Da Silva v Qantas Airways Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Da Silva v Qantas Airways Ltd [2022] NSWPIC 3
APPLICANT:	Otemizio Da Silva
RESPONDENT:	Qantas Airways Ltd
MEMBER:	Glenn Capel
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed back and left shoulder surgery; dispute whether surgery was reasonably necessary as a result of the accepted injuries; Kooragang Cement Pty Ltd v Bates, Hancock v East Coast Timbers Products Pty Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service Diab v NRMA Ltd and Herborn v Spotless Services Australia Limited discussed and applied; Held - surgery was reasonably necessary as a result of injuries; respondent to pay for proposed surgery pursuant to section 60 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. The applicant sustained injury to his lower back arising out of or in the course of his employment with the respondent on 25 June 2015. 2. The applicant sustained injury to his left shoulder arising out of or in the course of his employment with the respondent on 29 April 2019. 3. The applicant’s employment was a substantial and/or the main contributing factor to his injuries. 4. The applicant requires medical treatment as a consequence of his injuries and the respondent is liable to pay reasonably necessary medical expenses. 5. The proposed lumbar surgery involving the removal of hardware and a decompression, and associated expenses, is reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 25 June 2015. 6. The proposed left shoulder arthroscopy, posterior labral repair +/- biceps tenodesis, and associated expenses, is reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 29 April 2019.
ORDERS MADE:	7. The respondent is to pay the applicant’s reasonably necessary medical expenses with respect to the proposed lumbar spine and left shoulder surgery, and associated expenses, pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Otemizio Da Silva (the applicant) is 52 years old and commenced employment with Qantas Airways Ltd (the respondent) as a bus driver in 2013. He was made redundant on
16 March 2021.
There is no dispute that the applicant injured his back on 25 June 2015 when he was crushed by a van that was rolling down a hill. He also injured his left shoulder on 29 April 2019 when he was lifting cabin crew’s bags into a van. Liability was accepted by the respondent as a self-insurer (the insurer) in respect of both injuries.
The applicant had a two level lumbar fusion performed by Dr Reddy in 2017, and Dr Harper performed an arthroscopic acromioplasty and AC joint excision on 5 December 2019. The insurer paid for both procedures.
The applicant made a claim for lump sum compensation in respect of his lumbar spine. On 26 August 2019, he was assessed by an Approved Medical Specialist as having 22% whole person impairment of the lumbar spine and 1% whole person impairment for scarring (TEMSKI), for a combined total of 23% whole person impairment.
On 24 March 2021, the applicant’s treating shoulder surgeon, Dr Popoff, wrote to the applicant’s general practitioner, Dr Yuen, and recommended that the applicant have surgery. I understand that on 18 May 2021, Dr Popoff sought approval from the insurer to perform a left shoulder arthroscopy, posterior labral repair +/- biceps tenodesis.
On 1 June 2021, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and advised that it had declined to approve the surgery proposed by Dr Popoff. It indicated that it had insufficient information to determine whether the proposed surgery was reasonably necessary as a result of the work injury, so it had sought further information from Dr Popoff. It also arranged an examination with its own independent medical examiner, Dr Kai Lee. The insurer stated that upon receipt of this information, it would make a further determination.

On 1 July 2021, the insurer issued a further notice pursuant to s 78 of the 1998 Act, disputing that the proposed surgery was reasonably necessary as a result of the accepted left shoulder injury. It cited s 60 of the Workers Compensation Act 1987 (the 1987 Act), and ss 78 and 79 of the 1998 Act.
On 29 June 2021, the applicant’s treating back surgeon, Dr Reddy, sought approval from the insurer to perform a decompression, explore the previous spinal fusion, and to remove or adjust the instrumentation.
On 22 July 2021, the insurer issued a notice pursuant to s 78 of the 1998 Act and advised that it had declined to approve the surgery proposed by Dr Reddy. It indicated that it had insufficient information to determine whether the proposed surgery was reasonably necessary as a result of the work injury, so it had sought further information from Dr Reddy, but he had not responded, so an appointment had been arranged with Dr Sheehy on
22 September 2021. The insurer stated that upon receipt of this information, it would make a further determination.

On 10 September 2021, the applicant’s solicitor requested the insurer to review its decisions in respect of the two operations.
On 24 September 2021, the insurer carried out a review pursuant to s 287A of the 1998 Act and advised that it intended to maintain both of its decisions. It indicated that it had reviewed its decisions as it was obliged to do in accordance with the legislation. It advised that it would review its decision once Dr Sheehy’s report was available.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 6 October 2021 and amended at the arbitration hearing to identify the correct date of the applicant’s back injury, the applicant claims the cost of proposed medical treatment pursuant to s 60 of the 1987 Act due to injury sustained to his back on 25 June 2015 and to his left shoulder on 29 April 2019.

PROCEDURE BEFORE THE 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.

Preliminary Issue

The applicant’s counsel, Mr Robison, objected to the admission of the reports of Dr Sheehy into evidence. One report was annexed to the Reply, and a second report was annexed to a Form 2C-Application to Admit Late Documents received by the Commission on
13 December 2021.
According to the Form 2C document, which was not referred to by either counsel, the respondent sought to have the late evidence admitted and relied on Rule 67(4) of the Personal Injury Commission Rules 2021 (the Rules) which provided the Commission may introduce such evidence in the interests of justice. The respondent claimed that the applicant would suffer no prejudice, and their omission would result in an injustice and serious prejudice to the respondent.
It was noted that the report of Dr Lee dated 16 November 2021 was served on the applicant on 26 November 2021, and the report of Dr Sheehy dated 25 November 2021 was served on the applicant on 29 November 2021. It was also indicated that the failure to admit these documents into evidence would be inconsistent with the objectives of the Commission described in rule 42 and s 43 of the Personal Injury Commission Act 2020.

Submissions were made by Mr Robison and by the respondent’s counsel, Mr Allen Parker.
In summary, Mr Robison submitted that the substantive report of Dr Sheehy was not served on the applicant until the Reply was received. He submitted that the respondent had not complied with the 1998 Act and the Workers Compensation Regulation 2016 (the 2016 Regulation). There had been a failure to comply with the principles discussed in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[1]. The insurer’s decision to dispute the claim for the cost of the lumbar surgery was not a final decision based on a final review. Liability was not declined based on Dr Sheehy’s substantive report.
Mr Parker submitted that the date of back injury had been wrongly pleaded in the Application, and the respondent required further information. The applicant sought a review before
Dr Sheehy’s report was available. He submitted that the applicant’s solicitor was aware that Dr Sheehy’s report was outstanding, and that the respondent would seek to rely on it. The clinical notes were not provided by the applicant until they were included in the Application, and the applicant would have anticipated that there would be a dispute, given the views of
Dr Mobbs. Dr Gehr was also aware that a bone scan had been undertaken.
I gave an ex-tempore decision. The submissions and my determination were recorded, and transcript will be available on request. I propose to make some further comments here.
Sections 78 and 79 of the 1998 Act require an insurer to give notice of a decision to a worker. They provide:
“78 Insurer to give notice of decisions
(1)     An insurer must give notice in accordance with this Division of any decision of the insurer—

(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
(2)     Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).
(3)     The requirement to give notice of a decision to discontinue payment to a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.
79 How notice of decision is given
(1)     A notice required by this Division must be given—

(a) to the claimant or worker concerned, and
(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.
(2)     The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.
(3)     In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
(4)     The regulations may make provision for—

(a) the manner in which a notice under this Division is to be given, and
(b) the form of and other information to be included in or to accompany the notice.”

Clause 38 of the 2016 Regulation also sets out an insurer’s obligation to give notice. It provides:
“38 Notice of insurer decisions
(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b) a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c) a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d) details of the procedure for requesting a review of the decision,
(e) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f) the contact details for the Independent Review Officer,
(g) the street address and the email address of the Registrar of the Commission,
(h) a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute….”
Clause 41 of the 2016 Regulation is also of relevance. It provides:
“41   Access to certain medical reports and other reports obtained by insurer
(1) This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession—
(a)medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,
(b)certificates of capacity,
(c)clinical notes,
(d)investigators’ reports,
(e)workplace rehabilitation providers’ reports,
(f)health service providers’ reports,
(g)reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.
(2)     This clause applies to the following decisions of an employer or insurer relating to an injured worker—
(a)a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(b)a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(c)a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.
(3)     For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d).
(4)     The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
(5)     If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report—
(a)in the case of a medical report, certificate of capacity or clinical notes—to a medical practitioner nominated by the worker for that purpose, or
(b)in any other case—to a law practice representing the worker.
(6)     If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may—
(a)direct that the report be supplied to such other persons as the Authority considers appropriate, or
(b)make such other directions as the Authority thinks fit.”
The obligation on an insurer to give notice is described in similar terms in chapter GN 8.1 of SIRA’S Claim Management Guide.

In Mateus, Deputy President Roche stated:
“In determining whether it was ‘in the interests of justice’ to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;

(b) any insurer seeking to dispute an un-notified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;

(c) any unreasonable or unexplained delay in giving notice of an un-notified matter will be relevant to the exercise of the discretion;

(d) in exercising its discretion, the Commission may have regard to the merit and substance of the issue that is sought to be raised;

(e) in assessing prejudice to the worker, it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue that is sought to be raised;

(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and

(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.”[2]

Rule 67 of the Rules directs that parties must file and serve documents in accordance with the legislation, and rule 67(4) provides that the decision maker may admit evidence that has not been provided in accordance with the legislation if it is in the interests of justice to do so.
There is no doubt that the insurer failed to comply with its mandatory obligations under the 1998 Act and the 2016 Regulation in relation to the substantive report of Dr Sheehy. In its dispute notices dated 22 July 2021 and 24 September 2021, the insurer advised that it had insufficient information to determine whether the proposed surgery was reasonably necessary as a result of the work injury.
There was no “concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision” with reference to the substantive report of Dr Sheehy. It indicated that it would review its decision once it had received Dr Sheehy’s report. No such review was undertaken at any time after receipt of Dr Sheehy’s report on or about 7 October 2021, prior to the telephone conference on 4 November 2021 or before the arbitration hearing on16 December 2021.
The original request for the back surgery was submitted by Dr Reddy on 29 June 2021. The insurer sought further information from Dr Reddy, but its request is not in evidence. It then arranged for an appointment with Dr Sheehy some 12 weeks later on 22 September 2021. The doctor did not complete his report for another 16 Days. Such delays in my view are unacceptable. There is no explanation why an earlier appointment could have been obtained from this specialist or another neurosurgeon, or why it took the doctor so long to provide his report.
The fact that the applicant’s solicitor had pleaded the incorrect date of the back injury is irrelevant, given that the Commission is not a tribunal of strict pleadings. The insurer identified the date of injury in its dispute notices, and this was consistent with the medical evidence and the Certificate of Determination in respect of the lump sum claim that was finalised in 2019. I also commented on this error during the telephone conference.

In my view the submission that the applicant’s solicitor would have been aware of the existence of Dr Sheehy’s report and the likelihood that the respondent would seek to rely on it is without merit. Whist it is true that it was known that the applicant was examined by
Dr Sheehy, there was no guarantee that he would provide a report in support of the respondent, so any suggestion that the applicant’s solicitor would have been aware that the respondent intended to rely on the report is mere speculation.
It is true that the clinical notes were not provided until they were included in the Application, but the insurer had ample opportunity to obtain the notes since 2015, and more recently when Dr Reddy submitted the request for surgery.
It is true that the respondent might be prejudiced by the exclusion of Dr Sheehy’s reports from the evidence, but that is largely due to the respondent’s own actions, or lack thereof. The prejudice needs to be weighed up against that experienced by the applicant if it is admitted. In my view, the applicant’s prejudice would exceed that of the respondent. Accordingly, it would not be in the interests of justice for Dr Sheehy’s reports to be admitted into evidence, so the reports of Dr Sheehy are not admitted into evidence.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the proposed back surgery is reasonably necessary as a result of the injury sustained on 25 June 2015 – s 60 of the 1987 Act, and
(b) whether the proposed left shoulder surgery is reasonably necessary as a result of the injury sustained on 29 April 2019 – s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a)    the Application and attached documents;
(b)    Reply and attached documents, excluding the report of Dr Sheehy dated
7 October 2021, and
(c)    Application to Admit Late Documents received on 13 December 2021, excluding the report of Dr Sheehy dated 25 November 2021.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Given that there is no dispute regarding the applicant’s injuries, I will focus my summary on the evidence that is of relevance to the current dispute.

Applicant’s statement

The applicant provided a statement on 8 July 2021. He indicated that he was taking Panadeine Forte, Lyrica, Nurofen and Endone for his pain, the latter once every few days when he needed it. He stated that he was unable to sleep on his left shoulder and back. He only averaged two to four hours of sleep each night. He could not drive and was unable to participate in his sporting activities. He had difficulty sitting and his daughter helped him with domestic tasks. He also employed a cleaner.

Clinical notes of Sydney Airport Medical Centre

The clinical notes of the Sydney Airport Medical Centre commence on 12 September 2012 and conclude on 30 June 2021.
There are numerous entrees relating to the applicant’s back symptoms and treatment before and immediately after his back surgery, but there was a greater focus on the left shoulder and neck after the injury on 29 April 2019.
On 19 October 2020, Dr Yuen recorded that the applicant had reported ongoing low back since 2018 and this had become worse in the last couple pf months. The applicant had stiffness and numbness in his left leg. The doctor organised CT and MRI scans, and referred the applicant to Dr Reddy.

Reports of Dr Harper

Dr Harper reported on 7 November 2019 and 20 November 2019. He recorded that the applicant had a seven month history of left shoulder pain. On examination, the doctor noted that the applicant localised his pain over the lateral aspect of the shoulder. There was AC joint tenderness and left sided neck pain. There was a full range of motion, but impingement signs were positive.
Dr Harper noted that the applicant had exhausted non-operative treatment, so he arranged for radiological tests. He reported that these showed AC joint arthritis and rotator cuff impingement. He recommended an arthroscopic subacromial decompression and distal clavicle excision, and these procedures were carried out on 5 December 2019.
In a report dated 12 February 2020, Dr Harper noted that the applicant had a full range of motion and his pain had improved, but he still had some discomfort around the left AC joint. The doctor expected further improvement.

In a report dated 21 October 2020, Dr Harper noted that the applicant still had some residual anterolateral shoulder pain. He had a full range of motion with normal rotator cuff strength, there were no signs of impingement and no tenderness in the AC joint. The doctor believed that the applicant’s residual left shoulder discomfort was most likely related to the partial thickness rotator cuff tears and tendinopathy.
In his final report dated 3 February 2021, Dr Harper recoded that the applicant had some mild residual discomfort over the AC joint with scapular retraction. Impingement signs were negative and there was a full range of motion. He did not suggest any further treatment.

Reports of Dr Popoff

Dr Popoff reported on 24 March 2021. He noted a history that the applicant had gained no benefit from the surgery performed by Dr Harper, and his symptoms had remained the same. The applicant complained of posterior left shoulder pain associated with elevation and periscapular pain with intermittent paraesthesia into his radial digits.
Dr Popoff diagnosed a labral tear that was confirmed by an MRI scan. He noted that physiotherapy had not provided any benefit, and he considered that the applicant should have a left shoulder arthroscopy, posterior labral repair +/- biceps tenodesis, depending on his findings at the operation. He believed that the clinical, radiological and historical presentations were consistent with the work injury.

Reports of Dr Reddy

There are a number of reports from Dr Reddy that deal with the applicant’s injury, symptoms and treatment, including the lumbar surgery that was performed on or about 22 July 2017.
In the post-operative report dated 22 August 2017, Dr Reddy recorded that the applicant’s level of pain had improved, but he was still troubled by pain and left sided radiculopathy. In September 2017, the doctor referred the applicant to Dr Anand for pain management treatment.
On 19 September 2017, Dr Reddy reported that the applicant’s condition was improving, and by 12 December 2017, the applicant had no leg symptoms and only some back discomfort.
In a report dated 5 April 2018, Dr Reddy noted that the applicant was no longer taking medication and his condition had improved. He was troubled by numbness in his left leg and right foot. The doctor advised against any surgery at that stage. The applicant complained of low back pain and symptoms in both legs on 25 May 2018.
In a report dated 27 January 2021, Dr Reddy advised that the applicant’s back had become more painful, and he was troubled by stiffness and worsening numbness in his legs. The doctor recommended conservative treatment, but he noted that the applicant might require surgery.
Dr Reddy reported on 29 June 2021. He noted that the applicant’s symptoms were unchanged. He had numbness in his left leg, and discomfort and tightness in his lower back. He had seen Dr Mobbs for a second opinion and had undergone a SPECT scan.
Dr Reddy indicated that the applicant’s spine had fused solidly and there were no convincing areas of nerve root compression. He stated that removal of the hardware was an option, but he could not guarantee any improvement in the applicant’s symptoms.
Dr Reddy thought that surgery might improve some of the sensation of tightness and stiffness and some of his back pain, but “this was not an absolute”. He advised that it might be possible to explore the foramen to ensure that the nerve root tunnels were free, although he acknowledged that radiologically there did not appear to be any compression.

Reports of Dr Anand

Dr Anand completed a number of reports regarding the pain management treatment that he provided to the applicant from September 2017 to December 2018. In a report dated
17 May 2021, Dr Anand recorded that the applicant was troubled by varying levels of pain in his neck and shoulder, and he had constant pain in his back. He stated that he wanted to view the bone scan before recommending further treatment.

Diagnostic tests

The ultrasound of the applicant’s left shoulder dated 7 May 2019 showed some bursal bunching and a small superficial tear in the supraspinatus tendon with tendinosis. There was no evidence of a labral tear.
X-rays of the left shoulder taken on 15 November 2019 failed to reveal any AC joint or subacromial pathology.

The MRI scan of the applicant’s left shoulder dated 15 November 2019 revealed mild to moderate oedema in and adjacent to the AC joint that might be symptomatic, mild to moderate fluid in the subacromial/subdeltoid bursa, tiny concealed intrasubstance tears of the anterior supraspinatus and anterior infraspinatus tendons and a posterosuperior labral tear
The MRI scan of the applicant’s lumbar spine dated 28 October 2020 showed the decompression and fusion. There was no evidence of any impingement.
The MRI scan of the applicant’s left shoulder dated 23 February 2021 showed the past surgery, fluid in the subacromial subdeltoid bursa, small tears of the subscapularis, anterior supraspinatus and supraspinatus/infraspinatus junction tendons, a posterosuperior labral tear and probable small anteroinferior labral tear.
The bone scan dated 18 May 2021 that was arranged by Dr Mobbs showed the previous decompression and fusion that was intact and in good position. There was no evidence of active arthritis or stress fractures, and no obvious disc prolapse or nerve root impingement. The radiologist reported that the fusion at L4/5 appeared to have been successful.
The ultrasound of the applicant’s left shoulder dated 4 August 2021 showed a low-grade partial thickness supraspinatus tear, tendinosis and small subacromial bursal effusion.

Reports of Dr Mobbs

Dr Mobbs reported on 29 April 2021. He recorded that the applicant had experienced general improvement following his back surgery, but he was troubled by pain below the level of the surgery, as well as some intermittent, non-dermatomal symptoms extending down his legs. He commented that the MRI scan showed some wear and tear, but the decompression looked capacious. He recommended pain management treatment with Dr Anand, as well as x-rays and a bone scan.

Report of Dr Gehr

Dr Gehr reported on 2 September 2021. He noted that the applicant’s back pain had reduced following his back surgery and he was off work for eight to nine months after his operation. His back pain had returned, but it was a different type of pain with numbness in his legs.
Dr Reddy had recommended surgery.
Dr Gehr reported Dr Harper performed a left shoulder arthroscopic acromioplasty and AC joint excision on 5 December 2019. This had been of benefit, but the applicant had continued to experience pain. He sought a second opinion from Dr Popoff, who recommended a left shoulder arthroscopy, posterior labral repair +/- biceps tenodesis.
Dr Gehr noted that the applicant had constant pain in the mid lumbar spine and paralumbar region, and over the left shoulder superiorly and posteriorly. He felt that both of his injuries were worsening. The applicant continued to have physiotherapy and take medication. He had issues with self-care and his daughter attended to cooking and cleaning.
Dr Gehr diagnosed lumbar spine pain with dysmetria and left radicular symptoms, and a soft tissue injury to the left shoulder, with labral and biceps pathology due to injuries sustained at work. He agreed that the applicant required surgery to address the left shoulder pain and pathology, and to identify the source of the applicant’s lumbar symptoms.
Dr Gehr stated that the lumbar spinal surgery proposed by Dr R. Reddy was reasonable and necessary. He acknowledged that it was difficult to identify the cause of spinal symptoms where imaging had not identified it, but he thought that the surgery proposed by Dr Reddy was the only option. He stated that it would be reasonable to remove the hardware after a period of nearly six years and explore the operation site to identify the possible cause of the applicant’s symptoms. He also felt that the left shoulder surgery was reasonable and necessary, given that the applicant had persisting symptoms and there was further pathology which might not have been addressed by Dr Harper in 2019.

Reports of Dr Kai Lee

Dr Kai Lee reported on 1 July 2021. He noted that the applicant had not worked since his left shoulder operation on 5 December 2019, and he was given a redundancy on 16 March 2021. He continued to take Panadeine Forte and Lyrica, but physiotherapy treatment had ceased one week prior to the examination.
Dr Kai Lee noted that the applicant had pain in his back and left shoulder, as well as stiffness in his neck. He had numbness and pins and needles in the ulnar fingers of his left hand. There was mild tenderness over the AC joint of the left shoulder where the surgery was performed, with pain radiating down the arm. The doctor had access to the MRI scan report dated 15 November 2019, but not the more recent tests.
Dr Kai Lee stated that the applicant had injured his neck and left shoulder, and he was still troubled by some residual non-specific symptoms that might be related to his AC joint surgery. The doctor believed that the applicant had recovered from his left shoulder injury, and he doubted that the tingling in the ulnar fingers would improve following further shoulder surgery. The doctor noted that the applicant had an excellent normal range of movement and that the previous surgery resolved the work injury symptoms, but there was still potential for flare-ups.

Dr Kai Lee stated that it was unlikely that there would be any improvement in function following surgery. He observed that Dr Popoff probably believed that the applicant’s pain originated from the biceps anchor, and Dr Kai Lee stated that this was related to the work injury. He thought that surgery might make the applicant’s shoulder condition worse, and he did not believe that surgery was indicated.
Dr Kai Lee was provided with a copy of the clinical notes of Drs Yuen and Reddy for comment. In his report dated 16 November 2021, the doctor advised that he had no reason to alter the opinion expressed in his substantive report.

APPLICANT’S SUBMISSIONS

Mr Robison submits that in his statement, the applicant indicated that his back and left shoulder symptoms had not improved and continued to impact on his daily life. He had difficulty sleeping, driving and sitting. His daughter assisted with the housework and he employed a cleaner. Both injuries have caused symptoms, and this was what the surgery is proposed to address.
Mr Robison submits that the applicant was assessed as having 23% whole person impairment of his lumbar spine and is worker with high needs. The dispute notices only disputed the medical expenses. Dr Gehr described the applicant’s current symptoms and treatment to date consistent with the applicant’s statement, and he supported the proposed surgery on the left shoulder and lumbar spine, although he commented that the decision to undergo spinal surgery was not an easy one.
Mr Robison submits that Dr Popov described the precise procedure and gave the reasoning for the shoulder surgery. Dr Reddy described the surgery in his quote, and in his report dated 29 June 2021, he explained the nature of the operation and how the applicant’s symptoms were unchanged. The doctor could not be certain of improvement, but that did not mean the surgery should not be undertaken.
Mr Robison submits that Dr Kai Lee’s report lacks a detailed history by the applicant, and whilst he had doubts about the proposed left shoulder surgery, he did not develop an explanation for his opinion, so little weight can be given to his views on the basis of the principles in decisions such as Makita (Aust) Pty Ltd v Sprowles[3]. The applicant suffered two accepted injuries, and he has continued to suffer symptoms in his back and shoulder on a daily basis. The treating doctors and Dr Gehr support the need for the surgery, and Dr Kai Lee’s opinion is not compelling. Therefore, the applicant is entitled to an award.
Mr Robison submits that Dr Mobbs referred to some improvement in the applicant’s condition following the back surgery and the MRI scan did not look too bad, but the applicant still had back pain below the operation site and numbness in his legs, consistent with radiculopathy. One needs to look at the evidence as a whole. Dr Mobbs’ opinion is inconsistent with the other evidence.

RESPONDENT’S SUBMISSIONS

Mr Parker submits that Dr Mobbs recommended further tests including the bone scan, which referred to successful surgery. It is unclear whether Dr Reddy would still want to perform the surgery if he was armed with the bone scan and Dr Mobbs’ report. Dr Reddy was not at all certain about performing the back surgery, so one cannot accept that the proposed back surgery was reasonably necessary.
Mr Parker submits that Dr Gehr had access to the bone scan and the report of Dr Mobbs. He did not make any comment on this evidence. Dr Kai Lee was not satisfied that the applicant required further shoulder surgery. There is no report from Dr Harper regarding any further surgery. Dr Gehr summarised Dr Harper’s report dated 3 February 2021, so it seems that
Dr Harper was not contemplating any further surgery, and there was no evidence from this doctor to suggest that the proposed surgery was reasonably necessary. As the previous operating surgeon, Dr Harper, was perhaps in the best position to comment on this.

REASONS

Is the proposed treatment reasonably necessary as a result of the injury sustained during the course of the applicant's employment?

Section 60 of the 1987 Act provides:

“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:

(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”

What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[4], Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”[5]

His Honour added:

“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.

2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.

3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.

4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.

5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”[6]

His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[7] and stated:

“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”[8]

In Diab v NRMA Ltd[9], Deputy President Roche questioned this approach and cited Rose with approval. He provided a summary of the principles as follows:

“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.[10]

Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case. This also involves the common-sense evaluation of the causal chain discussed in Kooragang Cement Pty Ltd v Bates[11].

There is no dispute that the applicant injured his back and left shoulder. Both injuries were the subject of prior surgery by Drs Reddy and Harper. The dispute centres on the proposed surgery to both areas.
According to the applicant, he has continued to take medication for his back and shoulder pain, and his injuries have impacted on his activities of daily living. The persistence of the symptoms in his back and left shoulder is corroborated by the clinical notes of Dr Yuen. Whilst he does not comment on his desire to have the procedures after exhausting conservative measures, it is apparent from the medical evidence that he is prepared to undergo the surgery.
The applicant has been cautious about undergoing surgical procedures and has sought second opinions regarding the treatment of his back and left shoulder.
In September 2015, the applicant was seen by a neurosurgeon, Dr Parkinson, and he had a right L4/5 perineural injection in early 2016. Dr Parkinson’s reports are not in evidence, but the applicant told the Approved Medical Specialist~~, Dr Gorman,~~ in August 2019 that the injection did not result in any great improvement.
The applicant sought treatment from another neurosurgeon, Dr Reddy, in September 2016. He apparently organised further injections, but the applicant’s symptoms continued.
Dr Reddy then performed a two level fusion at L4/5 and L5/S1. According to the Approved Medical Specialist, the applicant’s left leg pain started after this procedure. Therefore, there is a history of different symptoms post-surgery.
Dr Mobbs reported that the applicant had “generally” experienced improvement, but in my view, the use of the term “generally” does not equate to significant or major improvement. It is true that Dr Mobbs recommended pain management treatment as the priority, rather than surgery, and he recommended that the applicant have flexion/extension x-rays, a bone scan and review, in order to make certain that the fusion was solid and there were no pain generators elsewhere.
The bone scan and x-rays that were taken on 18 May 2021 confirmed that the fusion hardware was in a good position, so one can understand why Dr Mobbs suggested pain management, however his views about these scans or in respect of the surgery proposed by Dr Reddy are unknown.
Dr Reddy referred the applicant to Dr Anand for pain management treatment after his back operation in 2017. According to Dr Reddy, the applicant had no leg symptoms by December 2017. In April 2018, he was only troubled by leg numbness, but he had pain in his back and both legs in late May 2018.
Dr Anand continued to treat the applicant in 2018 and early 2019. It seems that the applicant had no further treatment from this specialist until Dr Reddy referred him back to Dr Anand on 17 May 2021. This is something that Dr Mobbs recommended. At that stage, the applicant was taking Lyrica and Panadeine Forte for his back and left shoulder pain. Dr Anand also said he would await the results of the diagnostic tests before deciding whether there should be a change in his medication or if there should be intervention, presumably meaning surgery. His views regarding the surgery are unknown.
In January 2021, Dr Reddy reported that the applicant had more back pain and was troubled by stiffness and worsening numbness in his legs. At that stage he still recommended conservative measures.
When he reported in late June 2021, he was aware of the bone scan and knew that the applicant had seen Dr Mobbs for a second opinion, but whether he knew about Dr Mobbs’ treatment recommendations is unknown. At that stage, the doctor indicated that an operation to remove the hardware might be an option as this might improve the sensation of tightness and stiffness. Further, he could explore the foramen to ensure that the nerve root tunnels were free, even though the scans showed no evidence of compression, and he could not guarantee a positive outcome.
Dr Gehr obtained a history that the applicant had different and constant pain in his back with numbness in his legs after his back surgery. He thought that the proposed back surgery was reasonable and necessary. Whilst he did not use the term “reasonably necessary”, I do not believe that this detracts from the doctor’s opinion. Given the lack of pathology shown on the scans and x-rays, Dr Gehr stated that the surgery proposed by Dr Reddy was the only option to identify the possible cause of the applicant’s symptoms.
Dr Reddy has treated the applicant since 2016. He would have been aware of the applicant’s back symptoms both before and after surgery. The fact that Dr Reddy is the treating specialist, who has seen the applicant on a number of occasions, carries more weight because he is in the best position to assesses and comment on the applicant’s symptoms, treatment and progress.
The surgery that Dr Reddy has proposed is a significant invasive procedure and I doubt that he would be recommending such an operation if he had any major concerns about the outcome. The surgery is also supported by Dr Gehr. Further, there is no evidence from
Dr Hobbs and Dr Anand with their views following the bone scan and x-rays that were taken in May 2021.
In Diab, Deputy President Roche stated that the actual or potential effectiveness of the treatment was one of the relevant criteria to be considered, but it was not determinative, and a poor outcome did not necessarily mean that the treatment was not reasonably necessary.
There is no concluded view challenging the proposed surgery. Both Drs Mobbs and Anand wanted to express a final opinion once the additional diagnostic tests were available. It seems that these tests did not persuade Dr Reddy to maintain conservative treatment.
The evidence shows that the applicant has had back surgery followed by various forms of conservative treatment. According to Dr Reddy and Dr Gehr, the best treatment option is the removal of the hardware and exploration of the spine in an attempt to address the applicant’s lumbar symptoms. Whether the surgery will alleviate the applicant’s back symptoms is uncertain, but no one can accurately predict surgical outcomes. The cost is not unreasonable, and this satisfies the relevant factors discussed in Rose and Diab.
Accordingly, I am satisfied that the treatment proposed by Dr Reddy, namely the removal of hardware and exploration of the foramen in the lumbar spine, and associated expenses, is reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 25 June 2015. The next question to consider is the left shoulder surgery.
Dr Popoff has proposed a left shoulder arthroscopy and a posterior labral repair. He also has foreshadowed the possibility of a biceps tenodesis, depending on his findings at the operation. I am mindful that the he focus of the prior shoulder surgery concerned a different part of the applicant’s shoulder.
The applicant consulted Dr Harper in 2019 regarding his left shoulder. Dr Harper performed an arthroscopic subacromial decompression and distal clavicle excision to address the AC joint arthritis and rotator cuff impingement on 5 December 2019. This resulted in a reduction of pain and improvement in the range of shoulder movement.
The ultrasound taken in May 2019 showed a small superficial tear in the supraspinatus tendon with tendinosis, and there was no evidence of a labral tear. The small tears of the anterior supraspinatus and anterior infraspinatus tendons and a posterosuperior labral tear were identified in the MRI scan dated 15 November 2019.
In his report dated 20 November 2019, completed after he reviewed the MRI scan, Dr Harper ~~commented on~~ referred to the AC joint arthritis and impingement, but did not mention the labral tear or comment on its significance.
On 21 October 2020 and 3 February 2021, Dr Harper reported that the applicant still had mild residual discomfort rather than constant pain. He suspected that this was most likely related to the partial thickness rotator cuff tears and tendinopathy, but again he did not refer to the labral tear.
The MRI scan of the applicant’s left shoulder dated 23 February 2021 showed small tears of the subscapularis, anterior supraspinatus and supraspinatus/infraspinatus junction tendons, a posterosuperior labral tear and probable small anteroinferior labral tear. There is no report from Dr Harper with his comments regarding the findings in this scan or the subsequent ultrasound that showed a low-grade partial thickness supraspinatus tear with tendinosis. Given that Dr Harper failed to address the proposed surgery, his views carry less weight.
The applicant sought a second opinion from Dr Popov in March 2021. In his report dated 24 March 2021, the doctor provided a comprehensive description of his findings on examination, and he was convinced that the applicant’s symptoms were caused by the posterior labral tear with possible biceps tendinosis. Given that physiotherapy had not assisted the applicant’s condition, he recommended a left shoulder arthroscopy and posterior labral repair, together with a biceps tenodesis if the latter procedure was indicated.
Dr Gehr recorded a history of on-going symptoms in the applicant’s left shoulder, and he considered that the left shoulder surgery was reasonable and necessary.
The only doctor to challenge the left shoulder surgery is Dr Kai Lee. He obtained a very brief history of the applicant’s left shoulder injury. His description of the applicant’s symptoms was also brief. Although he did not have access to the scans taken since November 2019, these did not markedly differ from the MRI scan dated 15 November 2019.
Dr Kai Lee thought that the applicant’s residual non-specific symptoms might be related to his AC joint surgery, but he made no comment about the possibility of the symptoms arising from the labral tear. He stated that the prior surgery had resolved the work injury symptoms, but such a conclusion is inconsistent with the applicant’s evidence, the contents of the clinical notes and the histories recorded elsewhere. He did not explain why he held that opinion. He merely stated that “Mr Da Silva has recovered from his left shoulder surgery”. He did however acknowledge Dr Popoff’s suspicions regarding the biceps pathology, which he agreed was related to the work injury.
Dr Kai Lee failed to provide any detailed explanation for his opinion regarding the proposed surgery. He merely stated that surgery was not indicated. He did not engage with the MRI scan findings of labral tears and the need for surgery to address this pathology. He also commented that he did not think that the surgery would improve the applicant’s shoulder function, and might make the condition worse, but he did not elaborate. The failure to provide an adequate explanation does not provide a fair climate for his opinion, consistent with the reasoning in Paric v John Holland (Constructions) Pty Ltd[12] and Hancock v East Coast Timbers Products Pty Ltd [13].
Dr Popov is an experienced shoulder surgeon. The history that he recorded mirrored the applicant’s evidence and the clinical notes. He reported detailed clinical findings and he attributed the applicant’s symptoms to the labral tear and possible biceps tendinosis.
In my view, his opinion regarding the need for surgery is persuasive, particularly in the absence of any compelling evidence to the contrary. It is true that he did not specifically indicate that surgery was related to the accepted work injury, but in the absence of any evidence of other possible causes for the labral tears, I am satisfied that Dr Popoff’s opinion should be preferred and that the proposed left shoulder surgery is reasonably necessary and results from the applicant’s work injury.

I do not have the benefit of an estimate for the cost, but the doctor included the item numbers under the agreed SIRA fee agreement. This satisfies the relevant factors discussed in Rose and Diab.
Accordingly, I am satisfied that the treatment proposed by Dr Reddy, comprising the removal of hardware and a decompression of the lumbar spine, and the left shoulder surgery proposed by Dr Popoff, being an arthroscopy, posterior labral repair +/- biceps tenodesis, is reasonably necessary treatment as a result of the injuries arising out of or in the course of the applicant’s employment on 26 June 2015 and 29 April 2019 respectively. In the circumstances, the respondent is liable to pay for these procedures in addition to the incidental expenses.

FINDINGS

The applicant sustained injury to his lower back arising out of or in the course of his employment with the respondent on 25 June 2015.
The applicant sustained injury to his left shoulder arising out of or in the course of his employment with the respondent on 29 April 2019.
The applicant’s employment was a substantial and/or the main contributing factor to his injuries.
The applicant requires medical treatment as a consequence of his injuries and the respondent is liable to pay reasonably necessary medical expenses.
The proposed lumbar surgery involving the removal of hardware and a decompression, and associated expenses, is reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 25 June 2015.
The proposed left shoulder arthroscopy, posterior labral repair +/- biceps tenodesis, and associated expenses, is reasonably necessary treatment as a result of the injury arising out of or in the course of the applicant’s employment on 29 April 2019.

ORDERS

The respondent is to pay the applicant’s reasonably necessary medical expenses with respect to the proposed lumbar spine and left shoulder surgery, and associated expenses, pursuant to s 60 of the 1987 Act.

[1] [2007] NSWWCCPD 227 (Mateus).

[2] Mateus, [48].

[3] (2001) 52 NSWLR 705 (Makita).

[4] (1986) 2 NSWCCR 32 (Rose).

[5] Rose, [42].

[6] Rose, [47].

[7](1997) 14 NSWCCR 233 (Bartolo).

[8] Bartolo, [238].

[9] [2014] NSWWCCPD 72 (Diab).

[10] Diab, [88] to [90].

[11] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].

[12] [1985] HCA 58.

[13] [2011] NSWCA 11.

[2022] NSWPIC 3

10 January 2022