Grubba v No.1 Riverside Quay Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Grubba v No.1 Riverside Quay Pty Ltd [2022] NSWPIC 559
APPLICANT:	Krystie Grubba
RESPONDENT:	No 1 Riverside Quay Pty Ltd
Member:	Carolyn Rimmer
DATE OF DECISION:	10 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim pursuant to section 60 of the Workers Compensation Act 1987 for surgery to the left shoulder; respondent agreed the applicant had injured her left shoulder but claimed that her symptoms were caused by a pre-existing degenerative disease in the cervical spine and there was no reasonably necessary need for surgery; Held –the incidents had resulted in impingement in the left shoulder and the proposed treatment was reasonably necessary; opinions of the applicant’s treating specialist and independent medical examiner accepted; respondent to pay the costs of left shoulder surgery.
determinations made:	1. Amend Application to Resolve a Dispute to plead date of injury as “26 April 2018 and 10 January 2019”. 2. Respondent to pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Warren Kuo in his report of 3 June 2019, namely, a left shoulder arthroscopy and subacromial decompression with inspection of AC joint and associated expenses as a result of the injuries on 26 April 2018 and 10 January 2019.

STATEMENT OF REASONS

BACKGROUND

The applicant, Krystie Grubba, (Ms Grubba) was employed by No 1 Riverside Quay Pty Ltd (the respondent) as a customer service representative. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at the relevant time.
In the course of her employment on 26 April 2018, Ms Grubba sustained an injury to her neck, left shoulder, left arm and upper back when she was performing work duties including loading items into a freezer. On 10 January 2019, she reinjured the same body parts by having to rapidly alternate between stock handling, serving customers at the front counter and using a second screen to release fuel where she was required to use her left arm by rotating it out to reach the screen as she was serving customers.
Ms Grubba made a claim for medical treatment proposed by Dr Warren Kuo, in his report of 3 June 2019, in relation to a left shoulder arthroscopy and subacromial decompression with inspection of AC joint as a result of the injuries on 26 April 2018 and 10 January 2019.
The respondent disputed liability for the claim for the proposed surgery to the left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a conciliation conference and arbitration via video link on 30 September 2022. Ms Grubba was represented by Mr Dewashish Adhikary, who was instructed by Ms Emma Robey of Slater & Gordon Lawyers. The respondent was represented by Mr Stuart Grant, who was instructed by Ms Cherie Tippett of Moray & Agnew, Lawyers. Mr Albert Shum from the insurer also attended the conciliation conference and arbitration.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether treatment proposed by Dr Warren Kuo, namely, a left shoulder arthroscopy and subacromial decompression with inspection of AC joint was reasonably necessary.
In conciliation, the respondent advised that it did not press the issue raised in the letter from Moray & Agnew to the Ms Grubba’s solicitors, Slater & Gordon, dated 15 August 2022, concerning whether a claim had been made in respect of the injury on 26 April 2018 and whether the Application to Resolve a Dispute (ARD) had been filed in breach of s 289(2) of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Amended Application to Resolve a Dispute and attached documents;
(b)    Application to Admit Late Documents filed by the applicant on 5 September 2022 and attachments, and
(c)    Reply and attached documents.

Submissions

The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note the respondent submitted that the proposed surgery to the left shoulder was not reasonably necessary as it would not treat the condition that Dr Smith had diagnosed Ms Grubba as having. The respondent relied on Dr Smith’s opinion that the symptoms in the left shoulder were probably caused by cervical degenerative disease.
Ms Grubba submitted that the weight of the evidence supported a finding that the proposed surgery to the left shoulder was reasonably necessary as a result of the injuries on 26 April 2018 and 10 January 2019.

FINDINGS AND REASONS

At the commencement of the proceedings the ARD was amended after date of injury to plead “26 April 2018 and 10 January 2019”.
It was not disputed that Ms Grubba sustained injuries to the left shoulder on 26 April 2018 and 10 January 2019.

Evidence of Ms Grubba

In a statement dated 12 November 2020, Ms Grubba described an incident at work on 26 April 2018 when she was pulling open a freezer door and felt a sharp intense pain spreading down from the left side of her neck through the shoulder and upper back to the left arm. She said that she consulted her general practitioner, Dr Moss, on 1 May 2018 and made a claim for compensation. She stated that the insurer accepted the claim and paid for the cost of physiotherapy treatment and for a week off work. Ms Grubba said that the pain improved with physiotherapy, and she returned to work on light duties. She said that she had a steroid injection to the left shoulder, which was very effective, and she was able to return to her normal duties and hours.
Ms Grubba said that she still had pain in the shoulder and was unable to lift the weights she used to lift when she returned to her gym.
Ms Grubba stated that on 10 January 2022 she was working alone and had to rapidly alternate between stock handling and serving customers. She said that there was a screen facing the customers at the counter, and then an alternate screen to the left that she used to release fuel. She said that she had to constantly use her left arm to use the screen to the left, rotating the arm out. Ms Grubba stated that on that day, with all the use on her left side, she started noticing her left neck, shoulder and arm became painful. She said that it continued to get worse when twisting the left shoulder.
Ms Grubba wrote:
“660. I was referred to see a specialist, Dr Kuo about the pain in my shoulder. Dr Kuo has recommended surgical intervention after two cortisone injections and several months of ongoing physio treatment and home exercises. I still have not received that surgery and would like to undertake same.
….
710. I have undertaken injection treatment to assist with the pain in my shoulder.
720. I have also had regular physiotherapy visits and have been given exercises to complete at home daily.
730. I have been recommended surgical intervention by Dr Kuo to my shoulder by way of arthroscopy, subacromial decompression and an inspection of the AC joint. I really just want to get this surgery over and done with and recover so that I can get on with my life and get back to the way I used to be.
740. I take pain medication when necessary.
Disabilities
750. Washing my hair and back is difficult. I have required assistance.
760. I cannot lift anything with my left hand over 8 kilograms.
770. I find it difficult to do any tasks that require me to lift my arms above shoulder height.
780. I cannot drive for sustained periods of time.
790. I have constant pain in the left shoulder”.

Medical reports

Medico-legal reports

In a report dated 29 May 2019, Dr Anthony Smith, consultant orthopaedic surgeon, noted that Ms Grubba stood to do her job and had to rotate her left arm somewhat behind herself to the left. He reported that she developed some symptoms about 15 months ago which included pain in the left shoulder blade and on the left shoulder. Dr Smith noted that there was a re-occurrence of the same symptoms on 10 January 2019 with pain in the left shoulder blade and the left arm laterally running down to the left forearm. Dr Smith noted that she had physiotherapy and two injections into the left shoulder but the treatments to date had provided her with no benefit.
On examination, Dr Smith noted that cervical extension caused pain at the base of the neck and lateral flexion of the neck to the right produced pain running from the left side of the neck into the left shoulder. He reported that there was pain in the base of the neck with flexion of the neck, and rotation of the neck to the right caused pain in the left side of the neck. He wrote: “She has a normal range and rhythm of shoulder movement with no sign of impingement. She has no neurological deficit in either upper limb”.
Dr Smith expressed the opinion that on “the balance of probabilities versus possibilities”, Ms Grubba had symptoms emanating from her cervical degenerative disease “which she will almost certainly have”. He considered that she might have the beginnings of AC joint osteoarthritis.
Dr Smith wrote:
“One of the reasons her treatments to the left shoulder to date have all failed is that the symptoms are coming from the neck. One can reproduce part of her symptoms by examination of the neck today. With the screen/till apparatus located at 90° to her left, she has to operate the screen by moving the left hand towards the screen. She also has to turn her neck to look at the screen and she is sustaining aggravations from time to time to her cervical degenerative disease. She has had no treatment for her cervical degenerative disease to date”.
Dr Smith made a diagnosis of symptomatic cervical degenerative disease. He noted that there were a number of abnormalities reported in her investigations of the left shoulder, however, in his opinion the abnormalities described were unlikely to be producing any symptoms. He considered that bursal bunching without abduction was within normal limits. He noted that the MRI undertaken demonstrated no contraindication to having treatment directed at neck but considered that there was not a lot of point in having any further investigations of the neck. He wrote: “In my opinion, she requires no treatment for her shoulder…In my opinion, she requires no operations on her left shoulder”.
In a second report dated 29 May 2019 [sic], Dr Smith referred to a letter from the insurer dated 13 June 2019 and noted he was provided with a letter from Dr Warren Kuo dated 3 June 2019. Dr Smith stated that it was “basically my opinion she has a problem with her neck”. He considered that the work she described operating the console and rotating and shifting her left arm around to operate a screen, could not possibly injure the rotator cuff.
Dr Smith wrote:
“It is in my opinion there is no necessity for an operation on her left shoulder. She had, when I saw her on 29 May 2019, no evidence of any impingement and had no other objective sign of a disability regarding her left shoulder. Assuming she has AC joint osteoarthritis that is early AC joint osteoarthritis, is within normal limits and requires no treatment. The same can be said for bursitis. I refer you to my initial letter and some papers that support those contentions.”
Dr Smith was of the opinion that the bursitis and AC joint osteoarthritis were not injuries and there was no evidence of an injury to the left shoulder. He did consider that her work activities and looking around to see what’s on the screen on a repetitive basis could easily aggravate her cervical degenerative disease.
In a report dated 25 October 2019, Dr Peter Yu, occupational physician, noted on examination that there was a pattern of consistent, verifiable limitation in right bending at the neck to indicate an active condition relating to the cervical spine. On examination of the shoulders, he noted Ms Grubba reported tenderness when he pressed on the joint lines of the left shoulder’s acromioclavicular joint and glenohumeral joint. Dr Yu was of the opinion that the physical signs and non-verifiable findings indicated impingement in the subacromial region of the left shoulder. He considered that this was consistent with what Dr Kuo wrote and inconsistent with what Dr Smith wrote. However, Dr Yu noted that this was in the context of several months having elapsed since Dr Smith’s report, during which physical therapy had become infrequent.
Dr Yu noted Dr Jaspal Hunjan, radiologist, wrote on 3 March 2019 that an MRI left shoulder showed multiple structural abnormalities, including ‘mild trabecular oedema of the clavicular, and less so, acromial end of the [acromioclavicular joint]’. Dr Yu concluded that his findings from interviewing and examining Ms Grubba were consistent and indicated an active impingement of the left shoulder at the subacromial space. Dr Yu was of the view that this was consistent with Dr Hunjan’s comments about the acromioclavicular joint.
Dr Yu wrote:
“As a result of the subject incident, Ms Grubba sustained a subacromial impingement in her left shoulder. This condition worsened as a result of the subsequent incident, from which she likely also developed a mild left brachial plexus injury. For her condition of the left shoulder and likely also of the left brachial plexus, other than regular paracetamol I cannot comment on what treatment will become reasonable and necessary until a neurologist assesses her left brachial plexus”.
In a report dated 2 March 2020, Dr Yu noted that a neurologist had examined and tested Ms Grubba for a brachial plexus disorder with a nerve conduction study, which produced unremarkable findings. Dr Yu wrote:
“You requested my advice about whether the surgery proposed by treating surgeon Dr Warren Kuo is reasonable and necessary with respect to her employment.
The proposed surgery by way of left shoulder arthroscopy, subacromial
decompression and inspection of the AC joint by Dr Kuo is reasonable and
necessary as a result of Ms Grubba’s employment with BP.”
In a report dated 28 August 2022, Dr Yu noted that Ms Grubba’s symptoms largely, albeit incompletely, resolved after the steroid injection following the incident on 26 April 2018 and with a return to normal use of her left shoulder at work, surgery was not reasonably clinically necessary. Dr Yu concluded that the further injury on 10 January 2019 caused the requirement for the surgery as proposed by Dr Kuo as Ms Grubba had ongoing symptoms and signs that were consistent with his clinical diagnosis of subacrominial impingement.

Reports of treating doctors

In a report dated 9 March 2019, Dr Warren Kuo, treating orthopaedic surgeon, noted that Ms Grubba presented with left shoulder and neck pain. He wrote:
“Krystie states that on the 26 April 2018 she was in her BP job pulling and lifting a lot of things and putting them into a freezer door which was quite heavy. She felt pain in her left shoulder and neck. It seemed to respond quite well to physiotherapy as well as a cortisone injection. However, she re-injured herself on the 10th January,
2019 when doing a lot of repetitive till work with a lot of external rotation of the arm and twisting of the neck. Her shoulder pain has persisted superiorly and laterally worse with abduction, lifting and overhead activities. There is pain at night and she feels the shoulder and stiffer and weaker than normal. Her neck range of movement has also been restricted due to pain. Treatment consisted of physiotherapy to the neck which provided some good improvements but she has also sessions for her shoulder with only limited benefit. She has had 2 cortisone injections, the first providing good relief and the second of less benefit. I note that she is also taking Voltaren and Mersyndol and is allergic to Rulide”.
On examination Dr Kuo found there was quite a well preserved range of movement but with a painful arc at 90°, some limitation of abduction, and positive impingement tests. He noted that Ms Grubba had Grade IV+ power of abduction with associated pain. Under “Investigations” Dr Kuo reported that the X-rays taken on the 21 January 2019 did not show any bony abnormalities while an ultrasound reported bursitis. He noted that an MRI scan of the cervical spine shows only minor disease but essentially was normal.
Dr Kuo felt that Ms Grubba would benefit from ongoing physiotherapy and another cortisone injection to the subacromial space. He recommended an MRI scan of the shoulder. Dr Kuo hoped that these measures will resolve her symptoms, but if not an arthroscopy and subacromial decompression may need to be considered.
In a report dated 8 April 2019, Dr Kuo noted that he had reviewed Ms Grubba and she remained with ongoing symptoms despite physiotherapy. He reported that an MRI scan to the left shoulder performed on 3 April 2019 confirmed an intact rotator cuff with reported tendinopathy and moderate bursitis. Dr Kuo noted that there was also some reaction around the AC joint suggestive of a distraction injury and also changes around the superior glenoid suggesting a tubercular bone injury. Dr Kuo noted that examination still demonstrated a good range of movement with some slight hitching, power was good but there was a positive impingement and O’Brien’s test. There was tenderness around the AC joint and biceps groove and cuff insertion. Dr Kuo suggested another cortisone injection for Ms Grubba but was of the view that it may be necessary to consider surgery because she had been through non operative measures without resolution.
In a form to the insurer dated 8 April 2019, Dr Kuo answered a number of questions. He made a diagnosis of rotator cuff impingement injury and also of a soft tissue injury tom the neck. He noted that the diagnosis was confirmed on clinical examination and the MRI scan showed bursitis. He considered that the diagnosis was consistent with the mechanism of injury, that was repetitive and heavy lifting which overloaded the cuff resulting in persistent pain. He noted that Ms Grubba still had persistent pain despite non operative management, including physiotherapy and medication and cortisone injections, which had provided partial improvement.
In a report dated 3 June 2019, Dr Kuo reported that he had reviewed Ms Grubba, who unfortunately remained with ongoing pain despite the injection which lasted about two hours which was probably the duration of the local anaesthetic. He noted that her pain levels had returned to between a 5-7/10. On examination, Dr Kuo found ongoing impingement. Dr Kuo wrote:
“I discussed with Krystie her further treatment options and given that she remains symptomatic despite thorough non operative measures and she has extreme difficulty managing her light duties at work, I have recommended a left shoulder arthroscopy, subacromial decompression and inspect AC joint”.
The clinical notes and records from Hill Street Family Doctors contained the following documents and entries:
(a)    In an entry dated 1 May 2018, Dr Bill Moss, treating general practitioner, noted:
“strained L cervical>trapezius>shoulder>upper arm lifting + stacking boxes-15kg with pies and coke at work at BP Mulgoa Rd 26/4/2018. had physic the next day. now feels 50% better. ongoing increased spasm L neck + trapezius. pain aggravated by abduction beyond 90 degrees. taking voltaren that aggravates nausea.”
Dr Moss made a diagnosis of left supraspinatus tendinosis and referred Ms Grubba for an ultrasound of the left shoulder.
(b)    In an entry dated 3 May 2018, Dr Moss noted:
“Diagnosis: Subacromial bursitis. Reason for visit: Subacromial bursitis for physio 2w, if not better then cortisone injection…Imaging request printed to High Street Medical Imaging: US guided cortisone to left subacromial bursitis. (L shoulder pain + impingement not settling with physio)”.
(c)    In an entry dated 15 May 2018, Dr Moss noted:
“states mentioned shoulder injury at work 26/4/2018 at consult 27/4/2018, not documented. would now like to claim WC to cover cost of physio. work hours have continued unchanged. pain is mainly over L scapula present at rest + aggravated by movements. feels constant strain + heaviness like an overworked muscle. ROM normal although has mild crepitus all directions. on regular celebrex with minimal help. interferes with sleep… Reason for visit: Muscle strain, Left Subacromial bursitis, Worker's Compensation certificate”.
(d)    In an entry dated 15 June 2018, Dr Moss noted: “L shoulder pain subsiding to intermittent. posterior + anterior pain flex/extend normal, abduction impinges at 80 degrees. crepitus resolved. has had weekly physio x4.”
(e)    In an entry dated 10 August 2018, Dr Moss noted: “L shoulder still feels tight + Intermittent pain ROM = normal + symmetrical physio supervised lifts to 10kg with both hands together with no problems.”
(f)    In an entry dated 14 January 2019, Dr Widmer noted: “pain and immobility left shoulder 4 days. denies recent injury. Examination: abduction to 90 degrees + significant muscle spasm noad = needs xr + US”. Ms Grubba was referred for an X-ray and ultrasound of the left shoulder.
(g)    In an entry dated 22 January 2019, Dr Moss noted:
“L shoulder pain flared 10/01/2019, increasing in severity to 12/1/2019. aggravated by having to externally rotate L shoulder because till for point of sale is at 90 degrees to the left to customer service bench. note US L shoulder same SAB. new L infraspinatous tendinosis… Reason for visit - Left Subacromial bursitis initially 26/4/2018 + flared again at work 10/1/2019, for physio + US guided cortisone to SAB.”
(h)    In an entry dated 31 January 2019, Dr Moss noted: “L shoulder pain settled ~ 50% since cortisone injection 1w ago.”
(i)    In an entry dated 7 February 2019, Dr Moss noted:
“L shoulder pain flared at work today after 2hrs at work. L cervical/trapezius pain new today at work with any movement ref to L forearm + sometimes paraesthesia in L fingers. aggravated by working at til looking at 90degrees to the counter and having to rotate to look at customers + purchases switched to a different till where looks straight at the customer, but the pain didn’t subside. celebrex not helping but voltaren 50mg helping more, so try meloxicam.”
(j)    In an entry dated 13 February 2019, Dr Gupta noted:
“here for workcover certificate x2 shoulder injuries at work, 4/2018 initial injury + 1/2019 - repeat injury. seeing physio at one point health. US of shoulder showed subacromial bursitis for which pt had cortisone injection which has taken away most of the pain…now getting pinching pain in L trap + radiating into L upper limb, cervical spine MRI booked for tomorrow. discussed options if shoulder pain does not continue to settle - L shoulder MRI +/- orthopaedic review, await cervical MRI first”.
(k)    In an entry dated 14 February 2019, Dr Moss noted:
“repetitive pulling + lifting at work on 26/04/2018 resulted in L shoulder pain. repetitive external rotation of L shoulder at work 10/01/2019 resulted in aggravation of L shoulder pain. Pain + paraesthesia L arm resulted in MRI revealed no cervical pathology, so is probably neurapraxia or neural tension. cervical rotation painful + restricted, probably trapezius inflammation. note MRI nil cervical damage, incidental hypoplastic L vertebral artery…not responding to treatment to L shoulder with nsaids + physio + cortisone injection to L subacromial bursitis.”
Dr Moss referred Ms Grubba to Dr Kuo for further assessment and management.
(l)    In an entry dated 28 February 2019, Dr Moss noted that the left glenohumeral pain partially subsided with physiotherapy.
(m)     In an entry dated 7 March 2019, Dr Moss noted: “Dr Kuo today. MRI L shoulder. cortisone injection L shoulder. probable L shoulder reconstruction of pinching within rotator cuff. no work until this is resolved. Diagnosis: Left Rotator Cuff tear.”
(n)    In an entry concerning a telephone consultation dated 4 April 2019, Dr Moss noted:
“d/w Dr Tony Antuno IMC. explained case. explained d/w Jamal from EML. explained insurer seems to be seeking alternative causation, but by the patient’s account there is no other causation. explained insurer seems to be seeking to share causation with the hotel, there is no contribution from the hotel work based on the patient’s history. there is no evidence of her riding a motor bike to me, she never has a helmet or leathers. she states there have been no aggravations or injuries with her PIT acting. I am not in a position to state she is fit for work when the orthopaedic surgeon states she is unfit for work. I suggested the insurer ref to an occupational physician if they want to progress these issues. with all due respect the(sic) have referred to a GP IMC who will not be able to override an orthopaedic surgeon.”
(o)    In an entry dated 20 July 2019, Dr Moss noted:
“claim disputed + no further make up pay being given. note report from Dr Smith ortho for insurance that has statements I believe inconsistent + stating I stated she was fit for full time work, which I haven’t done + this would be obvious from my reports to the insurer he should have had access to and states she should have had CT C spine, which she has had.”

In a State Insurance Regulatory Authority (SIRA) Certificate of Capacity dated 8 June 2019, Dr Moss made a diagnosis of “Left rotator cuff injury, left shoulder pain and immobility, L trapezius spasm resulting in reduced neck/cervical movement and reduced L shoulder movement”.

Discussion

The matter to be determined is whether the surgery proposed by Dr Warren Kuo, namely, a left shoulder arthroscopy and subacromial decompression with inspection of AC joint was reasonably necessary as a result of the injuries on 26 April 2018 and 10 January 2019.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated [at 462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Further, his Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The High Court in Comcare v Martin (2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”. In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3 (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]- [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
The respondent did not dispute that Ms Grubba had sustained injuries to her left shoulder on 26 April 2018 and 10 January 2019. The respondent’s case was that there was no condition in the left shoulder that required the proposed surgical treatment and therefore the proposed treatment was not reasonably necessary.
Ms Grubba gave evidence, which I accept, that she had not sustained any injury to either of her shoulders before she commenced employment with the respondent. She stated that after the injury on 10 January 2019 she was referred to Dr Kuo about the pain in her shoulder. She said that after she underwent two cortisone injections and had several months of ongoing physiotherapy treatment and home exercises, Dr Kuo now recommended surgical intervention. She said that she wanted to have the surgery proposed by Dr Kuo so that she could get on with her life and “get back to the way I used to be”.
Ms Grubba stated that she took pain medication when necessary. She said that she could not lift anything with her left hand over eight kilograms and found it difficult to do any tasks that require her to lift my arms above shoulder height. Ms Grubba said that she could not drive for sustained periods of time and had constant pain in her left shoulder.
Dr Smith, in his report dated 29 May 2019, noted that Ms Grubba stood to do her job and had to rotate her left arm somewhat behind herself to the left. He reported that she developed some symptoms about 15 months ago which included pain in the left shoulder blade, on the left shoulder and there was a re-occurrence of the same symptoms on 10 January 2019. He reported that Ms Grubba told him that she had physiotherapy and two injections into the left shoulder but the treatments to date provided her with no benefit.
On examination, Dr Smith noted that cervical extension caused pain at the base of the neck and lateral flexion of the neck to the right produced pain running from the left side of the neck into the left shoulder. He reported that there was pain in the base of the neck with flexion of the neck and rotation of the neck to the right caused pain in the left side of the neck. He wrote: “She has a normal range and rhythm of shoulder movement with no sign of impingement. She has no neurological deficit in either upper limb”. Dr Smith expressed the opinion that on “the balance of probabilities versus possibilities”, Ms Grubba had symptoms emanating from her cervical degenerative disease and might have the beginnings of AC joint osteoarthritis.
Dr Smith stated that one of the reasons the treatments to date to the left shoulder to date had all failed was that the symptoms were coming from the neck. He made a diagnosis of symptomatic cervical degenerative disease. Dr Smith did note that there were a number of abnormalities reported in her investigations of the left shoulder but considered that the abnormalities described were unlikely to be producing any symptoms. He concluded that Ms Grubba required no operation on her left shoulder.
In a second report dated 29 May 2019, Dr Smith expressed the view that the work she described operating the console and rotating and shifting her left arm around to operate a screen, could not possibly injure the rotator cuff. He expressed the opinion that the bursitis and AC joint osteoarthritis were not injuries and there was no evidence of an injury to the left shoulder. He did consider that the work activities involving looking around to see what was on the screen on a repetitive basis could easily aggravate her cervical degenerative disease.
Dr Yu, in a report dated 25 October 2019, on examination found that there was a pattern of consistent, verifiable limitation in rightward bending at the neck to indicate an active condition relating the cervical spine. On examination of the shoulders, he noted Ms Grubba reported tenderness when he pressed on the joint lines of the left shoulder’s acromioclavicular joint and glenohumeral joint. Dr Yu was of the opinion that the physical signs and non-verifiable findings indicated impingement in the subacromial region of the left shoulder.
Dr Yu noted that the report of the MRI left shoulder on 3 March 2019 showed multiple structural abnormalities, including “mild trabecular oedema of the clavicular, and less so, acromial end of the [acromioclavicular joint]”. Dr Yu concluded that his findings were consistent and indicated an active impingement of the left shoulder at the subacromial space. He also recommended assessment of the left brachial plexus.
On 2 March 2020, Dr Yu noted that a neurologist had examined and tested Ms Grubba for a brachial plexus disorder with a nerve conduction study, which produced unremarkable findings. Dr Yu concluded that the surgery proposed by Dr Kuo by way of left shoulder arthroscopy, subacromial decompression and inspection of the AC joint was reasonable and necessary as a result of Ms Grubba’s employment with the respondent.
Dr Kuo, in a report dated 9 March 2019, noted that Ms Grubba sustained an injury on 26 April 2018 when she was pulling and lifting a lot of things and putting them into a freezer door which was quite heavy. He reported that she had pain in her left shoulder and neck which responded quite well to physiotherapy as well as a cortisone injection. However, she re-injured herself on 10 January 2019 when doing a lot of repetitive till work with a lot of external rotation of the arm and twisting of the neck. He noted that the shoulder pain had persisted superiorly and laterally and was worse with abduction, lifting and overhead activities. Ms Grubba felt the shoulder was stiffer and weaker than normal. Dr Kuo noted that treatment consisted of physiotherapy to the neck which provided some good improvement but the sessions for her shoulder had only limited benefit. Dr Kuo noted Ms Grubba had undergone two cortisone injections, the first providing good relief and the second of less benefit.
On examination Dr Kuo found there was quite a well preserved range of movement but with a painful arc at 90°, some limitation of abduction, and positive impingement tests. He noted that Ms Grubba had Grade IV+ power of abduction with associated pain. He recommended ongoing physiotherapy and another cortisone injection to the subacromial space.
On 8 April 2019, Dr Kuo noted that he had reviewed Ms Grubba, who remained with ongoing symptoms despite physiotherapy. He reported that an MRI scan to the left shoulder performed on 3 April 2019 confirmed an intact rotator cuff with reported tendinopathy and moderate bursitis. Dr Kuo noted that there was also some reaction around the AC joint suggestive of a distraction injury and also changes around the superior glenoid suggesting a tubercular bone injury. Dr Kuo noted that examination still demonstrated a good range of movement with some slight hitching, power was good but there was a positive impingement and O’Brien’s test. There was tenderness around the AC joint and biceps groove and cuff insertion. Dr Kuo suggested another cortisone injection for Ms Grubba but it may be necessary to consider surgery because she has been thorough non operative measures without resolution.
In a form sent to the insurer dated 8 April 2019, Dr Kuo answered a number of questions. He made a diagnosis of rotator cuff impingement injury and also a soft tissue injury tom the neck. He noted that the diagnosis was confirmed on clinical examination and the MRI scan showing bursitis. He considered that the diagnosis was consistent with the mechanism of injury, that was, repetitive and heavy lifting which overloaded the cuff resulting in persistent pain. He noted that Ms Grubba still has persistent pain despite non operative management, including physiotherapy and medication and cortisone injections which had provided partial improvement.
In a report dated 3 June 2019, Dr Kuo reported that he had reviewed Ms Grubba, who unfortunately remained with ongoing pain despite the injection which lasted about two hours. On examination, Dr Kuo found ongoing impingement. Dr Kuo recommended a left shoulder arthroscopy, subacromial decompression and inspect AC joint as Ms Grubba remained symptomatic despite thorough non operative measures and she had extreme difficulty managing her light duties at work.
Dr Moss reviewed Ms Grubba regularly since 1 May 2018 when he made a diagnosis of left supraspinatus tendinosis. On 3 May 2018, Dr Moss made a diagnosis of subacromial bursitis. On 15 May 2018, Dr Moss noted that the shoulder injury occurred at work and Ms Grubba wanted to make a claim to cover the cost of physiotherapy. He noted that pain was mainly over L scapula and aggravated by movements. On 15 June 2018, Dr Moss noted that the left shoulder pain was subsiding to intermittent. On 10 August 2018, Dr Moss noted that the left shoulder still felt tight and there was intermittent pain, however, the range of movement was normal.
On 14 January 2019, Dr Widmer noted that Ms Grubba had pain and immobility in the left shoulder for four days. On examination abduction was 90 degrees and there was significant muscle spasm. On 22 January 2019, Dr Moss noted that left shoulder pain was aggravated by having to externally rotate the left shoulder because the till for point of sale was at 90 degrees to the left of the customer service bench. He noted that there was infraspinatous tendinosis. On 31 January 2019, Dr Moss noted that the left shoulder pain settled 50% since cortisone injection one week ago. On 7 February 2019, Dr Moss noted that the left shoulder pain “flared at work today after 2 hrs at work”. On 14 February 2019, Dr Moss reported that repetitive pulling and lifting at work on 26 April 2018 had resulted in left shoulder pain and repetitive external rotation of the left shoulder at work on 10 January 2019 resulted in aggravation of the left shoulder pain. He noted that the left shoulder condition was not responding to treatment with “nsaids + physio + cortisone injection to L subacromial bursitis.” Dr Moss referred Ms Grubba to Dr Kuo for further assessment and management. On 7 March 2019, Dr Moss noted Dr Kuo had arranged an MRI of L shoulder and cortisone injection of the left shoulder and it was probable there would be left shoulder reconstruction.
The respondent conceded that Ms Grubba sustained an injury to the left shoulder in the incidents on 26 April 2018 and 10 January 2019. However, the respondent argued that the symptoms that Ms Grubba now had were caused by an injury to the cervical spine, namely, aggravation of pre-existing degenerative disease in the cervical spine. Dr Smith was of the view that Ms Grubba had bursitis and possibly osteoarthritis in the left shoulder. However, Dr Smith did not consider that these conditions were caused by the injuries at work and that the proposed surgery was not reasonably necessary.
Both Drs Kuo and Yu considered that the proposed surgery was reasonably necessary. Both of these doctors found impingement on examination whereas Dr Smith did not find impingement in his one examination of Ms Grubba on 29 May 2019. Dr Kuo had seen Ms Grubba on a number of occasions and, in my view, was better placed to assess her left shoulder condition and to form an opinion as to the causation of her left shoulder condition and the treatment required for it.
I have preferred the opinions expressed by Dr Kuo, Dr Yu and Dr Moss to the opinion of Dr Smith. On balance I am satisfied that left shoulder condition was caused by the injuries on 26 April 2018 and 10 January 2019 and that those injuries caused impingement in the left shoulder.
Dr Smith, in my view, did not take an adequate history of the events on 26 April 2018 and 10 January 2019. There was no reference to the unpacking and loading of goods into the freezer with a heavy door on 26 April 2018. There was no reference to the repetitive till work on 10 January 2019. Dr Smith also reported that the treatment Ms Grubba had received to date provided her with no benefit. This statement was incorrect as Ms Grubba had significant benefit from treatment after the initial injury to the left shoulder on 26 April 2018 and some limited benefit from treatment after the injury on 10 January 2019. As Dr Yu noted in his report dated 28 August 2022, Ms Grubba’s symptoms largely albeit incompletely resolved after the steroid injection following the incident on 26 April 2018 and she managed a return to normal use of her left shoulder at work. Dr Moss noted that after the injury on 10 January 2019, there was some benefit provided by the first cortisone injection and physiotherapy.
The benefits provided by the treatment lead me to place no real weight on Dr Smith’s opinion that the symptoms were coming from the neck because treatments to the left shoulder to date had all failed.
The weight of the medical evidence supports a finding that Ms Grubba sustained a injury to her left shoulder in the incident on 26 April 2018 and then a further injury to the left shoulder on 10 January 2019. I am satisfied that the injuries on 26 April 2018 and 10 January 2019 made a material contribution to the need for left shoulder surgery proposed by Dr Kuo, and that the medical treatment is reasonably necessary as a result of the injuries on26 April 2018 and 10 January 2019.
I order that the respondent pay Ms Grubba’s s 60 expenses in respect of the treatment proposed by Dr Warren Kuo, namely, a left shoulder arthroscopy and subacromial decompression with inspection of AC joint was reasonably necessary as a result of the injuries on 26 April 2018 and 10 January 2019.

[2022] NSWPIC 559

10 October 2022