Corneliusen v Target Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Corneliusen v Target Australia Pty Ltd [2024] NSWPIC 191
APPLICANT:	Cindy Lee Corneliusen
RESPONDENT:	Target Australia Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	17 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of surgery on the applicant worker’s left shoulder as a result of an undisputed injury to the right shoulder and undisputed condition in the left shoulder consequent upon the right shoulder injury; the respondent employer declined liability relying upon section 59A(2)(ii), contending that more than two years had elapsed since the last receipt of weekly payments by the applicant; that section 59A(3) did not apply as the comments thereon by Roche DP in Flying Solo Properties Pty Ltd t/as Artee Signs v Collett were merely obiter dicta and had no application to the current proceedings; and that in any event, the surgery proposed was not reasonably necessary as a result of injury to the right shoulder; Held – that the applicant was precluded by section 59A(2)(ii) from seeking an order for the cost of surgery; that the comments of Roche DP in Flying Solo were not obiter dicta and were relevant to the current proceedings; that the section 59A(3) applied, and that the surgery proposed on the applicant’s left shoulder was reasonably necessary as a result of injury to the right shoulder.
DETERMINATIONS MADE:	The Commission determines: 1. The surgery as proposed by Dr Howard on the applicant’s left shoulder, that is arthroscopic rotator cuff repair, is reasonably necessary as a result of injury to the right shoulder on 1 February 2017.

STATEMENT OF REASONS

BACKGROUND

Cindy Lee Corneliusen (the applicant/Ms Corneliusen) seeks compensation for medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of a condition in her left shoulder consequent upon injury to the right shoulder on 1 February 2017 arising out of or in the course of her employment as a part time Customer Service Assistant by Target Australia Pty Ltd (the respondent/Target).
The applicant’s duties included customer service, operating registers, working with stock, stocktaking, splitting down pallets, working in the parcel pick up, cleaning and tidying of shelving and stock, and moving around cages containing stock.
On 1 February 2017 the applicant experienced fatigue and soreness in her right shoulder as a result of carrying out the splitting of pallet duties. This was reported to her manager.
The applicant came under the care of general practitioners at the Leeton Medical Centre and was referred to Dr Matthew Howard, orthopaedic surgeon, who arranged an MRI scan of the right shoulder. Dr Howard requested approval from the respondent’s insurer, Westfarmers Retail Holdings Pty Ltd (Westfarmers/the insurer) to cover the cost of an arthroscopy and repair of the shoulder which was approved, and carried out on 24 July 2017.
In late 2017 the applicant returned to work on light duties pursuant to a return-to-work plan of a rehabilitation provider, and commenced full duties in or about February 2018. Westfarmers closed the applicant’s claim on 20 February 2018 and so advised the applicant on or about
1 March 2018.
The applicant claims that she continued to experience ongoing pain in her right shoulder and was obliged to take time off work. She claims that she was threatened with dismissal because of absences from work, and therefore resigned from this employment in
March 2018.
Ms Corneliusen engaged in subsequent employment with a business known as Redflex, which installed mobile speed cameras. Her job was to erect and check warning signs for such devices.
Due to ongoing problems with her right shoulder the applicant consulted a general practitioner who arranged an ultrasound of the right shoulder and referred her back to see
Dr Howard. A further MRI scan of the shoulder was carried out on 21 February 2020. She continued to consult Dr Howard who injected the shoulder, with no improvement therein.
The applicant was independently medically examined by Dr Paul Miniter, orthopaedic surgeon, on 22 July 2020 at the request of Westfarmers. In late 2020 she was advised by the insurer that it was closing her case.
On 18 March 2021 the applicant was independently medically examined by Dr Stephen Quain, orthopaedic surgeon, at the request of Westfarmers. Dr Quain provided a report to Westfarmers on 19 March 2021 in which he expressed disagreement with comments by
Dr Miniter that Ms Corneliusen was suffering from age-related degenerative change in her right shoulder “… when she is only 37”.[1] When asked for his opinion regarding the applicant’s suitability for surgical intervention given any psychosocial factors identified, Dr Quain replied:
“My main concern, however, is now the development of what appears to be capsulitis of the left shoulder.”[2]
[1] Reply p 8, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (Commission).
[2] Reply p 15.
Westfarmers, then gave approval for further surgery on Ms Corneliusen’s right shoulder.
Dr Howard operated on the shoulder on 17 May 2021 at the Calvary Hospital in Wagga Wagga.
The applicant claims that she suffers from a condition in her left shoulder consequent upon the injury to her right shoulder on 1 February 2017.
In a supplementary report to Westfarmers dated 27 May 2021, Dr Quain was asked at [1] of the report to comment on the diagnosis of the left shoulder and the relationship to the workplace injury in 2017. He replied:
“The diagnosis therefore is of rotator cuff tendonitis with some subacromial bursitis and secondary restricted movement or capsulitis. I do accept that now four years from the indexed injury of 1 February 2017, it is highly unlikely that it is directly related to that.”[3]
[3] Reply pp 17–18.
Later in the report Dr Quain said in answer to questions posed to him at [4] and [5], that:
“As stated above four years after the event the only contribution may be from a degree of overuse or dependence on the left side.”
and
“…symptoms on the left side only became apparent in mid-2019.”
Dr Quain provided a series of further reports, namely:
(a)    supplementary report dated 1 July 2021 to Westfarmers;[4]
(b)    independent medical examination report dated 21 February 2022 to the solicitor for the respondent following a consultation with the applicant on
15 February 2022;[5]
(c) supplementary report dated 30 March 2022 to the solicitor for the respondent,[6] and
(d)    independent medical examination report dated 23 May 2023 to the solicitor for the respondent following a consultation with the applicant on 16 May 2022.[7]
[4] Reply p 21.
[5] Reply p 23.
[6] Reply p 31.
[7] Reply p 34.
The applicant was independently medically examined on 28 September 2021 by Dr James Bodel, orthopaedic surgeon, at the request of her solicitor. Dr Bodel provided a report of that date containing an assessment of 22% whole person impairment (WPI) in respect of injury to the right shoulder and cervical spine, and condition in the left shoulder consequent upon injury to the right shoulder.[8] In that report Dr Bodel listed the date of injury as “February 2016”.
[8] Application to Resolve a Dispute (ARD) p 97.
On 25 November 2021 the solicitor for the applicant sent a letter of claim to Westfarmers containing a claim for lump sum compensation pursuant to s 66 of the 1987 Act based on the assessment of Dr Bodel on 22% WPI.[9]
[9] ARD p 33.
The reports of Dr Quain referred to above at [13] - [15] are referred to in detail hereunder. However, at this stage it is noted that Dr Quain in his independent medical examination report dated 21 February 2022 provided an overall assessment of 17% WPI in respect of injury to the right shoulder on 1 February 2017, and condition in the left shoulder consequent upon that injury.
On 28 March 2022 Westfarmers issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) referring to the accepted right shoulder injury on 1 February 2017 and containing a denial of liability for injury to the cervical spine and left shoulder.[10]
[10] ARD p 35.
In his supplementary report dated 30 March 2022 Dr Quain, at the request of the solicitor for the respondent, reviewed his assessment of WPI, and provided an overall assessment of 14% WPI in respect of both the right shoulder and left shoulder.
In a s 78 notice issued to the applicant on 27 April 2022 Westfarmers confirmed its denial of liability for injury to the cervical spine and left shoulder.[11] A second more detailed s 78 notice of the same date was issued to the applicant containing reference to, inter alia, the reports of Dr Howard, Dr Doig, Dr Miniter, Dr Bodel and Dr Quain.[12]
[11] ARD p 42.
[12] ARD p 44.
On 28 April 2022 the solicitors for the respondent wrote to the solicitors for the applicant forwarding copies of the reports of Dr Quain dated 21 February 2022 and 30 March 2022, and making an offer to settle the applicant’s claim for compensation for permanent impairment based on Dr Quain’s assessment of 14% WPI in respect of the right shoulder and left shoulder.[13]
[13] ARD p 49.
On 27 May 2022 Westfarmers issued to the applicant a notice under s 287A of the 1987 Act confirming its denial of liability for workers compensation benefits related to the applicant’s alleged injury to the cervical spine and left shoulder on 1 February 2017.[14]
[14] ARD p 53.
On 22 February 2023 Ms Corneliusen consulted Dr Howard again complaining that her shoulders were still bothering her. In a report dated 23 February 2023 to the applicant’s general practitioner at the Junee Medical Centre, Dr Howard noted approval had finally been given for an MRI scan of the left shoulder, which showed a high grade partial thickness tear, and that non-operative management had been tried without success. He therefore recommended surgery, and by way of the report dated 23 February 2023 being copied to Westfarmers, requested formal approval for left shoulder arthroscopy plus or minus cuff repair.[15]
[15] AALD dated 15 January 2023 p 576.
On 21 June 2023 Westfarmers issued to the applicant a further s 78 notice in which it denied liability for the requested surgery. The insurer did not accept that that applicant had sustained the left shoulder injury of adhesive capsulitis, or injury to the cervical spine. It also declined liability for ongoing physiotherapy appointments in respect of the accepted right shoulder injury.[16]
[16] ARD p 83.
The applicant commenced proceedings in the Commission with the lodgment of the ARD, dated 15 October 2023, on 16 October 2023, in which she claimed medical expenses for left shoulder reconstruction and rotator cuff repair as recommended by Dr Howard, and lump sum compensation where degree of permanent is in dispute. A Reply to the ARD was lodged on 7 November 2023.
The proceedings were the subject of a preliminary conference on 14 November 2023 at which the applicant discontinued her claim for lump sum compensation, and the date of the claimed injury on 2 February 2017 was amended to 1 February 2017. The matter was stood over for conciliation/arbitration on 23 January 2024.
At the conciliation/arbitration on 23 January 2024 the following direction was issued by the Commission:
“1. Grant leave to the respondent pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to rely on the issue pursuant to s 59A of the Workers Compensation Act 1987 (the 1987 Act) referred to in the second dot point of [2] in the notice under s 78 of the 1998 Act dated 13 December 2023 lodged by the applicant with the Commission as a late document on 15 January 2024.
2.      Grant leave to the applicant to amend the Application to Resolve a Dispute (ARD) to include a claim for closed period(s) of weekly benefits after 16 October 2021. An amended ARD incorporating such amendment is to be lodged and served by 6 February 2024.
3.      The applicant is to lodge and serve by 6 February 2024 any further evidence in           respect of :
(a)the s 59A issue referred to in [1] above, and
(b)the claim for weekly benefits referred to in [2] above,
on which he seeks to rely
4.      The respondent is to lodge and serve by 20 February 2024 any evidence in reply to:
(a)the amendment of the ARD to include a claim for weekly benefits, and
(b)the issue pursuant to s 59A of the 1987 Act, on which it seeks to rely.
5.      The matter is stood over for further conciliation/arbitration via video conference to 10.00 am on 6 March 2024.
6.      The issues to be determined at such conciliation/arbitration are:
(a)the applicant’s claim for weekly benefits after 16 October 2021;
(b)the issue pursuant to s 59A of the 1987 Act referred to above, and
(c)the reasonable necessity for surgery to the applicant’s left shoulder as a result of injury to the right shoulder on 1 February 2017.”

ISSUES IN DISPUTE

The parties agree that the following issues remain in dispute:
(a) Is the respondent entitled to rely on a defence under s 59A of the 1987 Act to the applicant’s claim for the cost of surgery to the left shoulder recommended by
Dr Howard?
(b) Is the surgery to the applicant’s left shoulder recommended by Dr Howard reasonably necessary as a result of injury to the applicant’s right shoulder on
1 February 2017?
As noted hereunder in the summary of the applicant’s submissions, Ms Corneliusen discontinued her claim for weekly benefits after 16 October 2021 at the commencement of the arbitration hearing on 6 March 2024.

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/arbitration hearing on 6 March 2024, conducted via video conference. Mr T Hickey of counsel appeared for the applicant briefed by Ms Kokala. The applicant attended separately. Mr Doak of counsel appeared for the respondent briefed by Ms Somerton. A representative of Westfarmers attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (AALD) dated 6 February 2024 lodged by the applicant with Amended ARD attached;
(c)    AALD dated 15 January 2024 lodged by the applicant with the following attachments:
1.Approval for Right shoulder and Elbow Treatment issued by Westfarmers on 9 October 2023;
2.Approval for Follow-Up Appointment issued by Westfarmers on 7 November 2023;
3.Approval for Interventional radiology and steroid injection issued bu Westfarmers on 13 December 2023, and
4.various documents produced by Junee Medical Centre.
(d)    Reply and attached documents;
(e)    AALD dated 20 February 2024 lodged by the respondent with an Amended Reply and list of payments attached;
(f)    the respondent’s written submissions dated 19 March 2024 (respondent’s submissions), and
(g)    the applicant’s written submissions in reply dated 26 March 2024 (applicant’s reply submissions).

Oral evidence

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

SUBMISSIONS

The applicant’s oral submissions made on 6 March 2024 were recorded, a transcript of which has been supplied to the parties. At the conclusion of the arbitration hearing on
6 March 2024 directions were made for the lodgement and service of the respondent’s submissions in writing, and the applicant’s written submissions in response thereto. These submissions have been received. The parties’ submissions are summarised as follows.

Applicant

At the commencement of her submissions the applicant discontinued her claim for weekly compensation.
The applicant notes that it is not in dispute that she suffered a right shoulder injury, and a secondary consequential condition in the left shoulder as a result of the undisputed right shoulder injury.
The applicant notes that she was assessed on a number of occasions by Dr Quain who found a right shoulder condition and a secondary left shoulder condition. That is why the insurer accepts those injuries. Dr Quain provided assessments of WPI with respect to both shoulder conditions, the first of which appears in his report dated 21 February 2021. That was 17% WPI.
The applicant notes that Dr Quain supplied a subsequent opinion following a deduction he made from the assessment of permanent impairment of the left shoulder for what was said to be an unrelated condition, resulting in a combined WPI assessment of 14%.
The respondent then offered the applicant the sum of $31,710 compensation for 14% WPI.
The applicant submits that this arose in a context of Dr Howard not having requested at that stage approval for the cost of the left shoulder surgery. The recommendation for the left shoulder surgery occurred after ongoing investigations and treatment, with the request from Dr Howard to Westfarmers being made on 23 February 2023.
The applicant notes that Dr Quain was asked to comment on the request for the left shoulder surgery, and that he did so in his report dated 23 May 2023. In that report Dr Quain expressed reservations about surgery particularly on the basis of the applicant’s cardiac abnormality, which was really the basis of his concern in respect of the reasonable necessity for surgery. The doctor also made some reference to the poor outcome of the surgery on the right shoulder. In denying liability for the left shoulder surgery, Westfarmers relied upon the report of Dr Quain dated 23 May 2023.
The applicant submits that thereafter, in respect of the ongoing dispute with respect to the left shoulder surgery, reports were obtained from experts, reviews were sought, and ultimately the insurer maintained its dispute in respect of the reasonable necessity for surgery.
The applicant notes the position now taken by the insurer that a two year timeframe now applies to the claim for the cost of surgery with reference to s 59A of the 1987 Act, and presumably that is made on the basis that the applicant’s degree of WPI is less than 10%, or that a formal assessment has not occurred pursuant to Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
The applicant submits that this is disingenuous of Westfarmers to have taken the position it has taken. The applicant submits that:
“It has held evidence in this case since February of 2022 that the applicant’s left and right shoulder condition gives rise to an impairment of greater than 10 percent on its own evidence. It has made an offer to pay 14 percent in respect of those conditions on its own evidence.”[17]
[17] Transcript 6 March 2024 (T) p 12.15.
The applicant submits that this position taken by the respondent, in seeking to prevent her from prosecuting a claim for the cost of surgery, is a technical point taken in the context of the claim for the cost of surgery being made prior to expiration of the two year limitation period provided for in s 59A(2)(a) of the 1987 Act, and in respect of which the current proceedings were commenced prior to the expiration of that period.
The applicant submits that the conduct of the insurer is questionable, and far less than desirable than what would be expected of a model litigant. The applicant submits that it should cause serious concern and consideration on the part of the Commission when assessing the claim.

The applicant notes that if her degree of WPI is assessed at between 10 and 20% WPI, there is a five year limitation that applies with respect to treatment, and not two years. In that situation, there would be no issue with respect to the applicant’s position in seeking treatment.
The applicant notes that, unfortunately, she cannot formalise or otherwise finalise, a s 66 entitlement until such time as she has pursued all treatment options, and in this case, a surgical procedure on her left shoulder. The applicant repeats that it is disingenuous that the insurer submits that, as it does, s 59A should prevent her from pursuing treatment in the circumstances of this case where it holds a WPI assessment of greater that 10%.
The applicant notes from the list of payments in evidence that the last payment of compensation was made to her on or around 16 October 2021, and that list makes it plain that the applicant has received less than 130 weeks of weekly payments.[18]
[18] AALD dated 20 February 2024 p 19.
The applicant submits that even if the s 59A two year limitation was held to apply in the current proceedings, and prevented a direction being made with respect of the surgery sought by her, she would rely on what was said by Deputy President Bill Roche in the Workers Compensation Commission case of Flying Solo Properties Pty Ltd t/as Artee Signs v Collet,[19] and by Member Young in the Commission in Stapleton v PSGA Pty Limited.[20]
[19] [2015] NSWWCCPD 14 (Flying Solo).
[20] [2022] NSWPIC 709 [Stapleton].
In Flying Solo the Deputy President provided some commentary with respect to the manner in which the entitlement to compensation would apply, where in effect, the surgery subsequently takes place.
The applicant submits that where, as in this case, the applicant has received compensation for less than 130 weeks, and has surgery which renders her unable to work, pursuant to
s 59A(3) of the 1987 Act compensation becomes payable as well as compensation for the cost of the surgery.
The applicant notes the commentary provided by Deputy President Roche in Flying Solo in respect of what would be expected of an insurer with regard to payment of compensation.
The applicant submits that there is guidance in Flying Solo which assists in the determination of the decision in her case, and that in any event, s 59A(3) allows the Commission to make a direction on respect of the reasonable necessity of surgery.
In terms of the issue of surgery itself, the applicant submits that the real issue is not whether the comorbid heart condition from which the applicant suffers prevents her from undergoing surgery, but whether the surgery is reasonably necessary as a result of the condition in the left shoulder accepted by the respondent.
The applicant submits that the condition of capsulitis, or frozen shoulder, which is not accepted by the respondent as being causally related to the right shoulder injury, should not be an issue for determination by the Commission in the current proceedings. That is a condition that is not being treated, but rather the undisputed pathology in the left shoulder found by Dr Howard on radiological investigation of the shoulder.
The applicant submits that the opinion of the applicant’s treating cardiologist, Dr Lee, in his report dated 13 November 2023 demonstrates that there is no cardiac reason why she cannot have a general anaesthetic and undergo shoulder surgery.[21]
[21] Amended ARD p 54.
The applicant submits that it is not to the point that she may have had a less than ideal outcome of the surgery she underwent on her right shoulder, one of the reasons put forward by Dr Quain for finding that the left shoulder surgery is not reasonably necessary. In this regard, the applicant relies upon the opinion of the treating surgeon, Dr Howard, who notes that conservative treatment has been ineffective in reducing the applicant’s symptoms and that it would be reasonable to proceed with an arthroscopic rotator cuff repair.
The applicant relies on the opinion of Dr Bodel expressed in his report dated 16 May 2023 following a further independent medical examination of the applicant on that day.[22] Dr Bodel considers that it is now appropriate for Ms Corneliusen to consider the surgical subacromial decompression as recommended by Dr Howard, noting the MRI scans and cortisone injections paid for by the insurer accepting that there was pathology in that region.
[22] ARD p 110.
The applicant notes that Dr Bodel defers to the opinion of a cardiologist in respect she should undergo surgery having regard to the comorbid heart condition.
The applicant relies upon the detailed report provided by Dr Howard to her solicitor dated
[23] ARD p 190.
28 April 2023, and the long history of the treatment he provided to Ms Corneliusen, in respect of both the right shoulder and more recently the left shoulder.[23] Dr Howard refers to the conservative treatment of the left shoulder, and his current request for surgery to address the high grade partial thickness tearing of the supraspinatus tendon in the left shoulder.
The applicant refers to the detailed evidence she has provided in her statements as to the significant pain that she experiences in the left shoulder, in the context of the opinion of
Dr Bodel expressed in his report dated 16 May 2023 where he says that the surgical procedure on the left shoulder is reasonably necessary and should be undertaken as soon as possible. This is confirmed in the supplementary report of Dr Bodel dated 1 August 2023, in which he comments upon the opinion of Dr Quain as to further surgery, and that doctor’s belief that it is not entirely related to the pathology which is present in both shoulders.
Dr Bodel also notes Dr Quain’s concern about the applicant’s general health because of the development of myocarditis, secondary to either a COVID-19 infection, or Ms Corneliusen’s belief that it may have been due to her third injection.
In respect of the matters that must be addressed under s 60 of the 1987 Act as to the reasonable necessity of surgery, the applicant submits that there is nothing that should cause concern. The applicant relies on the well-known authorities of Bartolo v Western Area Health Service,[24] and Rose v Health Commission (NSW),[25] applied by the Commission in Ajay FibreglassIndustries Pty Ltd t/as Duraplas Industries v Lee,[26] which address the question of reasonable necessity for treatment.
[24] [1997 NSWCC 1; 14 NSWCCR 233 (Bartolo).
[25] [1986] NSWCC2; (1986) NSWCCR 32 (Rose).
[26] [2012] NSWWCCPD 41 at [67].
The applicant submits that:
(a)    there is no alternative treatment;
(b)    the cost of the treatment is not an issue;
(c)    the actual or potential effectiveness of the treatment is raised as an issue;
(d)    the acceptance of medial experts that the treatment might be effective is addressed, and
(e)    the surgery proposed by Dr Howard is a recognised surgical procedure to address the applicant’s left shoulder condition.
The applicant submits that, when her cardiac condition which has been addressed by her cardiologist is put to one side, the only contraindication to surgery is the less that ideal outcome she experienced from the right shoulder surgery. However, that does not mean that the surgery is not reasonably necessary. Ms Corneliusen should at least have the opportunity to undergo the surgery to alleviate the pain condition in that shoulder.
The applicant briefly refers to the medical evidence of the treatment of her left shoulder, which she submits is uncontroversial. What is clear is the ongoing pain and difficulties she experiences in the left shoulder which may be alleviated by the surgery proposed by
Dr Howard.

Respondent

The respondent notes that its grounds of defence to the applicant’s claim are that:
(a) the applicant is precluded from receiving the cost of the proposed treatment by
s 59A of the 1987 Act, and
(b) the proposed treatment is not reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
The respondent submits in [5] of its submissions that:
“As between the parties it is uncontroversial that the applicant was last paid weekly benefits compensation on 16 March 2021. That date is relevant to the question of the application of the prohibition on the recovery of medical and treatment expenses contained in section 59A.” [27] (Emphasis added)
[27] See [5] - respondent’s submissions.
At [7] in the its submissions the respondent contends that the applicant’s degree of impairment for the right shoulder injury and consequential left shoulder condition has not been assessed as provided by s 65 of the 1987 Act to be more that 10% WPI, and as such the compensation period under s 59A(1) is the period of two years from the date on which weekly payments ceased to be payable to the applicant in accordance with s 59A(2)(ii) of the 1987 Act. The relevant date is 16 March 2023 (Emphasis added). As the claimed proposed treatment was not “given or provided” (Emphasis in respondent’s submissions) prior to that date, the applicant is precluded from receiving compensation for the proposed treatment.
The Commission notes that in emails received from the respondent’s solicitors in response to an enquiry from the Commission as to the correctness of the dates 16 March 2021 and
16 March 2023 in [5] and [7] of its submissions, it was acknowledged that the dates were incorrect, and should have been 16 October 2021 and 16 October 2023 respectively.
The respondent submits that at [66] in Flying Solo, Deputy President Roche noted that the clear intention of s 59A is to place a limit on the time during which compensation for treatment expenses may be recovered.
The respondent notes the applicant’s submission that she was assessed by Dr Quain at the request of the respondent, and that the doctor assessed the degree of WPI for the right shoulder injury and consequential left shoulder condition at 14% WPI. The respondent also notes that the applicant points to the fact that, if the assessment of Dr Quain had been carried out under s 65 of the 1987 Act, it would be sufficient to extend the compensation period from two to five years under s 59A(s)(b). The respondent submits that in doing so, the applicant’s argument does not appear to contest the fact that s 59A precludes the applicant from receiving the proposed treatment. Rather, the applicant seeks to invoke a ‘moral’ argument that the operation of the section as relied on by the respondent works an injustice to the applicant.
The respondent repeats the submission in [72] above, and submits that it is no answer to the operation of s 59A to say that it works an injustice to the applicant, as the introduction of the section was intended to limit the right of workers to claim medical expenses in certain circumstances, including those of the applicant. The respondent submits, more fundamentally, that s 59A(2) provides that “…if the injury has resulted in a degree of permanent impairment assessed as provided by section 65…” (Emphasis in submissions). Section 65 of the 1987 Act provides that for the purposes of Division 4 of that Act, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and Part 7 (Medical Assessment) of Chapter 7 of the 1998 Act.
The respondent cites ss 324, 325, and 327 of the 1998 Act in respect of assessment under Part 7 of the 1998 Act. The respondent submits that, as the assessment by Dr Quain was carried out at the request of the insurer, it clearly was not a medical assessment conducted under Part 7 of the 1998 Act. Dr Quain was not exercising the powers conferred by s 324, and was not empowered to issue a medical assessment certificate. Dr Quain’s assessment was not conclusively presumed to be correct as, if that were so, the applicant would have no right to bring proceedings in the Commission for a determination of her entitlement to permanent compensation.
The respondent submits that s 59A does not work an injustice as in the present case the section operates as the legislature intended it to do in limiting the applicant’s entitlement to compensation for the treatment that is to be undergone after the period of two years, where she has not been assessed under Part 7 of the 1998 Act. The respondent submits that the operation of the section and the plain intention of Parliament that it do so was recognised by Deputy President Roche in Flying Solo.
The respondent submits that the applicant rejected its offer to resolve her claim for permanent impairment compensation in respect of the right shoulder injury and consequential left shoulder condition. Having done so, the applicant is not able to assert that the respondent is somehow acting in a way that is contrary to the proper operation of the legislative scheme. It is open to the applicant to bring proceedings in the Commission seeking a referral to a Medical Assessor for assessment of the degree of permanent impairment for that claim. The respondent notes that the applicant in fact included a claim for permanent impairment in the original ARD but did not prosecute that claim.
The respondent rejects the applicant’s submission that it is not acting as a model litigant, claiming that the submission is misconceived. It submits that it is not a NSW Government entity to which the model litigant policy applies. Rather, it is a party to a litigated dispute in the Commission and as such is entitled to rely on legislative provisions including s 59A of the 1987 Act in defence of the applicant’s claim.
The respondent submits that as s 59A precludes the applicant from receiving an award in her favour for the proposed medical treatment, the Commission should enter an award for the respondent on the claim. As no compensation is payable because of the operation of s 59A, it is unnecessary and inappropriate for the Commission to determine the issue of the reasonable necessity of the proposed treatment.
The respondent does however make submissions as to whether the proposed treatment is reasonably necessary in the event that the Commission intends to determine the reasonable necessity of the proposed surgery.
The respondent notes the applicant’s submission that although precluded from relief under
s 60 by s 59A, that the Commission should nevertheless make a ‘Collett Direction’ that the proposed treatment is reasonably necessary as a result of the injury. In support of that submission, the applicant refers to the decision of Member Young in Stapleton. The respondent submits that the decision in that case is not authority for the proposition advanced by the applicant, and the approach urged on the Commission should not be followed.
The respondent notes that Member Young at [35] in Stapleton stated that the Commission could not, on the facts of that case, make a declaration under s 60 of the 1987 Act. However, he does not explain what he meant when he ‘expresses the sentiment’ (Emphasis in submissions) that the treatment claimed was reasonably necessary. He does not provide any reasons why it is necessary to express a ‘sentiment’ (Emphasis in submissions) about the reasonable necessity or otherwise of the treatment when no treatment was available to the applicant in that case due to the operation of s 59A.
The respondent submits that the current proceedings can be distinguished from the decision in Flying Solo, as in that case there was no issue about the reasonable necessity of the medical treatment proposed. That is made clear by what Roche DP says in [3] of the decision, and it was in that context that the Deputy President made comments regarding the obligation of the insurer to meet the reasonably necessary costs of the treatment once the worker took time off work to undergo surgery. The different situation in the present case is that the reasonable necessity for surgery is in issue, and as such the comments of Roche DP in Flying Solo and Member Young in Stapleton are merely obiter and have no force in the present case.
The respondent submits that in the present case, as s 59A precludes the applicant from the relief sought under s 60, the question of reasonable necessity of the proposed treatment is not a justiciable issue. That being so, according to the respondent, the Commission cannot make any finding of comment on the issue, as to do so this would amount to an error.
The respondent makes the following comments on the reasonable necessity of the proposed treatment contrary to its submissions that the Commission would fall into error if it made such a finding.
The respondent notes that the surgical treatment proposed by Dr Howard in his report dated 22 February 2023[28] was “shoulder arthroscopy and repair”, with the latter presumably being a reference to a procedure to repair a tear of the applicant’s left supraspinatus tendon or rotator cuff. In a report dated 28 April 2023, addressed to the applicant’s solicitors,
[28] ARD p 188.
[29] ARD p 190.
Dr Howard stated that the initial MRI scan of the applicant’s left shoulder showed that the rotator cuff was intact.[29] However a subsequent MRI scan, presumably referring to the MRI scan performed on 20 February 2023, “suggested further damage to the supraspinatus tendon” (Emphasis in submissions). The respondent submits that the reference to further damage by Dr Howard is curious, as his description of the pathology identified in the earlier examination and investigation was tendinitis, and the doctor stated that at the earlier time “the cuff was intact”. (Emphasis in submissions)
The respondent submits that Dr Howard has not provided any reasoned explanation for the fluidity of his diagnosis, and in particular the reference to the “further” damage to the rotator cuff shown in the 2023 MRI scan. Given the proposed treatment involves surgical repair of the left supraspinatus tendon, the reference to further damage in the 2023 MRI scan is a significant matter in determining whether or not the proposed treatment is reasonably necessary as a result of injury.
The respondent relies on the opinion of Dr Quain who has provided a series of reports addressing the applicant’s shoulder complaints, notably:
(a)    report dated 27 May 2021[30] containing a diagnosis in relation to the left shoulder of rotator cuff tendinitis with sub-acromial bursitis and secondary clinical capsulitis or restricted movement, but certainly no full thickness tear of the supraspinatus tendon;
(b)    a supplementary report dated 1 July 2021[31] in which Dr Quain accepted that increased strain on the left shoulder might have caused tendinitis and a partial thickness tear of the supraspinatus tendon, and
(c)    a further report dated 21 February 2022[32] in which Dr Quain expressed the opinion that the applicant’s dominant symptoms in the left shoulder might have caused tendinitis and a partial thickness tear of the supraspinatus tendon.
[30] Reply p 17.
[31] Reply p 21.
[32] Reply p 23.
The respondent notes that in his final report dated 23 May 2023[33] Dr Quain accepted that the dominant symptom of adhesive capsulitis in the applicant’s left shoulder could have been contributed to by altered dependence on the left arm. However, Dr Quain did not agree that the proposed treatment was reasonably necessary as he considered that there were “red flags” (Emphasis in submissions) for undertaking the treatment due to other health issues (principally the applicant’s heart condition) as well as the lack of success of the surgical procedure carried out on the applicant’s right shoulder, which had gone on to develop symptoms of adhesive capsulitis. The respondent notes that Dr Bodel, on whose opinion the applicant relies, agreed with Dr Quain on the former point.
[33] Reply p 34.
The respondent acknowledges that the view of applicant’s cardiologist, Dr Lee, that the applicant’s cardiac condition should not prevent her from undertaking the surgery proposed by Dr Howard meant that the first concern raised by Dr Howard falls away.
In respect of the second issue, the respondent refers to one of the factors noted Diab v NRMA Ltd[34] as a relevant consideration in the exercise of the discretion to grant relief. That is the likelihood of success of the proposed treatment. The respondent submits that given the issues raised by Dr Quain about the effects of adhesive capsulitis in the applicant’s shoulders (which appears to be a factor in lack of resolution of the symptoms in the right shoulder following surgery) the issue of the likelihood of success of the treatment is a major consideration. It is an issue that Dr Howard has not properly addressed in his reports.
[34] [2014] NSWWCCPD 72 (Diab).

The respondent submits that the contention that the applicant has undergone conservative treatment which has not been successful is a factor in favour of the argument that the proposed treatment is reasonably necessary, is specifically rejected by Dr Quain. This must be weighed against the prospects of the surgery not achieving the desired outcome. The respondent submits that the balancing of those factors must also be affected by the uncertainty surrounding the extent of the pathology in the applicant’s left shoulder in the context of the apparent further tearing of the supraspinatus tendon shown in the more recent MRI scan performed in 2023.
For the foregoing reasons, the respondent submits that the Commission should resist the applicant’s invitation to comment on the issue of the reasonable necessity of the proposed treatment.

Applicant’s reply submissions

In addition to her principal submissions, the applicant makes the following additional points.
The applicant rejects the respondent’s submission that her ‘rejection’ of the respondent’s prior offer to resolve the s 66 component of the claim acts as a disentitlement, or otherwise ought to undercut her position by reason that a forensic decision that was made, ignores the implication of the applicant accepting such an offer. In this regard the applicant notes the provisions of s 66(1A) of the 1987 Act and s 322 of the 1998 Act.
The applicant submits that the respondent’s submission that it is ‘open’ to her to seek a referral to a Medical Assessor for the purposes of s 66, takes the matter no further, save as to highlight the attempted position now sought to be leveraged by the respondent notwithstanding its own assessment of the applicant’s level of impairment.
The applicant submits that the respondent has not engaged with the applicant’s submissions with respect to the operation and impact of s 59A(3) as amended.
The applicant submits that the respondent’s submissions made with respect to Flying Solo and Stapleton respectfully seek to place a gloss over the determination in those matters, and the facts in the current case. The applicant’s position is that Flying Solo makes the point, with various decisions following it thereafter, including Stapleton (which does not create a proposition other than to follow higher authority) Bluescope Steel Ltd v Jovanovski,[35] and Hedges v Dr Dan White, Executive Director of Catholic Schools.[36]

FINDINGS AND REASONS

[35] [2015] NSWWCCPD 44 at [69] – [72] (Jovanovski).

[36] [2017] NSWWCCPD 34 at [55] – [61] (Hedges).

Section 59A of the Workers Compensation Act 1987

Section 59A of the 1987 Act relevantly provides:
“(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.
(2) The compensation period in respect of an injured worker is—
(a)  if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on—
(i)  the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)  the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or
(b)  if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on—
(i)  the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or
(ii)  the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).
(3)    If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)    For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.”
Subsections (5) – (8) of s 59A are not relevant to the current proceedings.
Section 59A(2)(ii) is applicable to the current proceedings. The applicant last received weekly payments for the week ending 16 October 2021. At that time Ms Corneliusen had received weekly benefits for less than 130 weeks.[37]
[37] AALD dated 20 February 2024 p 19, and Tpp13.20 – 14.14.
The claim for the cost of surgery was first made on Westfarmers on 24 February 2023 when it received a copy of the report of Dr Howard dated 23 February 2023 containing a request for permission for the left shoulder surgery arthroscopy, plus or minus cuff repair.[38]
[38] AALD dated 15 January 2024 p 576, and s 78 notice dated 16 March 2023 ARD p 77.
The ARD commencing proceedings, dated 15 October 2023, was lodged with the Commission on 16 October 2023.
As weekly payments have been paid to the applicant, s 59A(2)(ii) applies. It also applies if weekly payments are “payable” to the applicant. This will be discussed hereunder.
The two year limitation period provided for in subsection (2) commenced on 16 October 2021 and expired on 16 October 2023 as the applicant:
(a) does not have an assessment of the degree of permanent impairment assessed as provided by section 65 of 10% or less, and
(b) does not have an assessment of the degree of permanent impairment as provided by section 65 of the 1987 Act.
Section 65(1) of the 1987 Act provides that for the purposes of Division 4 of Part 3 of the 1987 Act (Compensation for non-economic loss) the degree of permanent impairment from an injury is to be assessed as provided by that section and Part 7 (Medical Assessment) of Chapter 7 of the 1998 Act.
Sections 319, and 321 - 326 of the 1998 Act are included in Part 7 of Chapter 7 of the 1998 Act. They set out the procedure for assessment of the degree of permanent impairment of a worker as a result of an injury by a Medical Assessor, and the issue of a medical assessment certificate which is conclusively presumed to be correct. The respondent correctly summarises these sections at [11] – [13] of its submissions.
The applicant has been independently medically assessed by Dr Quain, at the request of the insurer, to have sustained 14% WPI as a result of the undisputed injury to his right shoulder on 1 February 2017, and condition in the left shoulder consequent upon that injury. This assessment is contained in Dr Quain’s report dated 20 March 2022.[39] As noted by the respondent at [14] of its submissions, Dr Quain was not exercising the powers conferred by
[39] Reply p 31.
s 324, nor was his assessment conclusively presumed to be correct.
The applicant submits that the conduct of the insurer, having the assessment of Dr Quain, is “disingenuous” and far less than desirable than what would be expected of a model litigant. The applicant makes the submission that the respondent seeks to take a “technical point”,[40] and seeks to prevent the applicant from being able to prosecute a claim for surgery in the context of:
(a)    the fact that the respondent had in its possession since February 2022 evidence that the applicant’s left and right shoulder conditions gave rise to an impairment of greater that 10%;
(b)    the request for surgery having been made prior to the expiration of the two year limitation period, and
(c)    the commencement of the current proceedings prior to that period.
[40] T p 12.25.
The respondent submits that it is not a NSW Government entity to which the model litigant policy applies. It is a party to a litigated dispute in the Commission and as such is entitled to rely upon the provisions of the workers compensation legislation in its defence of the applicant’s claim. I accept that submission.
I do not accept that the fact that the request for surgery, and commencement of the proceedings, pre-dates the expiration of the two year limitation period in s 59A(2)(a) is relevant to the consideration of the provisions of s 59A of the 1987 Act, or that it prevents the respondent from relying on that section.
In my view, s 59A(3) is relevant to the applicant’s claim for the cost of the right shoulder surgery. It was considered by Deputy President Roche in Flying Solo, that is, the issue of when weekly payments become “payable” to a worker after compensation for weekly payments ceases to be payable, and once again becomes payable to the worker.
The respondent submits that the comments of Deputy President Roche in Flying Solo, and those of Member Young in Stapleton, are merely obiter (Emphasis in submissions) and have no force in the present case. That is because in that case there was no issue about the reasonable necessity for the medical treatment proposed, noting that [3] of the Deputy President’s decision sets out the issues before the Commission for determination.
Paragraph [3] of Flying Solo is as follows:
“The present appeal concerns the Commission’s power to order the payment of compensation for the cost of proposed surgery to the worker’s cervical spine. The resolution of the appeal depends on the interpretation of the weekly compensation provisions in Div 2 of Pt 3 of the 1987 Act and the interaction of those provisions with s 59A and, in this case, cl 5. The essential issues are whether, at the relevant time, weekly compensation was ‘payable’ to the worker, whether, and if so, when, the worker ‘ceased to be entitled to weekly payments of compensation’, and when a worker ‘becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation’ under Div 3.”
The reference to “cl 5” is to that clause in Pt 1 of Sch 8 of the Workers Compensation Regulation 2010, relating to the application of s 59A in respect of a claim for compensation made before 1 October 2012, and not relevant to the current proceedings.
The respondent’s reference to there being no issue in Flying Solo about the reasonable necessity for the medical treatment proposed overlooks the fact that the reasonable necessity such treatment was in issue before (then) Arbitrator Harris, from whose decision the appeal was brought. He found that the applicant had sustained injury to the cervical spine and that the surgery proposed thereon was reasonably necessary as a result of such injury. This finding was confirmed on appeal.[41] The only order of the Arbitrator that was revoked was paragraph [2], ordering the respondent to pay for the costs of the surgery proposed.
[41] See Flying Solo at [7], and Orders Made On Appeal.
At [74] – [75] in Flying Solo Roche DP said:
“74. However, s 59A(3) will be relevant when Mr Collet ceases work to have the recommended surgery to his cervical spine. Obviously, Mr Collet will be unable to work while he has the surgery, or while he is recovering from it. Thus, for a period, he will have no current work capacity. As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will ‘become entitled to weekly payments of compensation’. There is no scope for a contrary argument. As a result, his entitlement to compensation under Div 3 will revive ‘but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to [him]’ (s 59A(3)). That is, while he is having, and recovering from, the surgery.
75. As that is in the future, and as it is not known how long that period will be, it is not possible to make any finding or order in advance. However, it should be clearly understood that the fact that the time off work for the surgery will result in Mr Collet being entitled to weekly compensation will also entitle him to compensation under Div 3 for the cost of the surgery. In these circumstances, though the Commission cannot currently order the payment of the cost of the surgery, the insurer will have an obligation to meet that cost. I fully expect the insurer to meet that cost without the need for further proceedings in the Commission. A failure to do so would be, in the circumstances of this case, a most serious breach of the insurer’s statutory obligations.”
This decision was followed by Roche DP in Jovanovski at [69] – [71], and referred to with approval by President Judge Keating (as he then was) in Hedges at [55] – [61].
I do not accept that the respondent’s submission that the comments of Roche DP in Flying Solo are merely obiter and have no force in the present case. In my view they are directly relevant. If there is a finding that the surgery proposed by Dr Howard on the applicant’s left shoulder is reasonably necessary as a result of injury to the right shoulder on
1 February 2017, weekly payments of compensation will become payable for the period of incapacity for work as a result of such surgery. She will then be entitled to compensation for the costs of and incidental to that surgery.

Reasonable necessity for surgery

There is no issue that the applicant suffered a condition in her left shoulder consequent upon injury to the right shoulder. The respondent puts in issue the reasonable necessity for surgery on the left shoulder.
Dr Howard has been the applicant’s treating orthopaedic surgeon since February 2017. The early history of his treatment is set out in a report from the doctor to the applicant’s solicitor dated 11 August 2021.[42]
[42] ARD p 152,
Dr Howard operated on Ms Corneliusen’s right shoulder initially on 24 July 2017, performing an arthroscopic rotator cuff repair.
Dr Howard saw the applicant on 11 May 2021 when two issues were dealt with:
(a) the receipt of approval for the for the right shoulder rotator cuff repair, and
(b) discussion about the left shoulder. In this regard Ms Corneliusen told Dr Howard that she had been aware of pain around her left shoulder dating back to November 2018.[43]
[43] Report of Dr Howard to Dr Amal Boshra dated 18 May 2021, ARD p 148.
In respect of the left shoulder Dr Howard noted that Ms Corneliusen had undergone a subacromial injection, which he believed was a reasonable treatment option. He noted “The MRI scan that you kindly provided of her shoulder…”, referring to Dr Boshra to whom the report dated 18 May 2021 was addressed, which he said “…shows some tendinosis of the cuff mechanism without full thickness tearing.” The MRI report of the scan, carried out on
[44] ARD p 145.
10 April 2021, to which Dr Howard is referring is that dated 13 April 2021.[44]
The “Clinical Indication” for the MRI scan noted in the report of the radiologist, Dr Duncan, is “Ongoing pain”, and Dr Duncan notes a previous ultrasound of the shoulder dated
13 July 2020 “…suggesting a chronic partial thickness tear of the supraspinatus (only)”. The doctor’s conclusion in the report is:
“The MRI findings are consistent with supraspinatus and subscapularis tendinosis (including an intrasubstance superior subscapularis tendon tear) and SA/SD bursitis.”
Dr Howard performed a second operation on the right shoulder on 17 May 2021, a “revision repair of the cuff”, and followed her up thereafter. His diagnosis was one of “rotator cuff tearing”.
Dr Howard saw the applicant again on 1 September 2021 and reported to Dr Boshra on
2 September 2021.[45] In respect of the right shoulder, Dr Howard said:
“Her shoulder remains a bit painful, but her range of motion is coming along nicely. She is not going too badly really at 3 ½ months following her cuff repair.”
Dr Howard was happy for Ms Corneliusen to continue with her physiotherapy and range of motion exercises. He certified her fit to begin work with the traffic control service from the following Friday, and set out restrictions on her activities.
[45] ARD p 156.
At [110] – [111] of her statement dated 13 October 2023, Ms Corneliusen confirms that she was not physically working/employed with G4S until 3 September 2021, at which time cars were apparently unavailable, and actually got back into a car for work in mid-October 2021.
The applicant had previously seen Dr Quain at the request of the insurer on 18 March 2021 when both the right shoulder and left shoulder were examined. The doctor reported to the insurer on 19 March 2021.[46] In respect of the left shoulder, Dr Quain noted that the range of motion of the left shoulder was similarly restricted to that of the right shoulder. He had not seen “…the report or the MRI which has apparently done on the left shoulder”. Dr Quain’s main concern at that stage was the development of what appeared to be capsulitis of the left shoulder.
[46] Reply p 8.
Dr Quain’s subsequent reports on the applicant, and his relevant findings, are summarised at [13] – [15] above.
Dr Bodel in his report dated 28 September 2021, referred to at [16] above, diagnosed the applicant as suffering from rotator cuff injury to both shoulders, based on the reports of the MRI scans. In his supplementary report dated 29 March 2022 Dr Bodel indicated that
Ms Corneliusen did have clinical evidence of probable capsulitis (a frozen shoulder) on the left hand side, and agreed with the description of the pathology outlined by Dr Quain in both shoulders (and the neck), and agreed that the underlying pathology was largely constitutionally based with some inflammatory process in the rotator cuff of each shoulder. After discussion of the right shoulder injury, Dr Bodel said:
“The left shoulder became more symptomatic after a period of time, when she started to favour that side more than the right, and that has led to the adhesive capsulitis.”
Later in the report in answer to specific question [1] put to him, Dr Bodel said that the aggravation, acceleration, exacerbation and deterioration of an underlying disease process on the left shoulder:
“…has led to the clinical evidence of adhesive capsulitis and I agree with his [Dr Quain’s] recommendation that he would prefer some conservative treatment, particularly hydrotherapy, in the foreseeable future to try and improve the function in that region, and that is appropriate.”
The applicant underwent an MRI scan of her left shoulder on 20 February 2023 at the request of Dr Howard.[47] The conclusion in the report thereon is as follows:
“1.     Irregular high-grade, predominantly intrasubstance, partial thickness tear of the anterior to mid fibres of supraspinatus on a background of mild to moderate supraspinatus tencinosis.
2.     Tiny articular surface tear of the anterior fibres of infraspinatus with small associated ganglion.
3.     Mild to moderate subacromial bursal thickening.”
[47] ARD p 186.
Dr Howard reported to the applicant’s solicitor on 28 April 2023 and commented on this MRI scan.[48] He said in part answer to question [4] posed to him:
“More recently in February this year I had the opportunity of repeating the MRI scan for her left shoulder which suggested further damage to the supraspinatus tendon. With the above in mind, I have recommended surgery here and on the basis that Ms Corneliusen has had appropriate non-operative treatment for her left shoulder pain I think it is reasonable to proceed with her shoulder surgery.”
Later in the report Dr Howard noted that Ms Corneliusen had undergone treatment on the form of a subacromial injection, an intrarticular [sic] injection along with physiotherapy. He expressed the hope that with the benefit of surgery he would be able to settle
[48] ARD p 190.
Ms Corneliusen’s left shoulder pain, and said that her need for surgery is related to her compensable condition, that of left shoulder rotator cuff tearing.

The applicant was independently medically examined by both Dr Bodel and Dr Quain on
16 May 2023. Dr Bodel produced a report of that date,[49] and Dr Quain a report dated
[49] ARD p 110.
23 May 2023 referred to above at [15(d)].
Dr Bodel said the following in respect of Dr Howard’s recommendation for rotator cuff surgery on the left shoulder:
“Today, I have reviewed her in Sydney. I note that Dr Howard has now recommended rotator cuff surgery on the left shoulder and the insurer have disputed that. She has had symptoms in the left shoulder for some considerable period of time and had MRI scans and cortisone injections paid for by the insurer accepting that there was a pathology in that region. It is now appropriate for her to consider the surgical subacromial decompression as recommended by Dr Howard.”
Dr Bodel noted the offer of a surgical procedure on the left shoulder later in the report, said that it is reasonably necessary, and that it should be undertaken as soon as possible.
Dr Quain in his report noted that the recent MRI of the left shoulder reported high-grade intrasubstance tear of the anterior to mid fibres of the left rotator cuff with some bursal thickening. Subscapularis and infraspinatus remained intact. He noted an earlier MRI dated April 2021 was consistent with tendinosis on both supraspinatus and subscapularis.
In respect of surgery, Dr Quain said:
“I believe there are significant yellow if not red flags in recommending any surgical treatment to this lady, particularly if she has any cardiac abnormality.”
And when asked if he agreed with the diagnosis provided by Dr Howard said:
“Partly, but as I have stated, I believe there are major reservations and possible red flags in recommending any further surgical treatment when she has probable significant medical conditions and less than successful result of two operations on the right side.”
Later in the report when asked if the applicant required a left shoulder and arthroscopy and rotator cuff repair as a result of the nature and conditions of her employment Dr Quain said:
“No. I do note the MRI findings, but I believe that failure to improve with conservative management is not a strong indicator for surgical intervention, particularly with intercurrent illnesses, possibly myocarditis and the relatively poor result from surgical intervention on the right side.”
The respondent concedes that, having regard to the report of the applicant’s cardiologist
[50] AALD dated 6 February 2024 p 54.
Dr Lee, dated 13 November 2023,[50] the applicant’s heart condition is not a factor in the consideration of the reasonable necessity for the left shoulder surgery. Dr Lee does not see any cardiac reason why Ms Corneliusen cannot have the shoulder surgery.
That leaves two other reasons put forward by Dr Quain as a contra indication to the left shoulder surgery, namely:
(a) failure of the left shoulder to improve with conservative management, and
(b) the relatively poor result from surgical intervention on the right side.
In respect of the “…relatively poor result from surgical intervention on the right side” I note that:
(a) when he saw the applicant on 1 September 2021 and reported to Dr Boshra on
2 September 2021, Dr Howard was happy with Ms Corneliusen’s progress and for her to continue her physiotherapy and range of motion exercises. He certified her fit to begin work with the traffic control service from the following Friday;
(b) as noted at [126] – [128] above and [112] of her statement dated
13 October 2023, the applicant was able to return to some form of work in September/October 2021 with G4S, albeit that she did have some difficulties with her work duties including driving one of the cars she was required to use, and
(c) Ms Corneliusen gives evidence at [113] – [124] of her statement of the difficulties she experiences with her shoulders. It is evident from these paragraphs that the symptoms in the left shoulder are causing her greater pain and discomfort, and restriction in activities, than the symptoms in the right shoulder. At [122] she says:
“I still get pain in my right shoulder and pain in my right elbow, but pain in my right shoulder, is not like it was before surgery. I am no working on strengthening it.”
The applicant’s evidence in her statement is consistent with the history recorded by Dr Quain on 16 May 2023 in respect of the right shoulder:
“In the right shoulder she states that she has now achieved better movement but has some pain with overhead activities for instance washing her hair and she cannot lift greater than 5kg. She also states that opening up cans of dog food or jars also causes pain and I understand that she may still be having some supervisory physiotherapy.”
I conclude from this evidence that while the result of the two lots of surgery on the right shoulder may not have been overwhelming successful in relieving pain, symptoms, and restriction of movement in the shoulder, Ms Corneliusen experienced definite improvement such that she was able to return to employment with restrictions. I do not regard the relatively poor result, as described by Dr Quain, as a significant factor in consideration of the reasonable necessity for surgery on the left shoulder.
I do regard the failure of the left shoulder to improve with conservative management as a significant factor in consideration of the reasonable necessity for surgery on the left shoulder.
The respondent submits that Dr Howard has not provided any reasoned explanation for the fluidity of his diagnosis, and in particular the reference to the further damage to the rotator cuff shown in the 2023 MRI scan. I do not accept this submission. Dr Howard’s discussion about, and treatment of, the left shoulder condition is summarised at [123] – [125] and [132] – [133] above. The doctor based his findings and treatment on his clinical examination of
Ms Corneliusen and the MRI scans dated 13 April 2021 and 20 February 2023 to which he had access. Dr Howard’s interpretation of the latter scan was that it suggested further damage to the supraspinatus tendon. That is consistent with the applicant’s complaints.
The respondent submits that the following must be considered:
(a) the prospects of the surgery not achieving the desired outcome, and
(b) the uncertainty surrounding the extent of the pathology in the applicant’s left shoulder in the context of the apparent further tearing of the supraspinatus tendon shown in the more recent MRI scan performed in 2023.
The applicant relies upon the well-known authorities of Bartolo and Rose in support of her submissions as to the reasonable necessity for surgery on the left shoulder. These were discussed by Deputy President Roche in Diab, who at [88] in the context of s 60 of the 1987 Act, listed the relevant matters, according to the criteria of reasonableness, as including, but not necessarily limited to, the matters noted by Burke CCJ in Rose as follows:
(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.
At [89] the Deputy President said:
“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.”
In this case, as noted at [57] and [62] above, Dr Howard recommends surgery on the left shoulder to address the undisputed pathology therein shown on the MRI scans. It is not to address the capsulitis, which is not accepted by the respondent as being causally related to the right shoulder injury. Dr Bodel endorses Dr Howard’s recommendation for surgery to address the pathology in the left shoulder. He also notes that all other treatments have been exhausted, although he strongly suspected that Ms Corneliusen would not be able to have the surgery because of other comorbidities. That issue has been put to rest by the report of Dr Lee.
Having regard to the evidence as a whole I find that the surgical treatment proposed by
Dr Howard on the applicant’s left shoulder is appropriate, and that alternative treatment undergone by Ms Corneliusen has not been effective. The cost of the treatment is not an issue. The treatment has the potential to improve the condition in the left shoulder. It is accepted by Dr Howard and Dr Bodel as appropriate and likely to be effective.

SUMMARY

The surgery as proposed by Dr Howard on the applicant’s left shoulder, that is arthroscopic rotator cuff repair, is reasonably necessary as a result of injury to the right shoulder on
1 February 2017.

[2024] NSWPIC 191

17 April 2024