Carr v State of New South Wales (Mid North Coast Local Health District)

[2021] NSWPIC 195

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Carr v State of New South Wales (Mid North Coast Local Health District) [2021] NSWPIC 195

APPLICANT:

Stephen Roy Carr

RESPONDENT:

State of New South Wales (Mid North Coast Local Health District)

MEMBER:

21 June 2021

DATE OF DECISION:

Paul Sweeney

CATCHWORDS:

WORKERS COMPENSATION- Worker suffers fall while absent from work recuperating from compensable right shoulder surgery; insurer disputes that the need for revision shoulder surgery following the fall is reasonably necessary as a result of the work injury; Ozcam v Macarthur Disability Services Ltd, Secretary, New South Wales Department of Education v Johnson considered;  State Government Insurance Commission v Oakley considered and applied; Held- award for worker for cost of revision surgery as work injury and initial surgery rendered the worker’s shoulder vulnerable to further injury.

DETERMINATIONS MADE:

1.     The need for the revision surgery of the applicant’s right shoulder proposed by Dr Hughes results from the injury of 10 August 2020.

2. The respondent to pay the costs of and incidental to that surgery in accordance with section 60 of the Workers Compensation Act 1987 (the 1987 Act).

STATEMENT OF REASONS

INTRODUCTION

1. Stephen Roy Carr (the applicant) is employed by the Mid North Coast Local Health District (the respondent) as a cleaner at the Coffs Harbour Health Campus. While attempting to tuck an apron, which was part of his personal protective equipment (PPE), into his shorts in the course of his employment he suffered an injury to his right shoulder.

2. On 20 November 2020, the applicant underwent a surgical repair of his right shoulder under Dr Hughes, an orthopaedic surgeon, at Castlecrag Private Hospital. Post-operatively, the applicant was required to carry his right arm in a sling and wear a shoulder abduction pad for a period of six weeks.

3. On 17 December 2020, while visiting his son’s dormitory at Byron Bay, he sat on a chair that gave way causing him to fall onto his right shoulder. Following this incident, he experienced increased pain and restriction of movement in his right shoulder.

4. Dr Hughes has advised that the applicant requires further surgery to his right shoulder to repair the damage caused by the fall on 17 December 2020.

5. The respondent accepted liability for the injury suffered by the applicant to his right shoulder on 10 August 2020 and paid for the cost of medical treatment including the surgery performed by Dr Hughes. But it has denied liability for the further surgery proposed by Dr Hughes. It maintains that the applicant’s fall on 17 December 2020 did not result from his employment injury and that the need for revision surgery does not, therefore, result from the work injury.

PROCEDURE BEFORE THE COMMISSION

1. By these proceedings the applicant claims the cost of the revision surgery proposed by Dr Hughes to his right shoulder pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act).

2. When the matter came on for conciliation and arbitration on 7 June 2021, Mr Hickey of counsel represented the applicant and Mr Barter of counsel represented the respondent. The matter was heard over the telephone.

3. I was informed by counsel that the parties were unable to reach agreement on the threshold question of whether the need for the surgery proposed by Dr Hughes resulted from the accepted work injury. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to resolve the dispute but were unable to reach any mutually satisfactory resolution.

DOCUMENTS

1. The following documents are in evidence before the Commission:

   (a)The Application to Resolve a Dispute (the Application) and the documents attached;

   (b)The Reply and the documents attached, and

   (c)An Application to Admit Late Documents dated 1 June 2021 and the documents attached.

2. There was no objection to any of the material referred to above. There was no application to adduce further written or oral evidence.

SUBMISSIONS

1. The submissions of the parties are recorded and I do not propose to reiterate each of the arguments of counsel in these short reasons. Both counsel referred to the evidence of the applicant and the medical opinions of Dr Hughes and Dr Hopcroft, a surgeon who had seen the applicant at the request of his solicitor and provided a report dated 10 March 2021.

2. Mr Hickey also referred to several cases which he submitted were relevant to the issue in dispute before the Commission. These included Ozcam v Macarthur Disability Services Ltd [2021] NSWCA 56 (12 April 2021) and Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321(Johnson). In both cases the New South Wales Court of Appeal applied the principles enunciated by Malcolm CJ in The State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003 (Oakley). In Johnson, a case which involved judicial review of the decision of a Medical Appeal Panel, these principles were stated as follows by Emmett AJA at [70] thus:

   “•      Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
   
   

   ·        Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
   
   

   ·        Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
   
   

3. Mr Hickey argued that the applicant’s injury fell within the first and second categories identified by Malcolm CJ. Mr Barter submitted that it fell within the third category.

4. Before attempting to resolve the issue in dispute, it is necessary to briefly review the applicant’s evidence and that of his wife and son both of whom were present at the time of his fall. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

Applicant

1. The applicant’s evidence is found in two signed statements of 6 April 2021 and 24 May 2021. His evidence was not challenged at the arbitration hearing and it must be accepted that his statements contain an accurate account of the circumstances of his injury and the subsequent events relevant to this case.

2. By his initial statement, the applicant describes suffering his initial work injury while undertaking an infectious cleaning program at the Coffs Harbour Health Campus on 10 August 2020. He states:

   “As I was putting my PPE on, I reached around to tuck the PPE apron and felt my right shoulder pop and tear. I had immediate intense pain in my right shoulder and could not move my arm properly.”

3. The applicant recounts that he reported his injury and sought medical treatment. His general practitioner, Dr Fernando, prescribed conservative treatment including physiotherapy. When the applicant’s symptoms did not abate, he was referred to Dr Geoffrey Hughes who he first saw on 1 October 2020. Dr Hughes arranged for the applicant to undergo an MRI scan. On reviewing the scan, he recommended that the applicant undergo right shoulder surgery.

4. The applicant says that he underwent surgery at Castlecrag Private Hospital on 20 November 2020. He continues:

   “Following my surgery I was required to keep my right arm in a sling with an abduction pad/pillow for approximately 6 weeks.

   I saw my GP again on 10 December 2020.

   On 17 December 2020 my wife drove her and I to Byron Bay to pick up our son from university for the holidays.”

5. While the applicant’s wife was assisting their son to pack his belongings, the applicant says he asked for a chair to sit on. The applicant’s wife took a chair that was under a desk and provided it to him. He continues:

   “It was on castor wheels so she simply spun it around for me. As I sat on the chair it immediately fell back to the right (I found out afterwards there was a castor wheel missing). I could not reach out and grab the desk or otherwise use my right arm to stop myself falling back or to put my arm out to brace myself due to it being immobilised in the sling. As such, I fell backwards landing on my right shoulder.”

6. The applicant recounts that he had immediate pain in his right shoulder. He consulted Dr Hughes again. He underwent a further MRI. By January 2021, Dr Hughes advised that he required further surgery.

7. The applicant says that he has been certified as fit to perform part-time work with restrictions. However, the respondent has not been able to provide such work. He also recounts that his injury has curtailed his ability to play sport and engage in domestic and recreational activities.

8. By his supplementary statement, the applicant attaches recent photographs of himself wearing the sling and cushion pad on his right arm and also depicting “the approximate position I sat in a similar chair”. He continues:

   “When I sat back into the chair with my full weight, the chair then suddenly tipped sideways and slightly backwards to my right. I believe this was due to the missing castor wheel which I discovered after my fall.

   As I was falling I could not use my right arm to reach out and grab on to anything or to break my fall with my right hand, due to my right hand being immobilised in the sling.

   Because my right arm was immobilised, I landed on my right shoulder with most of my body weight.”

Julie Anne Carr

1. Mrs Carr gives a similar account of the applicant’s injury on 17 December 2020 as that found in his statements. She says:

   “As Stephen sat down in the chair, the chair fell back and to the right and Stephen fell with it hitting the floor with his right shoulder. He couldn’t reach out to stop himself falling or to brace himself against the fall with his right hand because it was in the sling.

   I was immediately concerned for Stephen as he appeared to be in a lot of pain after it.”

Nathanael Carr

1. Mr Carr’s son records that his parents had attended Byron Bay to take him home as he was required to vacate his room on campus for the summer break. He confirms that his mother was helping him pack things up in his room and take them to the car. He records that:

   “Dad was just watching and talking to us as he could not help out as his right arm was in a sling.”

2. Mr Carr recalls coming back into the room and seeing his father on the floor. He said that he could “tell he was in a lot of pain by looking at his face”.

DISCUSSION AND FINDINGS

1. Dr Hughes expressed the opinion in his serial reports to Dr Fernando that the applicant sustained a significant tear of the supraspinatus tendon of his rotator cuff at the time of the injury on 10 August 2020. He attributed the tear to the applicant’s physical activity in tucking his PPE gown into his pants. He stated that manoeuvre involved “extreme internal rotation of the shoulder pushing downwards”. By a report of 6 October 2020, he said this:

   “In terms of this man’s clinical condition, he has a painful weak shoulder which is mainly involving the supraspinatus tendon. The radiological imagining suggests an acute extensive supraspinatus tear as noted above. He must have had some degree of asymptomatic tendinopathy in the tendon for this to occur, but the extreme stretch of his supraspinatus in the activity which has brought on the acute extension of his rotator cuff tear.”

2. Prior to surgery Dr Hughes advised that the treatment regime he proposed involved a fairly lengthy rehabilitation:

   “With immobilisation in a sling for 6 weeks followed by physiotherapy from 6-12 weeks with a gentle pulley exercises and then physiotherapy to strengthen the shoulder in the next 2-3 months.”

3. In a report to the respondent’s workers compensation insurer, QBE, on 18 January 2021, Dr Hughes responded to a question posed by the insurer as to how the injury of 17 December 2020 was “related to the rotator cuff repair”. He said this:

   “For patients undergoing a rotator cuff repair it is essential that they rest the shoulder and not inadvertently load the shoulder because of the significant risk of re-tear. The healing of a rotator cuff goes through a number of phases and initially there is an inflammatory healing response which is associated with the tendon becoming slightly boggier and, therefore, this is present for at least the first 3 to 4 weeks and it is the reason why 6 weeks is chosen as the immobilisation period to get over this hump of a soft tendon, and therefore a tendon which can more likely fail if put under load. Therefore, the mechanism of injury in this early stage is not so much that the sutures or anchors pulled out of the bone, it is that the sutures can pull through a softened tendon as it is going through a healing phase. From 6 to 12 weeks the healing then starts becoming more mature and by 12 weeks the strength of the tendon is about 60% of normal. This is the reason why after an acute rotator cuff repair, re-tearing is more likely in the first 6 weeks, especially if there is an inadvertent load to the shoulder. Thus it is the post-surgical changes that occur in the tendon that make this tendon more likely to tear in the early peri-operative stage.”

4. At the arbitration hearing, I expressed some doubt as to whether the applicant’s injury on 17 December 2020 fell within the first category enunciated by Malcolm CJ in Oakley. Making necessary changes to reflect the fact that the present claim is one for statutory benefits under the 1987 Act the first principle can be stated as follows:

   Where the further injury results from a subsequent incident which would not have occurred had the worker not been in the physical condition caused by a work injury, the damage should be treated as caused by that injury.

5. As I have found that the applicant’s circumstances fall fairly and squarely within the second principle enunciated by Malcolm CJ, I will not dwell on this point. However it is clear that the incident of 17 December 2020 occurred because the applicant sat on a defective chair. Thus, his fall was unrelated to the work injury.

6. Mr Hickey, of course, argues that if the applicant’s right arm was not immobilised in a sling he may have been able to extend his right arm and break his fall. Thus ,he would have avoided injury This hypothesis involves an element of speculation.

7. The applicant is a large man who fell backwards and to his right-hand side. If he was able to extend his right arm to break his fall, it is not evident that the force transmitted through the arm would have been reduced to such an extent as to prevent the him suffering injury to the “boggy” supraspinatus tendon that had been compromised by the surgical procedures. The sutures may have “pulled through a softened tendon” irrespective of the way in which the applicant utilised his right arm to break the fall.

8. As Dr Hughes stated:

   “For patients undergoing a rotator cuff repair it is essential that they rest the shoulder and not inadvertently load the shoulder because of the significant risk of re-tear.”

9. While both Dr Hughes and Dr Hopcroft express the opinion that injury may not have occurred had the applicant been able to break his fall, that does not seem consistent with Dr Hughes’ hypothesis that an inadvertent “load of the shoulder can cause a significant risk of re-tear.”

10. On the other hand, I have little doubt that the applicant’s injury on 17 December 2020 falls within the second principle in Oakley. Making necessary changes to adapt it to the workers compensation field can be expressed as follows:

    Where the further injury results from a subsequent incident which would have occurred even if the worker had not been in the condition caused by the earlier injury but the injury sustained was greater because of the aggravation of the earlier injury, the additional injury resulting from the aggravation should be treated as caused by the earlier injury.

11. While the application of the principles in Oakley to causation in the workers compensation arena is a relatively recent development, the second principle simply restates the time honoured principle that if a work injury makes a worker more vulnerable to a subsequent non-work injury, the additional pathology caused by the second injury can be attributed to the initial work incident. This is because the subsequent incident gives rise to the need for treatment that results from the initial injury:see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 and Cluff v Dorahy Bros (Wholesale) Pty Ltd [1972] 2 NSWLR 435 .

12. Almost 80 years ago, in Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157 at 162, Sir Frederick Jordan said this:

    “It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, a right to compensation ceases.”

38.  In Calman v Commissioner of Police [1999] 73 ALJR 1609 Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ stated (at [38], excluding foot notes):

“It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”

1. The evidence that the applicant would not have required the revision surgery but for his vulnerability caused by the work injury and the subsequent surgery performed by Dr Hughes is overwhelming. There is no contrary evidence. Dr Hughes postulates that in the period following surgery the inadvertent transmission of force to the injured shoulder can cause the sutures to “pull through a softened tendon as it is going through a healing phase”. He states that following an acute rotator cuff repair “re-tearing is more likely to occur in the first 6 weeks, especially if there is an inadvertent load to the shoulder”. That is precisely what happened in this case.

2. The applicant requires further surgery because the subsequent injury transmitted an inadvertent load to the shoulder which caused the sutures to be pulled through the soft tendon as it was going through the healing phase. If the applicant had not had the initial injury and the necessary surgery to repair the rotator cuff, he would not have been vulnerable to the injury he sustained in the fall of 17 December 2020.

3. As I indicated above there is no evidence to the contrary. As I have no doubt that the initial injury and the rotator cuff surgery performed by Dr Hughes materially contributed to the tearing of the sutures in the incident of 17 December 2020. I propose to find that the need for the revision surgery proposed by Dr Hughes results from the injury of 10 August 2020. I order the respondent to pay the costs of and incidental to that surgery in accordance with s 60 of the 1987 Act.