Conlan v Gunnedah Shire Council
[2023] NSWPIC 226
•16 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Conlan v Gunnedah Shire Council [2023] NSWPIC 226 |
| APPLICANT: | David Conlan |
| RESPONDENT: | Gunnedah Shire Council |
| Member: | Brett Batchelor |
| DATE OF DECISION: | 16 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim by applicant worker for the cost of left shoulder replacement surgery; based on a frank incident in which the applicant was involved; conceded by the respondent; and also the ‘nature and conditions’ of the heavy work in which the applicant was engaged over the period of his employment with the respondent; denied by the respondent; the respondent claimed that the effects of the frank injury which aggravated a pre-existing degenerative condition in the shoulder and had ceased by the time the applicant was independently medically examined by the orthopaedic surgeon retained by the respondent’s insurer; Held – on the applicant’s evidence and the histories recorded by the medical practitioner(s) who treated him and medico-legally assessed him, there was sufficient material to support a ‘nature and conditions’ injury as aggravating the pre-existing degenerative condition in the shoulder, as well as the frank incident as being causative of such aggravation; finding that the aggravation of the pre-existing condition had not ceased; finding that the injury sustained by the applicant materially contributed to the need for shoulder surgery; respondent ordered to pay for the costs of and incidental to the shoulder surgery sought by the applicant pursuant to section 60. |
| determinations made: | 1. The left shoulder surgery claimed by the applicant is reasonably necessary as a result of injury on 3 April 2020 and/or injury deemed to have been suffered pursuant to s 4(b) of the Workers Compensation Act 1987. 2. The respondent is to pay the costs of and incidental to the surgery to the applicant’s left shoulder proposed by Dr Petrelis. |
STATEMENT OF REASONS
BACKGROUND
David Conlan (the applicant/Mr Conlan) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of surgery to his back as a result of injury he suffered in the course of his employment as a concreter with Gunnedah Shire Council (the respondent/the Council) on 3 April 2020, and also as a result of the ‘nature and conditions’ of his employment with the Council.
On 3 April Mr Conlan and a co-worker returned to the Council’s depot, having used a variety of formwork out on a job in which they were engaged on that day. As he was unloading the truck, lifting the formwork above shoulder height, the applicant experienced sudden and severe pain in his left shoulder. The incident was reported to the respondent, and Mr Conlan consulted his general practitioner. He was referred to Dr Rob Sharp, orthopaedic surgeon of Tamworth who commenced a regime of conservative treatment for the shoulder extending over approximately 12 months. When this treatment failed to give the applicant relief,
Dr Sharp referred the applicant to Dr Minas Petrelis, orthopaedic surgeon, of Newcastle for a second opinion. Dr Petrelis recommended a total shoulder replacement, and a request was made to the respondent’s insurer, StateCover Mutual Limited (StateCover) to meet the cost of this surgery.StateCover arranged for Mr Conlan to be independently medically examined Dr Richard Powell, orthopaedic surgeon, on 7 December 2021. Dr Powell issued a report dated
9 February 2022[1] in which he acknowledged that the treatment proposed by Dr Petrelis was appropriate for the condition in the applicant’s left shoulder, but said that the ongoing symptoms in the shoulder reflected the extent of longstanding pre-existing degenerative disease process, and he did not believe that the applicant’s employment with the respondent remained the main contributing factor in the aggravation of the pre-existing disease process in the shoulder. Dr Powell said that the procedure recommended by Dr Petrelis was required to address that disease process, and would have been required at about the same time, irrespective of any injury sustained in the specific workplace incident 18 months previously, which he said “…was at the minor end of the spectrum”.[1] Reply p 13 (noting that references to page numbers in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission)).
On 16 February 2022 StateCover issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it conceded that the applicant had suffered a frank incident on 3 April 2020 which resulted in a temporary aggravation of the pre-existing disease injury in the left shoulder, but containing a denial of liability for the cost of surgery proposed by Dr Petrelis.[2]
[2] Application to Resolve a Dispute (ARD) p 5.
The applicant was independently medically examined by Dr J Brian Stephenson, orthopaedic surgeon, at the request of his solicitor on 23 November 2022. Dr Stephenson produced a report dated 24 November 2022[3] in which he expressed the belief that the shoulder replacement surgery recommended by Dr Petrelis was reasonably necessary and causally related to the work injury suffered by the applicant.
[3] ARD p 17.
In a Notice of Review Decision issued by StateCover on 1 February 2023, it continued to deny liability for the cost of surgery claimed by the applicant.[4]
[4] ARD p 12 and Reply p 8.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) is the left shoulder replacement surgery recommended by Dr Petrelis reasonably necessary as a result of:
a.injury to the left shoulder sustained by the applicant on 3 April 2020, and/or
b.the ‘nature and conditions’ of the applicant’s employment with the respondent as a concreter?
Matters previously notified as disputed
At the arbitration hearing referred to hereunder the respondent objected to the applicant being allowed to present his case based on the so called ‘nature and conditions’ of his employment, rather than simply on the frank incident on 3 April 2020. The respondent argued that the Commission did not have jurisdiction to determine a claim for injury based on the ‘nature and conditions’ of the applicant’s employment with the respondent as such a claim had not been made. It cited Rail Services Australia v Dimovski & Anor[5] in support of this submission, arguing that the applicant could only rely on the frank injury on 3 April 2020 in support of his claim.
[5] [2004] NSWCA 267 (Dimovski).
The respondent also submitted that Dr Powell in referring to “disease” in his report was referring to that term in the medical sense rather than the legal sense, and that the Commission had no evidence before it, nor could it take notice of, the precise details of the applicant’s employment that would support a claim based on micro traumata to the applicant’s left shoulder which could form the basis of a claim for injury based on the ‘nature and conditions’ of employment. The applicant had not provided sufficient details of his work as a concreter with the respondent.
The applicant rejected the respondent’s submissions, arguing that his injury could be classed as a frank injury and therefore one as defined in s 4(a) of the 1987 Act, and also aggravation of a degenerative condition occurring on 3 April 2020, and therefore one falling within the definition of injury in s 4(b)(ii) of the 1987 Act.
The applicant also noted that Dr Stephenson in his report dated 24 November 2022 agreed with the contention put to him that the nature of the applicant’s employment and the heavy work associated with his employment caused or aggravated the level of underlying arthritic processes in the shoulder, even if it was not causing symptoms. This report had been served on the respondent, the response to which had been the Notice of Review issued by StateCover on 1 February 2023 in which it maintained the decision to deny liability for the applicant’s claim in accordance with the s 78 notice dated 16 February 2022. The applicant argued that, whether or not his claim was based on definition of injury ss 4(a) or 4(b)(ii) of the 1987 Act, the date of injury was the same, and Dimovski provided support for the proposition that a frank incident could constitute an injury per se, or the aggravation of a pre-existing degenerative condition.
The applicant also submitted that the Commission could take notice of the heavy nature of the applicant’s work as a concreter, and sufficient detail had been provided in his statement evidence, and evidence recorded as histories in the medical reports in evidence.
At the hearing I accepted the applicant’s submissions referred to above at [10]-[12], noting the typographical error in the second dot point in StateCover’s s 78 notice dated
16 February 2022 “1. Statement of Matters in Dispute”, in which reference should have been to s 4(b)(ii) and not s 4(b)(i) of the 1987 Act.The applicant was allowed to present his case in accordance with the Injury Details in the ARD.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
The parties attended a conciliation conference/arbitration hearing on 9 May 2023. Mr Tanner of counsel appeared for the applicant briefed by Ms Lawes. The applicant was present.
Mr Robison appeared for the respondent briefed by Mr Van der Hout and a representative of StateCover.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no application to cross-examine the applicant or call oral evidence.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.
Applicant
The applicant opened his submissions by reference to the report of Dr Powell, noting that he conceded the incident of 3 April 2020, and that Mr Conlon remained symptomatic in relation to the left shoulder, with no significant change in symptoms despite the prolonged period of conservative management.
The applicant submits that, having regard to the diagnosis of Dr Powell recorded in his report, that is evidence of advanced glenohumeral joint osteoarthritis revealed on investigation, it is difficult to accept the proposition that the effects of the frank incident of
3 April 2020 have ceased. Notwithstanding that the MRI of 11 August 2020 showed that disease process, Mr Conlan was not prevented from performing heavy work up until he injured his shoulder on 3 April 2020.The applicant submits that it is the “last resort” of an insurer to submit that the effects of a frank incident aggravating a disease process have ceased, when the respondent cannot state with any specificity when those effects ceased. Dr Powell carried out his examination on 7 December 2021 and reported on 9 February 2022, almost two years after the frank incident, yet Mr Conlon was still suffering from the effects of what occurred on 3 April 2020.
The applicant submits that there is no medico-legal explanation as to how the work related symptoms abated, and why the symptoms currently were related to the underlying disease process. The applicant submits that it is a “ludicrous” proposition to submit that, as Dr Powell opines, that he does not believe that Mr Conlan’s employment remains the main contributing factor in the aggravation of the pre-existing disease process. In any event, that is the wrong test for determining whether the reasonable necessity for the surgery sought arises as a result of the injury.
The applicant examines in detail the evidence of the initial treating orthopaedic surgeon,
Dr Sharp from when he first examined Mr Conlon on 4 May 2020 until he referred him toDr Petrelis on 25 June 2021,[6] and the various forms of conservative treatment tried without success in relieving the applicant’s symptoms and use of his shoulder.[6] ARD pp 31 – 49.
The applicant relies on the two reports from Dr Petrelis dated 23 September 2021 and
29 September 2021,[7] noting the doctor’s opinion in the second of those reports that in terms of relation to work, Mr Conlon had not had any issues with his shoulder, and that the type of work that he is doing and has done has flared up his arthritis to a point where he now needs surgery.[7] ARD pp 52 – 53.
The applicant submits that the opinions of Dr Sharp and Dr Petrelis, surgeons who have treated him over a significant period of time, should be accepted. The condition has never resolved since it became symptomatic on 3 April 2020. Dr Stephenson records a correct history of injury and its sequelae, and his opinion should similarly be accepted. When asked to comment on the opinion of Dr Powell, Dr Stephenson says that the mechanism of injury described is sufficient to have resulted in aggravation of the underlying degenerative disease process. Dr Stephenson also says that there is a direct relationship between the condition found on his examination of the applicant and the injuries sustained in employment.
The applicant submits that there is no dispute that what occurred on 3 April 2020 aggravated the underlying disease process in his left shoulder. There should also be a finding that his condition is attributable to a decade of heavy work which did not become apparent until 3 April 2020.
In respect of surgery, the applicant submits that there is no dispute that the surgery proposed by Dr Petrelis is appropriate to address the condition in his shoulder. The issue for determination is if that surgery is reasonably necessary as a result of the workplace injury. That is, if the injury has materially contributed to the need for surgery.
The applicant makes the following submissions as to the form of orders he seeks, namely:
(a) the left shoulder surgery claimed by the applicant is reasonably necessary as a result of injury on 3 April 2020 and/or injury deemed to have been suffered pursuant to s 4(b) of the 1987 Act, and
(b) the respondent is to pay the costs of and incidental to the surgery to the applicant’s left shoulder proposed by Dr Petrelis.
Respondent
The respondent submits that the applicant’s case is infected with a “post-hoc logical fallacy”, in that the applicant had no pain pre-incident of 3 April 2021, and that as he suffered pain after the incident, therefore he needs the surgery now submitted to be reasonably necessary as a result of the work injury. The respondent notes that Mr Conlon suffered from long term degenerative change in his left shoulder, and that the way in which the applicant has presented his case reverses the onus of proof on him in the proceedings.
The respondent submits that in workers compensation matters, it is unlike the situation in respect of proof of causation of injury in common law claims, citing Purkess v Crittenden[8] where the High Court dealt with onus of proof in a civil claim for damages case where the plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant’s negligence. The Court did not accept that the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant. The onus of proof rests with the plaintiff throughout the presentation of the case, although there may be a shifting evidential burden of proof.
[8] [1965] HCA 34; (1965) 114 CLR 164.
The respondent submits that the onus remains on the applicant in this case to show that the surgery he seeks is reasonably necessary as a result of the work injury he suffered.
In respect of the ‘nature and conditions’ claim of the applicant, the respondent submits that, in accordance with its earlier submission noted in [9] above, there is insufficient detail in [2] and [3] of the applicant’s statement dated 12 February 2023 of the nature of his work, how long the applicant performed each role he refers to over the 10 year period of his employment with the respondent, the different type of work he was doing, the dimensions of the formwork he was called upon to handle, or other occupational history of his employment.
The respondent submits that it is “not clear” what Dr Stephenson is agreeing to when he agrees with the contention put to him, referred to in the last sentence of [26] above.
The respondent submits that, in respect of Dr Stephenson’s report dated 24 November 2022, there is no attempt to differentiate between what the doctor says in answer to the question put to him at [4] in the report (The relationship between the condition found on examination and the injuries sustained in employment), and at [6] of the report (if the applicant suffers from a disease of gradual process, if the doctor assesses that employment is the main contributing factor to the disease itself or to the aggravation or acceleration of the disease process).
The respondent notes the reference to the MRI scan by Dr Sharp in his report to
Dr Amanda Kelly dated 14 May 2020[9] in which the absence of a tear is recorded, but does concede that a tear in the distal biceps tendon may have developed later in time.[9] ARD p 32.
The respondent submits that in respect of the report of Dr Petrelis dated 23 September 2021, there has to be a degree of evaluation of the pre-existing arthritic condition, and whether such condition constitutes a material contribution to the need for surgery.
The respondent submits that the MRI scans in evidence dated 11 August 2020 and
27 September 2021[10] confirm advanced changes in the left shoulder, with the latter scan revealing severe glenohumeral joint osteoarthritis.[10] ARD pp 54 and 54.
The respondent submits that Dr Powell considers the applicant’s condition after the incident of 3 April 2020, and is in an advantageous position to consider the effects of what happened on that day.
The respondent’s confirms its case is that the symptoms related to the aggravation of the applicant’s condition that occurred on 3 April 2020 have subsided, that the current symptoms are a result of the long standing degenerative disease in the applicant’s left shoulder, and that they do not constitute a material contribution to the undisputed need of the applicant to undergo the surgery recommended by Dr Petrelis.
Applicant in reply
The applicant submits that if the respondent wished to put in issue the heavy nature of the work in which he engaged in the course of his employment, it was open to it to put on evidence from another worker. However, the Commission would have no difficulty in accepting from the evidence in the proceedings, and from its own knowledge as a specialist tribunal, that Mr Conlan was engaged in heavy work in the course of his employment with the respondent, which aggravated the pre-existing osteoarthritic condition in his left shoulder.
The applicant also reiterates its earlier submission that Dr Powell has been unable to state with any clarity of certainty as to when the aggravation from the frank incident on 3 April 2020 ceased, and that such an opinion would be desirable or necessary for Dr Powell’s opinion of the causation of Mr Conlan’s current symptoms to be accepted.
FINDINGS AND REASONS
Injury
In his statement dated 12 February 2023 the applicant says that he started work initially as a concreter with the Council, and then as a water truck driver, and then took on the role of concreter again. He says that his work has always been of a heavy nature putting pressure on his neck and both shoulders, although he cannot bring to mind any specific left shoulder pain and/or discomfort prior to the specific incident of 3 April 2020.
The applicant first consulted general practitioner, Dr Amanda Kelly, on 15 April 2020 following the incident on 3 April 2020.[11] Dr Kelly recorded the following in her clinical notes:
“Patient was first seen at this practice/hospital for this injury/disease of 15/04/2020 Injury/disease is consistent with patient’s description of cause How is the injury/disease related to work? Occurred at work. Lifting timber/metal formwork (for concreting) from plant 63 then felt sudden pain in proximal bicep. Reported injury 15min after occurred.”
[11] ARD p 61.
Dr Kelly referred Mr Conlon to Dr Sharp on 24 April 2020.[12] Dr Sharp first saw the applicant on 4 May 2020 and relevantly recorded:
“David works for the Gunnedah Shire Council. On 3rd of April David was moving some formwork along with another one of his colleagues. As he picked up the long piece of timber he felt a sharp stabbing pain over the lateral aspect of his biceps, around mid upper arm. That pain didn’t settle until David had analgesia. In fact even now, four weeks later, David is still having a lot of pain. He has weakness in his left arm”[13]
[12] ARD p 172.
[13] ARD p 31
When Dr Kelly again wrote to Dr Sharp on 17 July 2020 she recorded:
“Mr Conlan works as a plant operator for Gunnedah Shire Council and requests advice regarding suitable duties.”[14]
[14] ARD p 50.
When Dr Sharp referred the applicant to Dr Petrelis on 25 June 2021, Dr Sharp recorded:
“David works for Gunnedah Shire Council. David has a problem with his left shoulder which is work related.”[15]
[15] ARD p 49.
Dr Petrelis first saw the applicant on 23 September 2021 and recorded:
“Thank you for asking me to see David who is 60 years of age in December and right-hand dominant. He works with a Local Shire council as a truck driver concreter, labourer etc. He presents with advanced left shoulder arthritis. This has been present for years but with no symptoms up until March 2020. He was lifting a 2 x 6 formwork and when he did that he felt a bang and pain in his shoulder. This was in March 2020.”
Dr Petrelis saw the applicant again on 29 September 2021 after he had viewed MRI and CT scans of the left shoulder. He recorded:
“In terms of relation he has not had any issues with his shoulder before and the type of work that he is doing and has done, has flared up his arthritis to a point where he now needs surgery.”[16]
[16] ARD p 53.
Bearing in mind that caution with which clinical notes should be treated, as “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”,[17] I think that what the doctors have recorded about the applicant’s work, taken with his statement evidence, is sufficient to find that Mr Conlan was engaged in heavy physical work over the 10 years he was employed by the respondent. The Commission is a specialist tribunal, and I also take notice of the heavy nature of work as a concreter.
[17] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35] per Mason P, Beazley and Tobias JJA agreeing.
Dr Stephenson, who examined the applicant on 23 November 2022 received from the applicant a history of the specific incident on 3 April 2023, and found a direct relationship between the condition in the left shoulder he found on examination and the injuries sustained in employment.
I do not therefore accept the respondent’s submission that the applicant has produced insufficient evidence to show that the heavy nature of his work over the period he worked for the respondent was of such a nature to aggravate the degenerative condition in his left shoulder from which he suffered. I find that the so called ‘nature and conditions’, describing a series of micro traumata to the shoulder in the course of employment, were sufficient to aggravate the condition.
Has the aggravation ceased?
The respondent’s case is that the aggravation to the degenerative condition in the left shoulder caused by the frank incident on 3 April 2020, based on the opinion of Dr Powell had ceased by the time of the doctor’s examination on 7 December 2021. In accordance with my finding in [52] above, there must also be a determination as to whether the aggravation to the shoulder caused by the nature and conditions of employment had ceased. In either event, the date of injury is the same.
The applicant underwent the following treatment under the care of Dr Sharp from 4 May 2020 until 26 June 2021 referred to in the series of the doctor’s reports over that period, noted at [24] above:
(a) analgesia (report 4 May 2020);
(b) Cortisone injections (reports 27 July, 17 August, and 2 November 2020);
(c) Synvic injection (reports 2 November and 14 December 2020, and
5 February 2021);(d) PRP injections (reports 5 March to 25 June 2021), and
(e) physiotherapy (reports 30 April 2021 (x2))
In his report dated 9 February 2022 Dr Powell notes no significant change in the applicant’s symptoms despite the prolonged period of conservative management.
When none of the non-operative interventions made any dramatic difference to the applicant’s condition in his left shoulder, Dr Sharp referred Mr Conlan to Dr Petrelis who recommended total replacement shoulder surgery, which is conceded by Dr Powell and the respondent to be appropriate treatment. However to Dr Powell is of the opinion that the surgery is required to address the pre-existing degenerative process in the left shoulder. The doctor says that it would have been required at about the same time irrespective of any injury sustained in the specific workplace incident 16 months prior to his examination of the applicant.
Dr Powell gives a reasonable prognosis in respect of the surgery, which if successful, should result in significant symptomatic and functional improvement.
The relevant matters according to the reasonableness for treatment pursuant to s 60 of the 1987 Act, as noted by Deputy President Bill Roche in at [88]-[89] Diab v NRMA Ltd,[18] are satisfied.
[18] [2014] NSWWCCPD 72.
The applicant must show that the injury he sustained materially contributed to the reasonable necessity for the surgery proposed for the left shoulder.[19]
[19] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [58].
It is clear from the evidence of Dr Kelly, Dr Sharp and Dr Petrelis that the applicant has suffered from significant ongoing symptoms and loss of function in his left shoulder since the work injury of 3 April 2020. None of the doctors have found that Mr Conlan’s presentation on examination was less that genuine, and there is no reason not to accept his evidence. Both
Dr Sharp, who treated the applicant over a period of almost 14 months, and Dr Petrelis who saw him on two occasions, attribute the need for surgery to the frank injury on 3 April 2020.In accordance with my finding in respect of the ‘nature and conditions’ claim of the applicant, the need for surgery is also attributed to that injury, the date for which is 3 April 2020.
Dr Stephenson in his report dated 24 November 2022:
(a) regards the proposed shoulder replacement surgery as recommended by
Dr Petrelis as reasonably necessary, and(b) finds that the need for surgery is causally related to the work injury, noting the continuing pain and discomfort following that injury to date and consequent restrictions.
I accept the opinions of the applicant’s treating doctors, and the opinion of Dr Stephenson, in preference to the opinion of Dr Powell. Having regard to all of the evidence I have summarised above, I do not accept that the applicant’s ongoing symptoms reflect the extent of longstanding pre-existing degenerative disease in the applicant’s left shoulder rather than the sequelae of injury to the shoulder arising out of or in the course of the applicant’s employment with the respondent.
The injury to the applicant’s left shoulder on 3 April 2020 materially contributed to the reasonable necessity for surgery to the left shoulder proposed by Dr Petrelis.
Orders
The left shoulder surgery claimed by the applicant is reasonably necessary as a result of injury on 3 April 2020 and/or injury deemed to have been suffered pursuant to s 4(b) of the 1987 Act.
The respondent is to pay the costs of and incidental to the surgery to the applicant’s left shoulder proposed by Dr Petrelis.
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