Boyd v Roo Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Boyd v Roo Group Pty Ltd [2024] NSWPIC 23
APPLICANT:	Lachlan Boyd
RESPONDENT:	Roo Group Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	17 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses, namely surgical treatment proposed by Dr Sushil Pant, following injury to left shoulder on 11 April 2023; Held – award for the applicant for medical expenses including associated treatment expenses, in respect of the surgery proposed by Dr Sushil Pant, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release, as a result of the injury to the left shoulder on 11 April 2023.
DETERMINATIONS MADE:	The Commission determines: 1. Amended name of the respondent to “Roo Group Pty Ltd”. 2. Respondent to pay the applicant’s s 60 expenses, including associated treatment expenses, in respect of the surgery proposed by Dr Sushil Pant in his report of 1 June 2023, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release, as a result of the injury to the left shoulder on 11 April 2023.

STATEMENT OF REASONS

BACKGROUND

Lachlan Boyd (the applicant) was employed by Roo Group Pty Ltd (the respondent) as a plumber.
In the course of his employment on 11 April 2023, the applicant sustained an injury to his left shoulder when he was performing work duties.
The applicant made a claim for medical treatment proposed by Dr Sushil Pant, in his report of 1 June 2023, in relation to a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release as a result of the injury on 11 April 2023.
The respondent disputed liability for the claim for the proposed surgery to the left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a conciliation conference and arbitration via video link on 10 January 2024. The applicant was represented by Mr Mischa Hammond, who was instructed by Mr Andrew Joy of Law Partners Personal Injury Lawyers. The respondent was represented by Mr Paul Stockley, who was instructed by Mr Stephen Lee and Ms Sevastelis of Lee Legal Group. Mrs Georgia O’Grady from the insurer, Employers Mutual (NSW) Limited also attended the conciliation conference and arbitration.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery to the left shoulder proposed by Dr Sushil Pant, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release, is reasonably necessary as a result of the injury to the left shoulder on 11 April 2023.

PROCEDURE BEFORE THE COMMISSION

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents

SUBMISSIONS

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
However, the respondent submitted that there was no precise information as to the costs of the proposed treatment. Further, the respondent argued that Dr Pant and Dr Gehr did not adequately explain the nature of the pathology in the left shoulder, how it was caused by the incident on 11 April 2023 and how surgery was likely to be therapeutic. The respondent did concede that there was no other cause of the condition in the left shoulder apart from the work injury but argued that it was far from clear that the biceps tenodesis and capsular release would be therapeutic, and that it could worsen the capsulitis.
The applicant submitted that the s 78 Notice dated 28 September 2023 disputed the need for surgery on the basis that all non-surgical treatment had not been exhausted. Further, the applicant submitted that Dr Quain who examined the applicant on behalf of the respondent had carried out his examination some months after Dr Pant and by that stage there had been a deterioration in the applicant’s condition and Dr Quain’s examination of the applicant had been limited compared to that carried out by Dr Pant in May and June 2023.

FINDINGS AND REASONS

At the commencement of the proceedings the name of the respondent was amended by consent to “Roo Group Pty Ltd.”
It was not disputed that the applicant sustained injuries to the left shoulder on 11 April 2023.

Evidence of the applicant, Mr Boyd

In a statement dated 9 November 2023, the applicant stated that he commenced working for the respondent as a plumber in November 2021. He described an incident at work on 11 April 2023 when he was moving equipment weighing approximately 60 kilograms with a colleague up a 1.5 metre retaining wall. The applicant wrote:
“I was positioned at the bottom, and my colleague was at the top. The equipment became unstable, and I tried to prevent it from falling and causing damage. I heard 2 pops/clicks whilst the movement to the position was made feeling pins and needles in my left arm and hand with coldness to my hand almost immediately after. I then shortly after had the onset of pain”.
The applicant stated that he had an MRI scan on 26 April 2023 and consulted his general practitioner, Dr Adelina Gendi, on 28 April 2023 and she certified him as having no work capacity. The applicant said that he then started to see a physiotherapist in early May 2023 and on 10 May 2023 consulted Dr Sushil Pant, orthopaedic surgeon. The applicant wrote: “I reported my left shoulder injury, shoulder pain, difficulties with overhead activities, internal rotations, increased tenderness over my biceps, and AC joint. Dr Pant recommended a bicep sheath injection to relieve the pain.”
The applicant stated that on 23 May 2023, he had the bicep sheath injection administered by Dr Jun Lian Zhang. The applicant said that he tolerated the procedure well, although the pain significantly worsened after the injection.
The applicant stated that he saw Dr Sushi! Pant on 1 June 2023 and explained to Dr Pant that the injection in the biceps sheath had not provided relief, and he was experiencing increased shoulder pain. The applicant stated that Dr Pant recommended surgical treatment due to his age and occupation, and suggested left shoulder arthroscopy, subacromial decompression, and immediate post-surgery rehabilitation.
The applicant stated that he was currently maintaining a routine of taking hot showers in the morning to alleviate pain in the front of his shoulder and performing exercises prescribed by Dr Pant and his physiotherapist, Dominic Lopez, to maintain joint movement and prevent a frozen shoulder. The applicant stated that while this helped with initial pain, he still experienced ongoing tenderness and soreness persistently throughout the day and to this worsened during the night. The applicant stated that his current treatment involved consultations with Dr Gendi on a monthly basis, consultations with his psychologist, Dr Charlie lgnjatovic minimum one to two times a week, consultations with his physiotherapist, Mr Dominic Lopez one to two times a week, medication as needed and self-directed exercises on a daily basis.
The applicant wrote:
“Despite attempting conservative treatments, such as self-directed exercises from Dr Pant, physiotherapy sessions with Mr Lopez, and using heat and ice packs, along with a cortisone injection, the pain either persisted or worsened. Even after an extended period of physiotherapy, I felt like I was making little progress and continued to experience ongoing and constant pain. I recognised the importance of these exercises in strengthening my muscles, yet they remained painful, particularly in my left arm”.

Medical reports

Medico-legal reports

In a report dated 12 September 2023, Dr Gehr, consultant orthopaedic surgeon, noted that the applicant injured his left shoulder on 11 April 2023 when he was moving equipment weighing about 60kg with the assistance of a colleague up a 1.5m retaining wall. Dr Gehr noted that the applicant said the equipment became unstable and he attempted to prevent it falling, thereby injuring his left arm. Dr Gehr noted that the applicant had felt some clicks in his shoulder and then developed pain some minutes later and said that it had felt as “if the left arm had gone dead.”
Dr Gehr noted that the applicant went to Sutherland Hospital where he was examined. He reported that the applicant had an MRI scan on 26 April 2023 and then saw Dr Pant on 10 May 2023. Dr Pant had stated that the acromioclavicular joint (AC joint) was tender with prominence and most of the symptoms related to the AC joint, the biceps and the superior labral anterior posterior (SLAP) region. Dr Pant had made a diagnosis of left shoulder injury, subacromial bursitis and biceps tendinitis. Dr Gehr noted that Dr Pant referred the applicant for a biceps injection, which did not help. Dr Gehr noted that Dr Pant then made a diagnosis of left shoulder subacromial bursitis, biceps tendinitis and capsulitis, and recommended that the applicant have a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular relief.
On examination, Dr Gehr reported slight prominence left AC joint and some wasting posterior aspect of left shoulder. He noted that the range of motion of left shoulder was flexion 30 degrees, extension 20 degrees, abduction 20 degrees, adduction 0 degrees, external rotation 0 degrees, and internal rotation 10 degrees and there was pain with rotation.
Dr Gehr concluded that the applicant injured his left shoulder at work on 11 April 2023 and since that time, he had extreme pain and markedly reduced range of motion of the left shoulder. Dr Gehr noted that on examination the applicant had advanced posterior shoulder muscle wasting with little if any movement of the left shoulder as if the shoulder is locked. The MRI of the left shoulder dated 26 April 2023 showed no dislocation. Dr Gehr noted that there has been a recommendation by his surgeon for the subacromial bursitis, biceps tendinitis and capsulitis. Dr Gehr made a diagnosis of a left shoulder soft tissue injury, with significant pain and shoulder locked with little if any external rotation. He recommended surgery and an immediate review by the treating surgeon.

Dr Gehr wrote:
“I would recommend the treatment plan left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release has been reasonably necessary”.
He was of the opinion that the applicant had exhausted all nonoperative measures and the proposed surgery was appropriate with “potential benefit of 80% to 90%.”
In a report dated 19 July 2023, Dr Stephen Quain, orthopaedic surgeon, noted that on 11 April 2023 the applicant was attempting to push a heavy drum up onto a retaining wall and apparently took the load when his fellow worker slipped and when the drum started to topple. Dr Quain noted that the applicant described acute pain with his arm in full forward flexion and feeling a "click" and within a few minutes he developed pins and needles in the left hand and increasing pain in the arm.
Dr Quain noted that the applicant had an MRI about two weeks later and was referred to Dr Pant who recommended a cortisone injection, which did not help. Dr Quain noted Dr Pant’s comment in relation to the MRI and the alleged under-reporting of biceps pathology. Dr Quain noted that over the last six weeks, the applicant had actually deteriorated with ongoing diffuse pain, especially at night, and progressive stiffness in the left shoulder. The applicant stated that he has weakness in the arm, and he is unable to use it for normal activities of daily living.
On examination, Dr Quain wrote:
“On observation, there is no deformity but slight prominence of the left AC joint- He was not tender however on palpating the clavicle, the AC joint or the acromion itself, but complained of pain over the anterior capsule and the long head of biceps. The most characteristic thing on active range of motion was the degree of painful restricted motion, with only 60° of forward flexion, 20° of extension, abduction of 45°, external rotation of 30° and on internal rotation he could not reach to the buttock. With the stiffness in the glenohumeral joint he also had an abnormal scapulothoracic rhythm. Specifically testing the long head of biceps, Speed's test was positive but Yergason's was negative and I was unable to do an O'Brien's test due to the restriction.
In his hand it was cool but he had normal hand, finger and wrist movements, and I do not believe he had any overt signs of regional pain syndrome”.
(I note that Yergason’s test is used to test for biceps tendon pathology, such as bicipital tendonitis and an unstable superior labral anterior posterior (SLAP) lesion, O’Briens test is used to assess the cause of shoulder pain such as cartilage (labral) tear or an acromioclavicular (AC) joint problem) and Speeds test is used to identify the presence of a pathology involving the biceps tendon or glenoid labrum.)
Dr Quain considered that the applicant’s history was suggestive of a subluxation and the neurological symptoms of a so-called "dead arm syndrome", but subsequently the dominant feature is of a severe capsulitis with restriction of all movements. Dr Quain made a diagnosis of a fairly advanced and deteriorating capsulitis of the left shoulder. He wrote: “I do not believe that he has ongoing instability and I would question whether the biceps is the primary generator of pain, as suggested by Dr Pant”.
Dr Quain was asked whether the proposed surgery was reasonably necessary for the applicant’s work related condition and replied:
“In my view, I do not believe it is indicated at this time as I believe the risks of the capsuiitis being worsened are significant. I disagree with Dr Pant's comments about the biceps and at the age of 28, I doubt that there is significant pathology in the biceps long head. At three months, 1 believe it is premature to do a capsulectomy”.
Dr Quain expressed the view that as it was a relatively short time since the initial injury, the applicant should undergo supervised physiotherapy and in particular, hydrotherapy to try and regain a more normal range of motion and that this should continue for at least the next 8 to 12 weeks.
Dr Quain was not in favour of this surgery at this time, especially biceps tenodesis, but stated that if the applicant did undergo arthroscopy and decompression, he would normally have his arm resting in a sling for a short period, of approximately two weeks, and then a fairly vigorous exercise program to regain range of motion. He expressed the view that the time since the injury without physiotherapy treatment had delayed recovery. He noted that the applicant was left handed, and his work as a plumber was physically demanding, so the applicant was unfit for any form of work at this time. Dr Quain believed it was unlikely he would be fit for at least the next two months.
Dr Quain concluded that the priority was to help the applicant regain range of motion. He wrote: “If the physiotherapy and hydrotherapy fails to improve him, there may be a role for arthroscopy and decompression, but in my view, the indications for biceps release and tenodesis are not strong”.

Reports of treating doctors

In a report dated 10 May 2023, Dr Sushil Pant, treating orthopaedic shoulder surgeon, noted that the applicant reported significant shoulder pain and difficulty with activity overhead as well as with internal rotation since he injured his left shoulder on 11 April 2023. Dr Pant made a diagnosis of a left shoulder injury with subacrominal bursitis and biceps tendonitis.

Dr Pant wrote:
“On examination he has a normal posture about the shoulder. He has no significant supraspinatus fossa pain. His AC joint is somewhat tender with a slight prominence about the AC joint which is new since the injury. He is very tender over his biceps which accounts for a lot of the pain. He has a positive O'Brien's. He has forward elevation to 90, external rotation to 20 and IR to his sacrum. His cuff is intact although there is some pain on loading. He has had an MRI of the shoulder at Shire Medical Imaging on 26 April 2023. That demonstrates evidence of bursitis. The remainder of the cuff is relatively preserved. It is important to note that the MRI under-calls biceps tendonitis in 50% cases.
Clinically, most of Lachlan's symptoms are driven by the AC joint, the biceps and the SLAP region. What I have recommended is a biceps sheath injection which will be somewhat diagnostic to see if that relieves some of his pain. I have given him a sheet for self directed exercises over the next one to two weeks to allow the biceps sheath injection to work. At about two weeks' time he can see his therapist to commence some scapular stabilising and deltoid exercises”.
In a report to Dr Gendi dated 1 June 2023, Dr Pant made a diagnosis of left shoulder subacrominal bursitis, biceps tendonitis and capsulitis. He noted that the cortisone injection into the biceps sheath had not helped. Dr Pant noted that on re-examination, the applicant was a lot worse than he had been when he last saw him and had extensive pain around the shoulder. He noted that the applicant could pinpoint the exact areas of tenderness and had pain on capsular stretch as well as pain within the rotator interval around the biceps high in the groove.
Dr Pant wrote:
“MRI under calls biceps pathology more than half the time. It is a clinical diagnosis largely and today I am able to assess his biceps tendon high in the groove and this is the main driver of his pain.
Lachlan is at the end of his tether and has asked about surgical options. Given his young age and his occupation, I agree that surgical treatment will be of benefit. This would involve an arthroscopy, decompression, acromioplasty, biceps tenodesis and
capsular debridement. The main risk of surgery is postoperative capsulitis. Otherwise he will commence rehabilitation immediately after surgery. He will be in a sling for six weeks and he should be back to work somewhere within three to six months depending on his progress. He understands the risks of surgery and we will get the paperwork started today”.
In a report to iCare dated 1 June 2023, Dr Pant was of the view that the applicant’s current symptoms were not due to any pre-existing conditions. He wrote:
“The Buford complex is not the cause of Lachlan's shoulder pain. He injured his left shoulder lifting a heavy drum on 11 April 2023. Prior to this he had been very active and coped with his shoulder quite well. Since his accident, he reports significant shoulder pain. He now has difficulty with activity overhead as well as with internal rotation”.
Dr Pant considered that the nature of the applicant's shoulder injury was unlikely to respond to physiotherapy.
In a report dated 4 October 2023, Dr Pant expressed the view that the applicant had exhausted non-surgical options and recommended that the applicant undergo a Left Shoulder Arthroscopy, Subacromial Decompression, Acromioplasty, Biceps Tenodesis and Capsular Release. He wrote: “My recommendation is based on my clinical assessment and close to two decades of clinical practice. I am a shoulder surgeon who treats shoulder conditions exclusively”. He noted that “The MRI is not able to see inside the shoulder”.

In the report of a MRI scan of the left shoulder dated 26 April 2023, Dr Moharami, radiologist, concluded:
“Rotator cuff is intact. Biceps is intact. No features of capsulitis. No fracture is seen. No evidence of recent dislocation.
Trace of effusion in the subacromial bursa is nonspecific, but may represent very early bursitis”.
In a report dated 23 May 2023, Dr Jun-Liang Zang noted under “Clinical notes” clinically biceps tendonitis, for guided CSI left biceps sheath.
In a State Insurance Regulatory Authority Certificate of Capacity dated 28 April 2023, Dr Gendi noted that the applicant was to be referred for physiotherapy and ultra sound (US) of shoulder joint. She certified him as having no current work capacity.

Discussion

The matter to be determined is whether the surgery proposed by Dr Pant, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release, was reasonably necessary as a result of the injury on 11 April 2023.
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke CCJ in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.     However, 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 is 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 purpose of the Act.
3.      Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the 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 this particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the Workers Compensation Act 1987 Act in Bartolo v Western Sydney Area Health Service(1997) NSWCC 1 and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
In Diab v NRMA Ltd, [2014] NSWWCCPD 72 (Diab) Roche DP provided a summary of the relevant principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts”.
The respondent did not dispute that the applicant had sustained injuries to his left shoulder on 11 April 2023 and conceded that there was no other cause of the condition in the left shoulder apart from the work injury. The respondent’s case was that Dr Pant and Dr Gehr did not adequately explain the nature of the pathology in the left shoulder, how it was caused by the incident on 11 April 2023 and how surgery was likely to be therapeutic. The respondent submitted that it was far from clear that the biceps tenodesis and capsular release would be therapeutic, and it could worsen the capsulitis.
The applicant gave evidence, which I accept, that the injection in the biceps sheath had not provided relief, and he was experiencing increased shoulder pain. The applicant stated that Dr Pant recommended surgical treatment due to his age and occupation, and suggested left shoulder arthroscopy, subacromial decompression, and immediate post-surgery rehabilitation.
The applicant described a routine of taking hot showers in the morning to alleviate pain in the front of his shoulder and performing exercises prescribed by Dr Pant and his physiotherapist, to maintain joint movement and prevent a frozen shoulder. The applicant stated that while this helped with initial pain, he still experienced ongoing tenderness and soreness persistently throughout the day which worsened during the night. The applicant stated that his current treatment involved consultations with Dr Gendi on a monthly basis, consultations with his psychologist a minimum 1-2 times a week, consultations with his physiotherapist one to two times a week, medication as needed and self-directed exercises on a daily basis. The applicant said that despite attempting conservative treatments, such as self-directed exercises, physiotherapy, using heat and ice packs, and having a cortisone injection, the pain had either persisted or worsened.
I accept the applicant’s evidence and I am satisfied that he continues to have significant and serious problems with his left shoulder with considerable deterioration since the injury on 11 April 2023 despite the treatment provided.
Dr Pant was the first orthopaedic specialist to see the applicant. Dr Pant examined the applicant on 10 May 2023 and noted the applicant reported significant shoulder pain and difficulty with activity overhead as well as with internal rotation since he injured his left shoulder on 11 April 2023. Dr Pant made a diagnosis of a left shoulder injury with subacrominal bursitis and biceps tendonitis. Dr Pant noted that on examination there was no significant supraspinatus fossa pain, the AC joint was somewhat tender with a slight prominence about the AC joint (which was new since the injury) and he was very tender over his biceps which accounted for a lot of the pain. The applicant had a positive O'Brien's, forward elevation to 90, external rotation to 20 and IR to his sacrum. The applicant’s cuff was intact although there was some pain on loading.
Dr Pant noted that the MRI of the shoulder on 26 April 2023 demonstrated evidence of bursitis but the remainder of the cuff was relatively preserved. However, Dr Pant stated that it was important to note that the MRI under called biceps tendonitis in 50% cases. Dr Pant concluded that most of the applicant's symptoms were driven by the AC joint, the biceps and the SLAP region. He recommended a biceps sheath injection which “will be somewhat diagnostic to see if that relieves some of his pain”. Dr Pant also gave the applicant a sheet for self directed exercises over the next one to two weeks to allow the biceps sheath injection to work and recommended seeing his therapist to commence some scapular stabilising and deltoid exercises in two weeks.
On 1 June 2023, Dr Pant added made capsulitis to his diagnosis. He noted that the cortisone injection into the biceps sheath had not helped and that on re-examination, the applicant was a lot worse that he had been when he last seen with extensive pain around the shoulder. He noted that the applicant could pinpoint the exact areas of tenderness and had pain on capsular stretch as well as pain within the rotator interval around the biceps high in the groove.
Dr Pant again observed that MRI under-calls biceps pathology more than half the time. He considered that it was a clinical diagnosis largely and he was able on that day to assess his biceps tendon high in the groove and this was the main driver of his pain.
Dr Pant noted that given the applicant’s young age and his occupation, surgical treatment will be of benefit and such treatment would involve an arthroscopy, decompression, acromioplasty, biceps tenodesis and capsular debridement. Dr Pant identified the main risk of surgery was postoperative capsulitis but said that the applicant would commence rehabilitation immediately after surgery and should be back to work somewhere within three to six months depending on his progress.
In a report dated 4 October 2023, Dr Pant expressed the view that the applicant had exhausted non-surgical options. He recommended that the applicant undergo a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release based on his clinical assessment.
The next orthopaedic surgeon to examine the applicant was Dr Quain on 13 July 2023. Dr Quain noted that Dr Pant had recommended a cortisone injection, which did not help. Dr Quain noted Dr Pant’s comment in relation to the MRI and the alleged under-reporting of biceps pathology. Dr Quain also noted that over the last six weeks, the applicant had actually deteriorated with ongoing diffuse pain, especially at night, and progressive stiffness in the left shoulder and weakness in the arm.
On examination, Dr Quain observed a slight prominence of the left AC joint. The applicant was not tender however on palpating the clavicle, the AC joint or the acromion itself, but complained of pain over the anterior capsule and the long head of biceps. Dr Quain considered that the most characteristic thing was the degree of painful restricted motion, with only 60° of forward flexion, 20° of extension, abduction of 45°, external rotation of 30° and on internal rotation he could not reach to the buttock. He noted that with the stiffness in the glenohumeral joint the applicant also had an abnormal scapulothoracic rhythm. Dr Quain commented that on testing the long head of biceps, Speed's test was positive but Yergason's was negative and he was unable to do an O'Brien's test due to the restriction.
Dr Quain made a diagnosis of a fairly advanced and deteriorating capsulitis of the left shoulder. He wrote: “I do not believe that he has ongoing instability and I would question whether the biceps is the primary generator of pain, as suggested by Dr Pant”.
Dr Quain did not believe that surgery as recommended by Dr Pant was indicated at this time as the risks of the capsulitis being worsened were significant. He disagreed with Dr Pant's comments about the biceps, and doubted that there was significant pathology in the biceps long head at the age of 28. He concluded that at three months it was premature to do a capsulectomy and the applicant should undergo supervised physiotherapy and in particular, hydrotherapy, to try and regain a more normal range of motion and that this should continue for at least the next 8 to 12 weeks.
Dr Quain stated that if the applicant did undergo arthroscopy and decompression, he would normally have his arm resting in a sling approximately two weeks, and then undergo a fairly vigorous exercise program to regain range of motion. He noted that the applicant was left handed, and his work as a plumber was physically demanding, so the applicant was unfit for any form of work at this time.
Dr Quain concluded that if the physiotherapy and hydrotherapy failed to improve him, there may be a role for arthroscopy and decompression, but in his view, the indications for biceps release and tenodesis were not strong.
Dr Gehr examined the applicant on 12 September 2023. On examination, Dr Gehr noted slight prominence left AC joint. He reported that the range of motion of left shoulder was flexion 30 degrees, extension 20 degrees, abduction 20 degrees, adduction 0 degrees, external rotation 0 degrees, and internal rotation 10 degrees and there was pain with rotation. Dr Gehr noted that the applicant had advanced posterior shoulder muscle wasting with little if any movement of the left shoulder as if the shoulder is locked.
Dr Gehr concluded that since the injury on 11 April 2023 and since that time, the applicant had extreme pain and markedly reduced range of motion of the left shoulder. Dr Gehr made a diagnosis of a left shoulder soft tissue injury, with significant pain and shoulder locked with little if any external rotation. He recommended surgery and an immediate review by the treating surgeon. Dr Gehr concluded that the treatment plan left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release was reasonably necessary. He was of the opinion that the applicant had exhausted all nonoperative measures and the proposed surgery was appropriate with “potential benefit of 80% to 90%.”
I am satisfied that the applicant has exhausted all non operative treatment. Both Dr Pant and Dr Gehr expressed the view that left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release was reasonably necessary. Dr Quain expressed the opinion on 13 July 2023 that eight to twelve weeks of supervised physiotherapy should be undertaken by the applicant to try and regain a more normal range of motion. This treatment has been provided and the applicant still has pain, restriction of movement and wasting in the left shoulder and has been unable to return to work in any capacity.
Dr Quain’s opinion also differed from that of Dr Pant and Dr Gehr in that Dr Quain concluded that if physiotherapy and hydrotherapy failed to improve him, there may be a role for arthroscopy and decompression, but the indications for biceps release and tenodesis were not strong. Dr Quain also identified postoperative capsulitis as a risk. Biceps tenodesis and capsular release were recommended as part of the operative treatment by both Dr Pant and Dr Gehr. It appeared that a factor in Dr Quain’s belief that the indications for biceps release and tenodesis were not strong was the differences in examination findings between him and Dr Pant and the degree of reliance upon the MRI investigation.
Dr Pant had the benefit of examining the applicant at an earlier stage before his condition deteriorated and the applicant developed capsulitis. No diagnosis of capsulitis was made in Dr Pant’s first examination on 10 May 2023 and it appeared that capsulitis developed between that examination and the next consultation with Dr Pant on 1 June 2023. Dr Pant in his examinations made findings of the applicant being very tender over his biceps which accounted for a lot of the pain, a positive O'Brien's test, range of movements of forward elevation to 90, external rotation to 20 and IR to his sacrum. He noted that the applicant’s cuff was intact although there was some pain on loading. On 1 June 2023, Dr Pant noted that the applicant could pinpoint the exact areas of tenderness and had pain on capsular stretch as well as pain within the rotator interval around the biceps high in the groove and this was the main driver of his pain.
Dr Quain noted complaints of pain over the anterior capsule and the long head of biceps. Dr Quain commented that on testing the long head of biceps, Speed's test was positive but Yergason's was negative and he was unable to do an O'Brien's test due to the restriction of movement. Dr Quain made a diagnosis of a fairly advanced and deteriorating capsulitis of the left shoulder and did not believe that the applicant had ongoing instability and questioned whether the biceps is the primary generator of pain, as suggested by Dr Pant.
The differences in the examination findings were significant. I am satisfied that Dr Pant was in a better position to make an assessment of the applicant’s condition as he had examined the applicant twice before the applicant saw Dr Quain. The fact that the applicant had fairly advanced and deteriorating capsulitis of the left shoulder by the time he was examined by Dr Quain meant that Dr Quain was unable to do an O’Brien’s test (which can indicate potential labral (SLAP Lesion) or acromioclavicular lesions as cause for shoulder pain). Dr Pant was able to pinpoint the exact areas of tenderness and noted the applicant had pain on capsular stretch as well as pain within the rotator interval around the biceps high in the groove, which was the main driver of his pain. Therefore, I am satisfied that the biceps tenodesis and capsular release should be included as part of the appropriate treatment. In coming to this conclusion, I have preferred the opinions to Dr Pant and Dr Gehr for the reasons expressed above.
Dr Gehr support the surgical treatment proposed by Dr Pant and considered that it was reasonably necessary.
Dr Quain did identify postoperative capsulitis as a risk, however, this was a risk that was identified by Dr Pant when he proposed the surgery. Surgery, of course, carries a risk of a less than ideal result but the applicant had exhausted all nonoperative measures. In identifying this risk, Dr Pant recommended that the applicant commence rehabilitation immediately after surgery.
Dr Gehr expressed the opinion that the proposed surgery was appropriate with “potential benefit of 80% to 90%.” The applicant is relatively young, left handed and has been unable to work since the injury on 11 April 2023. Dr Pant considered that the applicant should be back to work somewhere within three to six months depending on his progress.
The respondent submitted that there was no precise information as to the costs of the proposed treatment. The sum set out in the ARD was $5,000. The request for surgery letter from Dr Pant just provided item numbers and not actual costs. However, the amounts payable for treatment are paid at specific rates. Further, the respondent did not raise the issue of a more precise estimate of treatment cost until the arbitration. If this was a significant issue, the respondent could have raised it after Dr Pant made the request on 1 June 2023. In any event the benefits of surgery could be considerable and enable the applicant to return to work.
I accept that the weight of the medical evidence, that is the evidence of Dr Pant and Dr Gehr that this proposed treatment plan is appropriate, likely to be effective and accepted by the medical profession as a reasonable treatment option given the pathology. I have preferred the opinions of Dr Pant and Dr Gehr to those expressed by Dr Quain. In particular, I consider that Dr Pant, as the treating orthopaedic surgeon, had the benefit of seeing the applicant at an early stage after the injury and examining him on two occasions.

On balance I am satisfied that the proposed left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release is appropriate treatment, as extensive conservative treatment has failed in the applicant’s case. I am satisfied that Dr Pant and Dr Gehr both considered that this surgical treatment was appropriate and likely to be effective.
In summary, I am not persuaded that there are any effective alternative treatments available, and conclude that other forms of treatments have not been effective. I am satisfied that the general consensus of the doctors is that although the outcome is not guaranteed, the left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release is an appropriate form of treatment for management of pain and improvement in function in the present case. I am also satisfied that the potential effectiveness would be quite significant given the applicant’s current state.
Adopting Burke J’s analysis, the potential effect of the proposed treatment is to alleviate the consequences of the injury. It was the opinion of both Dr Pant and Dr Gehr that the treatment was appropriate, and its purpose and potential effect was to alleviate the consequences of the injury. While the cost of the treatment is not insignificant, I accept that it is reasonable in the absence of any other permanent or long-term treatment for the applicant’s condition. I find that it is reasonably necessary that the applicant undergo the surgery proposed by Dr Pant, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release.
I order that the respondent pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Sushil Pant, namely, a left shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis and capsular release, which was reasonably necessary as a result of the injury on 11 April 2023.

[2024] NSWPIC 23

17 January 2024