Harper v TAFE NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harper v TAFE NSW [2025] NSWPIC 582
APPLICANT:	Samantha Harper
RESPONDENT:	State of NSW (TAFE NSW)
MEMBER:	Kathryn Camp
DATE OF DECISION:	29 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for proposed surgery for accepted right shoulder injury; where applicant has undertaken three previous surgical procedures on the right shoulder paid for by the respondent; acceptance that surgery results from injury; dispute as to whether surgery is reasonably necessary; difference between findings in radiological report and those made by treating surgeon; fair climate for acceptance of expert medical opinion; Rose v Health Commission, and Diab v NRMA Limited considered and applied; Held – applicant discharged onus of proof; findings in radiological reports relevant but not determinative; respondent to pay the costs of and incidental to proposed right shoulder surgery pursuant to section 60.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The proposed right shoulder surgery recommended by Dr Pant is reasonably necessary treatment as a result of injury to the applicant’s right shoulder on 11 November 2019. The Commission orders: 1. The description of the respondent is amended to “State of NSW (TAFE NSW)”. 2. The respondent is to pay the applicant’s reasonably necessary costs of, and incidental to, proposed right shoulder surgery recommended by Dr Pant, pursuant to s 60(5) of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether proposed right shoulder surgery is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), in circumstances where it is not disputed that surgery results from an accepted workplace injury. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

The applicant, Samantha Harper, was a floristry teacher for the respondent, TAFE NSW. In the course of her employment, on 11 November 2019, she injured her right arm when receiving a delivery of equipment including boxes of flowers for her floristry classes.
The respondent accepted injury to the applicant’s right shoulder and paid weekly payments of compensation and for extensive medical treatment, including over 70 physiotherapy sessions and three surgical procedures. The applicant underwent a right shoulder arthroscopy and rotator cuff repair on 17 March 2020, at the hand of Professor Murrell. Professor Murrell then performed a further right shoulder arthroscopy and rotator cuff repair on 17 May 2022 and then on or about 6 September 2022 he performed further right shoulder surgery including a large rotator cuff repair.
The respondent’s insurer issued notices pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998, on 3 December 2024, 31 March 2025, 24 June 2025, and 29 July 2025, declining the claim for medical expenses for the costs of proposed fourth right shoulder surgery. The respondent’s insurer also issued a decision on 29 October 2024, notifying the applicant of the cessation of weekly payments of compensation from 10 March 2025 for reason of s 39 of the 1987 Act.
On 29 July 2025, the applicant lodged an Application to Resolve a Dispute in respect of the claim for future medical expenses.
On 19 August 2025, the respondent lodged a Reply.
On 9 October 2025, the applicant lodged an Application to Lodge Additional Documents.

ISSUE FOR DETERMINATION

The issue in dispute is:
(a) whether the proposed right shoulder surgery recommended by Dr Pant is “reasonably necessary” as a result of the accepted injury on 11 November 2019 pursuant to s 60 of the 1987 Act.
The respondent concedes injury to the right shoulder and that the proposed surgery is as a result of the accepted injury, but disputes the reasonable necessity of the surgery.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 2 September 2025, the parties attended a preliminary conference.
On 9 October 2025, the parties attended a conciliation conference and arbitration hearing. Mr Tanner, of counsel, appeared for the applicant instructed by Carroll & O’Dea Lawyers. Mr Gaitanis, of counsel, appeared for the respondent instructed by SMK Lawyers. The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the recorded hearing.
During the hearing, leave was granted, without objection, to the applicant to admit two pages from Dr Rimmer’s website: myhipandknee.com.au. At the conclusion of the hearing I issued a Direction to the parties, directing the applicant lodge the relevant pages from Dr Rimmer’s website undercover of an Application to Lodge Additional Documents.
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 (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute, dated 29 July 2025, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 19 August 2025, and attached documents;
(c)    Directions issued on 2 September 2025 and 9 October 2025, and
(d)    Application to Lodge Additional Documents, and attachments, registered on 10 October 2025.
The above documents have been admitted into the proceedings, without objection.

Applicant’s statement

In evidence is a statement of the applicant dated 15 July 2025.
The applicant notes the circumstances surrounding the accepted right shoulder injury, where she received a heavy box of flowers and felt sudden pain in her right shoulder when she took the box from the delivery driver. She notes that she underwent surgery in March 2020, after which she had a reasonable recovery but continued to experience pain and discomfort.
On review by her treating surgeon it was revealed that she had a bone growth in her shoulder causing her pain. The pain did not resolve with conservative treatment and she underwent further surgery in May 2022 to remove the bone growth and re-repair her right rotator cuff. After the second surgery, the pain was worse and movement in her shoulder was limited. She states that her surgeon recognised complication with the previous surgery, and performed revision surgery in September 2022.
Following the third surgery, she states that it appeared her shoulder was “recovering well”. However, after a “few months, it began to deteriorate” and she now experiences “ongoing pain, discomfort, reduced range of motion, stiffness, a clicking/catching sensation, weakness and difficulty lifting, pushing, pulling and reaching overhead.”
The applicant states that she sought a second medical opinion and was referred to Dr Pant. He recommended further surgery and she wishes to proceed with the surgery proposed.
The applicant also notes that she is in receipt of weekly benefits in relation to a separate workplace psychological injury, for which she remains totally unfit for work.

Medical evidence

In evidence are a series of documents from the applicant’s treating medical practitioners and from independent medico-legal experts.
Professor George A C Murrell, the applicant’s former treating orthopaedic surgeon, provides a series of reports. Those reports detail request for approval of surgical procedures (now undertaken), treatment and outcomes post-operatively. On 19 May 2021, Professor Murrell acknowledged the applicant’s recovery from the first surgical procedure had been complicated by new bone formation at the tendinous insertion and a frozen shoulder.
The applicant continued to see Professor Murrell for ongoing review and treatment. On 20 December 2021 he finds that the applicant can work 33-35 hours per week with two hours devoted to at least two physiotherapy sessions per week. He also notes that the applicant had a good range of motion, but had positive impingement signs.
On 15 June 2022, Professor Murrell records that the applicant was unhappy with her shoulder following the second surgery and was “experiencing high levels of pain”. Professor Murrell records ongoing pain and intermittent sharp pain about the shoulder/arm on
4 July 2022 and 3 August 2022.
On 8 September 2022, Professor Murrell records his findings two days post the third surgery to the right shoulder. He described the surgery to be a large rotator cuff repair and revision surgery of the right shoulder.
On 20 March 2023, Professor Murrell records, six months post the third surgery, that the applicant is “very happy with her progress”. On examination, Professor Murrell records good range of motion and strength. He notes that the applicant’s “greater tuberosity is a little bit prominent with some mild clicking”. He also notes that X-rays and ultrasound showed the repair to be intact.
On 3 July 2023, Professor Murrell records that the applicant is happy with her shoulder and is back to many activities. On examination, Professor Murrell records slightly restricted range of motion but strong strength testing. He also notes moderate mechanical impingement and some residual stiffness.
On 16 October 2023, Professor Murrell records, 12 months post-surgery, that the applicant’s shoulder is complicated by stiffness. The applicant reports some clicking and catching. Professor Murrell records an improved external rotation range of motion but blocks on abduction and he can palpate the applicant’s greater tuberosity which seems to be catching underneath the acromion.
On 5 February 2024, Professor Murrell records that the applicant feels like she is making good progress and that her stiffness is resolving. She has very good range of motion and strength is improving. He adds that the recent ultrasound shows that the repair is intact and the applicant’s elastography numbers are good. He notes physical restrictions in lifting.
On 3 June 2024, Professor Murrell records the applicant is making steady progress. On examination, Professor Murrell records that the applicant has a good range of motion and some mechanical impingement. He notes that the ultrasound shows the repair is healing nicely with good elastography readings.
On 20 October 2024, Mr Silcock, independent physiotherapy consultant qualified by the respondent provides a report. Mr Silcock records the applicant’s medical history, noting that she had undertaken approximately 70 exercise physiology treatment and physiotherapy sessions from August 2023. In particular, he notes that the applicant has undertaken “extensive post-surgical physiotherapy and pain management assistance”. He notes that treatment has failed to “realise expected treatment outcomes”. Although, he states he was not able to speak to Mr Ursino the applicant’s treating physiotherapist.
Mr Silcock considers that the exercise physiology treatment provided has been reasonably necessary due to the accepted injury but should conclude on completion of the sessions already approved. He notes that this recommendation should not be interpreted to infer that the applicant’s pre-injury functional capacity has been restored but that future exercise physiology treatment will not influence the applicant’s ongoing functional capacity.
On 21 October 2024, Dr Stephen Rimmer, orthopaedic surgeon qualified by the respondent, provides a report. It is relevant to note that Dr Rimmer, on his public website records that he, is a specialist “Sydney Orthopaedic No Gap Hip and Knee Surgeon”. The website also records that Dr Rimmer “specialises in surgery of the hip and knee”.
In his report of October 2024, Dr Rimmer notes that there were no radiological investigations present at the time of his examination and assessment. He records a history of the injury and related surgeries. He notes that when the applicant was specifically asked about the outcome of her last revision procedure she responded “it is going good.”
Dr Rimmer records the applicant’s current symptoms of “[e]ssentially no pain” but “residual stiffness”. He notes that the applicant does not require any oral analgesia or anti-inflammatories. He also notes that the applicant continues to attend an exercise physiologist weekly. Dr Rimmer records his findings on examination of the right shoulder:
“Symmetrical in position. Nontender to firm palpation throughout.
She had the following active range of motion:
·Flexion: 160°
·Extension: 40°
·Abduction: 160°
·Adduction: 40°
·External rotation: 80°
·Internal rotation: 60°
Power of supraspinatus 5/5 and pain-free.”
Dr Rimmer notes that the applicant had a “slight reduction in range of motion”. He assesses a right upper extremity impairment of 5% on the basis of reduced range of motion of flexion, extension, abduction and internal rotation, which converted to 3% whole person impairment.
Dr Rimmer finds that the applicant has “an incapacity resulting from the claimed injury”, which is partial. As a result of the workplace injury and three right shoulder surgeries the applicant is to avoid repetitive heavy work and above shoulder level activities.
Dr Rimmer considers exercise physiology should cease in place of a home-based exercise program.
On 29 October 2024, the applicant’s treating general practitioner, Dr Thomas Lu sent a referral letter to Dr Sushil Pant for an opinion and management of the applicant’s shoulder. He notes that there is “presence of a tuberosity and this appears to be impacting on her range of movement”.
On 5 November 2024, Dr Hazan provides an MRI right shoulder report. It records clinical details of three previous surgeries, possible tuberosity causing range of movement dysfunction, report of decreased range of movement, “not able to reach up” and symptoms at the site of rotator cuff surgery. He notes prior MRI imaging of 18 February 2021. The findings are recorded as follows:
“There is extensive paramagnetic artefact in relation to prior surgery at the greater tuberosity of the humerus.
The subscapularis tendon is well visualised for most of its course, apart from its superior aspect, and delineates normally. The infraspinatus tendon is partially visualised and unremarkable. Wide bandwidth imaging did not completely overcome the artefact associated with the metal. There is thinning of the supraspinatus component of the rotator cuff. This is very similar in appearance to the previous study of 18/02/2021. There does not appear to be a significant amount of fluid within the subacromial bursa.
There appears to have been a prior acromioplasty. There is no bony impingement upon the supraspinatus outlet. The AC joint demonstrates capsular hypertrophy.”
The report provides a conclusion that there is “[n]o significant change in appearance when compared to the previous examination. Attenuated thinned superior rotator cuff, for further clinical correlation.”
Relevantly, the previous MRI of the right shoulder on 18 February 2021, records findings of:
“[s]uboptimal study due to hardware artefact from the greater tuberosity surgical screw. Within these limits, no focal bony lesion is identified. There is no evidence of a bony exostosis. The glenohumeral joint is preserved. The rotator cuff and biceps are intact. Mild subacromial bursitis.”
On 5 November 2024, the applicant attended on Dr Lu. Dr Lu records that the applicant sought a second opinion for right shoulder greater tuberosity and that the MRI showed rotator cuff was slightly thinner which he thought was due to “disuse”.
On 6 November 2024, Dr Pant provides a report. It is relevant to note that Dr Pant is an orthopedic shoulder surgeon, specialising in shoulder stabilisation, rotator cuff repair, Latarjet procedure, shoulder joint replacement, and shoulder and clavicle fracture surgery.
In his report of 6 November 2024, Dr Pant provides a diagnosis of right shoulder pain on the background of previous rotator cuff surgeries with ongoing symptoms in AC joint, biceps and interval. He adds a possible re-tear. He records that the plan is consideration of revision right shoulder surgery.
Dr Pant notes the recent imaging, the applicant’s American Shoulder and Elbow (ASE) Score of 53.3 and Subjective Shoulder Value (SSV) of about 40%. He further notes his findings on examination of forward elevation of 125° and external rotation of 45°. The AC joint was tender accounting for 20% of the pain, with symptoms in the posterior part of the joint. There was pain within the biceps groove and interval accounting for 40% of pain. She also had weakness on superior cuff loading.
Dr Pant comments on the MRI and X-ray taken in November 2024. He notes that the findings demonstrate:
“…metallic anchors within the tuberosity and one more distal perhaps near the lateral cortex. The MRI demonstrates significant metal artefact but reasonably preserved anterior and posterior cuff. There appears to have been a rotator cuff repair with possible re-tear of the superior cuff. There are also changes around the biceps.
Most of [the applicant’s] symptoms are driven by the AC joint, rotator interval and biceps…It seems as though the biceps tendon may not have been addressed [and sought the operation reports].”
Also, on 6 November 2024, Dr Pant provides a letter to the respondent’s insurer seeking approval for surgery in the nature of “Right Shoulder Arthroscopy + Subacromial Decompression + Acromioplasty + Biceps Tenodesis + Supraspinatus/Infraspinatus Debridement + Capsular Release + Acromioclavicular Joint Decompression + Distal Clavicle Excision (Revision Procedure)”. Dr Pant provides a quote for the cost of the surgery to total $11,135, with itemisation of the specific procedures.
The letter header, amongst other things, includes a reference to “Sydney Shoulder Unit Legal Team: Littles”. In the body of the letter it notes that the Sydney Unit legal team (Littles Lawyers, Head of NSW Claims) will “handle all issues regarding contested item numbers and non-payment”. It also notes that payment is to be made “in full” within 14 days of invoice and delays are likely to incur additional fees. It concludes by inviting the reader to contact the “Sydney Shoulder Unit head office” for any questions.
On 12 November 2024, 3 December 2024, 10 December 2024, 13 December 2024, Dr Lu records the applicant’s attendance for treatment regarding ongoing shoulder pain, workers compensation review and proposed surgery. On 24 December 2024, Dr Lu records that the applicant’s shoulder is “going okay at this moment”.
On 20 November 2024, Dr Pant provides a report noting that he had discussed the issues with the right shoulder and need for surgery with the applicant.
On 28 November 2024, Dr Pant provides a further report in response to Dr Rimmer’s report. Dr Pant states that the applicant continues to exhibit progressive symptoms, including pain, reduced range of motion, and significant limitations in daily activities (presumably in relation to the right shoulder). He states that these symptoms are “supported by clinical findings and imaging reports, which show ongoing pathology that requires surgical intervention.”
Dr Pant states that the applicant’s:
“current clinical and imaging findings, including an [American Shoulder and Elbow Score] score of 53.3 and Subjective Shoulder Value of 40%, indicate substantial functional impairment that can be significantly improved through surgical intervention. Persistent pain in her AC joint and rotator interval, alongside weakness on superior cuff loading, shows that her condition is far from stable or resolved.”
He states that the revision surgery is not only “[w]arranted but essential” for the applicant’s recovery and ability to regain function in her right shoulder. He adds that the applicant’s ongoing symptoms “driven primarily by the AC joint, rotator interval, and biceps pathology – are consistent with her clinical findings and imaging results.” He notes that conservative management, in the nature of exercise physiology and home-based programs, has failed to provide significant relief. He further adds that without surgical intervention the applicant “faces the risk of further degeneration, chronic pain, and permanent loss of function.”

Dr Pant provides an analysis of the issues in specific regions of the right shoulder:
“AC Joint Pain: Tenderness and degenerative changes in the AC joint account for approximately 20% of her pain. Decompression of the AC joint is necessary to address this ongoing source of discomfort and dysfunction.
Rotator Interval and Biceps Pathology: [The applicant] experiences significant pain (40%) in the biceps groove and interval. These symptoms are likely related to unresolved biceps tendinitis and potential scarring or adhesions in the interval. A biceps tenodesis and interval debridement are critical to alleviate these symptoms.
Rotator Cuff Re-Tear: Imaging suggests a possible re-tear of the superior cuff. Repairing this damage is essential for restoring shoulder stability and improving strength and range of motion.”
Dr Pant states that surgical correction aims to restore the applicant’s pain, improve her range of motion, and allow her to return to her occupational and daily activities. He refers to her symptoms:
“Pain: Persistent pain localised in the AC joint (20%), biceps groove, and rotator interval (40%). Night pain significantly disrupts her sleep, which further affects her overall well-being and recovery.
Reduced Range of Motion: Forward elevation is limited to 125 degrees, with external rotation to 45 degrees and internal rotation only to the sacrum. These limitations impact her ability to perform overhead tasks, lift objects, or engage in normal physical activities.
Weakness: Notable weakness during superior cuff loading tests compromises her ability to carry out tasks that require shoulder strength or stability.
Functional impairments: [The applicant] struggles with activities of daily living, as evidenced by her low [American Shoulder and Elbow Score] and Subjective Shoulder Value. Tasks such as putting on a coat, reaching high shelves, and lifting weights above shoulder level are significantly impaired.
These symptoms are consistent with her clinical findings and imaging results, emphasising the necessity of surgical intervention. The continuation of these issues highlights the failure of conservative management and the urgent need for revision surgery.”
Dr Pant states that Dr Rimmer’s conclusion that the applicant has no ongoing pain symptoms and only residual stiffness is inconsistent with the objective findings from the clinical assessments and imaging studies. He then notes that Dr Rimmer’s conclusion fails to account for:
“The MRI findings of metallic anchors, a potential rotator cuff re-tear, and significant changes around the biceps and AC joint.
The patient’s reported symptoms and functional limitation, as documented in her [American Shoulder and Elbow Score] and Subjective Shoulder Value.
The need for surgical intervention to address unresolved issues from her previous surgeries, which are directly contributing to her pain and disability.”
Dr Pant provides an opinion of post-operative treatment needed over a 12-week period which he considered critical to the applicant’s recovery and return to work post-surgery.
Dr Pant explains that the applicant’s clinical condition and imaging findings strongly support the need for revision shoulder surgery. He states that the proposed surgery is medically justified and necessary to restore the applicant’s functional capacity and quality of life. He adds that any delay risks further deterioration and prolonged disability, and the applicant’s right to effective treatment and recovery.
On 9 December 2024, Dr Rimmer provides a further report without a further examination. Dr Rimmer highlights that at the time of the applicant’s assessment in October 2024 he noted, with respect to the right shoulder:
“1. She had no pain, confirmed by the fact she was not taking any forms of oral analgesics or anti-inflammatories.
2. She had a near normal examination of her right shoulder.
3. She already had had three surgical procedures to her right shoulder.
4. If not for another work-related claim ? stress-related, Mr Harper had been approved to work 35 hours a week regarding her right shoulder, indicating for the main part she had made a complete recovery.
Therefore, I am at a loss why she sought a further opinion when, in my opinion, this was not warranted.”
Dr Rimmer comments on the 2024 MRI scan noting that he had the benefit of the report and viewing of the images online. He states that the scan “shows the previous rotator cuff repair is intact. There is no surgical pathology at all.” He does not agree with Dr Pant’s diagnosis and again states that there “is no surgical pathology present as confirmed by her MRI imaging.” He adds that the recommendation for surgery is “not reasonable or necessary for the reasons [he had] highlighted above” in his report. He further adds that the applicant does not require any alternative treatment and that at the time of her assessment she had basically “made a complete recovery.” This he states was on the basis the applicant was “previously cleared to work her normal 35 hour week” but had remained off work due to a work-related stress matter.
On 28 January 2025, Dr James Bodel, orthopedic surgeon qualified by the applicant, provides a report. Dr Bodel provides a history of the injury and treatment undertaken. He states that overall “the surgical procedures were of temporary benefit only and then [the applicant] deteriorated needing the second and the third surgery.” He notes that the applicant sought a second opinion by Dr Pant who offered a further surgical procedure. He adds that the applicant has “not been given a guarantee of a better outcome. She is aware that she has had three unsuccessful surgeries but she is keen to proceed”. He notes that the applicant has given the proposed procedure “great thought” and has a “different medical view of the situation” to Dr Rimmer. He further adds:
“In a medical sense, the claimant and her treating doctor, Dr Pant, have made a determination about required treatment. She is keen to proceed although she is aware that there is no guarantee that she will get any better and the insurer will not fund it. The medical decision has been made between the patient and Dr Pant, and she wants to proceed.”
Dr Bodel records the applicant’s current complaints include “[p]ain and stiffness in the region of the right shoulder.” In particular, he notes this is “most restricted in forward flexion movement and abduction where there is a significant painful arc of movement.” He also notes that the applicant will wake from sleep if she rolls onto her shoulder. He also adds that the applicant cannot “push, pull or lift or use the arms overhead.” He records that the applicant uses Panadol Osteo and also Tramadol (rarely), is undertaking home-based exercise, and under the care of an exercise physiologist.
Dr Bodel records his findings on examination of the right shoulder:
“There is tenderness over the rotator cuff anterior in the front of the right shoulder. There is generalised wasting in the shoulder girdle and there are the multiple scars from the various surgical procedures performed under Professor Murrell on that right shoulder. The range of movement is as follows:

Shoulder Movement

Active ROM Measured RIGHT

Active ROM Measured LEFT

NORMAL ROM

Flexion

120°

180°

180°

Extension

30°

50°

50°

Adduction

10°

50°

50°

Abduction

90°

180°

180°

Internal rotation

60°

90°

90°

External rotation

60°

90°

90°

Dr Bodel adds that there is “impingement in the right shoulder but no instability”.
Dr Bodel notes that there were no X-rays or other tests available for review.
Dr Bodel also notes the detailed report of Dr Pant recommending surgery. Dr Bodel states that the applicant and Dr Pant “have come to a medical determination of appropriate treatment” and the applicant is “keen to proceed”.
Dr Bodel provides a diagnosis of rotator cuff injury to the right shoulder. He notes ongoing disability of pain and stiffness, loss of function in the right shoulder despite surgical intervention.
Dr Bodel states that the treatment proposed by Dr Pant is reasonably necessary for the “reasons outlined above” but does not provide any further detail regarding those reasons. Dr Bodel then states that the proposed surgery is reasonably necessary because it is injury related and appropriate for further management. He states that Dr Pant has not given the applicant a guarantee that it will make her better but the applicant “cannot stand the current level of loss of function, and she is keen to proceed with the further alternative accepting that the resolution of symptoms may not be possible.” He adds that the applicant has made a determination on medical advice and that this is appropriate. He further adds that it will hopefully be “cost effective to take her to a better space”. He states that the surgery is acceptable practice in the medical profession. He later states that the applicant’s prognosis is uncertain but hopefully she will improve, but there is a chance that she “probably will not”.
On 10 June 2025, Dr Rimmer provides a further report. He refers to Dr Bodel’s report. He notes Dr Bodel’s comment that the applicant took “Panadol Osteo and Tramadol rarely” was in “marked contrast” to the history the applicant provided to him that she did not require any pain medication. Dr Rimmer also states that Dr Bodel’s findings on examination of range of motion of the applicant’s right shoulder were in “marked contrast” to his findings on examination of “[n]ear full pain-free range of motion”.
Dr Rimmer states that in view of his findings on examination and history recorded, in conjunction with the fact that the applicant had been “cleared for 35 hours a week for her right shoulder, the need for surgery is totally inappropriate, i.e., unnecessary.” He adds that the latest MRI scan confirmed “no surgical pathology present warranting surgical intervention”. Dr Rimmer then responds to a series of questions raised by the respondent and notes the applicant has been cleared from a physical perspective for pre-injury duties and does not require surgery.
On 11 July 2025, Dr Pant provides a further report. In response to a series of questions, Dr Pant provides a further detailed explanation for the reasonable necessity of the proposed surgery having regard to the factors set out in Diab v NRMA Limited (Diab).[1]
[1] [2014] NSWWCPD 72.
In respect of the appropriateness of the proposed treatment, Dr Pant states that it is clinically appropriate and tailored to address the specific pathoanatomical abnormalities causing pain and dysfunction. He states that the “constellation of symptoms (night pain, overhead limitations, weakness) correlates directly with MRI and examination findings, including suspected cuff re-tear, biceps pathology, and symptomatic AC joint arthropathy.” He adds that revision rotator cuff surgeries yield demonstrable benefits where primary procedures have failed due to mechanical causes. He later adds that surgery is appropriate as it targets the mechanical and structural issues driving pain and dysfunction, including biceps pathology, AC joint degeneration, and suspected cuff failure. It is designed to reduce pain, improve range of motion and enable the applicant to return to work and normal daily activities. He adds that it is supported by functional scores (ASES 53.3, SSV 40%) and objective findings (MRI evidence, pain localisation).
Dr Pant also states that the proposed surgery targets each identifiable issue:
·AC joint resection for arthropathy and capsular hypertrophy;
·biceps tenodesis for unresolved tendonitis, and
·interval and cuff debridement for functional impingement and weakness.
Dr Pant also comments on Dr Rimmer’s opinion that the MRI showed no surgical pathology. Dr Pant states that this opinion misinterprets the MRI. Dr Pant records:
“Despite artefact, the scan confirms
·Metallic anchors in place (and possibly misplaced)
·AC joint capsular hypertrophy
·Thinning and suspected re-tear of the supraspinatus
·Biceps and rotator interval changes”
Dr Pant states that these findings, when correlated with the applicant’s symptoms of pain at the AC joint and interval, weakness, and night pain, clearly constitutes surgical pathology. He adds that Dr Rimmer does not acknowledge these indicators.
In respect of the availability of alternative treatment, Dr Pant states that the applicant has fully exhausted conservative therapy over a protracted period of years and that there is “now demonstrable clinical failure of non-operative management.” He adds that “[n]o viable non-surgical alternatives remain that are likely to produce a lasting improvement”.
In respect of potential effectiveness, Dr Pant states the revision surgery is reasonably likely to yield functional gains. He explains no surgical outcome is guaranteed. He adds that literature and clinical experience show patients with mechanical sources of pain such as “anchor migration, biceps pathology, AC joint degeneration” often benefit from revision intervention. He adds that the applicant has a defined pathology, with a symptom profile of “20% of pain from the AC joint and 40% from biceps/interval directly matches treatable targets”.
In respect of the cost of the treatment, Dr Pant states that the proposed surgery is cost-effective when viewed against the alternative of “long-term disability, prolonged medication use, repeated imaging, and loss of work participation.”
In respect of acceptance of this treatment by medical experts, Dr Pant states that the treatment is within the bounds of accepted orthopaedic practice for revision rotator cuff pathology.
In evidence are a series of Certificates of Capacity. From 18 June 2024, the applicant is recorded to have limited capacity for seven hours/day, four days/week with physical restrictions of lifting/carrying/pushing/pulling ability of 5kg, driving ability of less than 30 minutes, nil restrictions in sitting/standing/bending/twisting/squatting. The hours of capacity slightly increase over time to 32 hours per week from August 2024 until July 2025 but the restrictions remain the same, with respect to the physical injuries.

SUBMISSIONS

The applicant and respondent provided extensive oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant submits that the difficulties she experienced post the three surgical procedures is unchallenged. In this regard, the applicant notes the difficulties in the wake of the third surgery include ongoing pain, discomfort, reduced range of motion, stiffness, a clicking/catching sensation, weakness and difficulty lifting, pushing, pulling and reaching overhead. The applicant submits that she struggles with everyday tasks and that her sleep is disrupted by the pain in her shoulder. The applicant further submits that these symptoms are a proper foundation on which she might seek medical treatment that would give her relief, and that she is entitled to relief.
The applicant submits that Dr Rimmer’s opinion is based on a misconceived belief that the applicant has achieved a complete recovery and she is fit for pre-injury duties. Even if the applicant were fit for pre-injury duties, that would not preclude her from a right to medical treatment. All the applicant needs to establish is relief from symptoms such as ongoing pain, discomfort, reduced range of motion and a range of functional problems which affect her in her activities of daily living. The applicant also submits that Dr Rimmer’s comment that there is no pain and she has recovered is inconsistent with her statement evidence, examination of Dr Pant on 6 November 2024, and his own examination in October 2024.
The applicant refers to Dr Pant’s evidence. The applicant refers to the letterhead of Dr Pant in his letter of 6 November 2024 to Dr Lu. The applicant notes that Dr Pant’s area of professional specialisation is in treatment of shoulder conditions. The applicant refers to the history recorded by Dr Pant and his observations on examination, which the applicant submits he makes with the benefit of his specialisation. Dr Pant undertook a comprehensive examination in which he established symptoms of tenderness and pain, with an assessment of the proportions to which the applicant’s various difficulties are contributing to her pain. Dr Pant also provides a comprehensive examination of the radiology, and then provides conclusions that the applicant’s symptoms are driven by the AC joint, rotator interval and biceps.
The applicant submits that Dr Pant is the only shoulder surgeon who has given evidence regarding the applicant’s current condition, as distinct from Professor Murrell’s previous treatment and when compared to Dr Rimmer who specialisation focuses on the hips and knees. The applicant submits that she is not aware of Dr Bodel’s area of speciality.
The applicant refers to the reduced range of motion findings on examination between Dr Rimmer and Dr Bodel. The applicant submits that even on Dr Rimmer’s assessment there is a significant reduction in the range of motion which would indicate that the applicant has a relatively limited and deficient range of motion in her right shoulder as compared to the left, and as compared to what would be expected in a normal shoulder.
The applicant submits that Dr Rimmer does not explain how the applicant has reached maximum medical improvement and why there is no prospect of treatment which would restore full range of motion or even a better range of motion.
The applicant also refers to Dr Rimmer’s comments of her physical restrictions which he says is related to the workplace injury. He states that the applicant is partially incapacitated, which the applicant submits confirms there has been no recovery and the shoulder has not healed.
The applicant refers to her certificates of capacity, which provide a capacity for eight hours per day, four days per week with several functional deficits. In this regard, the applicant submits that Dr Rimmer’s reference to the applicant having made a complete recovery is inconsistent with his earlier report and the certification of the general practitioner.
The applicant submits that Dr Rimmer’s responses are brief and do not engage in any substantive manner with Dr Pant’s analysis. At best, Dr Rimmer maintains that the rotator cuff repair is intact and that there is no surgical pathology but it is unclear what he means by that phrase. There is no proper analysis of the real problems identified by Dr Pant.
The applicant contends that her application has been opposed on the basis of Dr Rimmer who has demonstrated a misunderstanding of the facts, who has sought to change his opinion from that provided in October 2024, prior to the request for surgery, to post that request. Dr Rimmer has not had regard to the matters which the proposed surgery is designed to address, namely, AC joint pain, biceps pathology and a rotator cuff re-tear. Further, he does not address the risk the applicant might be exposed to, as noted by Dr Pant, of further degeneration, chronic pain and loss of function, if the surgery is not undertaken.
The applicant contends that the Commission should accept the evidence of the applicant, Dr Bodel and Dr Pant regarding ongoing disabilities of pain and stiffness and loss of function in the right shoulder. The applicant concedes that Dr Bodel cannot provide any assurance that the surgery will take her to a better space but there are prospects, and the applicant is entitled to the prospect of being taken to a better place.
The applicant refers to Dr Pant’s observations. Dr Pant says the applicant’s current clinical and imaging findings, including ASE score and SSV, indicates substantial impairment that can be significantly improved through surgical intervention. He also notes findings and pain in respect of the AC joint, rotator cuff and biceps. That analysis, findings and relevant score is not challenged; and Dr Rimmer provides no basis to reject what Dr Pant observed.

The applicant notes that the question of a re-tear does not address all of the aspects of shoulder pathology which Dr Pant addresses. Dr Pant says that the surgical correction aims to reduce the applicant’s pain and improve her range of motion, and allow her to return to her occupational and daily activities. The need for the shoulder intervention is also to address unresolved issues from previous surgeries which directly contribute to the applicant’s pain and disability. The applicant submits that she does not have full physical function for the purpose of her occupational duties and daily activities.
Dr Bodel provides range of motion studies confirming significant shortfalls on the right shoulder. He also confirms that the proposed surgery is accepted practice.

Respondent’s submissions

The respondent notes the applicant underwent three surgical procedures by Professor Murrell and now seeks to undergo a fourth procedure by a new surgeon, Dr Pant.
The respondent submits that Dr Rimmer is SIRA approved to assess whole person impairment in relation to the upper limbs, in response to the applicant’s comment about weight to be attached to Dr Rimmer’s evidence as distinct from Dr Pant.
The respondent refers to Dr Pant’s evidence. The respondent submits that there is a significant discrepancy between what Dr Pant says is on the radiology and what is recorded on the radiology report, and Dr Rimmer’s opinion of the radiology. The respondent submits that other than oblique reference to “re-tearing” in the applicant’s submissions, there has been no engagement with the radiology. That is, what does the radiology show and how is it permissible for Dr Pant to draw conclusions that are not readily apparent on the radiology.
The respondent refers to Dr Pant’s findings that the imaging suggests a possible re-tear of the superior cuff, and that repairing this damage is essential for restoring shoulder stability and improving strength and range of motion. The respondent submits that Dr Pant’s findings that the constellation of symptoms, being night pain, overhead limitations, weakness, is what causes the need for surgery and that this correlates directly with the MRI and examination findings. The respondent concedes that Dr Pant is entitled to make findings on examination. Dr Pant says that his findings correlate with suspected cuff re-tear, biceps pathology and symptomatic AC joint arthropathy. The respondent then submits that Dr Pant’s findings are premised on the mechanical sources of pain, which are structural issues such as anchor migration, biceps pathology and AC joint degeneration. The respondent submits that these mechanical and structural issues “are not apparent on the MRI reports”. The respondent submits that Dr Pant’s conclusion is not available on review of the evidence together.
Dr Pant misinterprets the MRI. He states it confirms metallic anchors in place and possibly misplaced, but this is not reported on the MRI. The respondent concedes that the MRI refers to paramagnetic artefacts but that is in relation to the MRI itself, not organic findings.
The respondent refers to the itemised quote for surgery, including descriptions of the surgical procedures one of which is a repair of the rotator cuff. The respondent submits that there “is some thinning of the supraspinatus component of the rotator cuff” but the radiology does not suggest rotator cuff tear.
The respondent submits that Dr Pant needs to explain why the assertions he makes as to his findings on the imaging is not reflected in the imaging. The respondent submits that Dr Pant does not say that the MRIs of 2021 and 2024 fail to have regard to the findings that he made and this is important.
The respondent then notes each of the other “independent” procedures itemised, but submits Dr Pant does not explain these procedures and this is not commensurate with what is on the radiology. It is an outlier, and not dealt with by Dr Rimmer, Professor Murell or Dr Bodel.
The respondent submits that caution must be given to accepting Dr Pant’s opinion, and refers to his report of 6 November 2024 that records he is part of “some Sydney Shoulder Unit Legal Team from Littles Lawyers”.
The respondent contends that the opinion of Dr Rimmer should be accepted, as consistent with the radiology. The respondent also submits that Professor Murrell’s opinion should be accepted, having undertaken three previous surgeries on the applicant.
The respondent concedes that Dr Bodel’s opinion provides support for Dr Pant’s opinion but no weight or little weight should be attached to it. His opinion involves superficial and muted explanation for his conclusions. He provides a subjective conclusion that there has been a deterioration in the applicant’s condition, requiring further surgery. The respondent contends that Dr Bodel is “abrogating [his] role as an IME and [he is] passing it back to Dr Pant and the applicant.” The respondent submits that Dr Bodel does not say anything about a “repair” or a “rotator cuff” at all in his report, other than noting by historical explanation that the diagnosis is of a rotator cuff injury to the right shoulder but nothing is said about a re-tear. The respondent adds that Dr Bodel does not have access to the investigations, noting there were no X-rays or other tests available. The respondent concedes that Dr Bodel provides some reasons for the reasonable necessity of the proposed surgery but it only provides a bare necessity in terms of what is required and there is “no explanation or reasoning”.
The respondent refers to Professor Murrell’s evidence. The respondent refers to his reports noting the applicant’s symptoms, that the ultrasounds show the repair is healing nicely, good range of motion and some mechanical impingements.
The respondent refers to Dr Rimmer’s evidence, where he notes that the applicant was approximately 15 months post-surgery and she said she was “going good”. The respondent concedes that Dr Rimmer considers the applicant has a permanent impairment, slight reduction in range of motion, and should undertake a home based exercise program. He reviews the imaging online and notes the findings. The respondent submits that Dr Rimmer, having reviewed the imaging online, found that there was no surgical pathology present. The respondent submits that his report is “even[ly] balanced”. It is consistent with Professor Murrell’s reports that the applicant was making steady progress.
Dr Rimmer in his supplementary report notes that the applicant said she was “going good”, which means “no pain, no requirement of oral medication”. This, the respondent submits, is in stark contrast to history recorded in Dr Bodel’s report which notes Panadol, Osteo and Tramadol (latter, rarely) use. He notes that there is “near full pain free range of motion”. He concludes that the need for surgery is totally inappropriate.
The respondent submits the crux of the matter really falls to whether the Commission should accept Dr Pant’s evidence about the findings of the radiology or Dr Rimmer’s evidence which is the reporting of the MRI scans which show no pathology. The respondent submits that Dr Rimmer’s comment that there is no surgical pathology means there “is no pathology that warrants surgery”; there is “just no real tear.”
The respondent then refers to the MRI report of 2024, which notes there is no significant change in appearance when compared to the previous examination. The respondent then refers to the 2021 MRI report, which it concedes precedes the last surgery on the right shoulder. The respondent then refers to the 2024 MRI report in detail. The respondent submits that Dr Pant finds a potential rotator-cuff re-tear, significant changes around the biceps and AC joint metallic anchors, AC joint arthropathy. Dr Rimmer accepts that there might be some mild AC issues but the respondent submits that the question is whether the proposed surgery is reasonably necessary.
Professor Murrell says there is improvement after the third surgery and there is minimal objective abnormality on the basis of his reports. The respondent submits that he does not support surgery, but later concedes he does not state this in his reports.
Dr Bodel is reliant on subjective complaints rather than identifying specific pathology on imaging, and does not refer to the imaging.
Dr Rimmer’s findings is that the rotator cuff repair is intact, which is consistent with Professor Murrell. There is no pathology that warrants surgical intervention. There are clinical findings of no pain, no analgesics or anti-inflammatories, and a near normal examination. He considers that his findings on examination and the MRI shows no surgical pathology and he does not support surgery.
Dr Pant recommends complex surgery, which is not consistent with the MRI findings.
Dr Lu in November 2024 notes MRI shows rotator cuff slightly thinner due to disuse, but nothing in relation to re-tears.

Applicant’s submissions in reply

The applicant submits that Dr Pant provides a specialist opinion as a shoulder surgeon, having examined the MRI, and made findings that the pathology includes a possible tear. The applicant submits that it would be inappropriate to treat the 2024 MRI report of Dr Hazan as the sole record of that MRI. Dr Hazan has interpreted the MRI, as has Dr Rimmer and Dr Pant. Dr Pant’s opinion is one that should be accepted.
The applicant concedes that Dr Bodel did not have access to the imaging but he notes her current complaints and findings on range of motion which contribute to the need for surgery. There was a notable discrepancy between left and right shoulders in range of motion, together with ongoing disabilities of pain and stiffness and loss of function.
The applicant submits that even Professor Murrell acknowledged after the third surgery that the applicant had some mechanical impingement and physical restrictions. There had been no resolution of her shoulder condition, and there is evidence of continuing pain.
The applicant submits that Dr Pant in his July 2025 report explains the reason for the surgery is to target mechanical and structural issues driving pain and dysfunction. The surgery is designed to address biceps pathology, AC joint degeneration and suspected rotator cuff failure. The applicant submits that there may be a debate about the nature of the AC joint problems but the MRI reports that there is attenuated thinning of the superior rotator cuff for further clinical correlation. The applicant contends that the correlation is undertaken by the treating surgeon. Dr Hazan offered an impression of the imaging. Dr Pant provides a clinical evaluation of the applicant and an examination of the MRI. Dr Rimmer does not say the surgery will not reduce pain, or improve range of motion, which Dr Pant says the surgery will provide. Dr Rimmer has not addressed the nature of the surgery and indicated what the surgery involves and why it cannot relieve the applicant of her deficiencies in range of motion and ongoing pain. Dr Rimmer also proceeds on the basis that the applicant has fully recovered and fit for pre-injury duties, but this is incorrect.
Dr Pant reviews the MRI and finds that despite artefact, the scan confirms metallic anchors in place and possibly misplaced, AC joint capsular arthropathy, thinning and suspected re-tear of the supraspinatus. The thinning is not in dispute and an arthroscopy will definitively confirm whether there is a re-tear. There is also biceps and interval changes. The respondent has sought to focus on the re-tear, but the pathology is far broader than merely this question of whether or not there is a tear. Dr Pant’s findings, when correlated with the applicant’s symptoms which are not disputed, constitute surgical pathology.

Clinical correlation

After submissions in reply, the parties, with leave, further addressed the issue concerning clinical correlation. The applicant restated her position regarding the reference to further clinical correlation in the 2024 MRI report. The applicant submitted that there is a preliminary opinion which Dr Hazan has offered and then he suggests that it is for the treating surgeon to consider the imaging and clinical condition of the applicant on examination to contribute to provide a more comprehensive conclusion.
In response, the respondent submits that Dr Pant refers to the thinning of the superior rotator cuff. The respondent submits that he calls this “on the one hand, suspected cuff failure” and also “thinning and suspected re-tear of the supraspinatus” (which the respondent suggests is a reference to the supraspinatus component of the rotator cuff which Dr Hazan says in MRI report as the thinning of the supraspinatus). Dr Pant finds a possible re-tear of the supraspinatus and also suspected rotator cuff failure, without explanation as to how the rotator cuff “has failed”.
The respondent also states that the applicant in her statement does not refute what Dr Rimmer says of there being no pain and analgesics or the history provided to him.

FINDINGS AND REASONS

Relevant law

The applicant bears the onus of proof, to establish her case under s 60 of the 1987 Act, on the balance of probabilities.[2] Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the proposed surgery “results from” the accepted injury, and, secondly, whether the proposed surgery is “reasonably necessary”. These are questions which involve matters of impression and degree, having regard to the available evidence.[3]
[2] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Diab v NRMA Ltd [2014] NSWWCCPD 72.
The first question does not require determination. That is because the respondent properly concedes that the proposed surgery is “as a result of” the accepted right shoulder injury. The only question that requires determination is whether the proposed surgery and ancillary expenses are “reasonably necessary”.
In Diab, Deputy President Roche considered the application of s 60 of the 1987 Act and the phrase “reasonably necessary”. Deputy President Roche stated:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”[4] (footnotes omitted)
[4] Diab v NRMA Limited [2014] NSWWCPD 72, [86].
Deputy President Roche then considered the criteria of reasonableness:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[5] (footnotes and citations omitted)
[5] Diab v NRMA Limited [2014] NSWWCPD 72, [88]-[90].

Discussion

The only dispute, as agreed between the parties, is whether the proposed surgery by Dr Pant and ancillary expenses are reasonably necessary. It is not disputed that the proposed surgery is as a result of the accepted injury to the right shoulder on 11 November 2019.
The applicant underwent three necessary surgical procedures due to the accepted right shoulder injury and complications arising from the surgeries undertaken. This is not disputed. The applicant now seeks to undertake a fourth surgical procedure, at the hand of a new treating surgeon, to address ongoing symptoms in her shoulder arising from the accepted injury and surgical procedures.
The applicant and respondent provided detailed submissions, with extensive regard to (and reproduction in-part of) the content of the medical evidence. I have considered those submissions carefully, together with the medical evidence which I have extracted at length above. Much of the submissions of the parties focussed on a contest between the evidence of Dr Pant and Dr Rimmer, together with the findings made in the 2024 MRI report. I will address this further below.

Symptoms

I accept the applicant’s submissions that she has ongoing symptoms of pain, functional and mechanical impairment of her right shoulder. In this regard, I note the following evidence:
(a)    Applicant – the applicant, in her statement evidence, explains that her pain did not resolve with conservative treatment. She states that she experiences pain, discomfort, reduced range of motion, stiffness, a clicking/catching sensation, weakness and has several physical restrictions in respect of her right shoulder.
(b)    Professor Murrell – the applicant’s former treating surgeon, in July 2023, after the third surgery, notes restricted range of motion and mild clicking. By October 2023, he notes stiffness and some clicking and catching sensations, together with some restrictions in range of motion, in the right shoulder. By February 2024, he notes that the applicant is making good progress and her stiffness is resolving. He also notes good range of motion and elastography numbers, but there are physical restrictions in lifting. By June 2024, and in his last report in evidence, Professor Murrell records the applicant is making a steady progress but notes a good (but not full) range of motion and some mechanical impingement.
(c) Dr Rimmer – the respondent’s qualified independent medical expert, in October 2024, records that the applicant considered her outcome after the third surgery as “going good.” He does not exclude the existence of pain, but says there is “[e]ssentially no pain” and that there is residual stiffness. He records his findings on examination of range of motion which are reproduced at [36] above, which show a reduction in the range compared to a normal shoulder which he considers only “slight”. Dr Rimmer’s further report of December 2024 and June 2025 provides no further insight into the applicant’s symptoms, apart from noting in the latter report that his findings on examination (which took place in October the previous year) of a near full pain-free range of motion and nil pain relief were in marked contrast to the findings made by Dr Bodel.
(d)    Dr Pant – the applicant’s treating shoulder surgeon, from November 2024 records right shoulder pain and progressive symptoms in reduced range of motion and significant limitations in daily living and functional impairment. This included pain in the AC joint and rotator interval, weakness on superior cuff loading and biceps pathology. In July 2025, Dr Pant confirms the applicant’s symptoms of night pain, overhead limitations and weakness of the right shoulder.
(e)    Dr Lu – the applicant’s treating general practitioner, between November and December 2024 on four occasions notes ongoing shoulder pain (presumably in relation to the right shoulder) but in late December 2024 notes it is “going okay at this moment.” He also provides a series of Certificates of Capacity from 18 June 2024 until July 2025 which consistently record physical limitations and restrictions in respect of lifting/carrying/pushing/pulling in relation to the right shoulder.
(f)    Dr Bodel, the applicant’s qualified independent medical expert, in January 2025, records that the applicant reports pain and stiffness in the right shoulder. He notes restrictions on range of motion in the right shoulder when compared to the left shoulder (and when compared to a normal shoulder) and physical limitations in use of the arms. He records his findings on range of motion of the right shoulder which demonstrate measurements well below the norm. He also notes impingement in the right shoulder but no instability.

There is no real dispute about the applicant’s ongoing symptoms, but there is some variation as to the severity of symptoms including in assessment of the range of motion, level of pain and need for or use of pain medication. Notwithstanding that, the only evidence in direct contradiction to the overall evidence of persisting symptoms is that of Dr Rimmer, who reports the applicant had essentially no pain and was near full pain-free range of motion and used no medication. However, to the extent the respondent relies on this, I do not consider this variation of opinion as suggestive of a resolution of symptoms or a complete recovery. It is inconsistent with the balance of the medical evidence of persistent symptomatology in the right shoulder, which is set out directly above. In any event, range of motion, pain levels and medication use may fluctuate from time to time and this is not indicative of a resolution of symptoms or determinative of the reasonable necessity of surgery.

Specialisation

The parties made submissions in respect of the weight to be attached to the evidence of Dr Pant and Dr Rimmer, on the basis of their respective specialisation and reference to Littles Lawyers in the letterhead of Dr Pant’s evidence.
I accept that Dr Pant is a specialist shoulder surgeon and Dr Rimmer promotes publicly his specialisation in hips and knees. However, I also accept that Dr Rimmer is also a SIRA trained medical assessor in the permanent impairment modules such as the “upper extremity” which includes assessment of the shoulder.[6] On this basis, it is not appropriate that I place more or less weight on the opinion of Dr Pant or Dr Rimmer as both are qualified in their own right to examine and make clinical findings in respect of an injured shoulder.
[6] See sira.nsw.gov.au.
Equally, I do not consider a reference to Littles Lawyers gives me cause to treat Dr Pant’s evidence with any circumspect. The respondent submitted that it did not seek to call into question Dr Pant’s integrity, but the basis of the submission with respect to the reference to Littles Lawyers and Sydney Shoulder Legal Unit remains unclear and unsupported. There is only one document in evidence (of at least five) from Dr Pant that refers to the “Sydney Shoulder Unit Legal Team – Littles” that the respondent refers to in support of this submission, and that is the letter dated 6 November 2024. That document is a letter to the insurer seeking approval for the subject right shoulder surgery. The reference to “Sydney Shoulder Unit Legal Team” and Littles Lawyers appears in the letter-header and also the last paragraph of that document. The latter reference appears in commentary relating to the consequences of failure to pay invoices and any contest regarding item numbers, to be referred to the Sydney Shoulder Unit and that Littles Lawyers handle “all issues”. There is no evidence to suggest that the reference to Littles Lawyers or the Sydney Shoulder Unit Legal Team has any bearing on Dr Pant’s opinion on the reasonable necessity of the proposed surgery or provide any basis for any ill-intended motive. The respondent’s submission on this basis is rejected.

Medical opinions

I prefer Dr Pant’s evidence over Dr Rimmer. Dr Pant’s opinion is supported by Dr Bodel, the contemporaneous evidence of ongoing complaint of symptoms, and the applicant’s statement evidence. I will address this further below.
Dr Pant consistently provides a detailed analysis of the applicant’s clinical history, presenting complaints and symptoms, his findings on examination and recommendations for treatment. Dr Pant provided an objective and comprehensive assessment of the radiology (see [48], [57], [75]), and conducted a thorough examination of the applicant, before drawing a conclusion that the applicant’s symptoms are driven by the AC joint pain, rotator interval and biceps pathology (see [55]-[56], [74]). In this regard, Dr Pant conducted clinical tests including range of motion, ASE assessment of functional limitations and pain (resulting in a score of 53.3) and subjective shoulder value assessment (resulting in an outcome of 40%) (see [54]-[56]). Those tests revealed a reduced range of motion and the cause or origins of pain which Dr Pant considered indicated significant functional impairment that would benefit from surgical intervention. I accept the applicant’s submission that there is no evidence, apart from range of motion studies, to dispute the findings from those tests.
In respect to the range of motion studies, Professor Murrell, Dr Pant, Dr Rimmer and Dr Bodel each assessed the applicant to have a reduced range of motion in the right shoulder albeit at varying degrees. It is not uncommon that these assessments may vary from time to time and from practitioner to practitioner. In this regard, I note Dr Rimmer’s examination of range of motion was undertaken in October 2024 and Dr Bodel’s examination showing a more reduced range of motion (and more aligned to Dr Pant’s examination) was undertaken in January 2025. It is also relevant to note that Professor Murrell did not record the applicant’s range of motion in the right shoulder had returned to normal when he last reported in June 2024.
I do not accept, when reading his evidence as a whole, that Dr Rimmer considered that the applicant had achieved a complete recovery as the applicant sought to suggest. In October 2024, Dr Rimmer conceded that the applicant was partially incapacitated and made an assessment of permanent impairment of 3% in respect of the right shoulder. He does not divert from this opinion and assessment in his subsequent reports. In December 2024, Dr Rimmer suggests that the applicant’s approval to work her normal 35 hours week with respect to her right shoulder indicated “for the main part she had made a complete recovery”. Dr Rimmer does not explain what he means by “for the main part”. However, I do not consider that he formed a view that the applicant’s symptoms or restrictions necessarily resolved. In June 2025, Dr Rimmer provides further context to his opinion. He records that on the basis of his findings, the MRI findings and the fact the applicant had been cleared for 35 hours of work per week in respect of her right shoulder, the proposed surgery is totally inappropriate. It is clear he did not consider the applicant’s condition had resolved or that she had achieved a complete recovery. Rather his view was that despite slight restrictions (and partial incapacity and permanent impairment) in her shoulder the proposed surgery was inappropriate.
However, I accept the applicant’s submission that Dr Rimmer proceeded on a misconceived basis that the applicant had been certified fit for her normal 35 hours of work and that this formed part of his reasoning to dispute the reasonable necessity of the proposed surgery. It is true the applicant was never certified fit to work her pre-injury duties at 35 hours per week, and certainly from June 2024 (and at the time of Dr Rimmer’s examination of the applicant in October 2024) as confirmed by the contemporaneous medical evidence. The Certificates of Capacity demonstrate a partial capacity to work limited hours varying from time to time (of less than 32 hours per week) but with consistent physical restrictions. To the extent that Dr Rimmer relies on this incorrect history in forming his ultimate conclusion his opinion has not been arrived at in a fair climate.[7] Further, as the applicant aptly contends, a certification of fitness for pre-injury duties does not preclude a worker from an entitlement to medical treatment under s 60 of the 1987 Act. However, and contrary to what may have been submitted, while the reasonable necessity of proposed surgery is not dependent on whether it will facilitate a return to work this may be a factor of consideration in the assessment of the likely effectiveness of the proposed treatment. Indeed, an improvement in function or symptoms as a result of surgery often facilitates a return to the workplace whether gradual or otherwise.
[7] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
I also accept the applicant’s submission that Dr Rimmer’s opinion is impacted by a failure to explain why there is no prospect of treatment which would restore (or improve) the applicant's range of motion. It is also affected by his comment that there is no surgical pathology present, which he indicates is confirmed by the MRI imaging, but this comment is undeveloped and provides no (or any adequate) analysis of the imaging or the MRI report. Indeed, he fails to engage in any detail with the symptoms and pathology identified by Dr Pant (that is, AC joint pain, biceps pathology and a possible rotator cuff re-tear) that would give force to his opinion that surgery is “totally inappropriate”. This affects the weight to be attached to his opinion.
I accept the respondent’s submissions that Dr Bodel’s report can only be given limited weight. Dr Bodel provides a history of complaint of pain and symptoms which is consistent with the applicant’s statement evidence and history recorded by Professor Murrell and Dr Pant. His findings on examination, in particular his assessment of the applicant’s range of motion, are useful and confirm a reduced range of motion in the right shoulder. However, Dr Bodel has not had the benefit of reviewing the 2024 MRI report or imaging, for reasons which are unclear. Further, his opinion that the proposed surgery is reasonably necessary is provided without any proper evaluation to identify how he arrives at that opinion. This affects the weight to be attached to his opinion. I accept that his opinion provides little assistance.

Clinical correlation

I do not accept the respondent’s submission that there is a significant discrepancy between what Dr Pant’s says is on the radiology and what is recorded on the radiology report, and, even if this were true, it is not determinative. The respondent’s submission was founded largely on Dr Pant’s findings of a possible “re-tear” of the rotator cuff. It is also on the basis that Dr Pant’s findings of mechanical sources of pain, such as anchor migration, biceps pathology and AC joint degeneration, which the respondent submits are not apparent on the MRI reports. On this basis, the respondent submits, Dr Pant’s conclusion is not available on the evidence.
It is true that Dr Pant finds a possible re-tear (or failure) of the rotator cuff. Whereas Dr Rimmer does not consider that there is a rotator cuff tear and Dr Bodel does not provide an opinion on the possibility of a rotator cuff tear. It is also true that Dr Lu states that the MRI shows rotator cuff slightly thinner due to disuse, but nothing in relation to re-tears. However, this does little to assist to resolve the existence or otherwise of a rotator cuff re-tear.
Professor Murrell comments in October 2023, February 2024 and June 2024 that an ultrasound showed the rotator cuff repair had healed nicely and the applicant was making good progress. This is consistent in-part with Dr Rimmer’s evidence. It is also true that Professor Murrell does not recommend surgery but he also does not say further surgery is not needed. However, he was also of the view the applicant had ongoing symptoms including a reduced (or not full) range motion and impingement of the right shoulder. There is no further evidence from Professor Murrell post June 2024.
It is notable that the 2021 MRI report, which preceded the surgical procedures involving rotator cuff repair undertaken by the applicant at the hand of Professor Murrell in May 2022 and September 2022 (the latter involving a “large” repair), did not note a rotator cuff tear but noted thinning of the supraspinatus component of the rotator cuff. The 2024 MRI report also noted the same findings and specifically that the imaging was “very similar in appearance to” the 2021 MRI.
The 2024 MRI report prepared by Dr Hazan contained his opinion and findings following his interpretation of the imaging. His findings were also qualified by his comment of the need “for further clinical correlation”, in respect of his findings of “[a]ttenuated thinned superior rotator cuff”. As the applicant submits, Dr Hazan provided an opinion and then suggested that those findings be correlated by clinical examination. That is, as the applicant submits, that the treating surgeon consider the imaging and clinical condition of the applicant on examination and provide a more comprehensive conclusion. This is what Dr Pant did.
As the respondent correctly submits, Dr Pant describes a suspected rotator cuff failure and also thinning and suspected re-tear of the supraspinatus component of the rotator cuff. However, contrary to the respondent’s submission, it was not necessary that Dr Pant explain how the rotator cuff failed because he did not find that it failed. In any event, Dr Pant explained why he suspected a rotator cuff re-tear. Reading his report as a whole, his opinion is based on his clinical findings on examination of the applicant, review of the clinical history and the imaging. It was reasonable for Dr Pant to have made this finding based on his clinical judgment, and, as the applicant submits, the proposed arthroscopy will definitively confirm whether there is a tear of the rotator cuff. This reasoning equally applies to Dr Pant’s other findings, including in relation to metallic anchors (possibly misplaced), biceps and AC joint pathology (although, I note that the 2024 MRI specifically notes AC joint pathology).
Medical evidence must be considered as a whole, against lay complaint of symptoms, radiological findings and clinical findings on examination. While objective radiological evidence (or imaging) is important it still requires a subjective analysis by a skilled medical professional in interpreting the imaging, drawing conclusions and making findings. Often those findings need to be reviewed with further radiological investigations and/or clinical correlation, as medical concerns may be overlooked, imaging may be unclear, for example, due to paramagnetic artefact, and/or imaging may be interpreted differently. In this regard, I am mindful of the general need to treat medical records with caution.[8] A skilled medical professional that has the benefit of the entire clinical picture is well placed to form an opinion on radiological images and make any necessary findings, in addition to those found in radiological investigation reports.
[8] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, at [35] (per Mason P).
While I accept that there are aspects of Dr Pant’s findings on examination that may not be specifically recorded in the MRI report, including a possible “re-tear”, this does not mean that his conclusions and interpretation of the imaging is incorrect. The respondent’s submissions seek to minimise the clinical role of a treating specialist and disregard the positive provocation tests and measurement tool outcomes undertaken by Dr Pant, in relation to range of motion, ASES and SSV scores. Dr Pant was not required to explain why he drew a conclusion on the imaging which may be different to that reported in the MRI report (although this is implicit in his findings and commentary on interpretation of the imaging, clinical examination and response to Dr Rimmer’s opinion). However, it was incumbent upon him to explain how he arrived at the conclusion that the surgery proposed was recommended and reasonably necessary. Dr Pant, on review and interpretation of the imaging and against the applicant’s history and his findings on clinical examination, found that there was a possible re-tear of the superior cuff of the rotator cuff, together with biceps and AC joint pathology, requiring right shoulder revision surgery.

Reasonable necessity

Dr Pant provided an itemised quote for four separate procedures. I accept that Dr Pant may not have specifically indicated, using the descriptions of each procedure, why they are reasonably necessary procedures. However, he has clearly identified the applicant’s symptoms and impairment in functioning which requires revision shoulder surgery in respect of the AC joint, biceps and rotator cuff (see [55]-[57] and [73]-[79]). He also concludes that the proposed surgery, which he itemised the day he recommended the surgery, will address each of those symptoms and the mechanical and structural issues driving the pain and dysfunction.
Dr Rimmer, Professor Murrell and Dr Bodel do not address the specific nature of the surgery proposed, and this does not assist either party.
For these reasons and those set out above, I am satisfied that Dr Pant provided an explanation for the basis of his recommendation for surgery. His path of reasoning is adequately exposed by reference to his record of the reported history, his findings on examination and interpretation of the imaging. I am satisfied that the proposed treatment is appropriate to address the applicant’s symptoms of pain and mechanical dysfunction in her right shoulder.
The parties did not specifically provide submissions on the availability of alternative treatment. The applicant has undergone extensive physiotherapy treatment. It is true that Dr Rimmer suggests that this treatment should cease and be replaced with a home-based exercise program only, as does Mr Silcock. However, Mr Silcock did not consider the applicant’s pre-injury functional capacity had been restored or would improve with further physiotherapy and Dr Rimmer was not of the view that the applicant’s symptoms had resolved. Indeed, they did not consider or form a view that any alternative treatment would restore the applicant’s function or resolve her symptoms. Conservative options may be available to continue to provide relief to the applicant’s right shoulder symptoms but this does not preclude the proposed surgery from being reasonably necessary.[9] As Dr Pant explains, notwithstanding the extensive treatment undertaken which in his view failed to provide relief, the proposed surgery is required to address the applicant’s pain, functional and mechanical impairment. There is no evidence to suggest conservative treatment will or could have the same effect as the proposed surgery.
[9] Diab v NRMA Limited [2014] NSWWCPD 72, [86].
The cost of the proposed surgery is $11,135. The proposed cost is not prohibitive and has not been put in issue by the respondent.
The applicant is not ignorant of the fact that the potential effectiveness of further surgery on her shoulder is guarded given the outcome and the undertaking of her three previous surgeries. Dr Pant provides an opinion, which I have accepted, that supports potential effectiveness of the proposed surgery. That is, he finds that the proposed surgery will target the mechanical and structural issues driving the applicant’s pain and dysfunction. He finds that it is designed to reduce pain, improve range of motion and improve her function. While Dr Rimmer does not consider the surgery is appropriate he does not address whether it would be effective in alleviating the applicant’s undisputed symptoms. I accept that there is no compelling countervailing evidence on the potential effectiveness of the proposed surgery.
The proposed surgery is, by the submissions of the parties, complex and complicated. This is likely due to the nature of the various surgical procedures recommended and the background of previous surgery. However, the evidence supports that the proposed surgery (with the various surgical procedures) is acceptable in the medical profession.
There is some doubt around the reasonableness of the proposed procedure. However, for the reasons set out above, I accept the evidence of Dr Pant. I also accept that the applicant’s symptoms including pain, reduced range of motion, mechanical impingement, and functional impairment. I consider the proposed surgery is appropriate and will likely be effective in restoring some of the applicant’s function, alleviating her symptoms and restoring her quality of life.

It follows that there will be an award for the applicant.

SUMMARY

I am satisfied that the applicant has discharged her onus of proof on the balance of probabilities that the proposed right shoulder surgery is reasonably necessary as a result of injury on 11 November 2019, pursuant to s 60 of the 1987 Act.
The respondent is to pay the costs of the proposed surgery recommended by Dr Pant and any incidental treatment costs in accordance with the workers compensation gazetted rates.
Accordingly, I make the orders set out above.

Shoulder Movement	Active ROM Measured RIGHT	Active ROM Measured LEFT	NORMAL ROM
Flexion	120°	180°	180°
Extension	30°	50°	50°
Adduction	10°	50°	50°
Abduction	90°	180°	180°
Internal rotation	60°	90°	90°
External rotation	60°	90°	90°

[2025] NSWPIC 582

29 October 2025