Brooker v Taylor Construction Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brooker v Taylor Construction Group Pty Ltd [2023] NSWPIC 448
APPLICANT:	Mervyn Brooker
RESPONDENT:	Taylor Construction Group Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	5 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of total right shoulder replacement surgery and other medical expenses for treatment of the right shoulder; consideration of the nature of the injury sustained by the worker and reference to Australian Conveyor Engineering Pty Ltd v Mecha Engineering P/L; whether the effects of an aggravation of an underlying arthritic condition caused by the injury have resolved; reference to Murphy v Allity Management Services P/L as to whether injury materially contributes to the need for surgery; Held – worker sustained an injury to the right shoulder as defined by section 4(a); the effects of that injury continue; the proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5) and order that the respondent pay the applicant’s reasonably necessary medical expenses for treatment of the right shoulder.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his right shoulder in the course of his employment with the respondent on 7 March 2016. 2. The total right shoulder replacement arthroplasty proposed by Dr Young is reasonably necessary as a result of the injury sustained by the applicant on 7 March 2016. The Commission orders: 3. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the total right shoulder replacement arthroplasty proposed by Dr Young, and the reasonably necessary expenses associated with that surgery. 4. The respondent is to pay the applicant’s expenses for reasonably necessary medical treatment for the injury to his right shoulder.

STATEMENT OF REASONS

BACKGROUND

Mervyn Brooker, the applicant in these proceedings, seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent, Taylor Construction Group Pty Ltd, pay the cost of a total right shoulder replacement arthroplasty proposed by his treating specialist, Dr Young.
Mr Brooker also seeks a determination that the respondent pay his medical expenses for reasonably necessary treatment of the right shoulder.
Mr Brooker claims that he sustained an injury to his right shoulder on 7 March 2016 in the course of his employment with the respondent while employed as a work health and safety advisor.
In the alternative, Mr Brooker claims that the condition of his right shoulder is as a consequence of additional reliance being placed upon that right shoulder as a result of an injury to the left shoulder which Mr Brooker sustained while employed with the respondent on 22 January 2016.
Mr Brooker claims that the need for the surgery proposed by Dr Young is as a result of the injury he sustained to his right shoulder on 7 March 2016 and/or as a consequence of the injury he sustained to his left shoulder on 22 January 2016.
The respondent disputes that the need for the proposed surgery is reasonably necessary as a result of an injury Mr Brooker sustained to his right shoulder on 7 March 2016. The respondent contends that an injury to the right shoulder caused no more than a temporary aggravation of long-standing arthritis and that the effects of that aggravation have ceased.
The respondent also disputes that Mr Brooker has sustained a condition affecting his right shoulder that is as a consequence of the injury to his left shoulder.

ISSUE FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the total right shoulder replacement surgery proposed by Dr Young is reasonably necessary as a result of an injury sustained by the applicant to his right shoulder in the course of his employment with the respondent on
7 March 2016 (s 60 of the 1987 Act), and/or
(b) whether the total right shoulder replacement surgery proposed by Dr Young is reasonably necessary as a consequence of the injury sustained by the applicant to his left shoulder in the course of his employment with the respondent on
22 January 2016.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 30 August 2023. 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.
Mr Phillip Perry appeared for the applicant, instructed by Ms Becker. Mr Gaitanis appeared for the respondent, instructed by Ms Horne.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 25 August 2023, and
(d)    Application to Admit Late Documents filed by the respondent on 28 August 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

The applicant’s evidence

Mr Brooker has provided a statement dated 18 April 2023.
Mr Brooker states that he commenced employment as a work health and safety advisor with the respondent on 26 May 2014. He states that in November or December 2015 he began to undertake more physical work when his duties were changed to being required to drive an Alimak hoist.
Mr Brooker states that on 22 January 2016 he felt the onset of pain in his left shoulder when he was pulling an 800kg pallet of sandstone tiles onto the Alimak hoist.
Mr Brooker states that following this injury he tried to rely on his right shoulder as much as possible to avoid further pain in his left shoulder.
Mr Brooker states that on 7 March 2016 he noticed the onset of pain in his right shoulder when he was operating the Alimak hoist. He states that he had to repetitively push the doors of the hoist up and down, reaching above head height to draw down the doors of the hoist. He estimates that he would do this between 300 and 400 times per day. Mr Brooker states that he also assisted other workers with moving their materials in and out of the hoist and relied upon his right shoulder for this work as he was trying to guard his left shoulder from further injury.
Mr Brooker states that he reported the injury to the respondent on or about 7 March 2016 and lodged a workers compensation claim for this injury on 3 May 2016.
Mr Brooker states that he underwent an MRI scan of both shoulders on 24 March 2016. He states that he attended Dr Young, orthopaedic surgeon, who had treated his left shoulder in the past.
Mr Brooker states that he worked as a work health and safety advisor with Richard Crookes Constructions Pty Ltd between 23 May 2016 and 9 June 2016. He then worked with ETM Australia from 27 June 2016 14 August 2016, and again from 12 September 2016 to
8 January 2017 but his work duties were supervisory and administrative. Mr Brooker states that he worked as a finishing foreman with Hutchinson builders in Tasmania from
March 2017 to March 2020, but that this work did not involve any manual labour and his work duties were supervisory and administrative.
Mr Brooker states that he underwent surgery to his left shoulder on 15 May 2018, which was performed by Dr Young.
Mr Brooker states that following that surgery he relied on his right arm for all tasks because he was unable to use the left arm for an extended period of time. He states that he did not rely so much on his right shoulder as his left shoulder improved, but he still tried to protect the left shoulder wherever possible.
Mr Brooker states that Dr Young has advised him that he needs a total right shoulder replacement. He states that he continues to have intense pain in the right shoulder and wishes to undergo the proposed surgery.
There is in evidence a document headed “Notification of Injury First Aid Report” which is signed by Mr Brooker. The date of injury is nominated as “ongoing 7/3/16”. The nature of the injury is stated to be “ongoing pain in right shoulder”. The brief description of the injury is: “injury has occurred from lifting and closing doors to man and material hoist above head height”.

The medical evidence

There are clinical notes in evidence from Darley Street Medical Practice for attendances by Mr Brooker from 23 August 2010 to 11 January 2017.
The entry made on 8 March 2016 by Dr Gawronska includes:
“injury to left shoulder on 20/01/2016 at work. Injury to right shoulder yesterday
Pains in both shoulders requiring Endone for pain relief
Has a Hx of left shoulder injuries and surgeries in 2013.”
An MRI scan of both shoulders dated 24 March 2016 reports in regard to the right shoulder: “Glenohumeral joint arthrosis as described. Cuff tendinopathy with partial thickness tearing of the subscapularis”.
The material provided by Dr Young reveals that he first saw Mr Brooker in February 2013 for treatment of his left shoulder. Mr Brooker returned to see Dr Young on 4 April 2016. In a report of the same date, Dr Young writes that Mr Brooker had a further injury at work recently and his left shoulder pain increased. The report does not contain any separate details of an injury to the right shoulder, although he refers to separate dates of injury to the left shoulder and right shoulder at the commencement of the report.
Dr Young writes:
“MRI scans of both shoulders have been performed and I cannot see any new pathology or acute injury as such. He has marked arthritis about the left shoulder with posterior glenoid wear and posterior subluxation of the humeral head. There is also arthritis about the right shoulder joint but without significant glenoid wear. There is likely degenerative SLAP tear on the right side with tendinopathy of the long head of biceps and possibly partial split of the upper subscapularis. There is no significant rotator cuff tear about either shoulder.
I suspect that Mervyn has simply aggravated his arthritis at the time of his recent injury. He is aware that he will continue to have intermittent shoulder pain and persistent restricted shoulder motion.”
Dr Young provides a report to the lawyers acting for Mr Brooker dated 8 September 2016. That report mainly concentrates on the condition and treatment of Mr Brooker’s left shoulder. However, Dr Young writes:
“…I cannot say with any certainty whether there was any new or acute pathology that occurred as a result of Mr Brooker's with Taylors Construction Group. The MRI scan changes demonstrating mostly chronic or degenerative pathology was my assumption and suggestion to Mr Brooker that there had most likely been an aggravation of his shoulder with pre-existing pathology. Whilst this was my clinical opinion, I do not believe that I or anyone else could be absolutely certain as to whether there was any injury related acute pathology without a previous scan to compare. As to whether the employment was the main contributing factor regarding Mr Brooker to continue to suffer from right shoulder symptoms or not, I am not able to answer.
Although my opinion and suggestion to Mr Brooker was that there was unlikely to be a specific acute tear or other pathology as a result of his injury and that his symptoms were most likely due to an aggravation of pre-existing pathology, I cannot comment with any certainty about this. A formal medicolegal assessment would be appropriate in this regard.”
An operation report from Dr Young dated 15 May 2018 states that Mr Brooker underwent a left total shoulder replacement on that day.
There are six reports in evidence from Dr Young between 22 May 2018 to 15 January 2019 which relate to treatment of the left shoulder, and which records ongoing problems which
Mr Brooker is having with his left shoulder.
The next specific reference to the right shoulder in a report from Dr Young is on
18 March 2019 when Dr Young records a deterioration of symptoms and motion of the right shoulder. Dr Young refers to an MRI scan taken of the right shoulder a year before which demonstrates severe osteoarthritis in addition to tendinopathy to the rotator cuff with some minor partial thickness tears. He also refers to an X-ray of the right shoulder taken a month before which reports progression of the arthritis.
Dr Young records in a report dated 5 February 2020 that Mr Brooker’s right shoulder pain has increased in severity. Dr Young also writes:
“Mervyn also reports intermittent discomfort about the anterior aspect of the left shoulder with activities. He attributes this to increased dependence on the left shoulder due to his right shoulder pain. I would agree this. Clinically there is good strength on testing the rotator cuff repair about the left shoulder.”
Dr Young writes that the pain and stiffness in the right shoulder is on account of his known arthritis, “secondary to his injury in March 2016”.
Dr Young provides a report dated 25 February 2020 at the request of the lawyers for
Mr Brooker. Dr Young is asked if Mr Brooker’s employment is a substantial contributing factor to the injury to his right shoulder and Dr Young answers: “I cannot answer this question”.
In a further report to the lawyers for Mr Brooker, Dr Young opines:
“…given the history provided by Mr Brooker, I think it would be reasonable on the balance of probabilities that such work duties would have contributed to at least materially aggravated or accelerated the problems in his right shoulder.”
Dr Young provides another report to the lawyers for Mr Brooker dated 15 March 2022.
Dr Young commences that report by stating he does not provide medicolegal reports and that there is not much more he can offer regarding Mr Brooker’s clinical condition. He does write that the pathology seen on the MRI scan in March 2016 is likely to be long standing, but there has been additional new pathology.
Dr Young opines:
“…the need for Mr Brooker's total shoulder replacement is development of pain that he describes occurring following a right shoulder injury and overuse early in 2016. I have no reason to disagree with Mr Brooker's opinion that his ongoing pain was as a result of this injury or at the very least the injury or overuse related in exacerbation or aggravation of any potential pre-existing pathology.”
Dr Doig, general orthopaedics and trauma surgeon, has provided a report 13 March 2020 at the request of the lawyers for Mr Brooker. Dr Doig records that Mr Brooker sustained an injury to his right shoulder on 7 March 2016 when he had to push the doors of a hoist up and down on a repetitive daily basis. He also records that Mr Brooker was protecting his left shoulder which had been injured in 2007 and which was operated on in 2010 and 2013.
Dr Doig diagnoses Mr Brooker as having primary, idiopathic osteoarthritis of the gleno-humeral joint at the right shoulder, but he opines that Mr Brooker has suffered an aggravation of the underlying pathology as a result of opening and closing the hoist at work, in particular while protecting his dominant left side following surgery. Dr Doig opines that the physically demanding conditions of Mr Brooker’s employment is the main contributing factor to this aggravation, unless there is evidence to the contrary.
In a further report dated 18 November 2021, Dr Doig writes that he is not aware of any new pathology identified on medical imaging following the incident on 7 March 2016, but that this could be clarified with the reporting radiologist.
Dr Doig concludes:
“The need for total shoulder replacement is the result of the primary, idiopathic osteoarthritis at the gleno-humeral joint which appears to have been rendered symptomatic by the incident of March 2016, in the absence of any prior or subsequent injuries or pre-existing issues with the joint. Had the pathology and restrictions at the dominant-left shoulder resulted in a consequential injury on the right side, one would normally expect an insidious, gradual onset of symptoms with a slow deterioration. In Mr Brooker's case, unless there is evidence available to the contrary, it would appear that the right shoulder became acutely symptomatic following the incident in March 2016.”
Dr Powell, orthopaedic surgeon, provided a report at the request of the lawyers for the respondent dated 22 November 2016.
Dr Powell records details of previous problems that Mr Brooker had with his left shoulder and details of the incident on 22 January 2016 when Mr Brooker sustained a further injury to his left shoulder. Dr Powell does not records details of any incident or incidents on 7 March 2016 affecting Mr Brooker’s right shoulder. He records that Mr Brooker continued working after
22 January 2016 but favoured his left side and developed symptoms on the right side.
Dr Powell records that Mr Brooker’s right shoulder symptoms have improved significantly and there is only intermittent discomfort in the right shoulder.
Dr Powell writes that there is a date of 7 March 2016 nominated as the date of injury to the right shoulder, but that symptoms in Mr Brooker’s right shoulder developed in an insidious fashion while favouring the left shoulder. He opines that Mr Brooker’s employment resulted in a temporary aggravation of a pre-existing degenerative right shoulder condition, but that aggravation was settling. Dr Powell opines that the disease process involving the right shoulder would not be considered the main contributing factor to the development of that condition.
Dr Stanley-Clarke, consultant orthopaedic surgeon, has provided reports at the request of the respondent dated 21 August 2019, 8 June 2021 and 24 February 2023.
In his report dated 21 August 2019, Dr Stanley-Clarke records that Mr Brooker’s right shoulder became painful having to pull down and open doors of the Alimak on multiple occasions. He also records that the right shoulder became increasingly symptomatic after he assisted a tiler to pull a pallet of tiles off a pallet jack.
Dr Stanley-Clarke records that Mr Brooker’s right shoulder has progressively deteriorated over the years since March 2016 with increasing pain and stiffness.
Dr Stanley-Clarke opines:
“As per my report the diagnosis is that of a disease process, osteoarthritis of his right shoulder. This is age-related and constitutional in causation. This is based on the relevant history of no specific injury on 7 March 2016, merely rendered painful by normal activities at work and the radiology immediately after this injury both plain radiology and MRI showing significant pre-existing osteoarthrosis.”
Dr Stanley-Clarke also opines that a temporary aggravation of the pre-existing condition has now long since settled. He does consider that a right shoulder replacement is indicated but that it is not related to a work injury.
A supplementary report dated 8 June 2021 is provided by Dr Stanley-Clarke after he has perused reports from Dr Powell, Dr Doig, and Dr Young. Dr Stanley-Clarke opines that
Dr Powell is well-placed in time to assess Mr Brooker’s right shoulder condition some eight months after the onset of symptoms in that shoulder. He notes the opinion of Dr Powell that the aggravation of the osteoarthrosis of the right shoulder was settling.
Dr Stanley-Clarke writes that there was no distinct injury to the right shoulder in March 2016. Dr Stanley-Clarke opines:
“His shoulder was rendered symptomatic by activity at work, opening and closing the hoist of the Alimak being a repetitive action. His pre-existing diseased joint was unable to cope with this and became painful. There is no clinical evidence to support any injury or change to the shoulder. There is no evidence of any structural injury. There was a physiological change, this physiological change being inflammation of arthritis. His right shoulder joint would have failed in any event in the short to medium term with the normal day-to-day use of his shoulder.”

The opinion of Dr Stanley-Clarke does not change in his final report dated 24 February 2023.

A summary of submissions

Mr Perry for the applicant submits that there is no evidence of Mr Brooker having any problems with his right shoulder before 7 March 2016.
Mr Perry submits that the onset of Mr Brooker’s symptoms in the right shoulder on
7 March 2016 can meet the definition of a ‘injury’ pursuant to s 4 (a) of the 1987 Act or the main contributing factor to the aggravation of a disease affecting the right shoulder pursuant to s 4 (b)(ii) of the 1987 Act.
Mr Perry submits that Mr Brooker’s right shoulder has otherwise remained symptomatic since March 2016, when he had no previous problems with his right shoulder, and the causal connection between what occurred on 7 March 2016 and his ongoing symptoms is confirmed by a treating specialist who has seen Mr Brooker for almost 10 years now and also by
Dr Doig.
Mr Gaitanis for the respondent reinforces the opinion provided by Dr Stanley-Clarke in his report dated 8 June 2021 that Dr Powell is well placed in the timeline of what has occurred to Mr Brooker to provide an opinion on the condition of the right shoulder. Mr Gaitanis submits that the record made by Dr Powell some eight months after March 2016 of Mr Brooker having an improvement of symptoms in the right shoulder is consistent with Mr Brooker having a temporary aggravation and that his ongoing problems being due to a long-standing arthritic condition affecting the right shoulder.
Mr Gaitanis submits that Dr Young does not properly deal with the issue of cause of
Mr Brooker’s symptoms. He refers to Dr Young stating in his report dated 8 September 2016 that the doctor could not state with any certainty that new or acute pathology in the right shoulder occurred while Mr Brooker was employed with the respondent and that Dr Young stated that he “cannot answer” in his report dated 25 February 2020 if Mr Brooker’s employment is a substantial contributing factor to the injury to the right shoulder.
Mr Gaitanis submits that the findings of arthrosis is so prevalent throughout all of the medical records that Mr Brooker’s ongoing symptoms must be due to this underlying condition and not as a result of what occurred in his employment or as a consequence of the injury to the left shoulder.

Determination

The opinions from Dr Powell and Dr Stanley-Clarke which are relied upon by the respondent contain concessions that Mr Brooker sustained at least a temporary aggravation of pre-existing degenerative changes in his right shoulder on 7 March 2016.
However, it is necessary to identify the nature of the injury which Mr Brooker sustained on
7 March 2016 because that is critical to a determination of whether Mr Brooker continues to suffer the effects of that injury and whether the injury materially contributes to the need for the proposed surgery.
I have concluded from a review of the evidence that Mr Brooker sustained an injury to his right shoulder on 7 March 2016 which meets the definition of ‘injury’ in s 4 (a) of the 1987 Act.
In reaching this conclusion I am guided by the practical application of the term ‘injury’ as it applies in s 4 (a) by Powell J in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606; 17 NSWCCR 309 (Mecha). Justice Powell in Mecha referred to the High Court decision of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar) and then said at [39-42]:
“The effect of the decision of the majority is, thus, first, that, if there can be identified an incident which involves--either by being itself the change, or by bringing about the change--a physical change in the worker, then--even though that change may be no more than the culmination of a progressive disease, and not the product of some external force--that damage is to be regarded as an ‘injury’ within the meaning of par (a) of the definition of "injury" in s 4 of the Act;
…..
In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker's lumbo-sacral spine had begun to degenerate… This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker's evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period
…….
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar v MGH Plastic Industries Pty Ltd would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker's pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”
The medical evidence which I have referred to is unanimous in confirming that Mr Brooker had extensive arthritis in the right shoulder which existed before the incident on
7 March 2016. However, there is no evidence that Mr Brooker had experienced any symptoms in the right shoulder before that incident.
There is a reference to Mr Brooker developing pain across the right shoulder at work on
7 March 2003 in a report from Dr Biggs, neurosurgeon, dated 21 August 2003, but I agree with the submission made by Mr Perry that a reading of the reports from Dr Biggs indicates that this particular complaint was in regard to referred pain from the cervical spine. It is apparent from the reports from Dr Biggs that Mr Brooker consulting that specialist for problems in and emanating from his neck.
There is reference to “Pain in the right shoulder after pulling some bags at work” in an entry made by Dr Gawronska on 23 January 2012, but that entry also includes “had arthroscopy of that shoulder in 2009” and Mr Brooker has never had surgery to his right shoulder. Moreover, there are subsequent entries by Dr Gawronska on 3 February 2012 and 2 March 2012 which refer to the left shoulder. I am satisfied that the entry made on 23 January 2012 by
Dr Gawronska of pain in the right shoulder is an error.
There is otherwise no reference to problems with the right shoulder in the clinical notes from Darley Street Medical Practice. Dr Young commenced seeing Mr Brooker in February 2013, but Dr Young makes no reference to any problems with the right shoulder until the consultation on 4 April 2016.
I am therefore satisfied that the condition of Mr Brooker’s right shoulder was asymptomatic immediately prior to the work which he undertook on 7 March 2016.
Mr Brooker states that he noticed the onset of pain in his right shoulder when he was operating the Alimak hoist on 7 March 2016. The entry made by Dr Granowska the following day is of an “Injury to right shoulder” and the pain is recorded as being severe enough to require Endone for pain relief. A referral for an MRI scan of both shoulders is made by
Dr Granowska a week later.
The “Notification of Injury First Aid Report” is not dated, although there is a typed date of ‘15/3/16’ in the bottom right corner of the document, and I consider it can be reasonably inferred that this document was created soon after 7 March 2016.
The evidence from Mr Brooker, which has not been challenged by any lay evidence from the respondent, and the records which were created soon after 7 March 2016 which I have just referred to, supports a finding that the work activity which Mr Brooker undertook on
7 March 2016 of repetitively pulling the hoist door up and down led to “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 (Petkoska) at [39]) of his right shoulder.
The opinion from Dr Stanley-Clarke that there was no distinct injury sustained by Mr Brooker to his right shoulder on 7 March 2016, that there is no evidence of any structural injury to the right shoulder, and that the physiological change is merely the inflammation of arthritis, is relied upon by the respondent to dispute the claim made by Mr Brooker. The respondent also relies upon Dr Young stating in September 2016 that he cannot say with any certainty whether there was any new or acute pathology which occurred as a result of Mr Brooker’s employment with the respondent.
The opinion from Dr Young appears to change five years later when Dr Young writes that there was additional new pathology seen in the MRI scan taken in 2016, although Dr Young is not specific as to what that “new pathology” might be.
Powell J states in Mecha that the physical change required to establish an injury “may be no more than the culmination of a progressive disease” and “the sequelae of which involved pain”. The opinion from Dr Young from the outset is that the work undertaken by Mr Brooker on 7 March 2016 involved at least the aggravation of pre-existing arthritis in the right shoulder and that it has caused the onset of pain in the right shoulder.
In his report dated 4 April 2016, Dr Young considers that Mr Brooker has aggravated the arthritis in his shoulders.
In his report dated 8 September 2016, Dr Young opines that Mr Brooker’s shoulder symptoms were most likely due to an aggravation of pre-existing pathology, but he was not prepared to state this with any certainty.
In his report dated 5 February 2020, Dr Young writes that the pain and stiffness being experienced by Mr Brooker is “secondary to his injury in March 2016”.
Dr Young writes in March 2022 that “at the very least” the injury sustained on 7 March 2016 or overuse of the right shoulder related to an exacerbation or aggravation of pre-existing pathology.
It is apparent from reading the reports of Dr Young that he is a reluctant participant in the dispute between Mr Brooker and the respondent. His opinions are provided with a caution that he is not a medicolegal expert and that he cannot be certain about the opinions which he does offer. His response that he “cannot answer” whether Mr Brooker’s employment is a substantial contributing factor to the injury to his right shoulder is in response to an attempt to match his clinical judgment to the particular terminology of the workers compensation legislation.
However, in considering the opinions from Dr Young, which must be given considerable weight because of his role as Mr Brooker’s treating specialist over many years, I am mindful of what was said by DP Roche in State Transit Authority vEl-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
Although Dr Young expresses some reservations when providing his opinions in several reports, he nonetheless consistently supports an opinion that the work undertaken by
Mr Brooker on 7 March 2016 at the very least resulted in an aggravation of pre-existing arthritis. I accept from the opinions provided by Dr Young that the identifiable incident of the work undertaken by Mr Brooker on 7 March 2016 which caused an onset of pain in the right shoulder rendered a previously asymptomatic right shoulder to be symptomatic.
The respondent nonetheless relies very much on the record and observations made by
Dr Powell when he sees Mr Brooker some eight months after the work injury of significant improvement in the right shoulder to submit that this is consistent with a temporary aggravation of pre-existing degenerative changes and that the effects of that aggravation were well on the way to coming to an end.
Mr Brooker does not provide any evidence in regard to the symptoms he was experiencing, if any, in his right shoulder during the latter part of 2016 and in 2017 and 2018. He does state that he saw a general practitioner, Dr Merfield, on 29 January 2018 after he had moved to Tasmania. He also states that he saw Dr Einoder, who is an orthopaedic surgeon in Tasmania, on 17 April 2018 regarding his right shoulder pain. There is a letter of referral from Dr Merfield to Dr Einoder dated 26 February 2018 which refers to shoulder pain predominantly on the left, but that Mr Brooker “is also having problems with the right side”.
I am satisfied that Mr Brooker continued to experience symptoms of pain in his right shoulder from 7 March 2016 until the recommendation for surgery on the right shoulder by Dr Young in March 2019.
In addition to the evidence that I have already referred to, I also consider it can be inferred from the regular radiology which Mr Brooker underwent during this time that Mr Brooker was continuing to experience symptoms of pain in his right shoulder. Mr Brooker underwent an
X-ray of both shoulders on 14 March 2018, an MRI scan of the right shoulder on
21 March 2018, an ultrasound of the right shoulder on 16 November 2018, and another X-ray on the right shoulder on 8 March 2019.
Dr Young also appears to accept that Mr Brooker has had ongoing pain in the right shoulder since 7 March 2016 when he refers in his report dated 15 March 2022 to the “development of pain” following the right shoulder injury and overuse early in 2016 which now needs a total shoulder replacement.
Mr Brooker still needs to meet the test set out by DP Roche in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) at [58] that Mr Brooker “has to establish that the injury materially contributed to the need for the surgery”.
Dr Young opines that “the need for Mr Brooker's total shoulder replacement is development of pain that he describes occurring following a right shoulder injury and overuse early in 2016”. If that opinion lacks precision, then a more detailed explanation is provided by
Dr Doig, who also considers that Mr Brooker has suffered an aggravation of underlying pathology in the right shoulder as a result of opening and closing the hoist at work.
Dr Doig opines that the total shoulder replacement surgery is required as a result of the primary idiopathic osteoarthritis in the right shoulder, but the arthritic condition has been rendered symptomatic by the work injury in March 2016.
Deputy President Roche said in Murphy at [57]: “The work injury does not have to be the only, or even a substantial, because of the need for relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.” The work injury only needs to have “materially contributed to the need for the surgery”.
The opinions provided by Dr Young and Dr Doig support a finding that the injury sustained on 7 March 2016 materially contributes to the need for surgery because that injury has rendered a previously asymptomatic right shoulder condition to be symptomatic and replacement shoulder surgery is now required to reduce the significant pain and limitation of movement that Mr Brooker has been experiencing since March 2016.
I prefer the opinions of Dr Young and Dr Doig over the opinion provided by Dr Stanley Clarke.
Dr Stanley Clarke concedes that Mr Brooker’s right shoulder was rendered symptomatic by the work that he was doing on 7 March 2016 and that there was physiological change of the right shoulder by way of an inflammation of arthritis. However, the opinion of Dr Stanley-Clarke is based on a belief or assumption that there must be some damage to the structure of the right shoulder caused by the work undertaken by Mr Brooker on 7 March 2016 for there to be an injury to the right shoulder as defined in s 4 of the 1987 Act. I have already set out my reasons as to why this is not necessary to establish that injury has been sustained pursuant to s 4 of the 1987 Act.
As I have already observed, considerable weight must be given to the opinion of Dr Young of his role as Mr Brooker’s treating specialist since 2013. He ultimately supports a view that the injury on 7 March 2016 has aggravated and continues to cause an aggravation of a pre-existing arthritic condition in the right shoulder which requires surgery to try and alleviate those symptoms. That opinion is reinforced by the explanations provided in the report from Dr Doig.
It may be that Mr Brooker was placing additional strain on his right arm and shoulder when he was at work on 7 March 2016 due to the injury he had already sustained to his left shoulder. However, given the findings that I have made as to the cause of the work injury sustained by Mr Brooker on 7 March 2016, it is not necessary to make a determination as to whether Mr Brooker’s right shoulder condition is as a consequence of the injury to his left shoulder.
There will be an order that the respondent is to pay the costs of the total right shoulder replacement arthroplasty proposed by Dr Young, and the reasonably necessary expenses associated with that surgery.
There will also be an order that the respondent is to pay the applicant’s expenses for reasonably necessary medical treatment for the injury to his right shoulder.

[2023] NSWPIC 448

5 September 2023