Hutchison v State of New South Wales (Northern Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hutchison v State of New South Wales (Northern Sydney Local Health District) [2023] NSWPIC 354
APPLICANT:	Craig Hutchinson
RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
Member:	Karen Garner
DATE OF DECISION:	18 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33; medical and related expenses of past treatment and right elbow surgery pursuant to section 60; applicant had non-work fracture injury to right elbow; whether the non-union of the right elbow fracture injury was caused by the applicant’s employment; whether the applicant sustained injury to his right elbow pursuant to section 4(a), 9A and 4(b); Held – applicant sustained injury to his right elbow in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process to which his employment was the main contributing factor pursuant to section 4(b)(ii); the past medical treatment and the proposed right elbow surgery is reasonably necessary; the applicant was and remained totally incapacitated for work as a result of the injury to his right elbow from 1 February 2022 to 17 April 2022; the respondent is ordered to pay the costs of past treatment set out in the applicant’s schedule of expenses and the costs of and incidental to right elbow surgery in accordance with section 60; the respondent is ordered to pay the applicant weekly compensation in the amount of $1,803.92 per week from 1 February 2022 to 17 April 2022, pursuant to section 36(1).
determinations made:	The Commission determines: 1. The applicant sustained injury to his right elbow, with a deemed date of injury of 8 October 2021, in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 2. The past treatment referred to in the applicant’s updated schedule of expenses is reasonably necessary as a result of injury on 8 October 2021. 3. The radial head replacement and stabilisation of elbow surgery proposed by Dr Terence Moonpar in a letter dated 16 December 2022 is reasonably necessary as a result of injury on 8 October 2021. 4. The applicant was and remained having no capacity for any work as a result of the injury to his right elbow from 1 February 2022 to 17 April 2022. The Commission orders: 5. The respondent to pay the costs of past treatment set out in the applicant’s updated schedule of expenses pursuant to s 60 of the 1987 Act. 6. The respondent to pay the costs of and incidental to radial head replacement and stabilisation of elbow surgery proposed by Dr Terence Moonpar in a letter dated 16 December 2022 pursuant to s 60 of the 1987 Act. 7. The respondent to pay the applicant weekly compensation in the sum of $1,803.92 per week from 1 February 2022 to 17 April 2022 pursuant to s 36(1) of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Craig Hutchinson (the applicant) was employed by State of New South Wales (Northern Sydney Local Health District) (the respondent) in the position of dialysis technician.
On 7 May 2021, the applicant sustained a non-displaced fracture injury to his right elbow in a fall that was unrelated to his employment (the original injury).
The applicant alleges that, arising out of or in the course of his work after he returned to work following the original injury, he sustained an aggravation, acceleration, exacerbation or deterioration of the original injury to his right elbow or, in the alternative, a separate injury to his right elbow, with a deemed date of injury of 8 October 2021.
On or about 8 October 2021, the applicant initiated a claim for workers compensation by way of a Certificate of Capacity issued by Dr Abdul Barex dated 8 October 2021 which stated a diagnosis of “Failure to heal fracture of right radial neck” and stated a date of injury of 25 May 2021.[1]
[1] ARD, page 331. Note that the respondent acknowledged receipt on or about 13 October 2021: see Reply to ARD, page 28.
On or about 13 October 2021, the applicant notified the respondent of the injury.
By notice dated 8 February 2022 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer declined liability for weekly compensation and medical and related expenses in relation stated injury of “fracture of the right radial neck” with a date of injury of 25 May 2021 on the grounds that it did not agree that the injury satisfied the requirements of ss 4(a), 4(b), 9A, 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant sought a review of that decision.
By notice dated 5 December 2022 issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision issued on 8 February 2022.
On 12 April 2023, the applicant commenced proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (ARD), which states that the applicant seeks:
(a) weekly compensation pursuant to ss 33 and 36 of the 1987 Act, from
1 February 2022 to 17 April 2022, calculated on the basis of pre-injury average weekly earnings (PIAWE) of $1,844.59, and
(b) medical and related expenses pursuant to s 60 of the 1987 Act, in respect of:
(i)past treatment referred to in the applicant’s schedule of expenses, and
(ii)radial head replacement and stabilisation of elbow surgery proposed by Dr Terence Moonpar in a letter dated 16 December 2022.
On 4 May 2023, the respondent lodged in the Commission a reply to the ARD.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation/arbitration hearing, conducted by MS Teams on 7 June 2023, Mr Dewashish Adhikary, counsel, appeared on behalf of the applicant, instructed by Ms Sabrina Morell of Carrol & O’Dea Lawyers, together with the applicant. Ms Lyn Goodman, counsel, appeared on behalf of the respondent, instructed by Mr Rahul Balan of HWL Ebsworth Lawyers, together with a representative of the insurer, QBE.
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

At the hearing, the parties agreed that the applicant’s PIAWE for relevant purposes is $1,898.86. Further, the parties agreed that no compensation has been paid to the applicant to date. The claim for weekly compensation is pursuant to ss 33 and 36 of the 1987 Act and for a closed period from 1 February 2022 to 17 April 2022.
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of disease, arising out of or in the course of employment and his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of disease, pursuant to s (b)(ii) of the 1987 Act;
(b) whether the applicant sustained injury, arising out of or in the course of employment and his employment was a substantial contributing factor to the injury, pursuant to ss 4(a) and 9A of the 1987 Act;
(c) whether the applicant has total or partial incapacity for work resulting from an injury and the extent and quantification of any entitlement to weekly compensation, pursuant to ss 33 and 36 of the 1987 Act, and
(d) whether medical or related treatment is reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) by the worker dated 2 June 2023 and attached documents.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Applicant’s evidence

The applicant gave evidence by way of a statement dated 27 September 2022.[2]
[2] ARD, page 3.
The applicant stated that he is employed by the respondent as a dialysis technician.
The applicant stated that he sustained injury to his right arm, being a small elbow joint effusion secondary to a non-displaced fracture through the right radial neck, in a fall on 7 May 2021 that was unrelated to his work. The applicant’s right arm was put into an immobiliser sling.
The applicant stated that, on or about 10 May 2021, he notified the senior technicians at his work that he had broken his arm. The applicant took sick leave from 18 May 2021 to 21 May 2021. On or about 16 July 2021, the applicant was advised that he was no longer required to wear a sling and that he could continue to work without axial loading.
The applicant stated that, on or about 24 May 2021, he returned to work, on “light duties”, however the duties that he was required to perform were not “light”. The applicant stated that his duties primarily involved pushing and pulling dialysis machinery which weighed between approximately 125kg and 159kg in and out of patient’s homes (including up and down stairs), multiple times a week. He was also required to manoeuvre other machines and equipment which included a WRO-300 machine which weighed approximately 33kh and carbon tanks which weighed approximately 20kg. The applicant stated that pushing and pulling those machines and equipment placed an intense amount of pressure on his arms and elbows. The applicant stated that his duties also included installing, repairing and changing filters in those machines, which similarly involved heavy and repetitive forceful motions with his upper extremities. Also, on occasions, he was required to perform drill work, and the vibration of the drill created a significant amount of pain around the fracture site.
The applicant stated that by September 2021, his right elbow had deteriorated significantly. The applicant attended his general practitioner with complaints of continuing right elbow pain and was referred for imaging. The applicant stated that X-rays indicated an ununited fracture of the radial neck, with approximately 3mm of separation.
The applicant stated that he consulted Dr Manish Gupta, orthopaedic surgeon on 8 October 2021. Dr Gupta advised the applicant that the reason for the “united [sic] fracture” was due to the heavy nature of the applicant’s work duties. Dr Gupta recommended surgery to the applicant’s right elbow.
The applicant stated that he subsequently consulted Dr Moopanar, at a fracture clinic. Dr Moopanar also advised the applicant that cause of the “united [sic] fracture” was the heavy nature and conditions of the applicant’s work duties since the original injury. Dr Moopanar advised the applicant that the fracture would have healed properly if his duties had been “light duties”. Dr Moopanar also recommended surgery to unite the fracture.
The applicant stated that he underwent surgery with Dr Moopanar on 1 February 2022, which involved exploration of the radial neck fracture with bone graft from the right iliac crest with screw and plate fixation.
The applicant stated that he returned to work on or about 4 April 2022, undertaking light duties.
The applicant stated that he has continued to experience ongoing pain and discomfort around his elbow and reduced range of motion. He stated that he has also lost strength in his forearm and hand and experiences pain if pushing or pulling with force. He also experiences a clicking, grinding and crunching sensation in his elbow upon movement.
The applicant stated that Dr Moopanar has recommended further surgery to remove the existing hardware and replace the radial head with pyrocarbon.

Position description

The position description for dialysis technician stated duties which included the installation, routine maintenance, breakdown, servicing and calibration of dialysis equipment, static and dynamic calibration procedures.[3]
[3] ARD, page 24; Reply to ARD, page 25.

Request for temporary accommodation of medical restrictions for non-work injury

A request for temporary accommodation of medical restrictions for non-work injury completed by the applicant was dated 8 October 2021.[4] It noted a diagnosis of fracture of right radial neck, with a date of injury of 7 May 2021, and stated that the current medical restrictions were: “Should not use right hand until review by the orthopaedic surgeon which is booked for 8/10/21”. A handwritten section which appears to have been completed by Dr Donaldson states “work/use as tolerated or pain allows – unlikely to do further injury/damage Can drive”.[5]

Treating medical evidence

[4] Reply to ARD, page 19.

[5] Reply to ARD, page 22.

Dr Abdul Barez, general practitioner

In a report dated 7 December 2021,[6] Dr Barez stated that the applicant originally injured his right elbow on 7 May 2021 outside of his work. The applicant attended hospital and an X-ray showed a fracture of the radial neck. An immoboliser sling was applied and the applicant was discharged home. Dr Barez stated that usually with immobilisation, those types of fractures heal in six to eight weeks. Dr Barez stated that the fracture was aggravated when the applicant returned to work due to the nature of his work, and consequently the fracture failed to heal. Dr Barez stated that diagnosis is un-united fracture of the radial neck. Dr Barez stated that the applicant’s work was the main contributing factor for his current presentation and need for surgery and post-surgery rehabilitation.
[6] ARD, page 52; Reply to ARD, page 32.

Dr Terence Moopanar, orthopaedic surgeon

In a report dated 5 August 2022,[7] Dr Moopanar noted that the applicant remained “very symptomatic on the right elbow”. Dr Moopanar stated that the applicant’s issues were causing him considerable pain and discomfort with loss of function, and they had reduced his quality of life. Dr Moopanar noted that the applicant had been referred to physiotherapy and imaging showed very little union at the site. Dr Moopanar noted that “postoperatively he went back to work and instead of doing pure light duties in a sling, he was made to do some heavy lifting which thereafter aggravated the entire construct and unfortunately, he has now gone on to a nonunion”.
[7] ARD, page 44.
Dr Moopanar recommended further surgery: “The plan will be to remove the existing hardware and to offer him a pyrocarbon radial head replacement with stabilisation of the lateral structures at a minimum. I will thereafter rehabilitate him aggressively on order to regain function and return to normal duties”.
In a second report dated 5 August 2022,[8] Dr Moopanar also stated:
“I do consider this to be an aggravation, acceleration and exacerbation of his precondition due to being at work. This was due to the fact that at work he was asked to carry and push and move heavy machinery and heavy items which clearly caused him pain at the time and he even volunteered that he was kicked in the ipsilateral elbow which aggravated the injury as well.”
[8] ARD, page 46.
Dr Moopanar indicated that appropriate treatment was further surgery which removed the proximal radius and inserted a pyrocarbon head because “I do not think that I will ever achieve union at that site”.
In a report dated 10 November 2022,[9] Dr Moopanar reiterated his opinion that the applicant’s return to work and use of his right elbow had not allowed the fracture to unite and caused it to go onto nonunion. Dr Moopanar stated that the at that time the applicant had an existing nonunion with degenerative change with hardware in situ causing crepitus and pain in the lateral compartment of the right elbow joint. Dr Moopanar reiterated that surgery was necessary to treat the applicant’s condition.
[9] ARD, page 48.
In a report dated 18 May 2023,[10] Dr Moopanar expressed agreement with A/Prof Gumley’s opinion. Dr Moopanar stated that A/Prof Gumley is a highly respected orthopaedic surgeon and has a special interest in upper limb surgery. Dr Moopanar stated that radiographs clearly showed nonunion. He stated:
“In my opinion, this nonunion has occurred due to early return to work and not allowing the fracture to unite in an appropriate time frame with appropriate clearance from an orthopaedic surgeon…
On the consultation conducted on 6th [sic] February 2023 Craig presented to me for a post-op consultation following a significant injury to his right elbow which resulted in requiring an operative fixation. At that consultation, I noted that, he was quickly returned to work under against better judgement under the influence of his authorities. The fracture has thereafter progressed to a hypertrophic nonunion signifying that there was too much movement at the time of healing.”
[10] AALD by applicant dated 12 July 2023, page 2.
Dr Moopanar noted that there is now clinical arthritis in the radiocapitellar joint and he expressed concern that, without the requested future surgery, the applicant would experience progressive pain, decreased function and a permanent disability.
Dr Moopanar recommended the applicant undergo further surgery to remove the existing non-united radial head and hardware and then perform a radial head replacement, which he opined would give the applicant greater range of movement, reduce the pain from the nonunion and potentially also assist with arthritic pain. Dr Moopanar stated that he feared that if the nonunion was left untreated, it will continue to deteriorate and give the applicant significant reduction in function and quality of life and permanent disability.

Clinical records

Clinical records of Dr Barez,[11] recorded the following:
(a)    on 17 May 2021, the applicant attended in relation to right radial neck fracture;[12]
(b)    on or about 22 September 2021, an X-ray right elbow and forearm showed evidence of an ununited fracture of the radial neck;[13]
(c)    on 28 September 2021, the applicant was referred to Dr Gupta;[14]
(d)    on 8 October 2021, Dr Barez recorded: “The orthopaedic surgeon states that reason for ununited fracture of the radial neck was aggravation of the fracture at his work after the injury due to nature of his work at the hospital and he needs an operation”;[15]
(e)    on 3 December 2021, the applicant had been booked for surgery with Dr Moopanar;[16]
(f)    on 3 February 2022, the applicant underwent surgery under the hand of Dr Moopanar on 1 February 2022; [17]
(g)    on 3 March 2022, the applicant was undergoing physiotherapy treatment,[18] and
(h)    on 1 April 2022, the applicant’s pain and range of movement was improving in his elbow and he was advised to continue home exercises; the applicant was keen to “go back to work on light duties”.[19]
[11] ARD, page 76; also, Reply to ARD, page 45.
[12] ARD, page 134; Reply to ARD, page 99.
[13] Reply to ARD, page 101.
[14] ARD, page 137; Reply to ARD, page 102.
[15] ARD, page 138; Reply to ARD, page 103.
[16] ARD, page 139; Reply to ARD, page 104.
[17] ARD, page 140; Reply to ARD, page 105.
[18] ARD, page 141; Reply to ARD, page 106.
[19] ARD, page 142; Reply to ARD, page 107.

Hospital records

Nepean Hospital patient health records between May and September 2021[20] recorded the following:
[20] ARD, page 56.
(a)    on 9 May 2021, the applicant was treated for a right elbow joint effusion secondary to a non-displaced fracture through the right radial neck (with a date of injury of 7 May 2021). The applicant was discharged on the basis of the following management:[21]
[21] ARD, page 71.
“Management
Right shoulder immobiliser sling
Early AROM as tolerated for elbow/forearm – ROM exercises taught
Rest advice
...
Orthopaedic Clinic follow up”
(b)    on 21 May 2021, the applicant was assessed in relation to ongoing pain in his right elbow. The treatment plan included a shoulder immobiliser for 4 weeks, no weight bearing, no lifting and no sports, with a review in 4 weeks;[22]
(c)    on 18 June 2021, the applicant underwent an X-ray right elbow which showed good alignment and minimal callus formation around the site of fracture involving the neck of the right radius.[23] The applicant was advised that he could “Continue work, although without axial loading”, “Can drive” and “Sling off when at home”.[24] The applicant was prescribed range of movement exercises and was advised that the “bone still not at full strength to take full load”,[25] and
(d)    on 27 September 2021, the applicant reported ongoing pain and an X-ray showed non union of the radial neck.[26]
[22] ARD, page 65.
[23] ARD, page 64.
[24] ARD, page 62.
[25] ARD, page 63.
[26] ARD, page 58.

An operation report dated 1 February 2022,[27] recorded that the applicant underwent right elbow radial head open reduction including internal fixation, excision and stabilisation surgery on that date.
[27] ARD, page 53.
Royal North Shore Hospital clinical records recorded the following:[28]
(a)    on 28 September 2021, the applicant presented at hospital emergency in relation to non-healing right elbow fracture;[29]
(b)    on 8 October 2021, the applicant was recommended for admission to undergo right elbow radial head excision, arthroscopy and stabilisation surgery;[30]
(c)    on 1 February 2022, the applicant underwent right elbow radial head excision, arthroscopy and stabilisation surgery;[31]
(d)    on 18 February 2022, an X-ray right elbow showed that the fracture of the radius had been internally fixed with a plate and screws; alignment was unaltered; the fracture line was still visible and there was no definite progress of union since the previous study;[32]
(e)    on 18 March 2022, an X-ray right elbow showed internal fixation of the radius with no hardware failure identified; fractures remained visible; there was ongoing elbow joint effusion with small intra-articular ossific densities;[33]
(f)    on 29 April 2022, the applicant was working on “light duties”; he was experiencing ongoing pain,[34] and
(g)    on 29 July 2022, the applicant was working on “light duties”; pain was still an issue;[35] an X-ray right elbow showed that alignment was unchanged and union was progressing; the fracture line remained visible; no hardware complications were detected.[36]
[28] ARD, page 143.
[29] ARD, pages 236, 241.
[30] ARD, page 153.
[31] ARD, page 150.
[32] ARD, page 217.
[33] ARD, page 219.
[34] ARD, page 220.
[35] ARD, page 223.
[36] ARD, page 222.

Imaging reports

A report of an X-ray of the right elbow and forearm on 17 September 2021 stated that it showed an ununited fracture of the radial neck.[37]
[37] ARD, page 55.
A report of an MRI on 18 May 2023 stated that it showed: scarring of the radial collateral ligament and chronic thinning of the common extensor tendon origin which demonstrated mild tendinopathy; presumably old post-traumatic contour deformity of the capitellum with associated areas of chondral wear, although cartilage was difficult to evaluate due to the artefact; early chondral wear in the posteromedial aspect of the humeroulnar compartment with a small osteophyte; mild olecranon bursal thickening.[38]
[38] AALD of applicant dated 12 July 2023, page 5.

Medical certificates and Certificates of Capacity

The evidence includes various medical certificates and Certificates of Capacity.[39]
[39] ARD, pages 330, 331, 358; Reply to ARD, pages 108, 109, 143.
They stated, in particular, that the applicant had no current work capacity from 1 February 2022 to 17 April 2022.[40]
[40] ARD, pages 347, 352, 358 and 355.

Other evidence

Other evidence included:
(a)    the applicant’s pay slips;[41]
(b)    schedule of medical expenses;[42]
(c)    Medicare history statement;[43]
(d)    updated schedule of medical expenses,[44] and
(e)    various receipts.[45]

Independent medical evidence

[41] ARD, page 360.

[42] ARD, page 416.

[43] ARD, page 427.

[44] AALD of applicant dated 12 July 2023, page 7.

[45] AALD of applicant dated 12 July 2023, page 8.

A/Prof Professor Paul Miniter

A/Prof Miniter provided an independent medical opinion, qualified by the insurer.
In a report dated 18 January 2021,[46] A/Prof Miniter recorded a history of injury to the applicant’s right elbow in a non-work fall and a persistence of pain, following a return to work and the applicant being required to push fairly heavy objects up and down the entrance to homes. A/Prof Miniter stated that a CT scan taken in 2021 appears to show an established nonunion of the radial neck although the fracture itself is not displaced.[47]
[46] Reply to ARD, page 40.
[47] Reply to ARD, pages 40, 41.
In relation to the issue of causation, A/Prof Miniter stated:[48]
“The date and mechanism of this injury appears to have been a fall whilst he was walking his dogs on 7 May. He is said to have attended Nepean Hospital on 9 May and he then returned to work. Apparently, he returned to work on 17 May and had sick leave up until 21 May. He was told to return to light duties on 24 May.”
[48] Reply to ARD, page 42.
A/Prof Miniter stated “I note that Mr Hutchinson was provided with support from his employer to return to work but to minimise use of the right arm following his non-work related injury.
[49] Reply to ARD, page 42.
[50] Reply to ARD, page 43.
In my clinical opinion, I do not believe that the presentation relates to the workplace”.[49] A/Prof Miniter stated that he could see no evidence of aggravation of underlying pathology and he opined that the nonunion of the radial neck was a consequence of the initial injury. A/Prof Miniter did not regard the applicant’s employment as being a substantial contributing factor.[50]
A/Prof Miniter stated that operative treatment is likely indicated but he recommended an MRI scan and further medical opinion as to the appropriate method of management. A/Prof Miniter stated that he was uncertain whether a radial head replacement was the most appropriate treatment and whether bone grafting and internal fixation would be more appropriate.
A/Prof Miniter stated that the applicant was fit for work in a restricted capacity but not fit for unrestricted activities.[51]
[51] Reply to ARD, page 42.

A/Prof Graham Gumley

A/Prof Gumley provided an independent medical opinion, qualified by the applicant.
In a report dated 6 April 2022,[52] A/Prof Gumley stated the following diagnosis:[53]
“Mr Craig Hutchinson has persistent pain in the radial aspect of the right elbow with reduced motion and function following a fall on 7 May 2021 with subsequent non-operative followed by operative treatment with plate, screw and bone graft.”
[52] ARD, page 39.
[53] ARD, page 41.
In relation to the issue of causation, A/Prof Gumley stated:
“Mr Hutchison's initial injury, that of a radial neck undisplaced fracture right radius, occurred away from the workplace on 7 May 2021.
As such, Mr Hutchison's work activity is not a direct contributor to the initial injury.
Issues around further causation are complex, related to his return to work on 21 May 2021, some 2½ weeks after the injury but prior to establishment of fracture union. The records provided and those in Mr Hutchison's possession do not include a work return document indicating the nature of the injury and any restrictions for activity. Mr Hutchison understood he was able to return to work on modified duties without clarity as to what the expectation or requirements would be.”
In response to a question whether the applicant’s employment with the respondent was the main contributing factor to aggravation, acceleration or exacerbation of disease, A/Prof Gumley stated:
“Mr Hitchinson describes the nature of his work as requiring a significant amount of equipment moving including machines weighing up to 125kg with installation once or two times per week and also workship activity including at least one episode of requirement to drill through metal requiring use of both hands. Mr Hutchison recalls this as a painful activity.
It is not possible to be definitive; however, since Mr Hutchison , it appears from the records provided, was permitted to return to work without the suitable restrictions being clarified in writing, the nature and activities of his work could be considered to have contributed to the development of a nonunion at his fracture site. It is not possible to say with certainty that, should he have not returned to work but maintained a non-working status with the use of a sling and only gently non-resisted motion, that his fracture would have united or would necessarily have proceeded to nonunion. Nevertheless, the nature of his work activity has, on the balance or probability, been a substantial contributing factor to his establishment of a nonunion requiring surgery. Mr Hutchinson has not had a disease per se but has had a direct injury that would only have under favourable circumstances a course of healing leading to union of the fracture.
Excessive load across the fracture site is a factor known to be associated with poor fracture healing or establishment of nonunion.”
A/Prof Gumley stated that the surgery undertaken by Dr Moopanar was necessary and appropriate as a result of the fracture that occurred on 7 May 2021 and factors leading to nonunion.

Submissions

Counsel’s submissions provided in writing.

Applicant’s submissions

Mr Adhikary’s submissions on behalf of the applicant may be summarised as follows:
(a)    Mr Adhikary referred to various parts of the applicant’s evidence, the treating medical evidence and the medico-legal evidence.
(b) Mr Adhikary submitted that the evidence demonstrates that the applicant sustained injury pursuant to s 4(b)(ii) of the 1987 Act or, in the alternative, by a series of frank injuries pursuant to s 4(a) of the 1987 Act.
(c)    Mr Adhikary submitted that the evidence demonstrates that the employment duties which the applicant performed on his return to work following the injury on 7 May 2021, including following the surgery performed by Dr Moopanar in 2022, was the main contributing factor to the aggravation etc of the applicant’s right elbow. Mr Adhikary submitted that there is no other cause to the aggravation etc of the applicant’s injury and that the evidence demonstrates that the fracture sustained on 7 May 2021 would have healed under ordinary circumstances, such as if the applicant had not performed his work duties.
(d)    Mr Adhikary submitted, in the alternative, that each duty undertaken by the applicant after his return to work, constituted a separate injury despite the underlying fracture;
(e)    Mr Adhikary submitted that the evidence demonstrates that the treatment that the applicant has undergone was reasonably necessary as a result of his injury and that the further surgery proposed by Dr Moopanar is also reasonably necessary. Mr Adhikary submitted that past surgery did not alleviate the applicant’s issues and that the applicant’s issues are not only ongoing, but there is a concern that they will worsen in the absence of further surgery. Mr Adhikary noted that there is no evidence to contradict the subject surgery as being reasonably necessary: indeed, A/Prof Miniter’s opinion is dated and does not pertain to same.
(f)    Mr Adhikary submitted that the Commission should not accept the evidence of A/Prof Miniter.
(g)    Mr Adhikary submitted that the Certificates of Capacity demonstrate that the applicant was totally incapacitated for any form of employment in the period claimed.
(h)    On that basis, Mr Adhikary submitted that the Commission ought to find that the applicant sustained injury in the course of his employment with the respondent and that he was totally incapacitated for any form of employment between 1 February 2022 to 17 April 2022. Further, Mr Adhikary submitted that an award ought to be made in the applicant’s favour with respect to medical expenses in the updated schedule of medical expenses and with respect to the surgery proposed by Dr Moopanar, on the basis that they are reasonably necessary treatment.

Respondent’s submissions

Ms Goodman’s submissions on behalf of the applicant may be summarised as follows:
(a)    The respondent disputes that the applicant’s injury is work-related in accordance with ss 4 and 9A of the 1987 Act.
(b)    Ms Goodman referred to various parts of the treating medical evidence and the medico-legal evidence. In particular, Ms Goodman referred to opinion of A/Prof Gumley that it was not possible to say with certainty that, should the applicant not have returned to work but maintained a non-working status with the use of a sling and only gentle non-resisted motion, that his fracture would have united or would necessary have proceeded to non-inion. Ms Goodman also referred to opinion of A/Prof Miniter that the injury was not work-related, there was no evidence of aggravation of underlying pathology and that the trauma associated with the original presentation was likely to be more than a simple radial neck fracture is implicit in the development of the nonunion.
(c)    Ms Goodman submitted that, having regard to the evidence, there remains some doubt as to whether the initial fracture, that is, following the incident on 7 May 2021, would have gone on to union in any event, even without the applicant returning to work.

Applicant’s submissions in reply

Mr Adhikary’s submissions in reply on behalf of the applicant may be summarised as follows:
(a)    Mr Adhikary submitted that the respondent’s submissions are misconceived.
(b)    Mr Adhikary submitted that the treating medical evidence is unequivocal and demonstrates that the applicant’s employment did not allow the fracture to unite properly and, therefore, the applicant has sustained injury for which the respondent is liable and for which the applicant has required multiple surgeries.
(c)    Mr Adhikary submitted that the applicant is required to prove his case on the balance of probabilities and no more (Nguyen v Cosmopolitan Homes [2008] NSWC 246) and that the applicant has done so.

FINDINGS AND REASONS

Did the applicant sustain injury arising out of or in the course of his employment, to which his employment was a substantial contributing factor or sustain aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of employment and his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease - ss 4(a) and 9A and (b)(ii) of the 1987 Act?

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(g)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(h)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In AV v AW,[54] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[54] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[55] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[56]
[55] [1964] HCA 34; 110 CLR 626.
[56] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[57]
[57] Semlitch, at [635].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[58] (Kooragang), where Kirby P (as his Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate …
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.”[59]
[58] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[59] Kooragang, at [461] (Sheller and Powell JJA agreeing).

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 commonsense 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.”
Although the High Court in Comcare v Martin[60] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[60] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[61] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[61] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The evidence of the applicant and the treating medical evidence is generally consistent in relation to the factual background to the injury and does not appear to be in dispute. On that basis, I accept the following history of the injury:
(a)    or about 7 May 2021, the applicant sustained the original injury, being a non-displaced fracture injury to his right elbow in a fall that was unrelated to his employment;
(b)    on or about 9 May 2021, the applicant attended Nepean Hospital emergency department and received treatment for a right elbow joint effusion secondary to a non-displaced fracture through the right radial neck (with a date of injury of 7 May 2021). The applicant was discharged from hospital on the basis of management which included an immobiliser sling and rest advice;
(c)    on or about 10 May 2021, the applicant notified the respondent that he had broken his arm;
(d)    on 17 May 2021, the applicant attended Dr Barez in relation to right radial neck fracture;
(e)    the applicant took sick leave from 18 May 2021 to 21 May 2021;
(f)    on 21 May 2021, the applicant attended Nepean Hospital and was assessed in relation to ongoing pain in his right elbow. The applicant was discharged from hospital on the basis of management which included a shoulder immobiliser for four weeks, no weight bearing, no lifting and no sports, with a review in four weeks;
(g)    on or about 24 May 2021, the applicant returned to work on “light duties”;
(h)    on 18 June 2021, the applicant attended Nepean Hospital. An X-ray right elbow showed good alignment and minimal callus formation around the site of the fracture. The applicant was advised that he could “Continue to work, although without axial loading”, “Can drive” and “Sling off when at home”. The applicant was prescribed range of movement exercises and was advised that the “bone still not at full strength to take full load”;
(i)    on or about 16 July 2021, the applicant was advised that he was no longer required to wear a sling and he could work without axial loading;
(j)    by September 2021, the applicant’s right elbow had deteriorated significantly and he experienced ongoing pain;
(k)    on or about 17 September 2021, an X-ray right elbow and forearm showed evidence of an ununited fracture of the radial neck;
(l)    on 27 September 2021, the applicant attended Nepean Hospital and reported ongoing pain. An X-ray showed nonunion of the radial neck;
(m)     on 28 September 2021, the applicant attended Royal North Shore Hospital emergency in relation to non-healing right elbow fracture. The applicant was referred to Dr Gupta;
(n)    on 8 October 2021, the applicant was recommended for admission to the Royal North Shore Hospital to undergo right elbow radial head excision, arthroscopy and stabilisation surgery;
(o)    on 3 December 2021, the applicant had been booked for surgery with Dr Moopanar;
(p)    on 1 February 2022, the applicant underwent right elbow radial head open reduction including internal fixation, excision and stabilisation surgery, performed by Dr Moopanar at the Royal North Shore Hospital;
(q)    on 18 February 2022, an X-ray right elbow (at the Royal North Shore Hospital) showed that the fracture of the radius had been internally fixed with a plate and screws; alignment was unaltered; the fracture line was still visible and there was no definite progress of union since the previous study;
(r)    on or about 3 March 2022, the applicant was undergoing physiotherapy treatment;
(s)    on 18 March 2022, an X-ray right elbow (at the Royal North Shore Hospital) showed internal fixation of the radius with no hardware failure identified; fractures remained visible; there was ongoing elbow joint effusion with small intra-articular ossific densities;
(t)    on or about 1 April 2022, the applicant’s pain and range of movement was improving in his elbow and he was advised to continue light exercises; the applicant was keen to return to work on “light duties”;
(u)    on or about 4 April 2022, the applicant returned to work, on “light duties”;
(v)    on 29 April 2022, the applicant was working on “light duties” and he reported experiencing ongoing right elbow pain;
(w)   on 29 July 2022, the applicant was working on “light duties” and he reported that pain was still an issue. An X-ray right elbow showed that alignment was unchanged and union was progressing; the fracture line remained visible; no hardware complications were detected;
(x)    on or about 5 August 2022, Dr Moopanar noted that the applicant’s right elbow remained very symptomatic, and
(y)    on 18 May 2023, an MRI showed: scarring of the radial collateral ligament and chronic thinning of the common extensor tendon origin which demonstrated mild tendinopathy; presumably old post-traumatic contour deformity of the capitellum with associated areas of chondral wear, although cartilage was difficult to evaluate due to the artefact; early chondral wear in the posteromedial aspect of the humeroulnar compartment with a small osteophyte; mild olecranon bursal thickening.
I note that A/Prof Miniter noted in his report dated 18 January 2021 that the applicant was provided with support from his employer to return to work but to minimise use of the right arm following the original injury.
However, the applicant’s evidence is not challenged and there is no other evidence that, during the period that the applicant returned to work on “light duties”, any special accommodations or arrangements were made to ensure that the applicant’s duties were, in fact, modified or restricted to accommodate his injury. The deemed date of injury is 8 October 2021. On that date, the applicant made a request for temporary accommodation of medical restrictions for non-work injury, and stated that the current medical restrictions were that the applicant should not his use right hand until review by the orthopaedic surgeon which was booked for 8 October 2021 and also “work/use as tolerated or pain allows – unlikely to do further damage”.
There is no evidence which is inconsistent with the applicant’s evidence in relation to the duties that he performed during the period that he returned to work on “light duties”. There is no evidence that the applicant carried out duties which were different to his normal duties during that time. The position description for the applicant’s position of dialysis technician provides that the position involved the installation, routine maintenance, breakdown, servicing and calibration of dialysis equipment, static and dynamic calibration procedures. That supports the applicant’s evidence that he was required to push and pull dialysis machinery and other equipment in and out of patient’s homes on a regular and reasonably frequent basis and also to install, repair, service and maintain those machines. I accept that such work would, by its nature, be highly physical and would involve heavy and repetitive forceful motions with the applicant’s upper extremities. I also accept that the applicant was, on occasion, required to perform drill work. I accept that such drill work would, by its nature, also be physical work and cause vibration to the applicant’s upper extremities.
On that basis, I accept that, during the period that the applicant returned to work on “light duties” he was required to, and did, perform his usual duties which involved heavy, repetitive and forceful motions with his upper extremities and work which subjected his upper extremities to vibration.
The independent medico-legal expert, A/Prof Miniter, accepted that imaging showed an established nonunion of the radial neck. A/Prof Miniter opined that the injury was not work-related. A/Prof Miniter stated that there was no evidence of aggravation of underlying pathology. A/Prof Miniter opined that the nonunion was a consequence of the original injury. He stated that the trauma associated with the original presentation was likely to be more than a simple radial neck fracture is implicit in the development of the nonunion. A/Prof Miniter recorded a history that the applicant was provided with support from his employer to return to work following the original injury but to minimise use of the right arm. However, as I have noted above, I am satisfied that during the period that the applicant was on “light duties”, in fact, the applicant performed his usual duties which involved heavy, repetitive and forceful motions with his upper extremities and work which subjected his upper extremities to vibration.
The independent medical opinion of A/Prof Gumley is that the physical nature of the applicant’s work duties upon his return to work, some two and a half weeks after the original injury, without suitable restrictions, placed an excessive load across the fracture site and was the main contributing factor to aggravation, acceleration exacerbation of the original injury, and development of a nonunion at the fracture site. A/Prof Gumley acknowledged that it is not possible to state with certainty that the fracture would have united or proceeded to nonunion should the applicant have maintained a non-working status with the use of a sling and only gently non-resisted motion. However, A/Prof Gumley stated that, on the balance of probability, the nature of the applicant’s work activity has been a substantial contributing factor to the nonunion.
The evidence of the treating general practitioner, Dr Barez, is that injuries such as the applicant’s radial neck injury usually healed in six to eight weeks with immobilisation. Dr Barez diagnosed ununited fracture and opined that it was caused by aggravation of the original injury by the nature of the applicant’s work duties after he returned to work.
The applicant’s treating orthopaedic surgeon, Dr Moopanar, agreed with the opinion of A/Prof Gumley. Dr Moopanar stated that imaging clearly showed nonunion of the fracture. Dr Moopanar opined that it was caused by the applicant’s early return to work duties which resulted in too much movement, aggravated the construct and did not allow the fracture to unite.
Ms Goodman submitted that, having regard to the evidence, there remains some doubt as to whether the initial fracture, that is, following the incident on 7 May 2021, would have gone on to union in any event, even without the applicant returning to work.
However, the standard of proof which I am required to apply is the balance of probabilities.
The Court of Appeal in Nguyen v Cosmopolitan Homes[62] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[62] [2008] NSWC 246.
I accept that the medical evidence is not entirely straightforward. However, I nevertheless do feel a real sense of persuasion and I prefer and accept the evidence of A/Prof Gumley in relation to causation of the nonunion of the radial fracture. A/Prof Gumley’s opinion in that regard is supported by the opinion of the applicant’s treating general practitioner and the opinion of applicant’s treating orthopaedic surgeon, who have treated the applicant over an extended period. Further, having regard to the physical nature of the applicant’s work duties following the original injury and the impacts on his upper extremities, it seems logical, reasonable and likely that it would have aggravated, accelerated, exacerbated and deteriorated the union of the fracture and substantially contributed to the nonunion. Further, there is no other medical opinion, apart from that of A/Prof Miniter which strongly supports a finding that the original presentation was likely to be more than a simple radial neck fracture and was the substantial cause of the development of the nonunion. To the contrary, the evidence of the applicant’s treating practitioner, Dr Barez, was that injuries such as the applicant’s radial neck injury usually healed in six to eight weeks with immobilisation.
A/Prof Gumley stated that he did not consider the nonunion to be strictly a “disease” even though it was caused by aggravation, acceleration, exacerbation or deterioration.
Considering the nature of the nonunion, I consider that it would fall within the definition of “disease process” for the purposes of s 4(b)(ii) of the 1987 Act.
Having carefully considered the evidence as a whole and for all the reasons given above, I am satisfied on the balance of probabilities that the applicant sustained injury to his right elbow on 8 October 2021 in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
However, in the event that I am incorrect in relation to the nonunion being a “disease process” for the purposes of s 4 (b)(ii) of the 1987 Act, I note that I would be satisfied on the balance of probabilities that the applicant sustained injury to his right elbow on 8 October 2021 arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and, further, his employment was a substantial contributing factor pursuant to s 9A(1) of the 1987 Act.

Is the proposed medical or related treatment reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act?

Subsection 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...”

Is the proposed treatment medical or related treatment?

The applicant seeks compensation for expenses of and related to
(a) past treatment referred to in the applicant’s schedule of expenses, and
(b) radial head replacement and stabilisation of elbow surgery proposed by Dr Terence Moopanar in a letter dated 16 December 2022.
These are clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.

Is the proposed treatment reasonably necessary?

In Diab v NRMA Ltd,[63] Roche DP, referring to the decision in Rose v Health Commission (NSW),[64] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:[65]
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at
48A-C:
‘3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition’.”
[63] [2014] NSWWCCPD 72.
[64] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[65] [2014] NSWWCCPD 72, at [76].
Roche DP[66] also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[67]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[66] [2014] NSWWCCPD 72, at [78].
[67] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP stated:[68]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably 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 ...”
[68] [2014] NSWWCCPD 72, at [86].

Roche DP found:[69]
[69] [2014] NSWWCCPD 72, at [88]-[89].
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

Appropriateness

Having regard to the evidence of the applicant in the context of the medical evidence, I accept that the applicant has significant ongoing right elbow symptomatology.
There is consistent medical evidence that radiology shows nonunion of the fracture.
Dr Moopanar noted that there is now clinical arthritis in the radiocapitellar joint and he expressed concern that, without the requested future surgery, the applicant would experience progressive pain, decreased function and a permanent disability.

Availability of alternative treatment and its effectiveness

There is no evidence of any other significant alternative treatment which would likely provide effective treatment of the nonunion of the fracture.

Cost of the treatment

No issue has been taken in relation to the costs of the treatment.

Actual or potential effectiveness of the treatment

Dr Moopanar stated that the requested surgery to remove the existing non-united head and hardware and then perform a radial head replacement would give the applicant greater range of movement, reduce the pain from the nonunion and potentially also assist with arthritic pain. Dr Moopanar expressed concern that, without the requested surgery, the applicant would experience progressive pain, decreased function and permanent disability.

Acceptance by medical experts of the treatment

A/Prof Miniter stated that operative treatment is likely indicated but he recommended an MRI scan and further medical opinion as to the appropriate method of management. A/Prof Miniter stated that he was uncertain whether a radial head replacement was the most appropriate treatment and whether bone grafting and internal fixation would be more appropriate.
A/Prof Gumley stated that the surgery undertaken by Dr Moopanar was necessary and appropriate as a result of the fracture that occurred on 7 May 2021 and factors leading to nonunion.
Having regard to the various matters set out above and the evidence as a whole, I find the evidence of the applicant’s treating orthopaedic surgeon to be particularly persuasive. I consider that it provides a considered, sound and reasonable explanation of the basis for the requested treatment. Dr Moopanar’s opinion is supported by the evidence of the independent medical expert, A/Prof Gumley.
There is no significant evidence which challenges the appropriateness of the past treatment which is included in the updated schedule of expenses.
Having considered the evidence in the context of the criteria referred to in Diab and Rose, I am satisfied that the past treatment and the requested future surgery is reasonably necessary.

Does the need for the proposed treatment arise as a result of a work injury?

In Murphy v Allity Management Services Pty Ltd[70] Roche DP stated at [57] and [58]:

“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 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.
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)”.
[70] [2015] NSWWCCPD 49 at [57].

In Watts, the High Court discussed the evidentiary onus where a defendant relies on evidence of some alternate cause of a plaintiff’s disability. In Lamont-Salter v Qube Ports Pty Ltd [2021] NSWPICPD 15 at [40] to [43], Snell DP considered Watts and observed that it and other decisions make it clear that the ultimate persuasive onus remains with the applicant.
Having regard to my findings in relation to the injury above, I am satisfied that the need for the past treatment and the requested surgery arises as a result of a work injury.

Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?

Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 36 of the 1987 Act states:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The claim for weekly compensation is pursuant to ss 33 and 36 of the 1987 Act and for a closed period from 1 February 2022 to 17 April 2022.
The evidence includes various medical certificates and Certificates of Capacity which stated, in particular, that the applicant had no current work capacity from 1 February 2022 to 17 April 2022.[71]
[71] ARD, pages 347, 352, 358 and 355.
I note in relation to the Certificate of Capacity dated 1 April 2022, which was completed in respect of the period from 1 April 2022 to 29 April 2022, that there is some ambiguity in that the box is ticked to indicate that the applicant has “capacity for some type of work” however the relevant dates are inserted in a position to indicate that the applicant has “no current capacity for any work” in respect of those dates. On balance, I am inclined to accept that the latter interpretation was intended as the inclusion of the relevant dates is most relevant and indicates that no current work capacity was intended to be identified on the certificate.
On that basis, I accept that the applicant had no capacity for any work resulting from an injury in respect of the period from 1 February 2022 to 17 April 2022.

The award to be entered in respect of weekly compensation

At the hearing, the parties agreed that the applicant’s PIAWE for relevant purposes is $1,898.86. Further, the parties agreed that no compensation has been paid to the applicant to date.
Pursuant to s 36(1), the weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s PIAWE.
It is appropriate to make an award for weekly compensation pursuant to s 36(1) of the 1987 Act at the rate of 95% of PIAWE, calculated as follows:
$1,898.86 x 95% = $1,803.92.
On that basis, an award is made in favour of the applicant for payment of weekly compensation pursuant to s 36(1) of the 1987 Act in the sum of $1,803.92 per week from February 2022 to 17 April 2022.

SUMMARY

On that basis, I determine that:
(a) the applicant sustained injury to his right elbow, with a deemed date of injury of 8 October 2021, in the nature of an aggravation, acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(b)    the past treatment referred to in the applicant’s updated schedule of expenses is reasonably necessary as a result of injury on 8 October 2021;
(c)    radial head replacement and stabilisation of elbow surgery proposed by Dr Terence Moopanar in a letter dated 16 December 2022 is reasonably necessary as a result of injury on 8 October 2021, and
(d)    the applicant was and remained having no capacity for any work as a result of the injury to his right elbow from 1 February 2022 to 17 April 2022.
Accordingly, the Commission orders:
(a) the respondent to pay the costs of past treatment set out in the applicant’s updated schedule of expenses pursuant to s 60 of the 1987 Act;
(b) the respondent to pay the costs of and incidental to radial head replacement and stabilisation of elbow surgery proposed by Dr Terence Moopanar in a letter dated 16 December 2022 pursuant to s 60 of the 1987 Act, and
(c) the respondent to pay the applicant weekly compensation in the sum of $1,803.92 per week from 1 February 2022 to 17 April 2022 pursuant to s 36(1) of the 1987 Act.

[2023] NSWPIC 354

18 July 2023