Brown v Shellbelt Pty Limited
[2021] NSWPIC 357
•20 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Brown v Shellbelt Pty Limited [2021] NSWPIC 357 |
| APPLICANT: | Gregory Wayne Brown |
| RESPONDENT: | Shellbelt Pty Limited |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for costs of and incidental to reverse right total shoulder replacement surgery; work injuries to right hip previously determined in applicant’s favour by the Workers Compensation Commission; evidence of ongoing falls including three resulting in impact upon right shoulder; pre-existing symptomatic pathology at right shoulder; whether consequential right shoulder condition; whether proposed surgery reasonably necessary as a result of hip injuries; Held - Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; falls and impacts upon the right shoulder causing an increase in pathology and symptoms causally related to the hip injuries; most recent fall brought forward the need for surgery; award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. |
| DETERMINATIONS MADE: | 1. The applicant sustained a consequential right shoulder condition as a result of the injuries to his right hip on 1 April 2014 and 8 June 2014. 2. The right reverse total shoulder replacement surgery proposed by Dr Mark Robinson is reasonably necessary as a result of the injuries to the applicant’s right hip on 1 April 2014 and 8 June 2014. |
| ORDERS MADE: | 1. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent to pay the costs of and incidental to the right reverse total shoulder replacement surgery proposed by Dr Mark Robinson. |
STATEMENT OF REASONS
BACKGROUND
Mr Gregory Wayne Brown (the applicant) was employed by Shellbelt Pty Limited (the respondent) as a kitchen designer.
In previous proceedings lodged in the former Workers Compensation Commission[1] in 2015, the applicant was found to have sustained an injury to his right hip in the course of or arising out of his employment with the respondent on 1 April 2014 and 8 June 2014. A total hip replacement surgery performed on 23 June 2015 was determined to have been reasonably necessary as a result of the hip injuries.
[1] Workers Compensation Commission 2421/15
Following the hip surgery, the applicant had a number of falls which he claims have resulted in a consequential right shoulder condition.
On 6 October 2015, the applicant was getting out of his car on the right side when his right leg collapsed and he fell, putting out his right arm to break his fall.
On 4 September 2016, the applicant was walking upstairs at his home when his right hip gave way causing him to fall heavily on his outstretched right hand.
On 9 January 2021, the applicant had a further fall as a result of his right leg/hip giving way. The applicant again put out his right hand to prevent the fall.
On 22 January 2021, the applicant sought approval from the respondent’s insurer for the costs of and incidental to a right reverse total shoulder replacement to be performed by orthopaedic surgeon, Dr Mark Robinson.
Liability for the alleged consequential right shoulder condition and the surgery was disputed in a notice issued pursuant to s 78 of the Workplace injury Management and Workers Compensation Act 1998 (the 1998 Act) on 9 February 2021.
The present proceedings were commenced by an Application to Resolve a Dispute lodged in the Commission on 14 July 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the right reverse total shoulder replacement proposed by Dr Robinson.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained a consequential right shoulder condition as a result of the right hip injuries on 1 April 2014 and 8 June 2014; and
(b) whether the proposed reverse total shoulder replacement surgery proposed by
Dr Robinson is reasonably necessary as a result of the right hip injuries.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 6 September 2021. The applicant was represented by Mr Luke Morgan of counsel, instructed by Ms Anna Tavianatos. The respondent was represented by Mr Fraser Doak, instructed by Ms Naomi Tancred.
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 Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents; and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements dated 27 August 2014, 6 April 2018 and 22 January 2021.
In the applicant’s first written statement, he set out the circumstances of the hip injuries on
1 April 2014 and 8 June 2014.In the statement dated 6 April 2018, the applicant stated that over the years he had worked in the kitchen joinery industry doing heavy work requiring hammering, sawing, climbing up and down ladders, crawling in and about tight spaces and performing manual labour.
On 31 January 2002, the applicant mentioned to his general practitioner, Dr Willmott, that his right shoulder had been aching for approximately two months. The applicant underwent an ultrasound and x-ray. In July 2005, the applicant was seen by a physiotherapist in relation to right shoulder pain which diminished over the following days.
In or about March 2010, the applicant experienced pain in his right shoulder when he was at work and dropped a heavy board. The applicant was referred by his general practitioner for x-rays of his right shoulder but did not end up having the x-rays as the pain in his right shoulder subsided.
The applicant reported some pain in his right shoulder after a fall from a ladder on 28 November 2012.
On 9 January 2013 the applicant was prescribed Nurofen and Endone for some pain and restriction of movement in his right shoulder.
On 25 March 2013 the applicant had x-rays and ultrasound taken of his right shoulder as the pain had continued. Dr Willmott recommended an injection to the shoulder but the applicant did not recall having the injection.
On 6 May 2013, the applicant mentioned to Dr Willmott that the pain in his right shoulder was settling.
Following the hip injuries, the applicant underwent a total hip replacement at the right performed by Dr Richard Harbury on 23 June 2015. The applicant’s post-operative recovery was complicated. On 19 August 2015, the applicant saw Dr Harbury and reported that his pain was settling although he did have some altered sensation in both legs. The applicant’s right leg would occasionally give way and collapse. The applicant said it was always unexpected.
On 6 October 2015, the applicant drove for approximately 80 minutes. When the applicant got home and stepped out of his car on the driver side with his right leg, the right leg collapsed. The applicant experienced severe pain in his right hip/groin. The applicant fell down to the right and tried to brace himself by holding out his right hand as he hit the ground. The applicant’s right hand and arm took his body weight and he felt immediate pain in his right shoulder. The applicant mentioned the right shoulder pain when he saw Dr Willmott at a scheduled appointment that afternoon.
The applicant was referred for an x-ray and ultrasound and eventually referred to
Dr Christopher Harrington. On 7 December 2015, Dr Harrington gave the applicant a referral for an ultrasound guided injection into his right shoulder. The applicant had the injection on
6 January 2016 but it gave only about 12 to 24 hours relief.
The applicant underwent an MRI of the right shoulder and on 2 February 2016, Dr Willmott mentioned the applicant may require a right shoulder replacement in the future.
The applicant was also seen by orthopaedic surgeon, Dr Benjamin Kenny in relation to the shoulder who recommended an arthroscopy. On 30 June 2016, Dr Kenny’s colleague,
Dr Ed Bateman operated on the applicant’s right shoulder at Gosford Hospital. The shoulder recovered reasonably well following the surgery and the applicant regained full movement.
On 4 September 2016, the applicant was walking up stairs at home when his right hip gave out again. The applicant fell onto his outstretched right hand to brace his fall and felt immediate pain in his right shoulder.
Scans were taken of the right shoulder on 15 September 2016 and the applicant returned to see Dr Bateman. The applicant was struggling to lift his right arm above shoulder height due to severe pain. Dr Bateman said he had re-ruptured the repair done in the previous surgery.
Dr Bateman said that when the applicant could no longer tolerate the pain he could perform a shoulder replacement surgery although the function in the shoulder would not return.
Dr Bateman recommended that the applicant continue with physiotherapy.The pain in the applicant’s right shoulder reduced in severity after the second fall although the applicant still had a restriction of movement and was unable to lift his arm above shoulder height.
The applicant also continued to experience pain in his right groin. This was investigated and the applicant underwent ultrasound guided injection to the right hip on 7 February 2017. This gave the applicant very good relief for a day or two, after which the pain returned. A repeat injection was performed and the applicant was referred to a specialist hip surgeon.
The applicant underwent a left hip replacement surgery on 30 November 2017. A further surgery to the right hip was performed by Professor Warwick Bruce in March 2018.
On 13 September 2019, the applicant had a further fall when walking out of his front door and his right leg gave way. The applicant fell heavily on his right knee. An MRI revealed that the applicant had a torn meniscus and he underwent an arthroscopy to the right knee on 20 October 2019. A right knee replacement was performed on 29 May 2020. Following the surgery, the applicant continued with physiotherapy for both his right hip and right knee.
In December 2020, the applicant experienced an increase in pain in his right shoulder following an appointment with the insurer’s independent medical examiner. The applicant mentioned the pain to his physiotherapist who suggested a steroid injection to the right shoulder. The applicant’s general practitioner referred the applicant for an ultrasound which was performed on 8 January 2021.
The applicant suffered a further fall on 9 January 2021 when his right leg/hip gave way. The applicant fell and put his right shoulder out to prevent his fall and reinjured the right shoulder.
Following the fall on 9 January 2021, the applicant’s right shoulder became immediately acutely more painful. The applicant’s pain was so severe that he could not move his shoulder and he called for an ambulance and was taken to Buderim Private Hospital. The applicant said the fall had led to a change in function and pain in the shoulder. The applicant now had constant pain and dysfunction whereas it had been manageable prior to the fall.
Dr Mark Robinson recommended that the applicant undergo a right reverse shoulder replacement.
Treating medical evidence
A radiology report prepared following an x-ray and ultrasound of the right shoulder on 26 March 2013 noted a “small partial tear of the supraspinatus tendon with subacromial-subdeltoid bursitis, acromioclavicular joint osteoarthritis and subscapularis enthesopathy and biceps tendinosis”.
The report of an ultrasound of the right shoulder performed on 23 October 2015 noted a large full thickness supraspinatus tendon tear, subacromial bursal thickening and impingement. An x-ray performed on the same date showed advanced degenerative changes present in the AC joint and mild to moderate degenerative changes in the glenohumeral joint. There was a large subacromial spurring and secondary degenerative bony pitting and sclerotic change overlying the tip of the humeral greater tuberosity.
An MRI of the right shoulder performed on 19 January 2016 showed a large full thickness tear of the supraspinatus tendon, severe tendinopathy of the subscapularis and infraspinatus tendons and probable full thickness tear of the intra-articular portion of the long head of biceps tendon. Severe degenerative change in the AC joint was noted.
Orthopaedic surgeon, Dr Benjamin Kenny prepared a report for the applicant’s general practitioner on 17 February 2016. Dr Kenny noted the history of a work injury to the applicant’s right hip and the right total hip replacement performed in 2015. Approximately six weeks after the total hip replacement, the applicant sustained a fall which had led to poor function and debilitating right shoulder pain. Dr Kenny reported:
“I definitely agree that his recent fall has exacerbated his shoulder pain and shoulder function and may have led to a biceps tendinopathy but it is very difficult to fully ascertain whether or not all his symptomatology are related to his recent injury given the fact that his Xray shows degenerative change and his MRI shows fatty infiltrate both of which are indicative of chronic issues.”
On 30 June 2016, the applicant underwent an arthroscopic rotator cuff repair and subacromial decompression surgery performed by orthopaedic surgeon, Dr Ed Bateman.
An arthrogram of the right shoulder performed on 15 September 2016 concluded:
“Full thickness full width tears involving supraspinatus and subscapularis tendons with tendon retraction. Torn long head of biceps tendon from intra-articular portion. Mild glenohumeral OA. Severe AC joint OA. Changes of adhesive capsulitis.”
On 13 October 2016, Dr Bateman reported to the applicant’s general practitioner that the applicant had a fall on 4 September 2016, re-rupturing the repair to the right rotator cuff. The applicant had been going exceptionally well up until that point but was now struggling to lift the arm above shoulder height due to severe pain. Dr Bateman stated:
“He has had an MRI scan which shows the re-rupture and at this point the tendon is not salvageable. There is not yet superior migration of the humeral head and there is no osteoarthritis. At 60 the options are that of a possible reverse shoulder replacement down the track should his symptoms warrant. I have stressed to Greg it doesn't matter what procedure we do on the shoulder it is unlikely it will give him overhead strength which is what he desires to return to building. Often recurrent rotator cuff tears do settle down from a pain of view over a 6-12 month period and my recommendation is to continue with physiotherapy to strengthen the remainder of the rotator cuff.”
On 2 May 2017, Dr Bateman reported that, as predicted, the applicant’s pain had improved but his function had not. Dr Bateman was happy for the applicant to return to work with some lifting restrictions. Dr Bateman offered the opinion:
“The end point for Greg now is a reverse shoulder replacement since he has had the fall in the early stages of his recovery from the rotator cuff repair and therefore it should be covered under his current Workers' Compensation claim. Obviously I am not keen to perform this based on his age but certainly down the track it is on offer.”
An x-ray of the right shoulder performed on 31 December 2018 was reported to show a degree of degenerative change of the glenohumeral joint with significant AC joint arthropathy and significant reduction in the subacromial space. An ultrasound of the right shoulder performed on the same day showed high-grade/complete tears of the subscapularis and supraspinatus tendons. Subacromial bursal fluid was noted.
On 6 March 2020, hip and knee surgeon Prof Warwick Bruce saw the applicant. Prof Bruce commented in relation to the applicant’s right hip:
“The right hip is better; he has a better gait pattern. He gets a little bit less pain. The biggest issue is he gets pain in the sacroiliac joint, buttocks and greater trochanter down the lateral thigh which makes him fall regularly. He had an SU injection which helped significantly and has recently had an ablation but it has not helped as well but it was only 3 weeks ago. The patient's right hip gave way on 13/09/2019; he hyper flexed the knee and has had agonising pain since then.”
Prof Bruce performed a right total knee replacement on 21 May 2020. On 3 July 2020,
Prof Bruce commented that the applicant was still having “difficulty with falling due to the right hip issues”.
A discharge referral from Dr Natalie Walker to orthopaedic surgeon Dr Mark Robinson, dated 10 January 2021, noted that the applicant had presented following a fall in which the applicant’s right hip and knee gave way and he fell onto his right arm. A long-standing history of problems with both hips and right knee, right psoas impingement and previous right shoulder reconstruction were noted.
Dr Robinson prepared a report for the applicant’s general practitioner on 18 February 2021. Dr Robinson took a history of the falls following the hip injury:
“Essentially whilst recovering from a hip replacement in 2016 which was apparently malpositioned and has subsequently undertaken a revision surgery for the malpositioning of the implant he had a fall. This was due to the hip giving way. The date of the fall was 4 September 2016. This was the date in which he reruptured his right rotator cuff repair. The rotator cuff repair had been performed on 30 June 2016. At this stage he was assessed by Ed Bateman who prior to the consultation had a MRI scan performed. Dr Ed Bateman's assessment at this stage was there was a retear/rerupture of the rotator cuff that was not salvageable. He indicated at this stage that there was no superior migration of the humeral head and no arthritis at this stage. However he had ongoing dysfunction from this time about the shoulder and Ed had recommended a reverse total shoulder replacement should it not settle. However with a massive rotator cuff tear there is a tendency to superior migration resulting in cuff tear arthropathy and glenohumeral arthritis with pain and dysfunction. Although he did not demonstrate these initially this was the most likely progression on the basis of the injury back on 4 September 2016.
His right hip has continued to be a problem for him in terms of giving way.
He has had a knee replacement on 25 May 2020. This was also covered under WorkCover. The right hip injury has also been covered and is ongoingly covered under WorkCover. I am not aware of any consideration for surgical intervention for the right hip at this stage. The right hip is continuing to give way.
Due to a fall on 9 January 2021 his right shoulder has become acutely more symptomatic. This was due to his right hip giving way.
The day prior to the fall on 9 January 2021 he had some imaging performed at Sunshine Coast Radiology. The ultrasound performed on 8 January 2021 demonstrated a full-thickness tear of his supraspinatus tendon and all of the other rotator cuff tendons as per this report were intact.
On 10 January 2021 post presenting to the Buderim private hospital on 9 January 2021 he had a ultrasound performed at I med radiology which demonstrated new rotator cuff tears in the form of a subscapularis tear. This has led to a constitutional change in the function and pain about his right shoulder. In essence this was the tipping point.”
Dr Robinson noted that the applicant had ongoing pain and dysfunction which had failed to improve with conservative treatment. On the basis that the applicant had a cuff tear arthropathy with irreparable rotator cuff and glenohumeral arthritis, Dr Robinson recommended a right reverse total shoulder replacement. The surgery was anticipated to improve both the applicant’s function and pain assuming no complications in the perioperative period.
The report of an ultrasound performed on 8 January 2021 concluded:
“Complete tear of the supraspinatus. Remainder of the rotator cuff tendons are intact. No bursitis seen. Complete tear of the long head of biceps tendon.”
The report of an ultrasound done on 10 January 2021 found:
“Small shoulder joint effusion. Complete supraspinatus tendon tear with associated muscle atrophy, likely chronic. Full-thickness tear through the superior subscapularis tendon, may be acute or chronic. Rotator cuff tendinopathy. Subacromial/subdeltoid bursitis.”
Dr Millons
Orthopaedic surgeon Dr David Millons prepared a medicolegal report for the applicant’s former solicitors on 29 January 2019. At that time, Dr Millons offered the opinion:
“There do appear to have been some chronic issues with the right shoulder with symptoms going back to perhaps 2002. The history of intermittent right shoulder problems would fit with some subacromial issues as a result of some degenerate changes in the rotator cuff. It would appear that in the incident, getting out of his vehicle when his right leg gave way on 6 October 2015, that he fell and tore the rotator cuff. That was repaired and he was still in the recovery phase when, three months later, he had another fall when his right leg gave out on him again and he re-tore the rotator cuff and the long head of biceps tendon. Further repair is not really indicated. Mr Brown has learned to live with his ongoing issues with the right shoulder, using his arm below shoulder height. He may well go on to develop some degenerate changes in the glenohumeral joint as a result of the injuries to the region and, at some stage, he may be looking at a reverse shoulder replacement.”
Asked for an opinion as to causation,Dr Millons responded:
“His employment appears to have been the main contributing factor to the aggravation of the degenerate changes in the right hip and, as a consequence of that, because of the weakness in the right lower limb, he fell and injured his right shoulder, as outlined above.”
Dr Pillemer
The respondent relies on a series of medicolegal reports prepared by orthopaedic surgeon, Dr Roger Pillemer.
In his first report, dated 25 July 2017, Dr Pillemer dealt with the right hip injury. It was noted that the applicant had reported a number of falls when his right leg had given way.
In a subsequent report, dated 27 May 2019, Dr Pillemer took a history of the fall on 6 October 2015 and rotator cuff repair in June 2016. It was noted that the applicant later re-tore the rotator cuff repair. The treating specialist did not feel that there was anything more he could do at the time to repair the rotator cuff but did suggest that eventually the applicant would require a shoulder replacement.
Dr Pillemer commented that the applicant had been rather evasive with regard to previous problems with the right shoulder. It was noted that investigations including x-rays and MRI scans indicated long-standing problems with the rotator cuff and long-standing arthritic change in the shoulder joint itself.
The applicant reported ongoing symptoms in the right hip and right shoulder. Dr Pillemer gave the opinion:
“Once again as noted in the body of my report, in my opinion the injuries in April and June 2014 would simply have been aggravations of an advanced osteoarthritic condition of his right hip. Similarly the incident at the time of my examination of
Mr Brown followed by the significant fall some weeks later, made what was until then an asymptomatic hip become symptomatic, and quite possibly led to the need for total hip replacement to be carried out earlier than might otherwise have been the case. Once again this was simply an aggravation of a significant underlying condition.As far as his right shoulder is concerned, accepting his history as being correct of having fallen while getting out of his car when his hip gave way, I would accept that the problems with his right shoulder are consequential to the original problems with his right hip and the need for surgery.”
In a report dated 3 December 2020, Dr Pillemer noted that the applicant continued to complain of constant pain in his right groin region. The applicant’s hip was occasionally locking up. Significant ongoing problems in the right shoulder region were also reported.
Dr Pillemer reiterated his previous view that the applicant had long-standing problems with the right shoulder as evidenced by the findings on MRI. Dr Pillemer did accept ongoing impairment of the right shoulder region if it was confirmed that the applicant had sustained his injury following a fall because of his right hip giving way.
In his most recent report, dated 26 March 2021, Dr Pillemer was asked whether the insurer should accept liability for the surgery requested by Dr Robinson. Dr Pillemer responded:
“I have enormous difficulty in trying to answer this question and on referring to the report of Dr M Robinson which you have forwarded to me of 18 February 2021,
Dr Robinson has suggested that the fall of 4 September 2016 was the date that
Mr Brown re-ruptured his right rotator cuff repair. He also feels that the progression of symptoms was most likely on the basis of the injury on 4 September 2016.He also notes a fall on 9 January 2021 following which his right shoulder became ‘acutely more symptomatic’. He suggested this was due to his right hip giving way.
As noted, when I re-examined Mr Brown in December 2020 I suggested that the fall in October 2015 could have aggravated the underlying problem with his right shoulder.
However, noting that it is now some 5½ years since the injury in October 2015 and noting the extensive problems Mr Brown was having prior to his injuries, it is my opinion that it is more likely than not that he would have reached the present situation requiring a reverse shoulder replacement irrespective of any injury in October 2015. Obviously, there is no way of being certain of this.”
Applicant’s submissions
Mr Morgan submitted that the evidence revealed a number of falls, most recently on
9 January 2021. The present dispute was confined to whether the impacts on the right shoulder in those falls were due to the accepted injuries to the applicant’s right hip and were causative of pathology at the right shoulder requiring surgery.
There was no dispute that the applicant had issues with the right shoulder prior to the falls. The applicant had, however, continued to work in heavy manual employment involving the manufacture and installation of kitchens using his right arm to support and manipulate cabinets above shoulder height. Whilst there were some degenerative changes ongoing, there was a significant pathological change following the falls.
Mr Morgan noted the applicant’s description of the falls and their consequences in his written statements. After the second fall, the possibility of a similar procedure to that currently proposed was floated by Dr Bateman. Dr Millons at that stage examined the applicant and agreed with opinions expressed by Dr Bateman.
The applicant was able to cope quite well. Dr Robinson expressed the view that the most recent fall was the tipping point in bringing forward the need for the surgery.
Mr Morgan submitted that there was no dispute from a causative point of view or from any medicolegal expert that the injury to the right lower extremity was prone on occasion to cause the applicant to fall. There was no dispute as to the mechanical component of the claim in the medical evidence. There was no dispute that the applicant fell and this had involved impact upon the shoulder.
Dr Pillemer, in his report of 27 May 2019 expressed the view that, accepting the applicant’s history as being correct of having fallen while getting out of his car when his hip gave way, the problems with his right shoulder were consequential to the original problems with his right hip.
In most recent report, however, Dr Pillemer altered his opinion, saying the applicant would have required the surgery irrespective of the falls. In giving this more recent opinion,
Mr Morgan submitted that Dr Pillemer did not have regard to the most recent episode and did not explain his opinion.
The most recent episode was described in Dr Robinson’s reports. There was a distinct difference in the pathology before and after the fall. This led to a constitutional change in the function and pain about the right shoulder and was the “tipping point”.
Mr Morgan submitted that there was no other obvious cause of the significant pathology shown in the applicant’s shoulder other than the falls. Although the applicant had problems at the shoulder previously there was no suggestion that arthroplasty was required prior to the work-related falls.
Mr Morgan submitted that the Commission would be comfortably satisfied that the proposed surgery was reasonably necessary as a result of the accepted right hip injuries.
Respondent’s submissions
Mr Doak described the issues as whether there was a consequential condition at the right shoulder and whether the proposed shoulder surgery was reasonably necessary as a result of the consequential loss or condition at the right shoulder.
The Commission was required to consider whether the pathology said to have occurred following each of the falls was causally related to the accepted injury to the right hip.
In 2016, the applicant was under the care of Dr Bateman. A “possibility” of right shoulder replacement was raised at that time.
A period of some five years later there was a further fall. The details of the fall were described as “fairly scant”. The medical evidence provided little explanation for the fall.
Mr Doak submitted that there may be all sorts of reasons why the applicant’s right hip may have given way. The mere fact that it was the same body part as the 2014 injury was insufficient to establish a causal relationship. No medical opinion from Dr Robinson or
Dr Walker had been given on the causal connection between the 2021 fall and the right hip injury. The Commission would not be satisfied that a causal relationship between the 2021 fall and the right hip injury was established.
Mr Doak noted that Dr Walker’s discharge summary referred to a previous right shoulder reconstruction within the last 12 months. Mr Doak submitted that while that reference might be an error, there was no evidence by way of report or clinical records from a general practitioner to explain the reference to a previous shoulder reconstruction.
Mr Doak submitted that it would be difficult to be satisfied that there was a material contribution from the applicant’s right hip problem. The mere fact that the hip gave way was not a medical diagnosis or reasoned opinion on a causal relationship.
Mr Doak submitted that it was clear on the radiological investigations that there was arthritis present in the applicant’s right shoulder prior to the hip injuries.
Mr Doak referred to the most recent report of Dr Pillemer who gave the opinion that it was more likely than not that the applicant would have reached the present situation requiring a reverse shoulder replacement irrespective of the falls.
Mr Doak submitted that Dr Robinson was not clear about the reasons why a total shoulder replacement was considered necessary. It would not be suggested that Dr Robinson’s proposal for a total shoulder replacement was due to the tears in the tendons of the shoulder alone. Dr Bateman had previously been content to proceed without the surgery notwithstanding the presence of tears in 2016.
Mr Doak submitted that acceptance of Dr Robinson’s opinion was dependent upon the glenohumeral arthritis being caused by tears. Arthritis was, however, present before the tears to the rotator cuff, as shown in the investigations in 2013. Neither Dr Robinson nor
Dr Bateman had the full picture. Degeneration was present in the shoulder for some time and was the basis for the recommendation for surgery. The subscapularis tear alone would not form the basis for the need for a total shoulder replacement.
Mr Doak submitted that Dr Millons was aware of the chronic degenerative issues in the shoulder joints although he also did not appear to have had the full picture.
Mr Doak submitted that the Commission would not be satisfied that what occurred in January 2021 was causally related to the 2014 injury to the right hip. Nor would the Commission be satisfied that the need for surgery arose as a result of the injury to the right hip.
Applicant’s submissions in reply
Mr Morgan submitted that the respondent’s submissions were not supported by the medical evidence.
Dr Millons dealt with cause of the falls. Dr Millons provided a straightforward analysis and no medical evidence had been provided by the respondent to suggest that the falls did not occur in that way.
Mr Morgan noted that although not identified as causative, liability had also been accepted in relation to the right knee as connected with the right hip.
FINDINGS AND REASONS
Consequential condition
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It has previously been determined that the applicant sustained injuries to his right hip on 1 April 2014 and 8 June 2014. What requires determination in these proceedings is whether the applicant has sustained a consequential right shoulder condition as a result of those injuries.
It is not necessary for the applicant to establish that the right shoulder condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[2] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[2] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[3], Deputy President Roche commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.
A common sense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[4], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[4] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The treating medical evidence before me, consistently with the applicant’s own evidence, indicates ongoing difficulties at the applicant’s right hip, including the hip giving way, following the work injuries. The applicant has given evidence that he reported altered sensation and his right leg occasionally giving way and collapsing at unexpected times to
Dr Harbury in August 2015.
The applicant’s falls due to the right hip giving way on 6 October 2015 and 4 September 2016 are documented in the reports from the applicant’s treating practitioners.
When Prof Bruce saw the applicant on 6 March 2020, he noted that the applicant’s biggest issue was pain in the sacroiliac joint, buttocks and greater trochanter down the lateral thigh, which made him fall regularly.
The applicant had fallen again on 13 September 2019, causing symptoms in the right knee, which appear to have been accepted as consequential to the right hip injuries by the respondent’s insurer.
The respondent has in its submissions disputed whether the fall on 9 January 2021 was causally related to the work injuries. The evidence as to the circumstances of that fall was described as “scant”. The applicant has, however, in his written statement described the fall as occurring when his right leg/ hip gave way. The applicant said he fell and put his right shoulder out to prevent the fall.
The fall was described in similar terms in the discharge referral from Dr Walker the following day. It was noted that the applicant had presented following a fall in which the applicant’s right hip and knee gave way and he fell onto his right arm. The same mechanism was subsequently reported to Dr Robinson.
The respondent has observed in its submissions that there is reference to a recent shoulder reconstruction in the discharge referral from Dr Walker. That reference is not explained. However, there is nothing else in the applicant’s evidence, the treating medical evidence or the medicolegal evidence to suggest this reference is anything other than an error.
Given the consistency between the applicant’s evidence and the contemporaneous account set out in the discharge referral, and in the absence of any suggestion to the contrary, I am satisfied that the 2021 fall was caused by the applicant’s right hip and knee giving way. That the applicant’s right hip and knee gave way is consistent with the treating medical evidence, including the evidence of continuing difficulties at the right hip including regular falls as reported by Prof Bruce in March 2020.
That the applicant sustained some impact at his right arm and shoulder in each of the falls relied on in these proceedings is also consistent with the treating medical evidence. Following the 2015 fall, Dr Kenny noted that the fall had led to poor function and debilitating right shoulder pain.
The fall of 4 September 2016 was found to have reruptured the repair to the right rotator cuff performed by Dr Bateman in June 2016.
Dr Robinson expressed the opinion based on changes demonstrated at the shoulder on the ultrasound taken after the fall compared with an ultrasound performed the day prior to the fall, that the 2021 fall caused new rotator cuff tears.
The respondent has submitted that the mere fact that the falls involved the applicant’s right hip giving way was insufficient to establish a causal relationship between the hip injuries and the impacts on the applicant’s right shoulder caused by the falls in 2015, 2016 and 2021. The respondent noted that no medical opinion on the causal relationship between the 2021 fall and the right hip injuries had been provided by Dr Robinson or Dr Walker.
Opinions consistent with a causal relationship between the right hip injuries and the 2015 and 2016 falls were, however, given by Dr Millons. Dr Millons explained that weakness in the right lower limb caused by the aggravation of degenerative changes in the right hip to which employment was the main contributing factor had caused the applicant to fall and injure his right shoulder.
Dr Pillemer took a history of falls caused by the applicant’s right leg giving way following the right hip injury in his 2017 report. In his May 2019 report, Dr Pillemer took a history of the fall in 2015. Dr Pillemer gave the opinion that if the applicant’s history of having fallen while getting out of his car when his hip gave way was accepted, he would accept that the problems with the right shoulder were consequential to the original problems with the right hip and the subsequent need for surgery at the right hip.
On the evidence before me, there is no reason to doubt the accuracy of the history of the applicant falling while getting out of his car and the hip giving way. I am satisfied on the opinions of Dr Millons and Dr Pillemer, which are consistent with the lay and treating medical evidence, that the 2015 and 2016 falls were causally related to the right hip injuries and the subsequent right hip replacement performed in 2015 by Dr Harbury.
The applicant has not relied on a medicolegal opinion addressing the 2021 fall. Dr Pillemer has, in his most recent report, taken a history of the 2021 fall and noted the applicant’s suggestion that the fall was due to his right hip giving way. Dr Pillemer has not, however, given an opinion of his own with regard to the causal relationship between the 2021 fall and the right hip injury. Rather, Dr Pillemer has confined his opinion to whether the requirement of a reverse shoulder replacement was causally related to the hip injuries.
I accept, therefore, that there is no expert opinion on the causal relationship between the 2021 fall and the right hip injuries. That circumstance is not, however, fatal to the applicant’s case. Applying the causal test set out in Kooragang Cement Pty Ltd v Bates[5] and noting the consistency between the applicant’s evidence and the treating medical evidence of ongoing issues at the right hip causing falls, the particular mechanism of the 2021 fall, as well as the expert opinions of Dr Millons and Dr Pillemer in relation to the earlier falls, I am satisfied that the right hip injuries resulted in the 2021 fall and the impact on the right shoulder in that event.
[5] (1994) 10 NSWCCR 796 at [810].
The evidence is also consistent in indicating an increase in symptoms at the applicant’s right shoulder as a result of each fall. In relation to the 2021 fall, Dr Robinson’s evidence indicates that not only did the 2021 fall cause new tears at the rotator cuff tendons, it also brought about a constitutional change in function and pain at the right shoulder.
I am satisfied on all of the evidence before me that each of the 2015, 2016 and 2021 falls brought about an increase in symptoms and restrictions at the applicant’s right shoulder which were consequential to the right hip injuries of 1 April 2014 and 8 June 2014.
I am satisfied that the applicant has sustained a consequential right shoulder condition as a result of the right hip injuries of 1 April 2014 and 8 June 2014.
Whether the proposed surgery is reasonably necessary as a result of the injury?
A separate question arises as to whether the surgery proposed by Dr Robinson is reasonably necessary as a result of the right hip injuries.
Section 60 of the 1987 Act relevantly provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is the applicant who bears the onus of establishing on the balance of probabilities that proposed right shoulder surgery is reasonably necessary as a result of the accepted hip injuries. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[6] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[6] [2008] NSWCA 246.
There is no dispute in the medical evidence before me that the proposed surgery is reasonably necessary medical treatment. Dr Pillemer’s most recent report suggested that the present situation required a reverse shoulder replacement. That observation was consistent with the opinions of the treating surgeon, Dr Robinson. The possibility of a shoulder replacement being required down the track was raised as early as 2016 by Dr Bateman following the 2016 fall. At that time, however, Dr Bateman was of the view that the applicant’s symptoms were likely to settle and he was not keen to perform the surgery based on the applicant’s age. Dr Bateman recommended at that time that the applicant continue with physiotherapy to strengthen the remainder of the rotator cuff.
I am satisfied on all of the evidence that the surgery proposed by Dr Robinson is reasonably necessary treatment for the applicant’s current right shoulder condition.
What remains in issue is whether there is a causal relationship between the right hip injuries and the need for that surgery.
It is apparent from the applicant’s evidence and the medical evidence before me that there was symptomatic pathology at the applicant’s right shoulder prior to the hip injuries in 2014. The applicant’s own evidence, as set out in the written statement dated 6 April 2018, discloses that symptoms at the applicant’s right shoulder were reported to his general practitioner, Dr Willmott, in 2002, 2005, 2010, 2012 and 2013. In March 2013, the symptoms were investigated. The report of an ultrasound performed on 26 March 2013 revealed a small partial tear of the supraspinatus tendon, subacromial – subdeltoid bursitis, ACL joint osteoarthritis and subscapularis enthesopathy and biceps tendinosis.
Investigations of the shoulder after the hip injuries continued to report degenerative changes and signs indicative of chronic issues. This was noted by Dr Kenny, for example, in his report of 17 February 2016. Dr Kenny expressed some difficulty in ascertaining whether “all of his symptomology” was related to the recent injury given the evidence of pre-existing pathology.
The radiology reports do, however, suggest some progression in the pathology after the first fall in 2015. The previously “small”mtear at supraspinatus tendon was now reported to be a full thickness tear. A probable full thickness tear of the intra-articular portion of the long head of biceps tendon was reported on the MRI performed on 19 January 2016. The same MRI noted “severe” degenerative change at the AC joint. X-rays performed on 23 October 2015 also noted mild to moderate to changes in the glenohumeral joint.
Dr Kenny reported that the 2015 fall had exacerbated the applicant’s shoulder pain and shoulder function. The applicant’s evidence was that despite the intermittent symptoms at his right shoulder prior to the hip injuries, he had been able to continue his work requiring hammering, sawing, crawling, and performing manual labour involved in kitchen joinery. Although shoulder symptoms had been reported and investigated previously, the evidence does not indicate that the applicant was seen by a specialist for treatment at any time. Nor is there any suggestion that surgical treatment for the shoulder symptoms and pathology prior to the injury was contemplated.
Following the first fall, the applicant underwent an arthroscopic rotator cuff repair and subacromial decompression surgery. Following that surgery, Dr Bateman reported that the applicant had been going exceptionally well until the fall on 4 September 2016 in which he reruptured the repair to the rotator cuff. The applicant was now struggling to lift the arm above shoulder height due to severe pain. Dr Bateman gave the opinion that the tendon was now not salvageable.
An MRI performed on 15 September 2016 again showed full thickness with tears involving the supraspinatus and subscapularis tendons with tendon retraction. The long head of biceps tendon was also torn. Severe AC joint osteoarthritis was noted as was glenohumeral osteoarthritis which was again reported to be mild.
Dr Bateman’s recommendation following the 2016 fall was that the applicant should continue with physiotherapy to strengthen the remainder of the rotator cuff. Dr Bateman suggested that the pain might settle.
On 2 May 2017, Dr Bateman reported that, as predicted, the applicant’s pain had improved although the function had not. The applicant was cleared to return to work with some lifting restrictions.
An x-ray of the right shoulder was performed on 31 December 2018. This was reported to show a degree of degenerative change at the glenohumeral joint. Significant AC joint arthropathy and a significant reduction in the subacromial space was noted. The tears of the subscapularis and supraspinatus tendons were also noted.
Dr Robinson has reported that the next investigation of the applicant’s right shoulder, which was an ultrasound performed on 8 January 2021, the day before the most recent fall, showed a complete tear of the supraspinatus and long head of biceps tendons. The remainder of the rotator cuff tendons were said to be intact.
The day after the 2021 fall, a full thickness tear through the superior subscapularis tendon, which was described as possibly acute or chronic, was noted on ultrasound.
In his most recent report, Dr Pillemer has suggested that given the extensive problems at the right shoulder prior to the hip injuries, it is more likely than not that the applicant would have reached the present situation requiring a reverse shoulder replacement irrespective of any injury in 2015.
In giving this opinion, Dr Pillemer noted the falls in October 2015, September 2016 and January 2021. It was also noted that the January 2021 fall was reported to have caused the shoulder to become acutely more symptomatic. Dr Pillemer did not, however, address whether these falls made a material contribution to the present need for surgery notwithstanding the pre-existing pathology.
It is well-established that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[7] Deputy President Roche stated:
“[57]…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). 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 that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[7] [2015] NSWWCCPD 49.
The presence of pre-existing pathology at the right shoulder does not necessarily mean that the surgery now proposed does not “result from” the work injuries. In Taxis Combined Services (Victoria) Pty Ltd v Schokman[8] Deputy President Roche found:
“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not “result from” the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5 DDCR 286).
Thus, the fact that Mr Schokman had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, does not mean that the proposed treatment of the peri-implantitis is not as a result of the injury.
…It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary “as a result of” the injury. On the evidence called from Dr Roessler, he easily met that test.”
[8] [2014] NSWWCCPD 18 at [54].
Dr Robinson has provided an opinion that is consistent with the falls in 2016 and 2021 making a material contribution to the present need for surgery.
Dr Robinson noted that following the 2016 fall, there was a re-tear/re-rupture of the rotator cuff that was not salvageable. Dr Robinson picked up on the comment in Dr Bateman’s report of 13 October 2016 that there was not yet superior migration of the humeral head and there was no osteoarthritis. Dr Robinson said that with a massive rotator cuff tear there was a tendency to superior migration resulting in cuff tear arthropathy and glenohumeral arthritis with pain and dysfunction. Dr Robinson said that these were not demonstrated initially but had been the most likely progression on the basis of the injury on 4 September 2016.
The respondent has in its submissions noted that neither Dr Bateman nor Dr Robinson appear to have been aware of the pre-existing pathology shown on the investigations prior to the hip injury. As noted above, the March 2013 x-ray and ultrasound of the right shoulder did show ACL joint osteoarthritis. The ultrasound and x-ray performed soon after the 2015 fall showed advanced degenerative changes at the AC joint and mild to moderate degenerative changes in the glenohumeral joint.
It is true that neither Dr Robinson nor Dr Bateman refer to the earlier radiological investigations. Nor did they take a history of reported symptoms at the right shoulder prior to the work injury. There does, however, on the face of the radiological reports to have been a significant deterioration from the small rotator cuff tear reported in March 2013 compared with the October 2015 imaging after the first fall which revealed a full thickness supraspinatus tear. No medical opinion has been provided from Dr Pillemer or any other doctor which would contradict Dr Robinson’s observation that with a massive rotator cuff tear there is a tendency to superior migration resulting in cuff tear arthropathy, glenohumeral arthritis, pain and dysfunction.
I do accept that the early radiological investigations suggest that glenohumeral arthritis would have already been present at the time of the work falls. This raises some questions about the reliability of Dr Robinson’s opinion as to the effect of the 2016 fall.
Even leaving aside the 2015 and 2016 falls, however, Dr Robinson has provided an opinion that is consistent with the applicant’s evidence, that following the 2021 fall, the applicant experienced a change in function and pain in the shoulder. The applicant now had constant pain and dysfunction where is it had been manageable prior to the fall. The fall was described by Dr Robinson as “the tipping point” suggesting the acute changes in the applicant’s pain and function meant that it was no longer an option for the applicant to wait for the surgery that had been foreshadowed back in 2016.
It does appear that prior to the 2021 fall, the applicant had, consistently with the expectation of Dr Bateman experienced an improvement in his symptoms of pain. The applicant had returned to a capacity for work albeit with some lifting restrictions. There is nothing to suggest that there was any pressing need for the reverse shoulder replacement surgery.
I accept that the acute change in symptoms following the fall in January 2021 materially contributed to the present need for the surgery, even if the previous falls did not.
I have found that the 2021 fall resulted from the work injuries to the right hip. I am further satisfied that the same fall has materially contributed to the present need for the surgery proposed by Dr Robinson. I am satisfied that the surgery proposed by Dr Robinson is reasonably necessary as a result of the injuries to the right hip on 1 April 2014 and 8 June 2014 pursuant to s 60 of the 1987 Act.
It is appropriate that there be an order that the respondent pay the costs of and incidental to the right reverse total shoulder replacement surgery proposed by Dr Robinson.
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