On 23 May 2023 Dr Facey referred Mr Bourke to Dr Vrancic.
Jennifer Goedde, physiotherapist from Vibe Rehabilitation reported to Dr Facey on 6 February 2023 that she had been treating Mr Bourke for severe muscular pain in his shoulders and back since the prior November. She reported little progress in pain and range measures in part due to non-compliance with home exercises plan. She referred him to an exercise physiologist to increase his joint movement and retrain the strength and length of the muscles supporting his neck, shoulders and back.[4]
[4] ARD p 76.
Dr Ow-Yang reported to Dr Facey on 3 May 2023 and has a history in the fall on 9 November 2022 Mr Bourke hit the back of his neck and left shoulder and since then his symptoms have included (but are not limited to) bilateral shoulder pain. He reported difficulty raising his arms above his head. On examination he was unable to abduct his shoulders past horizontal with either upper limb. There was asymmetry in muscle bulk in the arms with the left arm measuring 2cm less than the right arm. Power was normal in the elbows, wrists and fingers. Dr Ow-Yang advised he had referred Mr Bourke for an MRI of the shoulders to investigate for any structural pathology in the shoulders causing difficulty with shoulder movement.[5]
[5] ARD p 80.
The left shoulder MRI revealed mild osteoarthritis of the glenohumeral joint associated synovitis throughout the joint, mild AC joint osteoarthritis, supraspinatus tendinosis and low grade partial thickness width articular surface tear of the mid supraspinatus tendon and posterior and posterior inferior labral tear. The right shoulder MRI showed moderate AC joint osteoarthritis, mild posterior subluxation of the humeral head associated with moderate osteoarthritis within the glenohumeral joint posteriorly, diffuse labral fraying associated with a more focal posterior labral tear and full width partial thickness articular surface tears of the supraspinatus tendon and focal delamination intrasubstance tear of the superior fibres of the supraspinatus tendon in keeping with degenerative fraying.
Dr Facey’s referral to Dr Vrancic advised that after the fall the focus was on the lumbar spine because Mr Bourke had a history of spinal surgery. The doctor adds that shortly after his shoulder issues have developed and continue to persist. He states that Mr Bourke has not improved with simple analgesia and physiotherapy.[6]
[6] ARD p 90.
A case conference on 7 June 2023 with Cyvvenia Chiundo, senior rehabilitation consultant, records that Dr Facey advised that the shoulder concern had, in the earlier stages of the claim, been overshadowed by the neck and back pain, however they have always been there.[7] Further case conferences recommended continuing strengthening exercises below the shoulder.
[7] ARD p 91.
Dr Vrancic reported to Dr Facey on 11 July 2023. Dr Vrancic advised that her impression was that Mr Bourke had bilateral post-traumatic impingement syndrome on a background of early degenerative arthritis, left side worse than right. The doctor considered the nature of Mr Bourke’s working career involving repetitive manual duties but she stated that his symptoms are more consistent with an acute traumatic injury consistent with his fall, resulting in subacromial space bursitis tendinosis and AC joint inflammation. Dr Vrancic recommended the proposed surgery and she states she would expect it to reduce the inflammatory load and improve his range of motion enough to be able to resume appropriate duties in the workplace.[8]
[8] ARD p 96.
Dr Vrancic also provided a report to Mr Bourke’s lawyers dated 13 May 2024.[9] In this report she explains why she attributes the shoulder symptoms with the fall as he fell backwards onto his shoulder resulting in bilateral shoulder jolting type issue. She proceeded on the understanding that Mr Bourke had no prior shoulder symptoms. Dr Vrancic says she agrees with Dr Smith that the method of injury would not have caused the rotator cuff or labral tears however she discounts Dr Smith’s views that the symptoms are due to pre-existing arthritis instead she finds inflammatory bursitis was the cause. She explains that the proposed surgery was offered for the acute component of the symptoms. She says given the length of time since she last saw Mr Bourke she would need further MRI scans to be undertaken before embarking on surgery.
[9] ARD p 98.

In a supplementary report dated 16 August 2024 Dr Vrancic comments on the pre-injury reference to right shoulder symptoms. She does not alter her opinion that significant symptomatology is due to the workplace injury but cannot advise what underlying damage was pre-existing and what was post-injury.[10]
[10] ARD p 101.

Dr Casikar

Dr Casikar provided the insurer with a report dated 7 September 2023. He recorded the history that Mr Bourke was cleaning the Portaloos on 9 November 2022 he walked backwards and slipped and fell and injured his back on a ledge and injured his shoulders on a ledge. He had aches and a sharp pain in the shoulders. He states that the next day Mr Bourke saw Dr Facey and he was told to rest, but because of persistent pain in the back he was referred for an MRI in his back and shoulders and he later consulted Dr Vrancic who recommended bilateral shoulder surgery, left performed first. Dr Casikar took the history that physiotherapy had improved the shoulders to a significant degree. On examination Dr Casikar recorded that movements of both shoulders was very significantly reduced with no evidence of neurological injury in the upper limbs. I note the consultation was conducted over Zoom and the doctor says there was a regular break of telecommunication.
Dr Casikar sets out the findings of the MRI shoulder scans dated 17 May 2023. He diagnoses a soft tissue injury to the shoulders which was gradually improving. He attributed neck pain to the injury to the shoulders. The doctor recommended ongoing physiotherapy. He stated at that stage Mr Bourke’s functional capacity is very limited mainly because of pain in both shoulders but he thought this would improve with appropriate treatment. At the time of the examination Dr Casikar found functional capacity to work in any type of employment is extremely poor unless his shoulder problems improve to a large extent.
Dr Casikar did not comment on the claimed proposed bilateral shoulder procedures.

Dr Smith

Dr Smith provided a report for the insurer dated 19 October 2023. He took the history that Mr Bourke slipped and fell backwards, landing on is back with his legs going up in the air and hitting his head and injuring both shoulders. He records that the pain is in the back of the shoulders, made worse by overhead activity or doing labouring work. Dr Smith refers to the MRI scans of the shoulders and notes there is no past history of shoulder problems. The doctor expresses the view that the symptoms in both shoulders are more likely than not due to the cervical spine. He states that he has bilateral glenohumeral joint osteoarthritis demonstrated on MRI scan and Dr Smith says this pre-dated the fall. He says he could have aggravated this at the time of the fall. He says the mechanism of the fall could not have injured the rotator cuffs or caused labral tears.
Dr Smith opines that Mr Bourke would have recovered from any aggravation to the glenohumeral joints with his first good day and the osteoarthritis will get slowly worse and any treatment such as shoulder replacement or fusion would not be for the workplace injury. He does not comment on the claimed proposed treatment for the shoulders.

Dr Bodel

Dr Bodel provided medico-legal reports for Mr Bourke dated 18 January 2024,[11] 28 May 2024[12] and 3 September 2024.[13] On examination Dr Bodel found restricted range of shoulder movement in each shoulder. He also found impingement in each shoulder, worse on the left. He advised that the injury caused rotator cuff pathology in both shoulders and that the proposed treatment was warranted and reasonable and necessary. In his third report, Dr Bodel considers the general practitioner’s records about the prior right shoulder presentation and he explains why it appeared to be a minor soft tissue injury with no sequelae and that the surgery proposed by Dr Vranic is as a result of the fall at work.
[11] ARD p 15.
[12] ARD p 43.
[13] ARD p 46.

Injury

As I have found above the insurer has not put “injury” under s 4 of the 1987 Act in issue. I indicated nonetheless I would have found for Mr Bourke had this been in issue.
The respondent’s counsel submitted that “injury” to the shoulders is contingent upon the immediate onset of symptoms but the treating contemporaneous records make no reference to the shoulders being injured. It is argued the fact that Mr Bourke attended his general practitioner on multiple occasions and there is no mention of injury to his shoulders, that the Commission should be satisfied that this is not a case of oversight by the treating doctor. Counsel summarised the contents of the various attendances, which I am not going to repeat. It is clear that there is no mention of the shoulders in the serial clinical notes for many months.
However, Dr Facey confirms that he regarded the shoulders as having been injured in the fall on 9 November 2022 but that his initial focus was on Mr Bourke’s back as he had previous spinal surgery. Dr Facey’s referral to Dr Vrancic and the case conference notes for 7 June 2023 both contain this explanation. Furthermore, the physiotherapist, Ms Goedde from Vibe Rehabilitation, reported on 6 February 2023 that she had been treating Mr Bourke for severe muscular pain in his shoulders and back since the prior November. I find this is powerful evidence to satisfy s 4 of the 1987 that in the fall Mr Bourke did sustain injury to both his shoulders. Furthermore, in his statement evidence about the fall Mr Bourke describes striking his shoulders. In addition, Dr Casikar, Dr Bodel and Dr Vrancic have found there was injury to the shoulders. Dr Casikar found restricted movement of the shoulders and Dr Vrancic found a markedly positive impingement sign and says Mr Bourke has the typical painful arc consistent with tendinosis and AC joint inflammation.
I find that notwithstanding there is no contemporaneous entry about shoulder injury, Dr Facey’s evidence and that of the physiotherapist do support a finding of injury under s 4(a) of the 1987 Act. I also do not accept the respondent’s counsel’s submission that if Mr Bourke suffered an acute injury you would expect an entry by the doctor to that effect. However, while this type of evidence may be ideal, as I have stated Dr Facey explains that the shoulders were injured and he was focusing on Mr Bourke’s back because he had prior surgery to his spine.

As a result of

The surgery proposed by Dr Vrancic is to lessen his pain and improve his movement enough to resume appropriate work duties. She wished to do the left shoulder first and proceed after 6 to 12 weeks with the right shoulder. In her report dated 11 July 2023 Dr Vrancic states that Mr Bourke’s symptoms are more consistent with an acute traumatic injury consistent with his fall resulting in subacromial space bursitis tendinosis and AC joint inflammation.[14] In her report dated 13 May 2024 Dr Vrancic discusses the presence of underlying degenerative changes in the shoulders and explains that the treatment she is proposing is not for the degenerative condition but to deal with the workplace injury.[15] Dr Vrancic is a practising orthopaedic surgeon specialising in the upper limbs. I find that her opinion, therefore, should be given weight. She has clearly explained why the procedures she proposes to both shoulders is a result of the fall on 9 November 2022 and I accept her reasoning.
[14] ARD p 95.
[15] ARD p 99.
I prefer the opinion of Dr Vrancic to that of Dr Casikar because he has not actually considered the treatment Dr Vrancic is proposing. In terms of causation, Dr Casikar does find soft tissue injury to the shoulders however he has not given as thorough analysis of the exact type of injury as has Dr Vrancic. Dr Smith attributed the shoulder symptoms to the cervical spine although he does state that Mr Bourke could have aggravated his glenohumeral joint arthritis. Even though Dr Smith was aware of the type of treatment proposed by Dr Vrancic, in answer to point 4 of his report he does not consider the proposed treatment. His answer to question 6 about the treatment proposed by Dr Vrancic he gives a non-responsive answer, stating with appropriate treatment, there is a reasonable likelihood he will be able to return to some employment. Dr Vrancic has explained how the treatment she proposes is to deal with the acute injury. Therefore, again I prefer the opinion of Dr Vrancic to that of Dr Smith as it provides a more thorough and reasoned analysis of Mr Bourke’s injury.
I am not assisted by the opinion of Dr Bodel, even though he agrees with Dr Vrancic. I prefer her findings and reasoning as Dr Bodel seems to fall back on an aggravation of disease type analysis.
I find based on Dr Vrancic’s evidence that Mr Bourke has established the work-related injury has materially contributed to the need for the claimed proposed arthroscopic decompression and AC joint debridement plus any other associated costs such as rehabilitation, hospital, anaesthetist and surgical assistant fees. I find the causation element in s 60 has been established.

Reasonably necessary

In terms of reasonably necessary component of s 60 I find Dr Vrancic’s evidence to be compelling. She has explained that the proposed treatment will not cure all of Mr Bourke’s shoulder symptoms but should reduce his pain and increase movement in the shoulders. The factors discussed in Diab as to the appropriateness of the treatment is satisfied by Dr Vrancic. Alternate treatment such as physiotherapy has not been successful in ameliorating Mr Bourke’s symptoms according to the physiotherapist. Dr Vrancic has fairly stated that she has not examined Mr Bourke for some time and will need to do so before embarking on surgery. She impresses me as a very careful orthopaedic surgeon. I find the cost of the procedure and associated expenses is not excessive especially if one considers the potential functional gains to Mr Bourke if the surgeries are successful.
The respondent’s counsel argued that because Dr Vrancic was recommending staging the procedures to the left and right shoulders and there is the cervical spine procedure, the Commission should not make an order at this stage. Counsel argued that the appropriate course would be to wait and see what happens with the neck. Counsel also submitted that it has been a considerable period of time since Dr Vrancic has seen Mr Bourke and it may be that he does not need the surgeries she has proposed. I am not convinced that these arguments have merit. Dr Vrancic is a professional and given the care she has demonstrated in her reports I am confident that, if when she consults with Mr Bourke in the future, she forms the opinion that surgery for the shoulders was no longer indicated, she would advise that. Just because the Commission makes orders for the surgeries does not force the procedures to go ahead.
Therefore, I find the proposed treatment is reasonably necessary as a result of injury sustained on 9 November 2022 in the course of Mr Bourke’s employment with the respondent.

[2025] NSWPIC 6

7 January 2025