Ceniza v NSW Health Pathology

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ceniza v NSW Health Pathology [2024] NSWPIC 716
APPLICANT:	Evangeline Ceniza
RESPONDENT:	State of New South Wales (NSW Health Pathology)
MEMBER:	Kathryn Camp
DATE OF DECISION:	19 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to the right shoulder and cervical spine; acceptance that proposed right shoulder arthroscopic acromioplasty, ACL excision and biceps tenodesis surgery result from accepted injury; dispute as to whether the proposed surgery is reasonably necessary in view of available alternative treatment; section 60; principles in Diab v NRMA Limited considered and applied; Held – applicant discharged onus of proof that the proposed surgery is reasonably necessary as a result of the accepted injury, within the meaning of section 60; respondent to pay the cost of, and incidental to, the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The proposed right shoulder surgery in the nature of “arthroscopic acromioplasty, ACL excision and biceps tenodesis”, recommended by Dr Low, is reasonably necessary treatment as a result of injury to the applicant’s right shoulder on 6 June 2019. The Commission orders: 2. The name of the respondent is amended to “State of New South Wales (NSW Health Pathology)”. 3. The respondent is to pay the applicant’s reasonably necessary costs of, and incidental to, right shoulder surgery recommended by Dr Low, pursuant to s 60(5) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether proposed surgery in the nature of right shoulder arthroscopic acromioplasty, anterior cruciate ligament (ACL) excision and biceps tenodesis recommended by Dr Adrian Low is reasonably necessary, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), in circumstances where it is not disputed that surgery results from an accepted workplace injury. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

On 6 June 2019, Evangeline Ceniza, the applicant worker, sustained an injury to her right shoulder and cervical spine, in the course of her work as a technical officer for the respondent, State of New South Wales (NSW Health Pathology). She was asked to work in the specimen area where she was required to forcibly open and close a faulty “dumbwaiter”, used for transporting pathology specimens to other levels of the pathology department, at chest height and above her head on a repetitive basis. Later that evening she experienced pain in her right shoulder and cervical spine.
There is no dispute in the present proceedings that the applicant sustained an injury to her right shoulder and cervical spine. This matter has been the subject of former proceedings before the Personal Injury Commission (Commission) and Workers Compensation Commission (WCC). It is helpful to briefly set out that procedural history.
On 19 June 2020, the WCC issued a Certificate of Determination which discontinued the proceedings and recorded an agreement between the parties concerning the payment of compensation. The parties agreed that the respondent would reinstate the applicant’s weekly payments of compensation on a voluntary basis from 15 January 2020 and continuing, and pay reasonably necessary s 60 medical expenses.
On 7 July 2021, the Commission issued a further Certificate of Determination finding that the applicant suffered a work injury to her cervical spine on 6 June 2019 and as a result required ongoing medical treatment. The Commission found that the proposed C4-C6 anterior cervical decompression and fusion surgery, proposed by Dr Hsu, was reasonably necessary as a result of the cervical spine injury and ordered the respondent to pay the costs of and incidental to that surgery.
The respondent’s insurer issued several notices and reviews pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998. Of relevance and in respect of the present proceedings, on 4 March 2024, 23 April 2024 and 20 September 2024, the insurer issued a dispute regarding proposed surgical treatment for the right shoulder.
On 16 September 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for medical expenses for the costs of the proposed right shoulder surgery.
On 20 September 2024, the insurer issued a s 287A notice. The notice confirms denial of liability for the proposed right shoulder surgery, on the basis that it is not “reasonably necessary” pursuant to s 60 of the 1987 Act. It also confirms support for ongoing psychological treatment and an injection into the right shoulder.
On 3 October 2024, the respondent lodged a Reply.
On 8 October 2024 and 21 November 2024, the applicant lodged an Application to Admit Late Documents.

ISSUE FOR DETERMINATION

The following issue remains in dispute:
(a) whether the proposed right shoulder surgery (arthroscopic acromioplasty, ACL excision and biceps tenodesis), recommended by Dr Low, is “reasonably necessary” as a result of injury on 6 June 2019 (s 60 of the 1987 Act).
The following matters are agreed:
(a) The applicant sustained an injury to her cervical spine and right shoulder in the course of her employment with the respondent on 6 June 2019.
(b) The applicant is in receipt of weekly payments of compensation in respect of the accepted injury.
(c) The respondent accepts that the proposed surgery to the right shoulder (arthroscopic acromioplasty, ACL excision and biceps tenodesis) “results from” the accepted injury. However, the respondent disputes that the proposed surgery is “reasonably necessary” within the meaning of s 60(1) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

On 14 October 2024, the parties attended a preliminary conference.
On 28 November 2024, the parties attend a conciliation conference and arbitration hearing. Mr Morgan, of counsel, appeared for the applicant instructed by Carroll & O’Dea Lawyers. Ms Warren, of counsel, appeared for the respondent instructed by Rankin Ellison Lawyers.
During the proceedings:
(a) The applicant’s Application to Admit Late Documents, dated 8 October and 21 November 2024, containing identical documents attached, was admitted into the proceedings.
(b) The respondent confirmed that the correct description of its name is “State of NSW (NSW Health Pathology)”. Accordingly, the name of the respondent in these proceedings has been amended.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing. During the hearing, I directed the parties to refer me to the evidence they sought to rely on in support of their case. I indicated that I would only have regard to the evidence they referred me to in their oral submissions in determining the dispute between the parties. The hearing was recorded and is available to the parties.
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, dated 16 September 2024, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 3 October 2024, and attached documents;
(c)    Direction issued on 14 October 2024, and
(d)    Applications to Admit Late Documents, lodged by the applicant on 8 October 2024 and 21 November 2024, containing identical attached documents.

Sections 78 and 287A Notices

The ss 78 and 287A notices issued by the insurer are comprehensive, with detailed reference to the history of symptoms and treatment, medical opinion and proposed treatment.
Of relevance, the s 287A notice dated 20 September 2024 provides the most recent denial of liability for the proposed right shoulder surgery recommended by Dr Low, shoulder and knee surgeon. In this notice, like the others, there is a level of medical knowledge imported into the decision-making by the insurer. There is also a strong focus on the history of the request for the cervical spine surgery, the alleged absence of radiological evidence to support that surgery and the outcome of that surgery not being positive. There is a comment that pain is not a reason to undergo surgical intervention, and that the insurer holds similar concerns it had with the cervical spine surgery with regard to the proposed right shoulder surgery.
The notice then provides detailed commentary on the medical evidence from medical practitioners including Dr Geoffrey Needham, Associate Professor Brett Courtenay, Dr Alister Ramachandran and Dr Low. On the basis of the medical evidence, the insurer concluded that the proposed surgery is not reasonably necessary. It confirmed its denial of liability for the proposed surgery, as set out in the previous s 78 notices.

Applicant’s statements

In evidence are four statements made by the applicant, dated 8 April 2020, 3 February 2021, 26 June 2024 and 19 September 2024.
In her first statement, dated 8 April 2020, the applicant provides a description of the mechanism of injury involving the “lift” (or “dumbwaiter”) and moving specimens. She had trouble undertaking this task and did not have any support for three to four hours. On her return home that day she began to experience pain in her right shoulder radiating to the right side of her neck. She states that she returned to work and later at a reduced capacity. She describes the pain in her right shoulder and neck a “throbbing” which keeps her up all night.
In her supplementary statement, dated 3 February 2021, the applicant indicates that she was terminated from her role with the respondent in or about August 2020 and had been unsuccessfully seeking alternative employment within her restrictions. She describes heavy pain from her right shoulder to the base of her neck up to the right side of her head. Due to the severe pain in her neck and pain down the right arm, she states that Dr Hsu recommended cervical spine fusion. She also states that she just wants to live normally without pain and ongoing restrictions.
In her second supplementary statement, dated 26 June 2024, the applicant states that following cervical spine surgery she remained in significant pain and discomfort. She adds that she was referred for pain management and underwent nerve injections with medication. She felt the pain management treatment was helping but she continued to suffer ongoing pain in both her neck and right shoulder.
The applicant states that she feels that the right shoulder surgery proposed by Dr Low will significantly improve her situation moving forward and allow her to improve hopefully to the point where she might be able to return to some employment. She confirms that she has not work since 20 April 2022.
In her third supplementary statement, dated 19 September 2024, the applicant records treatment recommended and undertaken by Dr Ramachandran. She states that in or about October 2023 Dr Ramachandran undertook a nerve ablation to what she thought was her upper neck/head which she said did not have any positive effect. She adds that in June 2024 Dr Ramachandran arranged for a nerve block to her shoulder and that she had a “positive effect for a couple of hours” but that afterwards there was “no benefit whatsoever” and her shoulder symptoms returned to the way they were before that procedure. The applicant adds that Dr Ramachandran now recommends a nerve ablation (radiofrequency neurotomy) to her right shoulder, but that she is concerned about the possible impact of this procedure. She adds that she wishes to have the surgery proposed by Dr Low rather than the nerve ablation, and will consider the ablation procedure depending on the outcome of the right shoulder surgery.
The applicant states that her symptoms otherwise remain the same, with pain in her right shoulder and restricted movement.

Medical evidence

The applicant has undergone a significant amount of medical treatment following injury to her cervical spine and right shoulder on 6 June 2019. There is an overlay in symptoms of the cervical spine and right shoulder, and initial treatment has focused on the cervical spine. While the present dispute concerns treatment for the right shoulder, for completeness I will also provide a summary of the general treatment undertaken in respect of the cervical spine.
The applicant underwent several cortisone injections in late 2019, including on 12 August 2019 and 17 September 2019 for the cervical spine and on 29 October 2019 for the right shoulder. She also commenced a long period of physiotherapy, commencing in August 2019, which was ongoing for several years.
On 28 October 2019, the applicant underwent an x-ray and ultrasound of her right shoulder. The radiological report records findings of subacromial bursitis and impingement, and an intact rotator cuff.
On 13 November 2019, Dr Lee, treating orthopedic surgeon, reports to the applicant’s general practitioner Dr Tan. Amongst other things, Dr Lee records that the applicant’s right shoulder movement had improved since the right shoulder ultrasound-guided injection to a subacromial space. However, he records ongoing right shoulder and arm pain.
On 16 December 2019, Dr Smith, orthopedic surgeon qualified by the respondent, provides a report. Dr Smith records pain in the applicant’s neck and right shoulder on rotation of the neck.
On 23 February 2020, the applicant attended on Dr Hsu, adult and paediatric spine surgeon. Dr Hsu reports, on that day, pain in the applicant’s cervical spine and right shoulder which has become “quite significant” over the last six months, with pain radiating into her right hand and ulnar digits. Dr Hsu refers the applicant for a CT scan of the cervical spine and a nerve study of the upper limbs.
On 15 April 2020, Dr Hsu records that the nerve conduction study demonstrates no significant peripheral nerve involvement and the bone scan demonstrates C4-5 and C5-6 significant increased uptake. He recommends the applicant undergo an injection to her cervical spine.
On 24 April 2020, Dr Hsu recommends further investigations to delineate the pathology.
On 3 May 2020, Dr Hsu recommends that the applicant undergo cervical spine surgery. He notes that the applicant had undertaken a long course of non-operative treatment and was still experiencing significant pain in the neck and upper limb symptoms.
On 21 May 2020, Dr Hsu records that the cortisone injection to the cervical spine had worn off and the applicant was experiencing increasing pain in her cervical spine. He indicates the decision to proceed with surgical intervention of the cervical spine.
On 19 August 2020, Dr Smith provides a further report. He reports that on examination the neck and shoulder movements are normal, and there is no sensory abnormality in either upper limb. However, the applicant has a global power loss in right upper limb, on shoulder elevation on the right and neck rotation to the right. He suggests that the then proposed C4-5 and C5-6 cervical spinal fusion surgery is not going to provide the applicant with the expected benefit. He explains that this is because “90-95% of the time, neck symptoms emanate from the level of C5-6 and C6-7, no matter what the radiology looks like” and not fusing C6-7 means she is “only having half” of the treatment. He adds that the applicant could be better managed non-operatively.
On 22 January 2021, the applicant underwent a further cortisone injection. As a result, she was unable to sleep.
Following the Commission’s determination in July 2021, the applicant subsequently underwent cervical spine surgery on or about 22 April 2022.
On 5 June 2022, Dr Hsu records that the applicant is 6 weeks post-surgery to the cervical spine. He also records that the applicant has a dull ache in her right arm and leg. He refers the applicant for an MRI of the cervical spine to rule out any neurological issues. He recommends that the applicant undertake a course of physiotherapy and neck strengthening exercise.
On 11 June 2022, Dr Hsu records that on examination the applicant demonstrates significant upper limb cervical radiculopathy. Considering the long course of non-operative treatment, a few cervical spine injections and ongoing symptoms, he notes the decision was made to proceed with cervical spine decompression and fusion surgery.
On 26 June 2022, Dr Hsu records that the MRI scan did not show any neural impingement and the plain X-ray showed that the fusion was progressing well and the implants were in situ. Dr Hsu records that the applicant continues to have numbness in her upper limbs and that it will require time for the nerves to recover.
On 7 September 2022, Dr Hsu records increased numbness and pins and needles in the applicant’s right hand. He refers the applicant for a CT scan of the cervical spine to assess the fusion and for further investigation.
On 8 October 2022, Dr Hsu queries whether the applicant may have neuropathic pain which may account for the neck pain and upper limb symptoms. He refers the applicant for a bone scan and MRI scan of the cervical spine.
On 17 January 2023, Dr Ramachandran, pain specialist, reports to Dr Hsu regarding an initial pain assessment of the applicant. He records that the applicant has pain in relation to the cervical spine and right shoulder, depression and secondary deconditioning. He records the applicant’s pain as predominantly axial cervical spinal pain with somatic referred right shoulder pain. He also records significant cervicogenic headaches and right upper limb numbness. He recommends a Diagnostic Greater Occipital Nerve Injection to see if the applicant would be a suitable candidate for Pulsed Radiofrequency Lesionoing to her occipital nerves. This is to address her cervicogenic headaches.
On 29 March 2023, Dr Hsu records increasing neck pain. He recommends that the applicant trial a course of injections at the C3-4 level for pain management of the increasing pain in her neck.
On 4 May 2023, Dr Ramachandran reports to Dr Tan. He records that the applicant is awaiting approval for the ASPIRE Pain Management Program and notes the proposed injection to the occipital nerve to help with her cervicogenic headaches. He states that the applicant is agreeable to this intervention. He adds that he explained to the applicant that she would require “at least 50% reduction in her pain levels from the diagnostic intervention to proceed with Pulsed Radiofrequency Lesioning” of the nerves.
On 18 May 2023, Dr Hsu records that the last injection did not provide significant relief. He recommends continued pain management with Dr Ramachandran, and, if non-operative treatment fails other options should be addressed.
On 19 May 2023, the applicant underwent a nerve conduction and electromyography (EMG) study. The results indicate normal upper limb median and ulnar nerve motor and sensory nerve studies.
On 1 June 2023, Dr Ramachandran reports to Dr Tan that the applicant is awaiting approval for the ASPIRE Pain Management Program and the occipital nerve injections. He also recommends that the applicant take simple analgesics and focus on pain rehabilitation.
On 27 September 2023, Dr Ramachandran reports to the insurer. In that report he discusses his recommendation for referral to a dietitian, and how this forms part of a multidisciplinary approach with the “ultimate goal of facilitating” the applicant’s return to work. He also notes that the applicant is actively participating in the ASPIRE Pain Management Program, alongside regular evaluations by a pain physician and the administration of pharmacotherapy.

On 20 October 2023, Dr Smith provides a further report. Dr Smith records that the applicant’s symptoms were emanating primarily from C5-6 and C6-7, and that C4-5 was unlikely to be responsible for any symptoms despite radiology suggesting that it may be the case. He records that assuming that there is no further surgery, the applicant has reached maximum medical improvement.
On 18 December 2023, the applicant undergoes an MRI scan of her right shoulder. The report records minor tendinosis at the posterior supraspinatus and anterior infraspinatus tendons. It also records minimal subacromial-subdeltoid (SA/SD) bursal without significant effusion.
On 28 December 2023, Dr Hsu refers the applicant to Dr Low for review and opinion of her right shoulder condition.
Also on 28 December 2023, Dr Hsu writes to the applicant’s general practitioner Dr Tan. He refers to the MRI of 18 December 2023 and notes that it showed mild inflammatory changes in the right shoulder and that he referred the applicant to Dr Low for a further opinion and management of her shoulder pathology.
On 11 January 2024, the applicant attends on Dr Low. Dr Low records a history of injury to the cervical spine and right arm. He notes that following a period of conservative treatment she underwent cervical spinal surgery, which has helped with her symptoms but she continues to experience constant discomfort in her shoulder. He describes that this discomfort has remained “relatively constant.”
Dr Low records his findings on examination of the applicant. He records that there is no specific areas of tenderness, that the shoulder had full active range of motion but that there was resistance of supraspinatus and with the O’Brien’s test. He notes that he did not have the benefit of past imagining. He adds that the timing of injections and location would be helpful so he can advise whether surgery is an option.
On 25 January 2024, Dr Low provides a further report with the benefit of further information and previous imaging. He records that the subacromial cortisone injections helped the applicant’s symptoms at the time for a temporary period, “only a few days”, which suggests at least a partial contribution from her shoulder. He adds that the applicant continues to have symptoms in the right shoulder despite the cervical spine surgery.
Dr Low comments that the applicant has failed non-operative treatment for her shoulder and realistically her options are to either “persevere with her current symptoms, although she finds it hard to move on with life in general and make a decision regarding prospects for work currently, or to consider shoulder arthroscopic surgery”. He adds that the aim of surgery would be to “try and alleviate at least some of her symptoms by addressing subacromial impingement and any pain related to bicipital tendinitis.” He notes that surgery “may not help with any or just some of her symptoms” and that it will not help at all with the symptoms “in her neck or distal to her elbow”. He adds that the applicant is “happy to proceed” for surgery.
Also, on 25 January 2024, Dr Low’s Room’s made a request in writing to the insurer for approval of right shoulder arthroscopic acromioplasty, acromioclavicular (AC) joint excision, biceps tenodesis and cuff repair. He notes that the anticipated cost of the surgeon’s fee is $3,340 (which does not include the assistant surgeon’s fee).
On 16 April 2024, Dr Geoffrey Needham, pain management and rehabilitation specialist qualified by the respondent issues a report. Dr Needham records a history of the mechanism of injury and symptoms in the applicant’s right shoulder and cervical spine. He records that the applicant reported “significant despondency associated with her chronic pain and disability and attended psychology management, although she has not undertaken any psychiatric evaluation and I believe this is an omission in her overall management.”
Dr Needham records treatment and investigations post cervical spine surgery in April 2022. He notes the right shoulder surgery proposed by Dr Low and the pain management treatment recommended by Dr Ramachandran. He records that Dr Ramachandran recommends that the applicant undergo a trial right suprascapular nerve block with a view to subsequent radiofrequency neurotomy treatment if a positive trial outcome is achieved. He also records that the applicant had pulsed radiofrequency treatment to her occipital nerve in October 2023 with reported major symptomatic improvement.
Dr Needham provides his findings on examination. He records that the applicant was frequently tearful during the interview. He also records that the applicant has reduced right shoulder range of motion and probable frozen right shoulder associated with bursitis. He records that the applicant suffered right shoulder injury and cervical spine injury, and that her right shoulder condition “has significantly progressed”. He adds that her ongoing shoulder pain is related to the original combined right shoulder and cervical spine injury. He diagnoses the applicant with combined right shoulder and cervical spine injuries, poor outcome on cervical spine surgery and major depression as “factors impeding her recovery”.
Dr Needham opines that cervical spine and shoulder injuries may coexist and patients often have difficulty distinguishing the origin of their pain symptoms. He adds that the applicant’s initial radicular symptoms were suggestive of cervical spine disorder and she underwent cervical spine surgery, which was unhelpful and the indications for this surgery have been questioned. He adds that the outstanding feature of the applicant’s presentation is her “severe depressive disorder” and suggests that the lack of psychiatric input is a major omission in overall management of the applicant’s condition.
Dr Needham recommends that the applicant undertake a prompt psychiatric evaluation and review of her medications for treatment of her “severe depressive disorder,” noting that she is currently on a very mild antidepressant medication regimen. Dr Needham also records that he does not have “adequate information to prognosticate regarding her right shoulder disorder and would require results of recent imaging.”
Dr Needham further records that arthroscopic right shoulder surgery has the potential to cause significant worsening of the applicant’s right shoulder condition, and that the applicant indicated that Dr Low gave a “somewhat pessimistic prospect for this surgery.” He notes that a failure of conservative treatment is not an indication for surgery. Dr Needham also states that he would be pleased to receive further information from the proposing orthopedic surgeon to clarify the situation as arthroscopic surgery is “highly operator dependent”.
Dr Needham finds that a right suprascapular nerve block is most reasonable, and, if a positive outcome is obtained then he would support radiofrequency neurotomy. He also adds that arthroscopic surgery has the potential to cause major exacerbation of right shoulder condition and again that he “would require further information from the proposing surgeon to support this procedure”. He latter adds that an ongoing multidisciplinary pain medicine treatment is required, and this would include effective treatment of the applicant’s “severe depression”.
On 4 June 2024, Associate Professor Courtenay, orthopedic surgeon qualified by the applicant, provides a report. Associate Professor Courtenay provides a history of the injury, pain and symptoms, radiological investigations, and treatment.
Associate Professor Courtenay refers to the report of Dr Low who he states recommended that ongoing cortisone injections was not going to make any difference and the applicant should consider having a surgical approach and debridement of the shoulder. Associate Professor Courtenay also refers to the applicant’s pain specialist who recommended that the applicant have radiofrequency work on her right shoulder. He notes that the applicant is a little unclear of exactly where he is putting the nerve block (but that “from the wording the patient used, it may well be to the suprascapular nerve area”) and that it is scheduled for a few weeks from now, and that depending on the results of that the pain specialist may recommend the radiofrequency to the same area.
Associate Professor Courtenay comments that the recent MRI does not show a great deal of bursitis but some thickening of the bursal area. He also notes that the applicant has some restriction of movement of her shoulder, which becomes more painful above the 90 degrees area. He further notes some improvement following the cortisone injections in the past.
Associate Professor Courtenay said that a “significant amount of her pain is actually coming from shoulder pathology and cis-a-ve impingement of the rotator cuff as indicated by Dr Low”. He adds that Dr Low is suggesting a treatment to decompress that area and create more movement for the shoulder.
In respect of the radiofrequency neurotomy, Associate Professor Courtenay said that he is “unclear exactly where that is to be before I can make any real comment on it.” However, he states that he has seen some proceduralist wanting to give radiofrequency near muscular nerves and he flags “grave concern with doing that because if the radiofrequency actually does what it is supposed to, that is to do some damage to the nerve, then a motor nerve is not going to recover.” He considered that this was a real concern but would “need to wait until I see accurately what is going on”. He adds that:
“At this stage though, certainly with regards to the shoulder surgery, there is a strong argument given that it has been a problem now for many years and is just not settling down and other modalities have failed.”
Associate Professor Courtenay said that the work on the cervical spine has “clouded in some way, the amount of symptoms in her shoulder”. He adds that “[t]he fact that she feels that the neck fusion did not make any difference, I think tends to add weight to that opinion.” He further adds that the treatment to date has not really maintained good movement of the shoulder on a “longer lasting basis”.
Associate Professor Courtenay finds that the surgery proposed by Dr Low is reasonably necessary. He notes again that the applicant had failed non-operative treatment. He notes that the applicant has not done much with her right arm for almost five years and that will develop a pattern where she tends to avoid using it and that this would be a “real red flag barrier to any recovery from surgery”. He adds that the applicant would need to keep moving her shoulder even if it is painful and if she is not in the habit of “moving through the pain” it will “affect her outcome enormously” post any surgery. He concludes that “[t]hat is the only thing at the moment and then we wait and see what happens with this nerve block in June.”
There is no further medical evidence available in these proceedings, post Associate Professor Courtenay’s report of 4 June 2024.

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant refers to the respondent’s s 78 notice and submits that the insurer has imported into its decision making process a level of assumed medical knowledge. It determined that right shoulder surgery would not be appropriate because the cervical spine surgery did not result in a perfect outcome, and it has doubts that there would be a positive outcome in the present proposed surgery. Therefore, it found the proposed surgery was not reasonable.
The applicant then refers generally to the medical evidence and her statement evidence.
The applicant asserts that there is an acceptance of the applicant’s dual pathology. In the mechanism of injury there is injury to the cervical spine and a separate and distinct injury to the right shoulder.
In addressing the need for the proposed surgery in isolation, the applicant submits that there is a need to look at the two pathologies. The treatment for the right shoulder and cervical spine have run concurrently, and the treatment of the neck has not resulted in any substantial improvement in the shoulder. The applicant contends that her right shoulder condition has deteriorated over the last few years and this is not disputed.
The applicant provides a chronology of events regarding treatment and symptoms experienced. The applicant submits that she underwent cortisone injections in 2019, but has had ongoing symptoms in the shoulder including pain and restricted movement.
The applicant submits that Dr Low has identified surgery to improve her range of movement of the right shoulder, which would allow her to potentially return to some form of employment. The applicant adds that, if she was able to return to a level of functionality, in particular work, one would expect that it would have a particular benefit on her psyche. In this regard, the applicant refers to the reports of Dr Needham and Dr Ramachandran.
The applicant refers to the report of Dr Smith, of October 2023. Dr Smith did not consider that there was any particular issue with her range of movement in the shoulder. However, this is in contrast to Dr Needham’s report of April 2024 where he records right shoulder pain with reduced range of movement of the right shoulder. Dr Needham confirms that the right shoulder symptoms had significantly progressed over a prolonged period of time.
The applicant submits that Dr Needham confirms his views that the shoulder, neck and psychological issues as impeding the applicant’s recovery. However, the applicant submits Dr Needham’s opinion is compromised by his lack of imaging. Dr Needham expressed a view that arthroscopic right shoulder surgery had the potential to cause worsening of the right shoulder condition, but says such surgery is highly operator dependent and wanted clarity from the proposing orthopaedic surgeon. Dr Needham, a pain specialist, suggests the applicant’s right shoulder condition might be helped by arthroscopic surgery and defers to the opinion of the treating surgeon but also states there might be better conservative options.
The applicant then refers to Associate Professor Courtenay’s evidence. Associate Professor Courtenay expresses his reservation in relation to the proposed ablation surgery as he is concerned it might reduce the applicant’s ability to regain right shoulder function. It might act contrary to the object of the surgery to improve function, which is something the applicant identifies in her supplementary statement. The applicant submits that Associate Professor Courtenay is essentially saying that the right shoulder surgery is an opportunity to isolate a pain generator and restrictor in the applicant’s ability to return to work.
The applicant refers to Dr Low’s opinion. Dr Low explains why the arthroscopic surgery should be performed and that is to address pain levels and assist the applicant to move on with life in general.
The applicant submits that her right shoulder condition has been a problem for 5.5 years. It is getting worse and other modalities have failed. The medical treatment on the applicant’s cervical spine has clouded the symptoms in the right shoulder. The fact that the cervical spine surgery did not make any difference tends to add weight to that opinion.
The applicant should be afforded the opportunity to undertake the proposed surgery, to provide a way forward in respect of the level of function and pain. The applicant relies on the decision in Diab v NRMA Limited.[1]
[1] [2014] NSWWCPD 72.

Respondent’s submissions

The respondent submits that the applicant has the onus to establish that the proposed surgery is reasonably necessary pursuant to s 60 of the 1987 Act.
The respondent submits that surgery may be as a last resort on the basis that there is a failure of treatment to date but that does not mean that it is reasonably necessary. The respondent refers to the decision in Young v Vietnam Veterans Keith Payne VC HostelLimited.[2]
[2] [2020] NSWWCCPD 66, at [109] (per Wood DP).
The respondent notes that a lot of the evidence concerns 2019 and 2020, and there is a lack of treating contemporaneous evidence as to the treatment undertaken in 2023 and 2024 in respect of injections, pain management and psychological treatment.
The respondent submits that the reports of Dr Low are not persuasive. In the report of 11 January 2024, Dr Low had a lack of information in regard to the treatment undertaken and copies of investigations. Dr Low suggests that the applicant had exhausted non-operative treatment but does not seem to be privy to the treatment proposed by Dr Ramachandran. The respondent concedes that it is not fully apprised of that treatment either on the documents available.
The respondent refers to Dr Low’s report where it is noted that the subacromial cortisone injection helped with symptoms for a temporary period of a few days and suggested that there is a partial contribution from the shoulder in relation to the pain. The respondent submits that this must been seen in contrast with the neck injury which has referral of symptoms to the right upper limb. The respondent submits that there can be an overlay and a confusion between what is the pain generator and what is causing the symptoms. Dr Low does not say all of the symptoms are in the right shoulder but that there is a least a partial contribution and that this is supported by a positive response to the injection in November 2020. The respondent submits that Dr Low has jumped to the stage of failed non-operative treatment and proposes surgical intervention, but does not deal with any other potential treatment including further injections or nerve ablation. He states that the surgery may not help with any or just some of the symptoms. He also does not discuss the impact of the applicant’s hesitancy to move her right upper limb or other alternative options.
The respondent refers to the applicant’s statement evidence that she underwent the nerve block to her shoulder in June 2024, which only had a positive effect for a couple of hours. This, the respondent submits, is not to say it is a failed attempted treatment because the nerve block was not expected to be a permanent solution of the symptoms. It was an investigative tool in order to recommend further treatment. The applicant states that Dr Ramachandran now recommends nerve ablation to her right shoulder, which the respondent submits has been recommended post the June 2024 injection. The respondent concedes that there is no updated evidence from Dr Ramachandran but this inference may be drawn from the applicant’s statement evidence.
The respondent further refers to the applicant’s statement where she states she is concerned about the possible impact of the ablation surgery and prefers to proceed with the surgery proposed by Dr Low. However, the respondent submits, Dr Low has not considered the impact of the nerve block or the recommendation of the nerve ablation post the nerve block.
The respondent also refers to the evidence of Dr Ramachandran of 27 September 2023. In particular, the respondent notes Dr Ramachandran’s multidisciplinary approach and the ASPIRE Pain Management Program. There is no further evidence regarding that treatment.
The respondent refers to the decision in Diab v NRMA Limited,[3] and the need to look at alternative treatments to determine whether the proposed treatment is reasonably necessary.
[3] [2014] NSWWCPD 72.
The respondent then refers to the evidence of Dr Needham. Dr Needham comments that the applicant presented with a severely despondent demeanour and was frequently tearful during the interview. Dr Needham sets out the two proposed treatments. The respondent concedes that Dr Needham suggests that the proposed surgery recommended by Dr Low may provide limited prospects of achieving improvement. However, Dr Needham believes the lack of psychiatric input as a major omission in the applicant’s overall management. He considers that the poor outcome from spinal surgery and the major depression as factors impeding recovery.

Following my enquiry, the respondent conceded that there is no separate report from a psychiatrist to confirm the diagnosis of severe depressive disorder made by Dr Needham. The respondent also conceded that there is no evidence to qualify Dr Needham’s opinion, other than evidence of psychological symptoms and the multidisciplinary approach taken by Dr Ramachandran.
The respondent contends that Dr Needham recommends that there is possibility for significant improvement with effective treatment without surgery, including psychiatric evaluation and review of medication. In relation to the proposed surgery, Dr Needham expresses concern that there is a potential for significant worsening of the right shoulder condition. However, on enquiry, the respondent was not able to identify where Dr Needham explained what that worsening would be other than his commentary that it had the potential to cause major exacerbation of the shoulder disorder.
The respondent asserts, contrary to the applicant’s submission, Dr Needham is not deferring his opinion to that of the treating surgeon. Rather, the respondent submits that Dr Needham suggests that there is further information that may be garnered from the treating orthopaedic surgeon as to the recommendation for treatment.
The respondent then refers to the evidence of Associate Professor Courtenay. The respondent submits that Associate Professor Courtenay did not have the reports from Dr Ramachandran or Dr Needham, although he does note a recommendation regarding radiofrequency to the shoulder. However, he does not have a clear understanding of the treatment recommended by Dr Ramachandran. This report pre-dates the injection in June 2024 and the further recommendation for nerve ablation, which plays into his later opinion.
The respondent concedes that Associate Professor Courtenay found there was pain coming from the shoulder pathology and that he expresses concern about radiofrequency ablation. However, the respondent contends that Associate Professor Courtenay was not aware of the full situation of what treatment was proposed other than that it is in some part of the shoulder.
The respondent refers to Associate Professor Courtenay comments that the applicant tends to avoid use of her right shoulder and this was a red flag barrier to any recovery from surgery. This has not been alleviated on the evidence. Associate Professor Courtenay referred to the nerve block and said that is the only thing I think is needed at the moment and wanted to see the outcome of the nerve block in June 2024 but there is no further opinion following that treatment and whether his opinion would be different.
The respondent contends that the applicant’s evidence for the effectiveness of the proposed surgery is unconvincing. The applicant’s evidence as to the impact of surgery and mention of neck symptoms is confusing. There seems to be a misapprehension that the proposed surgery will significantly improve the applicant’s situation. There is insufficient evidence to establish that the alternative treatment options have been exhausted, to support the view of Dr Low and Associate Professor Courtenay. Associate Professor Courtenay does not unconditionally endorse the proposed surgery in view of the note of caution, and he has not provided an updated opinion post the injection.
The respondent submits that the applicant has not discharged her onus and the Commission ought not be persuaded that the proposed surgery is reasonably necessary.

Applicant’s submissions in reply

The applicant submits that the respondent is distracted by outcomes relative to the neck.
The applicant refers to the opinion of Dr Ramachandran. Dr Ramachandran does not deal with issues intrinsic to the shoulder, he is dealing with somatic and referred pain from the neck. Dr Hsu, the cervical spine treating surgeon, determined that there was a need for someone to look at the intrinsic issue associated with the shoulder and that is when the referral was made to Dr Low.
The applicant contends that the question for determination before the Commission is whether the corrective surgery proposed by Dr Low, to address the functional issues associated with the right shoulder and rule out any pain emanating from the shoulder (the intrinsic issue associated with the shoulder which all the doctors agree is getting worse). The applicant adds that she identifies her functional problem and why she wants the surgery.
The applicant submits that Dr Needham suggests that the intrinsic issue in the shoulder could be dealt with by way of conservative measures, but his opinion in many respects is contradictory. On the one hand he says he does not have enough information to be able to give an opinion and then gives an opinion, and on the other hand says he defers to the opinion of the treating surgeon and subject to what the surgeon says he might have a different view.
The applicant asserts that Associate Professor Courtenay is an orthopaedic surgeon and associate professor of his speciality. Dr Needham is a pain specialist, and one would expect the pain specialist to say there are non-surgical ways of dealing with things.
I sought the applicant’s submissions in response to the respondent’s submission about the absence of evidence post the nerve block injection and whether that may alter the opinion of the medical practitioner’s relied on by the applicant. In response, the applicant submits that a nerve block would not address the pathology in the right shoulder. The other alternative is ablation in the shoulder, and Associate Professor Courtenay said it is not what is needed to improve functionality. The nerve block is immaterial to the mechanical issue which Dr Low is seeking to address. There is no argument that there is pathology which is getting worse. Dr Low’s recommendation, supported by Associate Professor Courtenay and in a backhand fashion by Dr Needham, is an appropriate way of addressing the mechanical issue which is intrinsic to the shoulder joint.

FINDINGS AND REASONS

Reasonably necessary

The applicant bears the onus of proof, to establish her case under s 60 of the 1987 Act, on the balance of probabilities.[4] Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the proposed surgery “results from” the injury, and, secondly, whether the proposed surgery is “reasonably necessary”. These are questions which involve matters of impression and degree, having regard to the available evidence.[5]
[4] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, at [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[5] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Diab v NRMA Ltd [2014] NSWWCCPD 72.
The first question does not require determination. That is because the respondent concedes that the proposed surgery is “as a result of” the accepted right shoulder injury. The only question that requires determination is whether the proposed surgery is “reasonably necessary”.
Deputy President Roche, in Diab v NRMA Limited,[6] considered the application of s 60 of the 1987 Act and the phrase “reasonably necessary”. Deputy President Roche stated:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”[7] (footnotes omitted)
[6] [2014] NSWWCPD 72.
[7] Diab v NRMA Limited [2014] NSWWCPD 72, at [86] (per Roche DP).
Deputy President Roche then considered the criteria of reasonableness:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[8] (footnotes and citations omitted)
[8] Diab v NRMA Limited [2014] NSWWCPD 72, at [88]-[90] (per Roche DP).

Discussion

The applicant has undergone conservative treatment in the nature of physiotherapy, pain management, pharmacotherapy, nerve block injections, and surgical intervention in the nature of a cervical spinal fusion following her injury in June 2019. This treatment was to remedy her symptoms in her right shoulder and cervical spine (which included referral symptoms in the right arm) as a result of the accepted injury.
During the course of the early treatment the medical practitioners attempted to distinguish between the applicant’s pathology in her cervical spine and right shoulder. The medical evidence demonstrates that the applicant has a distinct and separate pathology in her right shoulder, in the nature of subacromial bursitis and impingement arising from the accepted injury. This was arguably identified prior to the cervical spine surgery, but was not properly addressed by adequate treatment and investigation until after that procedure took place almost three years after the accepted injury.
The evidence demonstrates that the applicant’s symptoms in her right shoulder have remained either constant or become worse over time. The applicant in her statement evidence consistently states that her symptoms in her right shoulder have not improved. Dr Hsu records an increase in symptoms in the applicant’s right shoulder post the cervical spine surgery, and this is what led to the referral to Dr Low in December 2023. In 2024, Dr Needham reports that the applicant’s right shoulder condition “has significantly progressed”.
The medical evidence, consistent with the applicant’s statement evidence, indicates that conservative treatment has provided only temporary relief and not the desired more long lasting effect. This is consistent with the evidence of Dr Hsu, Dr Low, Dr Needham and Associate Professor Courtenay.
There are two proposed treatment options to address the applicant’s pathology and symptoms in the right shoulder. Namely, the arthroscopic right shoulder surgery recommended by Dr Low and sought by the applicant, and, in the alternative, radiofrequency neurotomy/ablation recommended by Dr Ramachandran and supported by the respondent.
It is not disputed that the applicant underwent a nerve block in June 2024, which she claims only provided a positive effect for a couple of hours, and that following the outcome of that injection Dr Ramachandran recommended the radiofrequency neurotomy.
Dr Low in January 2024 records that the subacromial cortisone injections provided temporary relief for a period of only a “few days”. He considered that this was indicative of there being at least a partial contribution to the pain from her shoulder. He also considered that the applicant had failed non-operative treatment for her shoulder and that realistically her options were to persevere with the current symptoms or undergo the proposed surgery.
While I accept that Dr Low is silent on the pain management approach recommended by Dr Ramachandran, and he has not provided a follow-up opinion following the June 2024 nerve block injection, I do not consider that this is fatal to his ultimate recommendation for surgery. That is because Dr Low’s opinion, when read as a whole, is that the nerve block injections provide only temporary relief and do not address the functional issue (subacromial impingement) or provide ongoing relief related to the bicipital tendinitis. This goes to the appropriateness and effectiveness of the proposed surgery, when compared to the alternative radiofrequency neurotomy, which I discuss further below.
I prefer the opinion of Associate Professor Courtenay, which is supportive of the surgery proposed by Dr Low, over the opinion of Dr Needham and Dr Ramachandran.
As the applicant submits, Associate Professor Courtenay is a specialist orthopaedic surgeon. I find he has more expertise in the area of the shoulder, when compared to Dr Ramachandran and Dr Needham who are both pain specialists. His opinion is well balanced and more thorough by comparison. Associate Professor Courtenay has given a carefully considered opinion as to why he finds the arthroscopic surgery to be reasonably necessary, which includes reasons why he has concerns about the radiofrequency neurotomy.
Associate Professor Courtenay expresses concern about radiofrequency neurotomy. While he explains that he is unclear of the location of the proposed radiofrequency neurotomy, he explains that such a procedure would damage the nerve and as a result the motor nerve is not going to recover. This could produce an outcome which may affect the applicant’s functional recovery and potential return to the workforce. As the applicant submits, this is contrary to the desired effect of treatment set out in the applicant’s statement evidence and evidence of Dr Low. Associate Professor Courtenay suggests that this was a real concern and that he would need to wait to see accurately what is going on before he could support such a procedure. Despite these views regarding the alternative treatment, Associate Professor Courtenay said there was a “strong argument” for the shoulder surgery given the symptoms had not settled for several years and other modalities had failed.
I accept that Associate Professor Courtenay expresses a reservation as to the effectiveness of the proposed surgery and has not provided an opinion post the June 2024 nerve block. However, for the reasons that follow, I do not consider that this is fatal to an acceptance of his opinion that the proposed surgery is reasonably necessary:
(a)    Firstly, Associate Professor Courtenay explains that the treatment undertaken had not maintained good movement of the shoulder on a longer lasting basis. That treatment included previous nerve block injections (to the cervical spine and right shoulder). It is also accepted that the June 2024 nerve block injection (consistent with previous injections) only provided temporary relief, for a few hours.
(b)    Secondly, I note that Associate Professor Courtenay raises some concern about the likelihood of effective recovery from the proposed surgery in circumstances where the applicant has a habit of not “moving through the pain”. However, the applicant consistently states that she wants to return to some form of work and get on with her life. That the applicant has not moved her arm for several years is not necessarily indicative that she will not make genuine attempts to engage in activities to improve quality outcomes following surgery. Indeed, a purpose of the proposed surgery is to reduce the applicant’s pain, and, if this is the result the applicant would likely be in a better position to move through any remaining pain to improve surgery outcomes.
(c)    Thirdly, Associate Professor Courtenay’s comment “[t]hat is the only thing at the moment and then we wait and see what happens with this nerve block in June” must be read in context. It was made after expressing reservation about the applicant’s ability to move through pain in the context of responding to a question about the reasonable necessity of the proposed surgery. I have addressed the significance of no further report from Associate Professor Courteny post the June 2024 nerve block above, and for those reason do not consider it necessarily affects his ultimate conclusion that the proposed surgery is reasonably necessary.
(d)    Fourthly, despite the reservation expressed by Associate Professor Courtenay and awareness that she was referred for a nerve block in June 2024 he still recommended and supported the proposed surgery.
The respondent concedes that Dr Needham provides some support for the proposed surgery, but his ultimate opinion is that a multidisciplinary non-surgical approach should be adopted. However, I do not accept Dr Needham’s ultimate opinion on the following bases:
(a)    Firstly, as the applicant submits, Dr Needham’s opinion is affected by an absence of imaging.
(b)    Secondly, Dr Needham’s opinion is affected by an undue focus on the applicant’s alleged underlying psychiatric condition of “severe depressive disorder”. While there is some support for the applicant needing psychological management, noting some psychological symptoms and Dr Ramachandran’s opinion, there is no evidence to support the psychological diagnosis made by Dr Needham. This is conceded by the respondent. Indeed, Dr Needham is a pain management and rehabilitation specialist; and not a qualified psychiatrist.
(c)    Thirdly, Dr Needham’s opinion appears to be clouded by the need for further information from the treating surgeon, Dr Low. As the applicant submits, Dr Needham repeatedly defers to the opinion of the treating surgeon before making an opinion on what treatment is reasonably necessary to address the right shoulder symptoms. He states that he does not have “adequate information to prognosticate regarding her right shoulder disorder and would require results of recent imaging.” He also states that arthroscopic surgery is “highly operator dependent” and he would be “pleased” to receive further information from the proposing orthopedic surgeon to clarify the situation. There is no follow-up report from Dr Needham addressing these matters.
(d)    Fourthly, notwithstanding the need for further information and clarity from the proposing orthopedic surgeon, Dr Needham suggests that the nerve block is most reasonable and that he would support radiofrequency neurotomy where there is a positive outcome from the nerve block. However, he does not explain whether the radiofrequency neurotomy would alleviate the applicant’s symptoms and provide the desired relief or why it is preferred over arthroscopic surgery. He merely states that arthroscopic surgery has the potential to cause major exacerbation of the right shoulder condition without explaining what that might involve or how it might occur.
Dr Ramachandran recommends that the applicant undergo a multidisciplinary approach to addressing her right shoulder symptoms. It is accepted that Dr Ramachandran recommends radiofrequency neurotomy, and this is demonstrated from the medical evidence of Dr Needham and Associate Professor Courtenay. However, the respondent did not take me to any report from Dr Ramachandran that deals with the test of “reasonably necessary” or explains why the radiofrequency neurotomy is to be undertaken or preferred over the arthroscopic surgery. There is no such report before the Commission. The only evidence that adequately addresses the difference in the available treatment options and potential outcomes is found in Associate Professor Courtenay’s report.

Further, Dr Ramachandran, as the applicant submits is treating her for somatic and referred pain from the neck. In his report of 17 January 2023, Dr Ramachandran records that the applicant’s pain is predominately axial cervical spinal pain with somatic referred right shoulder pain. He does not identify the separate and distinct pathology in the applicant’s right shoulder, which the proposed surgery aims to address.
I am not satisfied that the evidence of Dr Needham or Dr Ramachandran is sufficient to displace the evidence of Associate Professor Courtenay, which supports the surgery recommended by Dr Low. It follows that I prefer the evidence of Associate Professor Courtenay. For the reasons discussed below, the proposed surgery is reasonably necessary.
Firstly, I am satisfied that the proposed arthroscopic surgery is appropriate to address the pathology in the applicant’s right shoulder. The surgery is not an uncommon procedure sought by injured workers in the workers compensation jurisdiction. The respondent did not dispute that the surgery would address the applicant’s pathology and symptoms, or the symptoms in-part. The medical evidence set out above is supportive that the proposed surgery is appropriate. Further, as set out above, the applicant has explained how her symptoms have become worse and the reasons why she prefers to proceed with the right shoulder surgery, and not the radiofrequency neurotomy procedure.
Secondly, I am not satisfied that the available alternative treatment, radiofrequency neurotomy, will provide the effect sought by the applicant. While the radiofrequency neurotomy may alleviate the applicant’s symptoms it has the potential consequence of causing permanent damage to the motor nerve, as explained by Associate Professor Courtenay. Further, the evidence does not demonstrate that the radiofrequency neurotomy will address the functional problem in the applicant’s right shoulder, namely subacromial impingement, which Dr Low explains is the purpose of the arthroscopic surgery. Associate Professor Courtenay confirms this purpose, when he comments that Dr Low is suggesting surgery to decompress the impinged area and create more movement in the shoulder.
Thirdly, the cost of the proposed arthroscopic surgery was estimated on 25 January 2024 to total $3,340 (not including an assistant surgeon’s fee). The parties did not make any submissions on the cost of the proposed surgery. There is no other evidence to suggest that the cost of the surgery would far exceed that fee estimate, notwithstanding the lapse of time from the date of the initial estimate approximately 10 months. In any event, the cost of the proposed surgery is not prohibitive.
Fourthly, the clear evidence is that the proposed arthroscopic surgery will be effective. This is despite the reservation Associate Professor Courtneay held in respect of recovery which is addressed above (at [130]). The purpose of the surgery is to try and alleviate some of the applicant’s right shoulder symptoms by addressing the subacromial impingement and any pain related to the bicipital tendinitis. Dr Low, qualifies his recommendation for surgery, like most surgeons when explaining that there are no guarantees, and says that it may not help with any or just some of her symptoms. That there may be a potential poor outcome from the shoulder surgery is not determinative of whether the surgery would be effective. The purpose of the proposed surgery is clear. It is to alleviate the applicant’s functional impingement, pain and symptoms in the right shoulder, and provide her with greater mobility to allow her to move on with life and potentially return to the workplace.
Further, as the applicant submits, if her symptoms are alleviated as suggested they would be by the proposed surgery this will help her move on with her life and assist her prospects for a return to work. This is consistent with the applicant’s desired effect of treatment. The medical evidence does not demonstrate that the radiofrequency neurotomy will provide the desired effect, unlike the intended outcome of the proposed surgery.
Fifthly, Dr Low, Associate Professor Courtneay and Dr Needham provide acceptance (or at least in part for Dr Needham) that the proposed surgery is appropriate and likely to be effective. In any event, Dr Needham and Dr Ramachandran (the only practitioner’s preferring the radiofrequency neurotomy) do not state that the proposed surgery is not reasonably necessary or that it would not alleviate the symptoms the applicant is experiencing in her right shoulder. The proposed surgery is both appropriate and likely to be effective.
Sixthly, the respondent notes that a lot of the evidence concerns 2019 and 2020, and there is a lack of contemporaneous treating evidence as to the treatment undertaken in 2023 and 2024 in respect of injections, pain management and psychological treatment. However, this submission is not further developed. I am not persuaded that the absence of contemporaneous medical evidence give me cause to consider that the proposed surgery is not reasonably necessary or that the recommendations for that surgery may be altered. The consistent evidence is that the applicant’s condition in the right shoulder continues to deteriorate, notwithstanding non-surgical treatment which provides only temporary relief.
Lastly, I accept the principle that a surgery may be a last resort but that this does not mean it is reasonably necessary.[9] However, the applicant does not assert that surgery proposed by Dr Low is treatment of a “last resort”. Further, the evidence does not suggest that the surgery is a treatment of a “last resort” but a recommended preferred option in view of failed non-surgical options and as an alternative to radiofrequency neurotomy. There is clearly a range of treatments available to the applicant, and while the proposed surgery may not be absolutely necessary this does not preclude it from being reasonably necessary.[10]
[9] Young v Vietnam Veterans Keith Payne VC HostelLimited [2020] NSWWCCPD 66, at [109] (per Wood DP).
[10] Diab v NRMA Limited [2014] NSWWCCPD 72, at [86] (per Roche DP).
Having regard to the totality of factors set out in Diab v NRMA Ltd,[11] I am satisfied that the applicant has discharged her onus of proof on the balance of probabilities that the proposed right shoulder surgery is reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act.
[11] [2014] NSWWCCPD 72, at [76]-[90] (per Roche DP).
The respondent is to pay the costs of the proposed right shoulder surgery, recommended by Dr Low, and any ancillary treatment costs in accordance with the workers compensation gazetted rates.

CONCLUSION

The proposed right shoulder surgery in the nature of arthroscopic acromioplasty, ACL excision and biceps tenodesis, recommended by Dr Low, is reasonably necessary medical treatment as a result of the injury on 6 June 2019, pursuant to s 60 of the 1987 Act.
Accordingly, I make the orders set out above.

[2024] NSWPIC 716

19 December 2024