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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ilin v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPIC 565
APPLICANT:	Svetlana Ilin
RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
MEMBER:	Rachel Homan
DATE OF DECISION:	11 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and compensation pursuant to section 60 for the costs of, and incidental to, right shoulder surgery; whether injury to right shoulder due to repetitive data entry over a period of approximately 10 years; delay in reporting a work-related cause for the shoulder symptoms; whether symptoms were emanating from cervical pathology; Held – the applicant discharged her onus of establishing on the balance of probabilities that she had sustained an injury to her right shoulder to which employment with the respondent was the main contributing factor; the surgery was reasonably necessary as a result of injury; the applicant was totally incapacitated for work following the surgery as claimed; awards in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to her right shoulder to which her employment with the respondent was the main contributing factor pursuant to s 4(b) of the Workers Compensation Act 1987. 2. The right shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis, supraspinatus tendon excision of calcium, possible rotator cuff repair and interval release surgery performed by Dr Sushil Pant was reasonably necessary as a result of injury pursuant to s 60 of the Workers Compensation Act 1987. 3. The respondent to pay the reasonably necessary costs of and incidental to the surgery in accordance with s 60 of the Workers Compensation Act 1987. 4. The claim for weekly compensation for the period 1 April 2024 to 21 April 2024 is discontinued. 5. The Application to Resolve a Dispute is amended to claim weekly compensation for the period from 27 August 2024 to 15 September 2024 based on a pre-injury average weekly earnings (PIAWE) rate of $2,306.49. 6. The respondent to pay the applicant weekly compensation pursuant to s 36(1) of the Workers Compensation Act 1987 from 27 August 2024 to 15 September 2024 based on the agreed PIAWE rate of $2,306.49.

STATEMENT OF REASONS

BACKGROUND

Ms Svetlana Ilin (the applicant) was employed by the State of New South Wales (Northern Sydney Local Health District) (the respondent) as a coder for approximately 11 years.
The applicant claims that she sustained an injury to her dominant right shoulder due to the repetitive nature of her work.
The respondent’s insurer disputed liability for the right shoulder injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 May 2024.
The applicant sought internal review of that decision in correspondence from her solicitor, dated 9 May 2024. That correspondence annexed a request, dated 3 May 2024, from Dr Sushil Pant seeking approval for a right shoulder arthroscopy, subacromial decompression, acromioplasty, biceps tenodesis, supraspinatus tendon excision of calcium, possible rotator cuff repair and interval release.
In a further dispute notice issued on 23 May 2024, the insurer maintained its dispute in respect of the right shoulder injury and any entitlement to medical and related treatment expenses.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute lodged in the Personal Injury Commission (Commission) on 9 July 2024.
The applicant seeks weekly compensation and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the surgery proposed by Dr Pant.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 19 September 2024. The applicant was represented by Mr Trainor of counsel, instructed by Ms Rahem. The respondent was represented by Mr Grimes of counsel, instructed by
Mr Gilmour. Representatives from the insurer were also present.
During the proceedings, I was informed that the proposed right shoulder surgery had in fact been performed by Dr Pant on 27 August 2024. The Application to Resolve a Dispute was amended to include a claim for weekly compensation for the period during which the applicant was incapacitated as a result of the surgery, being from 27 August 2024 to
15 September 2024.
The claim for weekly compensation for the period from 1 April 2024 to 21 April 2024 was discontinued. The pre-injury average weekly earnings (PIAWE) rate was amended to the figure relied upon by the respondent, being $2,306.49.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her right shoulder pursuant to ss 4 and 9A of the 1987 Act;
(b) whether the right shoulder surgery proposed by Dr Pant was reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act;
(c) the entitlement to s 60 expenses generally, and
(d) the extent and quantification of incapacity resulting from injury during the period of weekly compensation claimed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the respondent on 9 September 2024, and
(d)    document attached to an Application to Admit Late Documents lodged by the respondent on 19 September 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 4 July 2024.
The applicant said she commenced employment with the respondent as a clinical coder in 2013. In 2020, she was promoted to clinical coding auditor. The applicant’s job involved a significant amount of repetitive data entry. The applicant was required to use a keyboard and mouse to enter data. This placed a lot of strain on her fingers, elbows and shoulders. The applicant was right-handed and mainly used her right hand and arm when working.
The applicant’s work required her to process approximately four cases per hour. This involved analysing several hundred pages of diagnostics and clinical notes to determine a diagnosis and treatment details.
The applicant said she noticed increasing right shoulder pain throughout the course of her employment. Her day in day out work seem to continually affect her shoulder. Towards the end of March 2024, the pain was so severe that the applicant was unable to work and had to attend hospital. The applicant presented to hospital on 28, 29 and 30 March 2024.
The applicant had previously undergone corticosteroid injections with no relief on
18 April 2023 and 15 January 2024. The applicant had tried paracetamol, ibuprofen, naproxen, Panadeine Forte and Endone for pain relief.
The applicant reported her right shoulder pain to her general practitioner on 2 April 2024 and was referred to orthopaedic surgeon, Dr Terence Moopanar. Dr Moopanar recommended surgical treatment and referred the applicant for an MRI. The MRI revealed large calcium deposits in the shoulder.
The applicant consulted a second orthopaedic surgeon, Dr Sushil Pant on 2 May 2024. Given the applicant’s intense pain and the amount of calcium deposits, Dr Pant also advised that the applicant would benefit from surgical treatment.
The applicant said she wished to undergo the surgery as she believed it would help her in the long-term. The applicant found it difficult to move her shoulder and experienced difficulty washing, showering and dressing. The applicant had to rely upon her children to help perform household duties. The applicant was no longer able to enjoy swimming and rarely drove as a result of her injury.
The applicant said she had been working on light duties, mainly using her left arm for her work, however, this had resulted in left shoulder pain as well.

Treating evidence

Records from Ryde Hospital reveal that the applicant was referred for physiotherapy of her right shoulder by her general practitioner, Dr Farima Haideri in July 2019. A physiotherapy assessment noted that the applicant sat at a computer. It was noted that the applicant’s pain was aggravated by lifting her arm, reaching and carrying shopping. The assessment noted that in the morning the applicant’s shoulder was stiff but it freed up during the day.
A report from physiotherapist, Ms Breanna Frendo, dated 29 July 2019, noted that the applicant presented with a six-month history of gradual onset of right shoulder pain. The applicant had attended physiotherapy on one occasion and received education on posture retraining, especially correction of work desk set up, range of movement exercises and strengthening exercises.
A right shoulder ultrasound was performed on 22 October 2021. The clinical history recorded right shoulder pain for the past three years. The investigation found features of cuff tendinopathy and subacromial bursitis for which the applicant could elect for a subacromial bursa steroid injection.
A right shoulder ultrasound was performed on 21 March 2023 and compared with the ultrasound from 22 October 2021. The report noted moderate supraspinatus tendinosis (previously severe) and mild subacromial bursitis with impingement (previously moderate).
An ultrasound guided right subacromial/subdeltoid bursa injection was performed on
18 April 2023.
The record of a consultation with Dr Haideri on 18 December 2023 noted that the applicant reported right shoulder pain for the past five years, increasing in the past few months. It was noted that the applicant had undergone an ultrasound on 22 October 2021, which showed features of cuff tendinopathy and subacromial bursitis. The applicant had undergone a subacromial bursa steroid injection. The applicant had undergone another injection in April 2023. The applicant was given a referral for another right shoulder ultrasound guided steroid injection.
The report of a right shoulder ultrasound performed on 11 January 2024 noted a five year history of pain, worsening recently. The further ultrasound showed moderate subacromial bursitis and mild calcific tendinopathy at the supraspinatus tendon.
An ultrasound guided subacromial bursal steroid injection was performed on
15 January 2024.
On 13 February 2024, the applicant again reported right shoulder pain to Dr Haideri and requested a referral for physiotherapy.
Discharge documents for a presentation at Ryde Hospital on 28 March 2024 recorded:
“Right anterior shoulder pain for 3 days
Hx Bursitis for 3 years. Has had cortisone injections previously and has attempted conservative management.
Presents due to severe pain in shoulder radiating down into lower arm with decreased ROM of the arm and shoulder.”
Discharge documents for a presentation at Royal North Shore Hospital on 29 March 2024 recorded:
“46F with bursitis presenting for uncontrolled pain
2/7 sudden increase in R shoulder pain
Presented to Ryde Hospital yesterday with R shoulder pain
Chronic bursitis of R shoulder, prev confirmed on Ultrasound in January
Reports has had 2x corticosteroid injections with nil relief, most recent in Jan 2024
Reports she has had increasing pain and has been unable to sleep
Reports has trialled paracetamol, ibuprofe, naproxen, panadeine forte and endone for pain relief with minimal effect
She has not been tolerating endone causing nausea and vomiting
Reviewed by Ryde orthopedics with plan for regular analgesia, outpatient USS and follow up with private orthopedic surgeon
OP Ultrasound report from 12/1/24:
Supraspinatous tendon calciific tendinopathy
Moderate subacromial bursitis”
Discharge documents for a further presentation at Ryde Hospital on 30 March 2024 recorded that the applicant presented with gastrointestinal symptoms thought to be secondary to pain medication prescribed for her right shoulder.
On 2 April 2024, Dr Haideri noted that the applicant had experienced a flareup of right shoulder pain on 28 March 2024. The applicant had presented to Ryde Hospital then Royal North Shore Hospital. The applicant had an upcoming review with an orthopaedic surgeon.
On 8 April 2024, Dr Haideri noted that the applicant was going to undergo an MRI of the right shoulder. The record noted,
“Working with computer at work in the past 10 years – pain due to repeated strain injury
Wants to apply for work cover”
The report of an MRI performed on 8 April 2024 found calcific supraspinatus tendinopathy and moderate subacromial bursitis.
On 15 April 2024, Dr Haideri discussed the results of the right shoulder MRI and gave the applicant a medical certificate indicating that she was unable to work.
The applicant was seen by orthopaedic surgeon, Dr Terence Moopanar, on 18 April 2024.
Dr Moopanar took a history of sudden, severe shoulder pain beginning three weeks earlier. Dr Moopanar noted,
“She reported no specific injury or fall, however her job, as a clinical coder, involves a significant amount of repetitive data entry, which she believes initiated and exacerbated her symptoms.”
Dr Moopanar reviewed the recent MRI findings and performed a physical examination. He recommended surgery to remove the calcium deposit and repair the rotator cuff.
Dr Haideri noted on 22 April 2024 that the applicant had seen Dr Moopanar who recommended surgery. The applicant had arranged an appointment with another orthopaedic surgeon, Dr Sushil Pant for a second opinion. Dr Haideri noted:
“Wants to apply for WorkCover, spoken with her manager and waiting for claim number. Working with computer at work in the past 10 years
Working as a clinical coder involves a significant amount of repetitive data entry.”
Dr Pant wrote to Dr Haideri on 2 May 2024, noting a history of repetitive strain to the shoulder working in clinical coding. Dr Pant noted that the applicant had been experiencing intense pain for the last month. On examination, Dr Pant noted reduced range of motion, tenderness and weakness to cuff loading. Dr Pant reviewed the MRI performed on
8 April 2024 and noted the extensive amount of calcium deposit anteriorly and recommended surgical treatment.
On 6 May 2024, Dr Haideri gave the applicant a SIRA Certificate of Capacity noting a similar history to that recorded above.

Dr Gehr

The applicant relies upon a medicolegal report prepared by orthopaedic surgeon, Dr Eugene Gehr, dated 17 June 2024.
Dr Gehr reviewed the treating evidence and MRI imaging dated 8 April 2024. Dr Gehr took a history of the applicant’s work duties that was consistent with her statement evidence.
On examination, Dr Gehr found right posterior shoulder muscle wasting and reduced range of motion with pain. Dr Gehr recorded that he found a normal examination of the cervical spine.
Dr Gehr diagnosed right shoulder calcific deposit with severe pain, significant right posterior shoulder muscle wasting, tendinopathy, and loss of range of motion.
Dr Gehr expressed the view that the applicant’s prognosis was guarded unless she had further treatment including surgery.
With regard to causation, Dr Gehr stated,
“Causation for this condition is complicated and is put down to the following. It is called calcific tendinosis. The possible causes are:
Wear and tear
Age
Repetitive overhead motions.
Diabetes, kidney disease, hypothyroidism
The activities in her case would be wear and tear from repetitive stress and micro tears in rotator cuff tendons triggering a healing response that induces a calcium deposit in the region.
This information comes from a BARD/Google search, conducted 9:30 am on 17/6/2024. Accessing the Cleveland Clinic at 10:54 am on 17/7/2024, states that the causes are aging and wear and tear.”
Dr Gehr further stated,
“…employment is a possible contributing factor to disease process of calcium tendinitis. She did 40 hour week using keyboard work in her occupation as a coder. So employment was the main contributing factor to the disease process.”
Dr Gehr expressed the view that the surgery proposed by Dr Pant was reasonably necessary and the need for the treatment resulted from the work injury. All alternative treatments had been exhausted. The treatment was 70 to 80% effective and was generally accepted by the medical profession to be effective.
Dr Gehr noted that the applicant’s general practitioner had expressed the view that there was insufficient information to conclude that employment was the main contracting factor to the applicant’s injury. Dr Gehr stated that employment could be a “significant factor” in the causation of the applicant’s condition.

Dr Smith

The respondent relies upon a medicolegal report prepared by orthopaedic surgeon,
Dr Anthony Smith, dated 10 September 2024. Dr Smith noted that the applicant was a 46-year-old right hand dominant woman.
Dr Smith recorded that the applicant had worked in a clerical job using a computer extensively for lengthy periods compiling healthcare statistics since 2013. Dr Smith noted the treating evidence referred to above and the report from Dr Gehr. Dr Smith noted that the applicant had undergone surgical treatment at the right shoulder on 27 August 2024.
Dr Smith gave the opinion that the applicant had bilateral rotator cuff disease and said,
“With clerical work including typing, the arms are basically by the side, and there may be some forwards and backwards movements. The elbows will be flexed at about 90° and the hands pronated, so the keyboard can be operated. That activity will not cause any injury or aggravation to rotator cuff disease.
It is more likely than not that the symptoms in the shoulders are referred from the cervical degenerative disease. The occupation that she describes having, if she keeps her head still, concentrating on the screen, she could aggravate her cervical degenerative disease, and the pain could be referred to the shoulders.”
Dr Smith noted Dr Gehr’s opinion that there was a possibility of employment being a contributing factor to the calcific tendinitis. Dr Smith said he considered that possibility to be minimal. Dr Smith said he had lost count of the number of patients he had seen who had had shoulder operations because of symptoms emanating from the cervical spine. Dr Smith said most patients in the applicant’s age group would have bilateral bursitis and rotator cuff disease on ultrasound.
Asked specifically to consider whether the applicant had suffered an injury to her right shoulder arising out of or in the course of employment, Dr Smith responded,
“The ultrasound and MRI findings are fairly unremarkable in her age group. These investigations are undertaken bilaterally. It would be very common to see the same thing on both sides. With regard to the ultrasound of 2022, there was no restriction in the range of movement of the shoulder internal and external rotation. Impingement is described with abduction. Commonly, abduction will continue beyond that point in an ultrasound examination. In my view, there is no relationship between her employment and her shoulder pathology. It is possible her employment could have aggravated her cervical degenerative disease.”
Dr Smith said there was little or no chance of aggravating the applicant’s rotator cuff disease with her employment activities. Employment was not a major contributing factor to any rotator cuff disease the applicant might have.

Dr Smith considered that as the applicant was one-week post operation, she was not currently fit for work.
Dr Smith said the right shoulder operation undertaken was not to resolve any work injury.

Applicant’s submissions

The applicant submitted that the respondent insurer had adopted a passive approach to the claim. Without any contradictory medical evidence, it had simply asserted that it was not satisfied that the evidence from the general practitioner, Dr Pant and Dr Moopanar should be accepted.
The late report of Dr Smith suddenly changed the nature of the dispute.
The applicant submitted that the report of Dr Smith was of no assistance whatsoever.
Dr Smith had the opportunity to comment on all the evidence, however, the Commission would not accept his opinions as accurate.
Dr Smith did not address the radiological findings of calcific deposits. His failure to grapple with that fundamental issue would lead the Commission to reject his opinion.
The second fatal problem with Dr Smith’s report was that his hypothesis was predicated upon there being referred pain from a degenerate cervical spine. The applicant described this opinion as “truly unorthodox”. There was not once piece of radiological evidence relating to the cervical spine let alone radiological evidence of degenerative change at the cervical spine. No evidence of changes of such a magnitude as to give rise to radicular symptoms existed. There was no satisfactory evidence from Dr Smith to explain his hypothesis.
Furthermore, Dr Gehr recorded an examination of the cervical spine which was normal.
Dr Smith’s opinion was inconsistent with Dr Gehr’s clinical findings.
Finally, Dr Smith’s diagnosis, if correct, would have been missed by two treating surgeons.
With regard to whether the applicant’s evidence discharged her onus, the applicant noted her written evidence of performing repetitive work for a prolonged period of time using her dominant right arm. The radiological evidence was consistent with an overuse syndrome.
The applicant said it was important to note her stoic approach to her injury. The clinical material demonstrated that she had experienced right shoulder problems for a long time. For five years the applicant worked on and continued to perform her duties, knowing that they caused her pain. Prior to the presentations in March 2024, the applicant had undergone radiological investigations and cortisone injections. The applicant’s approach was to just get on with things.
The treating medical evidence was unanimous in indicating that the applicant’s employment was causative of the injury.
Dr Gehr referred to the calcific deposits shown on the radiological investigations. Dr Gehr found that the applicant’s employment activities had caused wear and tear from repetitive stress and micro tears in the rotator cuff tendons, triggering a healing response that induced calcium deposits in the region. Dr Gehr’s hypothesis was consistent with the history of long-standing, very severe, right shoulder pain.
The applicant submitted that, at 46 years old, the Commission would exclude the applicant’s age as causative of the injury. There was no evidence of the applicant engaging in any activity involving repetitive overhead motions or having a metabolic disorder.
The hypothesis posited by Dr Gehr, that wear and tear related to her work duties was causative was consistent with the history and would be accepted on balance as being correct.
Dr Smith referred to Dr Gehr’s report and the possibility of employment being a contributing factor to calcific tendinitis, although he considered that possibility to be minimal. The applicant described Dr Smith’s opinion as a bare ipse dixit.
On the background of the diagnoses by the applicant’s specialists, the Commission would accept Dr Gehr’s hypothesis.
The applicant referred to the authority in Murphy v Allity Management Services Pty Ltd[1] and submitted that even if there were other causes of the need for treatment, it was sufficient if the work injury materially contributed to that need.
[1] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

Respondent’s submissions

The respondent referred to the applicant’s evidence attributing her symptomology over a long period of time to work. The respondent submitted that if, in fact, the applicant held that belief, that history was not recorded in the clinical records.
The respondent noted that the physiotherapy records from Ryde Hospital in July 2019 gave no history of trauma. Reference was made to the applicant’s symptoms being aggravated by lifting her arm, reaching in carrying shopping. The arm was said to be stiff in the morning and freed up during the day. Lifting the applicant’s arm and shopping were not part of the applicant’s employment duties. The fact that the applicant’s arm freed up during the day was not consistent with an employment related aggravation. No mention of work causing or aggravating symptoms was made in these records.
The respondent noted that there was also no mention of work in the clinical history recorded in the report of the ultrasound performed on 22 October 2021.
The respondent observed that no clinical notes pre-dating 18 December 2023 had been put into evidence. There was no contemporaneous evidence of the applicant complaining of pain while working.
Dr Haideri’s notes and the hospital discharge papers did not record that any advice was given regarding the impact of work on her shoulder condition. The referrals for radiological investigations and injections made no reference to a work cause. No reference was made to symptoms increasing while working.
The respondent submitted that it was unlikely that the applicant would experience symptoms caused by work for five years without ever reporting that to her employer or a doctor if work was indeed causing the condition.
The first mention of work being relevant to the condition was when the applicant reported to Dr Haideri that she wanted to make a compensation claim.
The respondent submitted that no opinion on causation had been provided by Dr Haideri. The only indication of Dr Haideri’s opinion on causation appeared in a single certificate of capacity. The respondent referred to the authority in DHL Supply Chain (Australia) Pty Ltd v Hyde[2] (Hyde), in which Keating P commented that such certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based, referring to Greif Australia Pty Ltd v Ahmed.[3]
[2] [2011] NSWWCCPD 22.
[3] [2007] NSWWCCPD 229.
The clinical notes clearly indicated that the applicant’s shoulder condition was not attributed to work until the applicant expressed a desire to make a claim.
The respondent submitted that the treating specialists had also not given a clear opinion on causation. Dr Moopanar referred to the applicant’s own “belief” that work exacerbated her symptoms. There was no actual opinion from Dr Moopanar.
Dr Pant took a history work aggravating the applicant’s symptoms but did not provide an opinion that work was “the main contributing factor” to an aggravation.
No support on causation was provided by any of the treating practitioners.
The case turned on the expert opinions from Dr Gehr and Dr Smith.
The respondent noted that Dr Gehr did not address the question of why the applicant’s shoulder condition had never been attributed to work and no doctors had recommended a change in work duties if in fact work was causing or aggravating the applicant’s symptoms.
Dr Gehr only gave an opinion that work was a possible contributing factor by way of wear and tear. No real reasoning was provided nor was the actual mechanism of injury described. Dr Gehr simply said that the applicant performed this type of work there for work was the main contributing factor to the condition.
Weighing against Dr Gehr’s opinion was that of Dr Smith. Dr Smith noted that clerical work including typing usually involved the arms remaining by the workers side with some forwards and backwards movements. The elbows would usually be flexed at about 90° and hands pronated. Dr Smith said that this activity would not cause any injury or aggravation to the rotator cuff. Contrary to Dr Gehr’s report, Dr Smith had explicitly considered the physical requirements of the applicant’s job.
The respondent submitted that Dr Smith was aware of the calcium deposits and referred to their presence in the MRI findings. The respondent submitted that the Commission would not accept the applicant’s case theory and would prefer the opinion from Dr Smith over that given by Dr Gehr.

Applicant’s submissions in reply

The applicant maintained her submission that Dr Smith had not integrated the radiological findings of calcific tendinosis into his reasoning.
The applicant observed that not every worker who experienced pain work immediately made a claim. The applicant was stoic and continued to work so she could earn a living.
The applicant gave her opinion on the causal relationship between her symptoms and work. There was no dispute that the applicant experienced right shoulder pain for a long time. The earlier radiological investigations and physiotherapy records confirmed this.
The respondent had authority to obtain earlier clinical records from the general practitioner but did not do so. No application was made for directions for production at the preliminary conference.
The applicant submitted that certificates of capacity issued by a nominated treating doctor were of forensic value. The certificate issued by Dr Haideri confirmed that in her opinion employment was contributing to the applicant’s shoulder pain.
Dr Pant, in his report of 2 May 2024 clearly linked employment to the applicant’s condition. As a treating report to a general practitioner, it would not normally be expected that he would provide a detailed opinion on causation. Dr Moopanar’s report should be approached in the same way. The absence of reference to the main contributing factor test was wholly explicable.
The applicant submitted that the Commission was the finder of fact. Referring to the decision in AV v AW[4], the applicant submitted that the medical evidence alone was not determinative. No other cause for the applicant’s condition had been identified. The evidence before the Commission was consistent with employment being the cause.
[4] [2020] NSWWCCPD 9.
Noting the language of “possibility” used by Dr Gehr, the applicant referred the Commission to the decision of EMI (Australia) Ltd v Bes.[5] Dr Gehr had advanced a hypothesis of a work injury causing calcification. That hypothesis had not been negatived. There was no evidence to suggest that Dr Gehr’s theory was wrong. The only potential cause of the condition was occupational overuse. The Commission would be satisfied on the balance of probabilities that employment was the main contributing factor to the injury.
[5] [1970] 2 NSWLR 238.
Although there was no reference to work in the early treating evidence, this was explained by the applicant’s stoic approach to her injury. This was consistent with the fact that the applicant had already returned to work after her surgery.

FINDINGS AND REASONS

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 60 of the 1987 Act relevantly provides:
“(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).”
In Murphy v Allity Management Services Pty Ltd[6] Roche DP stated:
“...That is because 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 (1979) 53 WCR 167; ACQ Pty Ltd v Cook [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 common sense 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).”
[6] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
After careful consideration of the evidence and submissions summarised above, I am satisfied on the balance of probabilities that the applicant had a condition at her right shoulder for which the surgery performed by Dr Pant on 27 August 2024 was reasonably necessary medical treatment.
In contrast with the opinion given by the respondent’s medicolegal expert, Dr Smith, there is no treating evidence before the Commission that the applicant, who is 46 years old, has any condition at her cervical spine to account for the right shoulder symptoms consistently recorded in the treating evidence over a period of many years. There are no investigations of the cervical spine and no suggestion from any of the specialists involved in the applicant’s case that her symptoms could be caused by pathology at her cervical spine. Dr Gehr’s examination of the cervical spine was essentially normal. In these circumstances, I do not accept Dr Smith’s hypothesis that the cervical spine was the source of the applicant’s right shoulder symptoms.
Dr Smith has not suggested that the surgery performed by Dr Pant was inappropriate on any other ground apart from his view that the applicant’s symptoms were emanating from her cervical spine or possibly some non-work related degenerative bursitis.
The two orthopaedic surgeons consulted by the applicant have recommended a similar surgical approach to the condition at the applicant’s shoulder. Dr Gehr has given an opinion in support of the view that the surgery was appropriate medical treatment.
The real dispute in this case is the causal relationship between the condition at the applicant’s right shoulder and her employment with the respondent.
The treating evidence before the Commission is truncated. It is unfortunate that the clinical records of Dr Haideri prior to December 2023 are not in evidence. The material before the Commission does, however, support the applicant’s evidence that she experienced shoulder symptoms, which appeared to wax and wane, over a period of many years.
The applicant was referred for physiotherapy of the right shoulder in 2019. A right shoulder ultrasound was performed in October 2021. A further ultrasound was performed in March 2023. It appears that injections to the subacromial bursa were performed after each radiological investigation.
In early 2024, there was an acute intensification of symptoms prompting a further steroid injection, referral for physiotherapy and presentations at hospital due to severe pain. An MRI investigation performed on 8 April 2024 found calcific supraspinatus tendinopathy, as well as moderate subacromial bursitis.
The presence of an extensive calcium deposit was specifically identified by both
Dr Moopanar and Dr Pant as justifying the surgical intervention.
The respondent correctly submits that neither Dr Moopanar nor Dr Pant has provided an explanation of the cause of the applicant’s condition. As noted by the applicant, this is unsurprising, given the purpose for which their reports were prepared. Such an explanation can, however, be found in the report of Dr Gehr.
Dr Gehr said the condition could be caused by various factors including wear and tear, age, repetitive overhead motions as well as other medical conditions. Based on the history provided by the applicant, Dr Gehr concluded that wear and tear from repetitive stress causing micro tears in the rotator cuff tendons, triggering a healing response that induced a calcium deposit, could explain the presence of the condition in the applicant’s case.
While Dr Smith did make reference to the diagnosis of calcific tendinosis by Dr Gehr, his own reasoning focused predominantly on whether there was an injury in the nature of an aggravation of rotator cuff disease at the applicant’s shoulders without specific reference to the findings of calcific deposits. It is not clear whether Dr Smith adequately considered the MRI findings from 8 April 2024. His reference to ultrasound investigations in 2022 suggests otherwise.
I do, however, accept that Dr Smith did consider the nature of the applicant’s duties and gave an opinion that clerical work, including typing, would not cause any injury or aggravation to the rotator cuff.
The respondent’s submissions suggested that Dr Smith’s view was consistent with the lack of reference to any work-related cause for the applicant’s symptoms until very recently when the applicant indicated to Dr Haideri that she wished to make a compensation claim.
It is true that prior to the clinical note recorded on 8 April 2024 by Dr Haideri, there is no evidence of the applicant reporting an onset or aggravation of symptoms caused by work or reference to the applicant’s work requiring modification to avoid aggravating her symptoms. The applicant presented to various treatment providers in respect of her right shoulder symptoms on numerous occasions between 2019 and April 2024 without any indication that the symptoms were related to work.
There is also no evidence that the applicant had previously reported a workplace injury to her employer.
These circumstances weigh heavily against the applicant.
The applicant submits, however, that the delay in reporting a relationship between her work and her shoulder symptoms can be explained by her stoic nature and her conservative approach to the injury.
I accept that prior to April 2024 there is no indication that the applicant’s shoulder symptoms caused any incapacity for work. The applicant’s symptoms were managed conservatively with physiotherapy and steroid injections. The applicant continued to work her full duties. The applicant remained off work for a period of less than three weeks after her right shoulder surgery on 27 August 2024.
The first references to a work-related cause for the applicant’s injury coincided with the applicant first requiring a period of time off work due to an acute intensification of her symptoms in late March / early April 2024.
It is also relevant that the applicant’s account of her employment duties, including a significant amount of repetitive data entry over a period of more than 10 years, causing aggravating her symptoms, is the only explanation for the symptoms provided anywhere in the treating evidence.

The same account was given to Dr Haideri, Dr Moopanar and Dr Pant. While none of the treating doctors has given an explicit opinion agreeing with the applicant’s explanation, neither have they expressed any doubt about the validity of that explanation. Dr Haideri, who has been the applicant’s treating general practitioner since at least 2019, has, in issuing a SIRA certificate of capacity, signalled her agreement with the applicant’s belief that her condition was related to her employment.
Noting the respondent’s reference to the decision in Hyde, I accept that the evidentiary value of that certificate, in isolation, is limited. It does, however, form part of the totality of the evidence I am required to consider and, in my view, lends weight to the opinion expressed by Dr Gehr.
I do accept that Dr Gehr’s opinions are not expressed in the most confident of terms. In parts of his report, the language used suggests some hesitation, in so far as he refers to employment being “a possible contributing factor”. Elsewhere in his report, however, Dr Gehr does say that employment was “the main contributing factor to the disease process”. Reading Dr Gehr’s report as a whole, I am satisfied that he has expressed a view consistent with an injury for the purposes of s 4(b)(i) and or (ii).
I find that Dr Gehr’s opinion is consistent with the treating evidence, including the reports from Dr Moopanar and Dr Pant as well as the certification issued by Dr Haideri.
Although Dr Gehr’s explanation of the precise mechanism by which the applicant’s employment duties caused wear and tear on the shoulder could be more detailed, it is apparent that he had an accurate understanding of the nature of the applicant’s employment duties.
While Dr Smith’s view was that the possibility of employment being a contributing factor to the applicant’s calcific tendinosis was minimal, he did not discount that possibility in its entirety.
Dr Gehr has identified other potential causes for the applicant’s condition, being age, repetitive overhead motions, diabetes, kidney disease and hypothyroidism. There is, however, no suggestion in either Dr Smith’s report or elsewhere in the evidence before the Commission that any of those factors applies in the applicant’s case. Whilst an element of the applicant’s condition may be idiopathic or due to other unidentified causes, the applicant is not required to demonstrate that employment was the only contributing factor to her condition.
Weighing the evidence as a whole, I prefer Dr Gehr’s opinion. I am satisfied on the balance of probabilities that the applicant sustained an injury to her right shoulder in the nature of the contraction and/or aggravation of a disease process in her right shoulder, to which employment was the main contributing factor.
For the reasons given above, I am also satisfied that the surgery performed by Dr Pant was reasonably necessary as a result of that work injury for the purposes of s 60 of the 1987 Act. The applicant will be entitled to compensation for the reasonably necessary costs of and incidental to the surgery.
There is no dispute on the evidence before me that the applicant was totally incapacitated for work as a result of the right surgery performed on 27 August 2024. There will be an award for the applicant for weekly compensation pursuant to s 36(1) of the 1987 Act, for that period of incapacity based upon the agreed PIAWE rate.

[2024] NSWPIC 565

11 October 2024