Gould v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gould v Westpac Banking Corporation [2024] NSWPIC 58
APPLICANT:	Lea Karen Gould
RESPONDENT:	Westpac Banking Corporation
MEMBER:	Lea Drake
DATE OF DECISION:	12 February 2024
CATCHWORDS:	WORKERS COMPENSATION - The causal connection between an incident in the employ the respondent in March 2016 and the present need for a total right shoulder replacement; The involvement of a rotator cuff injury and underlying osteoarthritis; had the effect of the rotator cuff injury resolved; was the present cause of the need for surgery the applicant’s unrelated osteoarthritis; Held – conclusion that the applicants osteoarthritis had been aggravated by the workplace incident and the incident has materially contributed to her need for surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The injury suffered by the applicant in the employ of the respondent on 29 March 2016 has materially contributed to her need for a total right shoulder replacement. The Commission orders: 1. There will be an award for the applicant for the payment of s 60 expenses by the respondent arising out of and incidental to a total right shoulder replacement.

STATEMENT OF REASONS

BACKGROUND

Lea Karen Gould (the applicant) suffered an injury to her right shoulder on 29 March 2016 whilst lifting bags of coins estimated to be of an aggregate weight between 30 and 35kg.
The applicant has had extensive conservative treatment on that shoulder. The present situation is that the applicant has experienced constant pain and has reached the position that she now seeks to have a total right shoulder replacement surgery.
There is no dispute that surgery is reasonably necessary.
Payment for the necessary surgery is disputed by the respondent. The respondent contends that the need for surgery arises from the applicant’s underlying osteoarthritic condition and that any effect arising from the applicant’s injury in 2016 has resolved and is not therefore causally connected to that injury.

MATTERS IN DISPUTE

The issues in dispute are set out in the notices served on the applicant. The issue is the causal relationship between the incident of 29 March 2016 and the need for shoulder surgery.

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.

RELEVANT LEGISLATIVE PROVISIONS

Section 4 of the Workers Compensation Act 1987 (the 1987 Act) is as follows:
“S.4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
means personal injury arising out of or in the course of employment,
includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

EVIDENCE

There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to ARD (Reply) and attached documents, and
(c)    Application to Admit Late Documents dated 6 December 2023.

The applicant’s submissions

The applicant had no shoulder symptoms prior to injuring her right shoulder on
29 March 2016 at the respondent’s premises when she was lifting bags of coins (estimated to have an aggregate weight of between 30 to 35kg). On that occasion she experienced immediate pain.
On 30 May 2016 an X-ray was performed[1] which found:
“Subacromial bursal inflammation and impingement has been demonstrated. There is a partial thickness tear in the supraspinatus tendon.”
[1] ARD page 66.
The applicant’s counsel identified this as a rotator cuff injury.
The applicant sought medical treatment and lodged a claim. Liability was accepted.
On 19 June 2017 an MRI was performed.[2] It concluded:
“Glenohumeral joint arthrosis with chondral wear & synovitis labral fraying. Cuff tendinopathy with partial-thickness tearing, particularly the upper fibres of subscapularis and biceps tendinopathy but no full thickness cuff tear.”
[2] ARD page 68.
The applicant submits that there was again a rotator cuff injury and osteoarthritis noted and that those pathologies are still demonstrable today.
On 20 February 2023 there was a further report[3] on the applicant’s right shoulder including that there was:
“Moderate tendinopathy with a small 5 mm intrasubstance tear developing at the footprint.
….
Complete loss of the glenoid cartilage along with a macerated labrum. Subscapularis is tendinopathic although intact with atrophy of the muscle belly. Ossified bodies noted within the choracoid recess.”
[3] ARD page 153.
Again, counsel noted the presence of a rotator cuff injury and osteoarthritis.
On 19 June 2018 attended the independent medical examiner (IME) Dr Wallace. In his report[4] of 25 June 2018 he diagnosed a:
“Minor aggravation of pre-existing degenerative gleno-humeral joint osteoarthritis right shoulder-now resolved”.
[4] REPLY page 27.
The applicant notes that Dr Wallace did not comment on the rotator cuff injury then or in any of his future reports. He considered that the applicant’s work-related injury of 29 March 2016 resolved.
Counsel for the applicant submits that the applicant had the beginning of an incipient osteoarthritis which was aggravated by the injury in the employ of the respondent and has become a full-blown disease incapacitating the applicant.
He took the Commission to the reports of other doctors. Firstly Dr McDougall,[5] an orthopaedic specialist, who in his report of 16 November 2018 stated:
“I thought she had a rotator cuff tear and noted the presence of a type I Os Acromiale with bones.
…
Re-examination in 2017 demonstrated that she had a symptomatic AC joint, symptomatic rotator cuff tear and positive biceps provocation tests suggestive of pathology in that tendon.
…
It would appear that this lady had largely begun her symptoms with the lifting injury as described.
On this basis the claimant’s employment was a substantial contributing factor to the injuries.
There may have been some pre-existing wear in the AC joint and the glenohumeral joint, but was certainly not was not symptomatic and injury aggravated the problem.”
[5] ARD page 56.
Counsel for the applicant pointed to the fact that Dr McDougall found a rotator cuff injury and an aggravation of underlying osteoarthritis.
Dr Broe has performed knee surgery on the applicant. He provided the following remarks[6] in his report of 30 October 2020 which are pertinent to this application.
“By the description of her injury point I suspected it has sustained a significant rotator cuff injury”
[6] ARD page 59.
Dr Niu has provided two reports. In her first report of 16 February 2023,[7] after reviewing her on that day, she states:
“I explained she is too far gone along the pathway of osteoarthritis to significantly alter her future. I do think that clinically, it appears to be a cuff provoked pain, rather than osteoarthritis. With that in mind, I suggested that we obtain an updated set of imaging studies was an x-ray and an MRI. We could then in essence go one of two ways. The first is to try shoulder, address the small rotator cuff tear and reposition her biceps tendon in order to help her with the pain she has now. Unfortunately, the arthritic component of her pain will not be altered and that will continue to get worse as she ages. However, that may be a decade from now.
The other alternative is to take an aggressive approach and replace the shoulder straight away. I think this could be a bit of an overkill for her clinical situation at the moment and will reserve that the event of failure of the arthroscopy.”
[7] ARD page 61.
At this stage the applicant has had a long period of conservative treatment of physiotherapy and injections without relief from continuing and constant pain.
Dr Bodel has examined the applicant as an IME. He has provided reports[8] on 1 April 2021, 11 February 2022, 24 March 2022 and 29 June 2023. The applicant referred particularly to the report of 29 June 2023.[9]
[8] ARD page 36.
[9] ARD page 36.
Dr Bodel first deals with the conclusions of Dr Wallace;
“I note an assessment by Dr Raymond Wallace on 25 June 2018, two years after the injury, where he found that she had suffered a soft tissue injury to the right shoulder, and that at most, she had suffered a “minor temporary aggravation of pre-existing degenerative osteoarthritis at the glenohumeral joint on the right shoulder as a result of the work incident on 29 March 2016 which has now resolved”. I find it very difficult to accept that clinical diagnosis. That ignores the disease provisions of the Act where the existence of pre-existing degenerative changes aggravated, accelerated, exacerbated and deteriorated by the episode of injury that occurred at work, which appears to be the case in this circumstance, in my view.
…..
in the region of the right shoulder there has been rotator cuff pathology which has steadily deteriorated over time, and in addition to that, there is also the aggravation, acceleration, exacerbation and deterioration of a disease process being the post-traumatic osteoarthritis in the region of the right shoulder, for which she probably requires a reverse total shoulder replacement.”
Referring to the opinion of Dr Wallace Dr Bodel comments that Dr Wallace provides no reason as to;
“…why a person with deteriorating clinical function in the region of the right shoulder, with underlying arthritic change, has now resolved from the effects of a soft tissue event that occurred at work.
Clinically, there has been a change in the underlying nature of the arthritic process in the shoulder, and the nature of work has caused the aggravation, acceleration, exacerbation and deterioration to that disease process, leading to a further deterioration and an ongoing injury.”
The applicant relies on two outcomes from her original injury. The first, a rotator cuff injury which has deteriorated over time and secondly, an aggravation of incipient osteoarthritis.
The applicant’s counsel dealt with the claim for ongoing surgical treatment which the applicant seeks. He submitted that the work incident in 2016 wholly caused the applicant’s rotator cuff pathology and aggravated the applicant’s underlying osteoarthritis and has materially contributed to the need for surgery as recommended by the applicant’s treating doctors.

The respondent’s submissions

The respondent provided an additional report from Dr Wallace dated 15 November 2023 which was admitted without objection at the hearing.
Counsel for the respondent submits that a tear in the shoulder as suffered by the applicant in 2016 could not have caused the deterioration in the applicant’s condition. The need for the surgery does not arise from the tear but from the underlying osteoarthritic condition suffered by the applicant.
The fact that the applicant’s osteoarthritic was asymptomatic before 2016 and symptomatic after 2016 is not sufficient. A mere temporal connection is not sufficient. There has to be some evidence that connects the tear to the aggravation of the osteoarthritis.
He submitted that there is no explanation from Dr Bodel regarding the connection between the rotator cuff injury and any aggravation of the applicant’s osteoarthritis. He expresses his opinion as a medical practitioner that there is a connection, but because he does not amplify his reasons for that opinion it would be unsafe for the Commission to accept it.
The respondent makes the same criticism of the applicant’s treating doctor’s reports particularly that of Dr Chia[10] who accepts the history put to him of an injury at work which “… may have resulted in an exacerbation of her underlying degenerative condition.”
[10] ARD page 105.
The respondent points to the absence of any physical blow or violence to the applicant in 2016. The incident involved heavy lifting of an aggregate weight of coin bags and no contact with the applicant.
The respondent submits that all the medical evidence supports the position that the need for surgery arises from the osteoarthritis suffered by the applicant and not the rotator cuff pathology. In particular, he refers to the opinion provided by Dr Bodel that:
“In the region of the right shoulder, there has been rotator cuff pathology which has steadily deteriorated over time, and in addition to that, there is also the aggravation, acceleration, exacerbation and deterioration of a disease process being the post-traumatic osteoarthritis in the region of the right shoulder, for which she probably requires a reverse total shoulder replacement.”
The respondent submits that the medicine must establish that the rotator cuff tear led to the aggravation, acceleration, exacerbation and deterioration of the applicant’s osteoarthritis and to that supportive medicine is not available.

CONSIDERATION

I have considered the medical reports provided by the parties. The applicant was symptom-free prior to the incident at work in 2016. Whilst the applicant had observable underlying osteoarthritic changes she was not suffering any symptoms. She was pain-free.
I accept the medical opinions provided by the applicant’s treating doctors. I am particularly persuaded by the report of Dr Niu and that of Dr Bodel.
I am not persuaded by the report of Dr Wallace. He seems to have given scant attention to the rotator cuff injury and has been consistently dismissive of the possibility that the applicant’s asymptomatic osteoarthritis could have been aggravated, accelerated, exacerbated and deteriorated by the incident in 2016.
The respondent addressed the absence of any physical blow. That argument does not take account of the report of Dr Niu and her separation of the two causes of pain suffered by the applicant, the rotator cuff pain sitting alongside the pain suffered as a result of the aggravation of her osteoarthritic condition, and the need for surgery arising from the cuff pathology.
Dr Niu took a history of a sharp tearing sensation when the applicant handed a bag to the security guards. Without that immediate tearing sensation and the rotator cuff injury a link to an aggravation of the applicant’s osteoarthritis might be arguably more tenuous.
Dr McDougall concluded as follows “There may have been some pre-existing wear in the AC joint and the glenohumeral joint, but was certainly was not and the injury aggravated the problem.”[11]
[11] ARD page 57.
I have concluded that the respondent’s argument that the need for surgery arises from the applicant’s osteoarthritis alone is not persuasive.
I am satisfied that the applicant had a direct injury which is still operative and symptomatic from rotator cuff pathology alongside osteoarthritis which became symptomatic following the work incident and has been worsening.
The applicant has been long-suffering. She has pursued conservative treatment while suffering constant and continuing pain.
She now seeks to have surgery recommended by her treating specialist to alleviate that pain which I consider to be causally related to the injury suffered by her in the employ of the respondent.
I am satisfied and find that the injury suffered by the applicant in the employ of the respondent in 2016 materially contributed to her present need for a total right shoulder replacement.

SUMMARY

For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 57

12 February 2024