Greco v Lencrow Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Greco v Lencrow Pty Limited & Ors [2023] NSWPIC 193
APPLICANT:	Michael Greco
RESPONDENT:	Lencrow Pty Ltd
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	1 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application to resolve a dispute; a claim is made for past treatment expenses and for the bilateral shoulder surgeries; issues of whether the proposed bilateral shoulder surgeries are reasonably necessary treatment as a result of injury pursuant to section 60; whether the operation of section 59A precludes an award of compensation being made for the proposed treatment; Held – section 59A precludes compensation being payable to the applicant for the proposed bilateral shoulder surgery in relation to injuries sustained in the employ of the first and second respondents.
determinations made:	1. Section 59A of the Workers Compensation Act 1987 precludes compensation being payable to the applicant for the proposed bilateral shoulder surgery in relation to injuries sustained in the employ of the first and second respondents.

STATEMENT OF REASONS

BACKGROUND

Michael Greco, the applicant, was employed with the first respondent, Lencrow Pty Limited, as a forklift mechanic commencing on 1 February 2011. On 17 February 2011 he sustained an injury to his right shoulder when pushing a heavy cylinder. He subsequently developed pain in his left shoulder due to overuse. Subacromial bursitis was diagnosed by Dr Stening in both of Mr Greco’s shoulders. “Injury” is not in dispute as the first respondent’s insurer accepted liability for both shoulders.
Mr Greco obtained work with the second respondent, Green Camel Pty Ltd t/as Urban Ecological Systems on 29 October 2012. While at work on 9 November 2012 Mr Greco tripped over a piece of steel on the ground and further injured his right shoulder. The insurer initially accepted a claim for that injury. Mr Greco ceased work for the second respondent in December 2012. He subsequently did odd jobs through his own company, All Steel Gates and in 2013 did some labouring work for Prospect Plastering. He says he could not keep working as he was getting too much pain in both of his shoulders. Since then he has continued to do odd jobs though All Steel Gates.
Dr Prodger, orthopaedic surgeon, has recommended that he undergo arthroscopic subacromial decompression of both shoulders.
The respondents’ insurers have issued various dispute notices including dated 30 January 2012, 14 February 2012, 21 March 2012, 5 April 2012, 19 November 2015, 14 October 2016 and 17 September 2019 denying liability for the proposed bilateral shoulder surgeries. The latter notice also asserted Mr Greco was not entitled to claim the cost of such treatment due to the operation of s 59A of the Workers Compensation Act 1987 (the 1987 Act). On 22 December 2021 the insurer acting on behalf of the second respondent served a notice on Mr Greco advising that his entitlement to medical and related treatment would cease in accordance with s 59A. It asserted that because no assessment had been made of whole person impairment and that it is more than two years from when Mr Greco ceased to be entitled to weekly compensation s 59A(2)(a)(ii) of the 1987 Act applied. It stated that the entitlement to medical treatment ceased on 25 February 2015.
Mr Greco has brought numerous proceedings in the former Workers Compensation Commission in matters 1609/16, 3305/16, 3210/17 and 5966/17, all of which were discontinued.
In the present Application to Resolve a Dispute (ARD) a claim is made for past treatment expenses and for the bilateral shoulder surgeries proposed by Dr Prodger. The claim for weekly compensation was discontinued at the arbitration hearing.
The respondents’ counsel at the arbitration hearing advised the issues in dispute are as follows:
(a) Whether the proposed bilateral shoulder surgeries are reasonably necessary treatment as a result of injury pursuant to s 60 of the 1987 Act.
(b) Whether the operation of s 59A of the 1987 Act precludes an award of compensation being made for the proposed treatment.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 6 April 2023. Mr Bruce McManamey, counsel, instructed by Mr John Matthews, solicitor, appeared for Mr Greco, who was present. Mr Allan Parker, counsel, instructed by Mr Jesse Webb, solicitor, and Ms Tan from the insurer, appeared for the respondent.
9.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 28 February 2023 filed by the respondent, and
(d)    Report of Dr Roger Rowe dated 3 January 2013 which was tendered during the arbitration hearing.
I note the Reply contains material that is already in the ARD such as the clinical notes. Also the pagination is confusing for instance after page 199 the pagination starts again referring to page 1 and continues to page 188 and then the next page is 390 to page 430. This means some pages have the same number on them.

Oral evidence

There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Mr McManamey submitted that there is nothing in the respondent’s case that disputes that the surgery is reasonably necessary treatment as a result of the first injury or as result of the current condition in Mr Greco’s shoulders. He acknowledged that the application of s 59A is the main issue.
I have summarised the evidence before the Commission below in chronological order. Mr McManamey in his submissions referred to the same.
Mr Greco in his statement has described the circumstances surrounding his injuries with the respondents which I have outlined above.
On 18 February 2011 Mr Greco reported his injury to Dr Khan, his then general practitioner, who prescribed Indocid for his right shoulder symptoms. On 15 March 2011 Dr Khan requested an X-ray of the right shoulder and ultrasound and referred him for physiotherapy treatment. Thereafter he had further consultations with Dr Khan about his right shoulder and on 29 April 2011 he mentioned left shoulder pain after he was moving paper for 20 minutes and sweeping. He noted that Mr Greco was not willing to be at work after suffering an aggravation of his pain performing such tasks. The doctor requested an ultrasound of his left shoulder. On 5 May 2011 Dr Khan prescribed Celebrex for Mr Greco’s bilateral shoulder pain and on 23 May 2011 referred him for physiotherapy.
Dr Stening in his report dated 11 May 2011, addressed to Dr Khan, has a description of the injury of February 2011, that Mr Greco when pushing a heavy object felt a tearing sensation in his right shoulder and that he had started to develop pain in his left shoulder. He notes that Mr Greco had physiotherapy with no significant improvement. Dr Stening refers to ultrasounds of both shoulders revealing sub-acromial bursitis bilaterally and on the left side a small supraspinatus tear. Dr Stening recommended injections of cortisone and time off work.
Mr Krall, physiotherapist, reported to Dr Khan on 20 June 2011 about the treatment given to Mr Greco.
On 24 June 2011 MRI scans were performed of both shoulders confirming the presence of bursitis in both shoulders but no definite signs of a tear. Mr McManamey submits that this MRI provides confirmation from the outset of objective pathology in both shoulders.
Dr Rowe reported to the insurer on 30 June 2011. He notes that Dr Stening had recommended cortisone injections into both shoulders but states that Mr Greco says he does not want to have injections because he is concerned about the cortisone and what effect it may have on his skin cancer that he has to have removed from his forehead.[1] Dr Rowe expressed the view that injections may be worth a trial but he said he was not convinced this was Mr Greco’s problem and he repeated that Mr Greco did not want this type of treatment. Dr Rowe queried if the pain was coming from Mr Greco’s neck. He said the prognosis was uncertain because of non-organic factors. Dr Rowe had found much of the physical examination findings in regard to the shoulders was not a reflection of organic pathology.
[1] Reply p 3.
On 8 August 2011 Dr Stening reviewed Mr Greco and advised that Mr Greco was not suitable for operative intervention and he again recommended cortisone injections but says Mr Greco refused these. It is noted that Mr Greco had started physiotherapy with another therapist and was having cuff strengthening exercises which Dr Stening said were appropriate and he should continue doing these for six weeks and remain off work and thereafter return to office type work.
On 8 August 2011 and 5 September 2011 Mr Wynne, physiotherapist, reported to Dr Khan about his treatment of Mr Greco.
On 13 September 2011 Dr Khan recorded that Mr Greco threatened him with harm if he did not comply with him having time off work. As a result of this Dr Khan terminated his care of Mr Greco[2].
[2] ARD p 41.
Mr Greco then commenced to be treated by Dr Mechreky at the Royale Medical Practice, Campbelltown. His clinical notes span 11 November 2011 to what appears to be the final consultation on 31 January 2014. The clinical entries are fairly brief but refer to various pain medications being prescribed.
On 23 December 2011 the rehabilitation provider Konekt Australia wrote to Dr Mechreky to ask him to fill out their questionnaire. The doctor answered on 12 January 2012 and provided a diagnosis of soft tissue injury to the right and left shoulders.[3]
[3] Reply at about p 273, noting the pagination of the reply is erroneous.
On 24 January 2012 the insurer wrote to Mr Greco to advise him of his obligations to co-operate with the obligations under his Injury Management Plan and advised him they believed he had failed to comply because he had not attended work and participated in a gradual return to work within the restrictions on his medical certificate. He was requested to attend work on 30 Janaury 2012 at 7.30am and to participate in the workplace assessment with Konekt to review suitable duties available at the workplace.[4] A copy of the Injury Management Plan was sent to Mr Greco on 25 Janaury 2012.[5]
[4] Reply p 52.
[5] Reply p 53.
On 30 January 2012 the insurer wrote to Mr Greco to suspend his payments as they asserted he had not complied by attending work on 30 January 2012 and participated in the assessment with Konekt. They advised they would reinstate his benefits if he attended work and contacted his employer to confirm his working hours and to participate in the workplace assessment with Konekt on 1 February 2012.[6]
[6] Reply p 60.
On 13 February 2012 the first respondent employer wrote to Mr Greco referring to his letter dated 8 February 2012 and advising “After investigating the matter, including considering your response, and in light of the seriousness of your conduct, we have decided to terminate your employment effective from the date of this letter, without notice.”[7]
[7] Reply p 64.
Dr Rowe re-examined Mr Greco on 15 February 2012 and noted that Mr Greco had been on workers compensation payments and had not worked since he last examined him, except he had gone in to the employer one day filing papers and sweeping which made him sore. He told Dr Rowe physiotherapy had ceased the previous year and he was not taking medication, except for anti-depressants. Dr Rowe records Mr Greco’s complaints or pain and his examination findings however, he stated it was difficult to make a detailed assessment in the absence of adequate medical imaging, noting Mr Greco had left them at home.[8] He stated overall his conclusions had not changed from his earlier report.
[8] Reply p 11.
The dispute notice sent by QBE to Mr Greco dated 14 February 2012 outlines further difficulties encountered in assisting Mr Greco to return to employment on suitable duties.[9] Benefits under the former s 38 of the 1987 Act were denied for the following reasons:
“On 30 January 2012 upon your return from annual leave you were requested to attend a Workplace Assessment with Konekt which you have failed to attend, as a direct result your benefits were suspended. To reinstate your benefits another appointment was booked on the 1 Feb 2012 at 11:00 am. This appointment did not proceed as it was reported that you were 40 minutes late and that Konekt had left the premises by the time of your arrival. Your employer has reported that you have demonstrated threatening behaviour on that day to your workmates and this behaviour has then resulted in the termination of your employment.”
[9] ARD p 78 and Reply p 65.
Mr Greco refers to this passage at [25] of his statement. He responded at [26] by denying he was 40 minutes late and conceding he was 10 minutes late. Asserting his employer was requesting he do unsuitable work. He does not say what this was. He alleges his supervisor Darren said he believed nothing was wrong with him and told him to get back to work. He says he did not threaten anyone at work on 1 February 2012. He says at one point Darren told him to sit on a chair in the corner and do nothing and as he found this demeaning he left.
He says he obtained work with the second respondent on 29 October 2012 and was injured on 9 November 2012. He says thereafter he worked on light duties of about 12 hours per week and he lodged a workers compensation claim which was accepted. He says the insurer of the second respondent denied liability in their notice dated 11 February 2013.
Mr McManamey submits the insurer asserted Mr Greco was not ready, willing and able to perform suitable duties because his employment had been terminated. It was submitted that Mr Greco sets out his version in his statement as to what occurred with the rehabilitation provider. He says he was there at work to meet with the rehabilitation provider, albeit 10 minutes late, and he was willing to do suitable duties within his restrictions and an argument ensued. It was submitted that it was the employer who was in breach of their obligations to provide suitable work. It was further submitted that the respondent has put on no evidence as to what happen and there is no evidence from the rehabilitation provider, Konekt as to what happened.
Mr McManamey submits there was no basis for the suspension and Mr Greco would otherwise have been entitled to weekly compensation. This aspect of the submission was developed later in the submissions.
The further notice dated 5 April 2012 disputed entitlement to weekly compensation, treatment and secondary psychological condition. Reliance was placed on Dr Rowe’s opinion in reports dated 15 February and 26 March 2012 that any strain suffered at work had resolved.
Dr Rowe’s report dated 26 March 2012 was prepared from additional documentation sent to him being the report of the MRI of both shoulders dated 24 June 2011 and bone scan of the cervico thoracic spine which was normal. There was reported to be mild uptake in the AC joints, glenohumeral joint and other areas of the body. Dr Rowe stated the regions of increased uptake are consistent with early degeneration consistent with age and constitutional factors. He opined that there is no indication for surgical treatment. He added that any strain that may have occurred had resolved and his current symptoms are largely a reflection of non-organic factors.[10]
[10] Reply p 13.
Mr Greco submitted a claim form in relation to his injury on 9 November 2012 with the second respondent which referred to an injured shoulder when tripping over a piece of steel.[11] In his statement at [31] Mr Greco says he stopped working for the second respondent in December 2012 because the pain in his shoulder was too much to cope with. However, at [34] he says he did light work on restricted hours but last worked for the second respondent on 21 December 2012 as it was a casual job and there was no more work available when the work ran out.
[11] ARD p 90.
He says he did some odd jobs through his own company All Steel Gates he says he gets a labourer to do the digging and heavy physical work, he just organises the jobs and marks out the holes for the fences.
On 16 November 2012 an ultrasound of the right shoulder was performed at the request of Dr Mechreky which found appearances consistent with supraspinatus tendinosis and thickening of the subacromial bursa which the radiologist said can be seen with bursitis. A left shoulder ultrasound was performed on 3 January 2013 with the radiologist stating his impression was that there was a small partial tear of the supraspinatus tendon and mild thickening of the subacromial bursa.
Dr Rowe provided a further report to the insurer dated 3 January 2013, having re-examined Mr Greco on 19 December 2012. Dr Rowe took a history about the injury on 9 November 2012 when Mr Greco says he was grinding and welding some pieces on the ground and he turned around and lost balance and fell on his right side and he put out his right hand to save himself. Mr Greco told Dr Rowe the following day he consulted Dr Mechreky and was prescribed Mersyndol Forte which made him sleepy so he ceased taking them. He has taken the anti-inflammatory medication, Voltaren. He also advised he had been attending physiotherapy with no real benefit.
Mr Greco informed Dr Rowe that the earlier shoulder aches in 2011 had improved but did not settle completely. Dr Rowe records that Mr Greco said he was able to return to heavy work as long as he did not reach out. He said his right shoulder symptoms are similar to those experienced previously and the pain disturbs his sleep. He added that his left shoulder symptoms are similar but not as severe and they have been present again for one or two weeks.
Dr Rowe set out his examination findings and discusses the ultrasound. He concludes that Mr Greco may have had to some extent ongoing symptoms prior to the injury on 9 November 2012 and that injury may have precipitated further shoulder symptoms. Dr Rowe says the left shoulder was not injured at all in the incident on 9 November 2012. Dr Rowe does not consider whether surgery is indicated. He opines that the 2012 injury was a contributing factor but not a substantial contributing factor as he had pre-existing ongoing symptoms. This reasoning is somewhat muddled regarding causation. Dr Rowe also does not consider if the left shoulder symptoms could be due to a consequential condition.
On 11 February 2013 the insurer for the second respondent disputed liability for the injury on 9 November 2012 asserting there was no further injury and arguing that the radiology was essentially the same as the previous radiology.[12] In the alternative, it was argued that at best any aggravation of the prior injury was temporary and making reference to the disease provisions and the requirement of main contributing factor introduced by the 2012 amendments. The insurer listed the reports it relied upon including those from Dr Rowe dated 30 June 2011, 15 February 2012, 26 March 2012 and 3 Janaury 2013 and reports from other medical practitioners.
[12] ARD p 96.
On 12 February 2013 Dr Dave, orthopaedic surgeon, reported to Dr Mechreky that his clinical examination was consistent with impingement and a rotator cuff tear in both shoulders. He ordered further imaging. Dr Dave takes a history of injury of both injuries, although he refers to the first injury as having occurred in 2010. He said Mr Greco should avoid overhead or repetitive tasks.[13]
[13] ARD p 103.

On 27 March 2013 Dr Tong, who describes herself as a musculoskeletal consultant, provided a medico-legal report to Mr Greco’s solicitors. Dr Tong finds injury from both incidents and assesses whole person impairment. She notes Mr Greco had been treated with physiotherapy and analgesics. She diagnosed bursitis in both shoulders and a partial tear of the supraspinatus tendon in the left shoulder. As the report does not deal with surgery, I have not summarised it further in these reasons.
On 31 July 2013 Mr Greco saw a dietician at Royale Medical Practice, Campbelltown, where Dr Mechreky practices. Shoulder pain is mentioned.[14]
[14] ARD p 132.
Dr Powell, orthopaedic surgeon, reported to the insurer on 2 August 2013.[15] He found impingement in both shoulders. Dr Powell found that employment with the first respondent did result in injury to both shoulders in 2011 and that in November 2012 when employed by the second respondent Mr Greco did have an injury which aggravated the injury to both shoulders. Dr Powell found Mr Greco unfit for pre-injury duties but fit for suitable duties with restrictions he outlines in his report.
[15] ARD p 118.
On 31 January 2014 Dr Mechreky prescribed Mersyndol tablets but the clinical entry in his notes does not say why this was prescribed.
On 20 October 2015 Dr Allan from North Coast Medical Centre recorded various matters in her clinical note including that Mr Greco had a history of bursitis in both shoulders and that his usual general practitioner in Melbourne gives him a certificate for light duties for 12 hours per week.[16]
[16] AALD p 13.
On 5 November 2015 Mr Greco’s solicitors requested a review of their declinature serving a report of Dr Tong dated 21 September 2015,[17] which does not appear to be in evidence.
[17] Reply p 83.
On 10 November 2015 Dr Allan issued a Centrelink medical certificate referring to pain, decreased function and mobility to bilateral shoulders.[18]
[18] AALD p 34.
On 19 November 2015 the insurer maintained their declinature.[19]
[19] Reply p 86.
On 10 February 2016 at the request of Dr Sambaiew further ultrasounds of both shoulders were undertaken which found tears in both shoulders in the supraspinatus tendon and subacromial bursitis.[20]
[20] ARD p 127.
On 26 February 2016 Dr Perez-Ledesma from Bullinah Aboriginal Health Service referred Mr Greco to Dr Prodger.[21] The referral is very detailed and says Mr Greco had physiotherapy three years ago and takes paracetamol for pain. He used to smoke marijuana but gave up six months earlier. No other treatment is mentioned.
[21] ARD p 128.
On 16 April 2016 Dr Prodger reported to Dr Perez-Ledesma that Mr Greco had not had any active treatment in the recent past.[22] He had been doing some light manual work but had been limited by his shoulders. His examination findings were read out by Mr McManamey. He found tenderness and painful arc and restriction of movement. X-rays showed no degeneration. Dr Prodger advised that Mr Greco has bilateral impingement for over five years and given the length of his symptoms and failed non-operative treatment it would be reasonable to go down the surgical path. He said this would involve arthroscopic subacromial decompression and bursectomy and treating any cuff tears at the same time. The doctor states this was booked through the public health system to be done within the next 12 months.
[22] ARD p 150.
On 17 August 2016 Dr Rowe re-examined Mr Greco and reported to the insurer. Mr Greco advised him that Dr Prodger had recommended surgery and Mr Greco wanted to have it as he was sick of his symptoms. He said he takes two Panadol Osteo three times a day most days. He was working 12 hours per week on light duty. After setting out Mr Greco’s complaints, his examination findings and radiological evidence Dr Rowe advised his diagnosis was of mild degenerative change in the rotator cuffs of both shoulders associated with small partial tears.[23] He added that assessment of employment liability was not clear and if Mr Greco’s history was accepted, there has been some aggravation of the right shoulder since the initial injury in 2011 and a further small contribution from the November 2012 injury. He stated there was no evidence of any work related aggravation in relation to the left shoulder.
[23] Reply p 19.
In relation to the proposed surgery, Dr Rowe said one cannot guarantee a good result from the surgery due to the non-organic aspect of his presentation and the long history so far. However, Dr Rowe states “on the other hand, it may well provide him with some relief”. He said it is difficult to assess with accuracy whether such treatment is reasonable and necessary. He estimates one half of the pathology may be the result of ongoing aggravation from the subjects incidents. This seems to undercut his earlier expressed views that the injuries had resolved. He then adds that Mr Greco has similar but less severe symptoms in his left shoulder which he considered uninjured. He then states, “there is simply degenerative change in the rotator cuff of both shoulders”. In my view the doctor has internal inconsistencies in his opinion.
On 14 October 2016 the insurer issued a dispute notice in relation to the claim for bilateral surgery in the correspondence dated 23 and 29 September 2016 it received from Mr Greco’s solicitors serving Dr Prodger’s report dated 16 August 2016. The declinature was maintained.[24]
[24] Reply p 354.
On 9 September 2019 Mr Greco’s solicitor made a claim on his behalf to the insurer for weekly compensation and s60 expenses including the costs of a right shoulder arthroscopic subacromial decompression.
On 17 September 2019 the insurer for the first respondent declined liability referring to their earlier declinature notices and raising s59A of the 1987 Act operating to preclude any entitlement to treatment.
On 12 February 2020 Michelle Gleeson from North Coast Medical Centre referred Mr Greco to the physiotherapy department of Byron Community Health for treatment for his shoulders[25].
[25] AALD p 39.
Dr Solomon from the same medical centre performed a mental health plan on 17 February 2020 which referred to Mr Greco having depression and anxiety, uncontrollable anger, insecurity and paranoid feelings, and lists his dependencies which included THC 20 to 40 daily, plus binge use of LSD, MDMA, cocaine. He also noted he had emphysema-chronic lung disease.[26] As well as smoking 20 cigarettes per day, four to eight red bull daily and alcohol on weekends. On 17 February 2020 Dr Solomon referred Mr Greco to Mr Michael Burgess Community Health Byron Bay relating to his polysubstance use and dependencies.[27] In his clinical note of 6 March 2020 Dr Solomon noted Mr Greco was reducing his smoking and THC.[28] There is no report from Mr Burgess before the Commission.
[26] AALD p 38.
[27] AALD p 30.
[28] AALD p 4.
Dr Gehr provided a medico-legal report for Mr Greco’s solicitors dated 3 November 2020.[29] He has the history that Mr Greco has had symptoms in his shoulders for 9.5 years and they are becoming worse. Dr Gehr sets out his examination findings and diagnoses that Mr Greco has bilateral rotator cuff pathology with pain and impingement. He states the surgery proposed by Dr Prodger is reasonable and necessary. He reasons that Mr Greco has tried anti-inflammatory medication and physiotherapy and non-operative treatment has failed. Mr McManamey observed that Dr Gehr uses a higher test than required under s 60 which requires the treatment be “reasonably necessary”, not “reasonable and necessary”. I note the doctor was responding to the question asked by Mr Greco’s solicitor which referred to “reasonable and necessary”. However, Mr McManamey is correct that the relevant test is “reasonably necessary”.
[29] ARD p 165.
On 9 November 2020 Mr Greco’s solicitor served Dr Gehr’s report and made a claim for the bilateral shoulder surgery.
On 8 July 2021 Dr McWilliam from Ballina referred Mr Greco back to Dr Prodger seeking an update on his capacity.[30] On 2 July 2021 at Dr McWilliam’s request ultrasounds were performed of both shoulders which found bilateral subacromial bursitis and impingement and partial width thickness articular surface tears of the distal supraspinatus bilaterally.[31]
[30] ARD p 173.
[31] ARD p 175.
Dr Prodger reported to Dr McWilliam on 15 November 2021. The doctor notes Mr Greco is working 12 hours a week doing fencing and he was told it was light work and if he tries to push his shoulders too far he gets moderate pain. He has difficulty sleeping at night. Dr Prodger says Mr Greco has not had any active treatment since he saw him last. Dr Prodger again recommends bilateral surgery and he provides quotes for surgery to each shoulder.
It was submitted by Mr McManamey that given the absence of degeneration on X-ray, the only explanation for the continuing bursitis, continuing impingement and potential tears is the first injury and probably the second injury.
On 22 December 2021 the insurer for the second respondent forwarded advice to Mr Greco relating to the operation of s 59A of the 1987 Act so the claim for surgery was denied.
Dr Lim from the North Coast Medical Centre issued a Centrelink certificate dated 7 November 2022 referring to bilateral shoulder bursitis.[32]
[32] AALD p 32.
A Medicare notice of charge dated 1 May 2016 refers to consultations with Drs Mechreky, Khan and Allan with dates of consultations spanning 18 February 2011 to 12 November 2015 with the total charge $1,386.65. As neither party made submissions about these past expenses, I have not made an order in relation to the same.
Mr McManamey said the evidence supports the case of Mr Greco, that the proposed bilateral shoulder surgery is reasonably necessary as a result of the injury. In terms of Dr Rowe’s opinion he submitted that the doctor’s opinion in his early reports cannot be accepted in light of his findings in his later reports. He submitted that in the 2013 report Dr Rowe finds a painful arc of movement more painful on abduction rather than flexion in both shoulders. Mr McManamey submits that Dr Rowe does not say he tested for impingement and he only refers to the ultrasound, but not the MRI and other investigations. However, it is submitted that Dr Rowe no longer suggests there has been recovery. The 2016 report was the subject of submissions by Mr McManamey who notes the doctor found there was some restriction of movement in the shoulder on examination. It was submitted that Dr Rowe’s reference to degeneration should, in light of the X-rays finding no degeneration, means that over time there has been degeneration in the shoulders in the context of continuing pathology.
It was submitted that Dr Rowe’s view that there are non-organic aspects to Mr Greco’s presentation cannot be accepted because all of the other doctors who have examined Mr Greco find pathology in the shoulders, which has been objectively demonstrated by the MRI scans.
Mr McManamey says Dr Rowe’s comments about surgery do allow there could be some relief from the surgery and the evidence does support a finding it is reasonably necessary treatment. It was submitted that there can be no argument that the need for the surgery results from both injuries.

Section 59A of the 1987 Act

Schedule 3, cl 4 of the Workers Compensation Amendment Act 2015 No 18 (2015 amending Act) amended the 1987 Act. It omitted the former s 59A and replaced it with the version of s 59A set out below. The date of commencement of the new s 59A was from the date of proclamation of the 2015 amending Act, being 4 December 2015.
Schedule 6, Part 19I of the 1987 Act provides:
“(1) Except as provided by this Part or the regulations, an amendment made by the 2015 amending extends to:
(a)an injury received before the commencement of the amendment, and
(b)to a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of this amendment.”
Clause 2 of Part 19I provides “An amendment made by the 2015 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
Clause 11 of Part 19I provides:
“(3) Section 59A of the 1987 Act (as inserted by an amendment made by the 2015 amending Act) extends to the compensation payable to an injured worker who:
(a) first made a claim for weekly payments of compensation in respect of the injury before the commencement of the amendment, but not before 1 October 2012, or
(b) was an existing recipient of weekly payments in respect of the injury.”
“Existing recipient of weekly payments” is defined in Part 19I to mean an injured worker who was in receipt of weekly payments of compensation in respect of the injury immediately before 17 September 2012.
So I need to check if Mr Greco in relation to the first injury on 17 February 2011 was in receipt of weekly compensation immediately before 17 September 2012 because otherwise the 2015 version of s 59A does not apply to him and I need to consider the original version. This may prove to be a somewhat academic exercise because the original version was more restrictive as follows:
“(1)    Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
(2)     If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
(3)     If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division 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.”
Mr McManamey relied on Flying Solo Properties Pty Ltd t/as v Collet[33] which was determined before the 2015 amending Act. Roche DP in Collet determined the interpretation of the phrase “paid or payable” and the concept of “ceased to be entitled to weekly compensation”. In the 2015 amendment the s 59A(2) (b) wording is slightly different to the prior version. The part of the 2015 version relevant to Mr Greco’s case refers to “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)”.
[33] [2015] NSWWCCPD 14, Collet.
The version introduced by the 2015 amending Act (which is the current version) 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
…
(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.”
The QBE list of payments for the injury on 17 February 2011 claim number SF 1074370154[34] is dated 24 November 2011 and shows weekly payments to that date. However, there is another list of payments with the same claim number prepared on 4 July 2014 which shows payments of weekly compensation for the week ending 27 February 2012.[35] There is another list of payments for the first injury in the reply prepared on 5 April 2016 which also shows payments of weekly compensation to 27 February 2012. This is a very clear copy when you expand the font size. I conclude from this evidence that in relation to the first injury Mr Greco was not an existing recipient of weekly compensation because his weekly compensation payments ceased on 27 February 2012.
[34] ARD p 59.
[35] ARD p 144, and pp 138 to 140.
Therefore, for the first injury the original version of s 59 A applies.
Schedule 8, Clause 5 of the Workers Compensation Regulation 2016 provides:
“5 Limit on payment of medical, hospital and rehabilitation expenses
In the application of section 59A (Limit on payment of compensation) of the 1987 Act in respect of a claim for compensation made before 1 October 2012:
(a) the claim is deemed to have been made immediately before 1 January 2013, and
(b) no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining when a worker ceased to be entitled to weekly payments of compensation).”
The effect of this Regulation means the 12 months from when weekly compensation ceases is calculated from 1 January 2013. Therefore, s 59A has the effect that compensation cannot be awarded in respect of any treatment given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation. In Mr Greco’s case this would be 1 January 2014.
In relation to the second injury, the effect of Part 19I, cl 11 (3)(a) is that the version of s 59A introduced by the 2015 amending Act applies. Mr Greco has not been assessed for permanent impairment. So he had two years commencing on the day on which weekly payments of compensation cease to be payable to him.
The QBE list of payments for the injury on 9 November 2012 claim number NF1133173154 shows weekly compensation paid from 9 November 2012 to 25 February 2013.[36] So his entitlement to treatment ends on 25 February 2015.
[36] ARD p 65 and Reply p 116.
Consistent with the reasoning in Collet, I find that both versions of s 59A preclude the Commission from making an order that the respondent pay for the proposed surgery in relation to both dates of injury.
Roche DP in Collet at [56] observed that the worker was not without a remedy because his entitlement to compensation under Division 3 will revive pursuant to s 59A(3) when he is again entitled to weekly compensation, when he stops work for the surgery. I note s 59A(3) is the same in both versions of s 59A.
Mr McManamey submitted that weekly payments of workers compensation was last paid to Mr Greco in 2013 and there is a substantial part of the second entitlement period left. However at [57] to [59] and [64] of Collet Roche DP did not accept the type of argument made by Mr McManamey. At [65] he explained that s 59A is concerned with an actual entitlement to receive weekly compensation.
Mr McManamey urged the Commission to nonetheless make a finding that the proposed surgery is reasonably necessary given that Roche DP did not overturn the finding of the Arbitrator in Collet to that effect. Mr McManamey urged the Commission to go as far as Roche DP at [75] to state that the insurer was urged to meet the cost of the surgery without further proceedings in the Commission.

Mr Parker submitted that Dr Stening made the observation that Mr Greco was not suitable for operative treatment. He also submitted that there is an assumption that the need for the surgeries relates to the 2011 and 2012 injuries and he submits that Mr Greco has said he has engaged in subsequent employment. Mr Parker referred to clinical notes having reference to an eye injury caused by welding and another entry about a finger injury caused in the use of a circular saw.
In relation to s 59A, Mr Parker referred to the current version of s 59A and submitted, just because the claim for weekly compensation was discontinued in these proceedings, that does not remove the issue that weekly compensation is “payable” with reference to [76] and [77] of Collet. Mr Parker submits there would be no purpose to s 59A if a worker could argue that weekly compensation would still be payable in the future because he has a claim to weekly compensation, which would expire in 2015 and therefore, he submitted Mr Greco would only have until 2017 to bring a claim for treatment. He later clarified his position that it would be extraordinary that a worker in this situation could forgo claiming weekly compensation to preserve a right to claim treatment because then a worker at 129 weeks could claim no further weekly compensation to maintain a position he is in the second entitlement period.
Mr McManamey responding to the submission about Dr Stening’s opinion on two bases. Firstly, that there is ample evidence from Dr Prodger and Dr Gehr that the shoulder symptoms have persisted and it is because they have persisted for many years that surgery is recommended. Secondly, there is no evidence that Dr Stening has seen Mr Greco more recently.
In relation to the reference to the welding and use of the circular saw, Mr McManamey submitted that is immaterial as the issue whether the need for surgery results from the alleged injuries, and it does not have to be the sole cause. He submits it is sufficient if the chain of causation is established. He argues if the respondent wants to allege a novus actus it has the onus to establish the same and they have brought no evidence to establish that.
Mr McManamey submitted the Commission’s jurisdiction is limited to determining the dispute, which is for the payment of treatment expenses and there is no dispute before the Commission in relation to the liability to pay weekly compensation. It was submitted that the question as to whether the liability to pay weekly compensation will revive under s 59A (3) is “certain”.
Mr McManamey also requested a finding be made that Mr Greco remains within the second entitlement period for weekly compensation. I consider it would not be appropriate to make a finding one way or another regarding Mr Greco’s rights to receive weekly compensation when Mr McManamey himself submitted there is no jurisdiction in relation to the liability to pay weekly compensation. I also cannot make a finding about the argument raised by Mr Parker that a worker should not be able to chose what weeks to claim compensation to preserve an entitlement to come within s59A(3).
Futhermore, I do not consider that just because Roche DP on an appeal confirmed the finding about reasonably necessary treatment, and observed the insurer should pay the treatment, that it is appropriate that I do so. At [29] of Collet there was agreement between the parties that Mr Collett had received weekly compensation from 19 January 2012 to 12 August 2012 and that he had not been paid weekly compensation “and had no entitlement to weekly compensation” from 13 August 2012 to 31 December 2013. In Mr Greco’s case there is no such agreement. Mr McManamey says because the insurer declined liability in Mr Greco’s case they cannot now assert there would be a liability to pay weekly compensation to the end of what would otherwise have been the second entitlement period in 2015. He did concede if a worker had exhausted the 260 weeks entitlement to weekly compensation he may be precluded from accessing the compensation under s 59A(3). Quite simply, I cannot determine such issues as the weekly compensation claim has been discontinued.
Each case turns on its own facts and the factual basis behind the parties’ agreement in Collet is not apparent.
While Mr McManamey has pointed to the evidence about Mr Greco’s shoulders commencing from the time of the first injury and after the second injury, I have concerns about making a finding at the present time as to whether the proposed surgeries are reasonably necessary treatment based on the totality of the evidence before the Commission. I am concerned that Dr Solomon in 2020 referred to Mr Greco having emphysema and chronic lung disease and to significant levels of various drugs used by Mr Greco as set out at [63] above. There is no evidence from Dr Prodger or the medico-legal experts as to whether it is safe for Mr Greco to undergo surgery in the light of these matters. This evidence was not the subject of submissions. Given the Commission cannot in any event make an order for the payment of the surgery, I consider it prudent for such concerns to be addressed with Dr Prodger. Therefore, I decline to make the findings sought by Mr McManamey.

[2023] NSWPIC 193

1 May 2023