Insurance Australia Limited t/as NRMA Insurance v Francisco (No 1)

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Francisco (No 1) [2023] NSWPICMP 271
CLAIMANT:	Shannon Francisco
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Tom Rosenthal
DATE OF DECISION:	15 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of treatment dispute about surgery and insurer’s review of Medical Assessor (MA) Bodel’s decision under section 7.26; claimant a motorbike rider; alleged injury after being hit from behind by a car as he was trying to stabilise the bike and stop it from falling; claimant alleged left shoulder injury including full thickness rotator cuff tear; treating surgeon recommended arthroscopic repair which was refused by the insurer; claimant had long history of right shoulder injury including full thickness tear and shoulder replacement surgery; issues of causation including pre-accident incident, no contemporaneous record of left shoulder complaint and overuse of left shoulder due to right shoulder problems; Held – claimant would have had some pre-accident pathology in his left shoulder before the accident; absence of contemporaneous note on day after accident not dispositive; Norrington v QBE Insurance (Australia) Ltd and AAI Ltd t/as GIO for the Nominal Defendant v McGiffen referred to; claimant’s version of accident accepted; claimant injured his left shoulder in the accident; surgery related to the injury; AAI Limited t/as AAMI v Phillips followed; surgery reasonable and necessary in the circumstances; Clampett v Workcover Authority of NSW and Diab v NRMA Limited followed; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Bodel issued in proceedings number M10459744/21 and dated 16 August 2022.

STATEMENT OF REASONS

INTRODUCTION

Shannon Francisco was involved in a motor accident on 10 March 2021. He was riding his motorcycle with a friend who had an issue with their motorbike and pulled over to the side of the road. The claimant followed to render assistance and was hit from behind by a car.
The claimant says he injured his shoulder and arm in the accident. He made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that hit his motorbike.
A medical dispute has arisen in connection with that claim about whether shoulder surgery proposed by Dr David Lieu in July 2021 the claimant’s shoulder surgery is related to the injuries sustained in the accident and whether the treatment is reasonable and necessary in the circumstances.[1]
[1] NRMA’s decision to deny the shoulder surgery was made on 16 July 2021. NRMA’s internal review decision is dated 11 August 2021 and is found at page 31 of the joint bundle.
The claimant referred the dispute to the Personal Injury Commission (Commission) for assessment and on 16 August 2022 Medical Assessor Bodel determined the dispute in the claimant’s favour.
The insurer lodged an application for review of the decision. On 20 October 2022 a delegate of the President determined there was reasonable cause to suspect a material error in the assessments and has allowed the review. On 29 November 2022, the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Francisco’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available.

Treatment

Statutory benefits are payable by the “relevant insurer”[2] in accordance with Part 3 of the MAI Act and include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[2] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Unlike the previous motor accident compensation scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The mechanism for the claimant to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim.
Section 3.24 provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(c)the reasonable cost of treatment and care,
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

Dispute resolution

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b):
“[W]hether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care).”
A review under s 7.25 of the MAI Act is not necessarily confined to the issues raised in the application but is a de novo assessment that is “a new assessment of all the matters with which the medical assessment is concerned”.
Rule 128 of the Personal Injury Commission Rules (Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Bodel examined the claimant on 17 June 2022 and issued his reasons on 16 August 2022. He was asked to assess:
(a)   whether the injuries caused by the motor accident were minor injuries;
(b)
whether left arthroscopic rotator cuff repair surgery requested on

9 July 2021 relates to the injuries caused by the accident, and
(c)   whether the surgery was reasonable and necessary in the circumstances.
Medical Assessor Bodel took the following history from the claimant:
(a)   the claimant had a number of longstanding health issues, was in receipt of the Disability Support Payment (DSP) and was not employed at the time of the accident;
(b)   he had a history of a fractured skull;
(c)
the claimant had bariatric surgery and reduced his weight from 193 to

85 kg. The Panel notes this history may be incorrect. The records suggest the claimant did not reduce his weight to 85kg but has reduced his weight by 80 – 85 kg;
(d)   the claimant also has a history of mental health issues;
(e)   of particular relevance to this dispute is that the claimant had previous right shoulder surgery;
(f)    the claimant was hit from behind by someone driving at about 60kmph and he was thrown off his motorbike landing heavily on his left side injuring his left shoulder. The Panel notes there is some controversy about this history;
(g)   he saw his general practitioner, had X-rays and ultrasounds and later an MRI scan and arthrogram which confirmed a full-thickness tear of the supraspinatus and infraspinatus tendon;
(h)   he was referred to Dr Lieu an orthopaedic surgeon who recommended surgery, and
(i)    the claimant takes analgesic medication and wants to have the surgery.
The claimant was 45 years of age at the time of his examination and weighed 110 kg. On examination he had a good range of neck movement, and no signs of radiculopathy were reported.
His shoulders were examined, and the claimant had restricted motion in both the right shoulder (operated on before the accident) but more so on the left. There were signs of impingement detected by Medical Assessor Bodel.
Medical Assessor Bodel reviewed the documentation and noted there was no evidence of any pre-accident left shoulder symptoms. He quotes the entry in the general practitioner’s (GP) notes of 11 March 2021 which does not have a history of the claimant falling.
Medical Assessor Bodel accepted that the claimant suffered a full-thickness tear in the left shoulder as a direct consequence of the motor accident which he says is supported by the contemporaneous documentation.
Medical Assessor Bodel determined that the injury was not a minor (now threshold) injury and that the arthroscopic repair was related to that injury and was reasonable and necessary in the circumstances.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer’s submissions in support of their review application say:
(a)   there is evidence of pre-accident left shoulder complaints two weeks before the accident;
(b)
there is inconsistency in the history obtained in that the claimant told

Medical Assessor Bodel the accident occurred when the claimant was thrown from his motor bike falling heavily on his left shoulder whereas the history given to the GP was that he did not fall but landed on his feet after being hit;
(c)   the fact that imaging found the tear after the accident does not mean that the tear was caused by the accident. Causation requires consideration of whether the mechanism of accident could have caused the injury and did cause the injury; and
(d)   the Medical Assessor’s reasons were insufficient.
The insurer’s further submissions[3] confirm that causation of the left shoulder injury and the left shoulder surgery is in issue. The insurer says that criteria for determining whether treatment is reasonable and necessary includes:
(a)   the treatment must be directly related to the injuries caused in the accident;
(b)   the treatment must be aimed at helping the claimant get back to their usual activities;
(c)   the treatment must be appropriate for that type of injury;
(d)   the treatment should be provided by an appropriately qualified health professional, and
(e)   the treatment must be cost effective.
[3] The submissions are dated 2 March 2023 and are Document AD2 in the Commission’s file.
The insurer takes the Panel back to the original submissions and says:
(a)   the history given by the claimant to his GP does not mention the shoulder – the insurer submits there is no contemporaneous evidence of injury to the left shoulder;
(b)   the claimant attended Liverpool Hospital on 19 October 2020 with complaints of right shoulder pain and that “it would be reasonable for [him] to favour the right shoulder and have relied on and strained the left shoulder” before the accident;
(c)
the claimant attended Liverpool Hospital with left shoulder pain on

21 February 2021 reporting the onset of pain due to exercising on a rowing machine. An X-ray was undertaken;
(d)
the claimant complained of left shoulder pain to his GP on

23 February 2021 who refers to discharge advice and says the claimant was swollen in the area of his biceps and was “surprised at the pain?” Endone was given;
(e)   Dr Lieu refers to the claimant having been referred back for review and since his last review for the right shoulder he has made a full recovery – the insurer says this is evidence of bilateral shoulder problems, and
(f)    the claimant did not report injury, did not require ambulance and did not attend hospital on the day of the accident and continued riding.

Claimant’s submissions

The claimant says in response to the review application:
(a)   the entry in the hospital notes from 21 February 2021 refers to a left bicep strain due to a sore arm from overuse on a rowing machine and that he did not receive treatment for his left shoulder before the accident, he used a heat pack and recovered before the accident;
(b)   the claimant says the version of events given to Medical Assessor Bodel is correct, he was hit from behind and came off his bike, while trying to hold onto his bike he and the bike dropped to the ground. The claimant appears to acknowledge the lack of clarity concerning the note “landed on his feet” but says the claimant’s left shoulder injury is consistent with him trying to hold the bike up after the accident, and
(c)
the Medical Assessor had noted both the entry in the GP’s notes dated

11 March 2021 and the note on 17 March that the claimant’s pain was now localised to the left shoulder.

Procedural matters

Medical Assessor Bodel was referred the two separate medical assessment matters to assess and determine. He did that by issuing a single document comprising:
(a)   the certification in proceedings M10439373/21 that the claimant’s shoulder injury was not a minor injury;
(b)   the certification in proceedings M10459744/21 concerning the dispute about surgery, and
(c)   a set of reasons setting out his findings in relation to both matters.
The claimant lodged two separate applications for review which have been referred by the President to the same Panel members, these proceedings and proceedings numbered R-M10534779/22 (concerning the minor (now threshold) injury dispute).

On 2 December 2023 the Panel advised the parties it intended to hear both proceedings together and issued directions to the insurer for a single bundle of documents incorporating the documentation and submissions from both parties in both proceedings.
On 14 February 2023 the Panel met and reported to the parties. The Panel requested:
(a)   confirmation from the claimant whether he had the surgery (noting he had been on the public hospital waiting list since 2021);
(b)   a concession from the insurer that leaving aside the issue of causation, the claimant’s rotator cuff injury would be a non-minor (now non-threshold) injury, and
(c)   consideration by the insurer that on either mechanism of injury (being thrown from the bike and landing on his shoulder or falling from the bike but landing on his feet) the attempt at keeping his motorbike upright after being hit could lead to a rotator cuff tear.
The Panel advised the parties of the medical examination date and directed the parties to provide any final submissions and a response to the matter raised in the report, the insurer by 3 March and the claimant by 21 March 2023.
The Panel received final submissions from the insurer dated 2 March 2023.[4] The insurer agreed that leaving aside the issue of causation:
(a) the pathology of rotator cuff tear would be a non-minor (now non-threshold) injury, and
(b) the surgery to repair it would be reasonable and necessary.
[4] Document AD2 in the Commission’s electronic file.
The claimant did not respond to the Panel’s directions within the time frame requested and did not provide any further submissions. On further prompting from the Panel, the claimant advised on 22 May 2023 (two days before the re-examination) that he had his left shoulder surgery on 28 March 2023. The Panel relayed a message to the parties requesting a copy of the operation report relating to that surgery.
Upon receipt of the re-examination findings of Medical Assessor Stubbs, the Panel relayed a message to the parties enquiring whether the surgery that had taken place in March was the surgery that is the subject of the dispute and if so confirmation of what Medical Assessor Stubbs had recorded, that is that the insurer had paid for the surgery.
On 7 June 2023 (the day of the Panel’s second preliminary conference) the claimant responded advising that NRMA had “approved” the surgery. The claimant provided a copy of Dr Lieu’s records which included a letter dated 4 November 2022 suggesting the insurer had approved the claimant’s surgery. A copy of that letter and two further letters indicate they were sent to NRMA.
On 7 June 2023, the insurer’s solicitor responded to the Panel’s query saying NRMA had not paid for the surgery. The Panel sought a copy of the approval letter and NRMA’s list of payments.
A copy of the approval letter has not been provided but the insurer did provide the list of payments. There are invoices totalling $13,030 that are on the list that have not been paid and are marked as pending. This includes invoices to Sydney Southwest Private Hospital ($8,524.30) and Dr Tran, anaesthetist ($4,418) in respect of services provided on 28 March 2023. However, there are also payments that have been made after 4 November 2022 and others after the date of the surgery including to Dr Lieu, Prime Physiotherapy and Jim’s Mowing for domestic care services (which includes three payments for services rendered before the surgery).
On 14 June 2023, the Panel was advised that on 15 November 2022, NRMA wrote to the claimant advising him:
“Your request for Left Arthroscopic Rotator Cuff Repair is approved as follows on a without prejudice basis.”
The letter did not disclose what the “without prejudice” related to and the Panel is therefore proceeding on the basis that there remains a dispute about the shoulder surgery and the threshold injury.
The Panel has resolved to issue two separate decisions reflecting the two separate medical assessment matters referred to the Commission and assigned to Medical Assessor Bodel.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The application for statutory benefits (claim) form was dated 24 March 2021.[5] It includes the following details:
(a)   the claimant had an injury on 1 February 2016 and a previous motor accident claim;
(b)   the claimant was “riding my motorbike when I was struck from behind by the car”, and
(c)   he did not receive treatment at hospital and was suffering no illness or injury affecting the same or similar parts of his body at the time of the accident.
[5] Page 40 of the joint bundle.
The first certificate of fitness dated 24 March 2021[6] diagnosed a soft tissue injury and rotator cuff injury to the left shoulder. The history of the accident was “motor bike rider hit in rear by car, came off bike, was trying to stabilise bike”.
[6] Page 45 of the joint bundle. One page is missing and therefore it is not known who completed the certificate or the date of it.
In an activities of daily living assessment report completed for the insurer by Ms Goundar of IPAR Rehabilitation Pty Limited (IPAR) and dated 21 July 2021[7] is this history, “Mr Francisco reported that he fell onto [the] ground onto the left side which caused immediate pain in his left shoulder”.

Treating medical records and reports

[7] Page 148 of the joint bundle.

GP notes

The Green Valley Medical Practice notes have been provided by Dr John McMahon.[8] These reveal:
[8] Page 52 of the joint bundle.
(a)   the first consultation after the retirement of the claimant’s previous GP appears to be 10 January 2028. The claimant was taking an occasional Endone after shoulder surgery (one pack in 2 – 3 months) and the claimant was seeing a physiotherapist;
(b)   on 24 April 2018 Mr Francisco attended with right shoulder pain at times but he can manage that pain;
(c)   on 26 August 2018 it was reported he had lost 36 kg and weighed 157 kg;
(d)   an entry on 13 October 2018 suggests Mr Francisco went to hospital with chest and neck pain, apparently it was muscular and needed mobilisation and he was given a referral to Mr Patrick Cormack;
(e)   bariatric surgery occurred in February 2019 and on 14 March 2019 the claimant’s weight was recorded as 135 kg;
(f)    the claimant developed lymphoedema and by October 2019 the claimant’s weight had reduced to 113 kg;
(g)   on 5 September 2020 Mr Francisco reported he had been having right shoulder pain for one month. Mr Francisco was tender in the joint with a good range of motion. A referral for an ultrasound and corticosteroid into the subacromial space was given and reference was made to the previous surgery;
(h)   the entry of 23 February 2021 was a telehealth appointment - “No deformity, no bruising but swollen in area of biceps he says. Note discharge advice. Surprised at the pain?” Endone was prescribed;
(i)    the first post-accident entry was 11 March 2021, “hit in rear by a car yesterday, while riding a motorbike (his mate had a blowout and lady behind got distracted looking at him). He came off bike but did not fall, landed on feet, was trying to hold bike up, at slow speed. Pains in arms, neck, chest relates to trying to stay up next to bike – wearing helmet”. On examination the claimant was tender in the neck and thoracic spine and anterior shoulders. He had a good range of movement neck. Abduction right shoulder to 45 degrees and left to 10 degrees above horizontal.[9] Good internal rotation;
(j)    by 17 March 2021 the claimant was reporting that his pain is localised to left shoulder. “Other areas have subsided”. On examination he was tender in the shoulder joint anteriorly and supraspinatus. The deltoid abducts to horizontal (90 degrees) with pain. Good internal and external rotation with pain and his neck was said to be OK. Mr Francisco’s weight was 110 kg;
(k)   the claimant attended his GP for his left shoulder injury on 24 March 2021 and was given a referral to Dr David Lieu, and
(l)
on 23 April 2021 his pain was still much the same and he was seeing

Dr Lieu in two weeks’ time. Psychological symptoms were discussed, and the claimant was being managed to wean the dosing of his medications down.
[9] The Panel suggests this would be abduction of 135 degrees on the right and 100 in the left on the usual range of motion impairment table that the parties’ representatives would be familiar with.

There is a discharge summary from the Liverpool Hospital dated 19 October 2020[10] which records that the claimant attended for shoulder pain. “He underwent blood tests and imaging which revealed a deltoid haematoma.” The claimant was seen by the orthopaedic team and discharged for follow up by his GP within 3 – 5 days, rest and elevation of the shoulder, a sling to be worn for comfort and to avoid heavy lifting.
[10] Page 80 and 116 and 159 of the joint bundle.
On the second page of that hospital note is a “history of presenting complaint” which refers to right shoulder and upper limb pain over four days. The claimant had previously been attending the hospital for other treatment and noticed symptoms in his shoulder which progressed, and pain worsened. The CT report from that admission is found at page 83.
The Liverpool Hospital discharge summary relevant to the 21 February 2021 attendance records:
(a)   the claimant attended with left anterior shoulder pain which had started on Thursday after performing rowing type exercises. The claimant had rested and was taking over the counter medication;
(b)   he had ongoing pain but presented to the hospital as he had been up with the pain since 3.00am;
(c)   the right shoulder reconstruction was noted;
(d)   no bruising or deformity to shoulder, pain anteriorly of deltoid radiating to the left pectoral and down into the bicep;
(e)   nil deformity to bicep, nil bunching or posterior pain or trapezius pain;
(f)    no bony tenderness in the clavicle, AC joint or SC joint and internal and external rotation good but painful and reduced range of motion in extension, flexion and abduction, and
(g)   discharge with a sling for a week, and gentle range of motion exercises three times a day, rest and ice.

Dr Lieu

On 7 June 2023, the claimant uploaded to the portal a bundle of documents from

Dr Lieu of South West Sydney Orthopaedics.[11]
[11] Document AD3 in the Commission’s file comprising 56 pages.
Dr Lieu wrote to the claimant’s GP on 4 May 2017, four weeks after the claimant had arthroscopic surgery to repair “a massive, retracted tear of his subscapularis, infraspinatus, and supraspinatus tendons”. Also repaired was a “subluxed biceps tendon which was tenotomised”. At a review on 14 June 2017, Dr Lieu records complaints of “painful clicking around his right shoulder with some difficulty with shoulder elevation” which was still bothering the claimant on 9 August 2017. Dr Lieu was concerned about a partial retear and requested a progress MRI. In a letter dated 25 August 2017 the retear was confirmed and further right shoulder surgery was undertaken on 24 October 2017.
Dr Lieu reported to Dr Cherry on 9 November 2017 three weeks after the open rotator cuff repair noting that only a partial repair was possible as the supraspinatus tendon was not repairable. Dr Lieu said that while he may recover function he would always have a degree of stiffness and difficulty with overhead activity. Reverse total shoulder replacement was stated to be an option but “contraindicated currently given his size”.
On 11 April 2018, six months after his revision surgery, Dr Lieu reported to Dr Cherry that “he has made a full recovery”. The claimant was not reporting pain around his shoulder and had 150 degrees of forward flexion and 70 degrees of external rotation. Mr Francisco was advised to avoid heavy lifting and was discharged from care.
The Panel notes there are no further records from Dr Lieu regarding either of the claimant’s shoulder for three years. The Panel also notes that in none of the letters or reports from the claimant before 11 April 2018 is there any suggestion of any left shoulder symptoms.
In a letter from Dr Lieu dated 7 May 2021,[12] Dr Lieu says “thank you for referring

Mr Francisco back for review”. He has a history of the claimant being “thrown off his bike” and the only injury from the accident was noted as the left shoulder. The claimant told Dr Lieu he had “instant pain” which has not improved, and which is constant and severe and deep within the shoulder, and he has difficulty with all movements. The claimant reported no numbness or weakness and said he had no previous problems with this shoulder. There was restricted movement. Dr Lieu had seen the ultrasound showing a full-thickness partial tear of the supraspinatus and deferred his final assessment until after the MR arthrogram.
[12] Page 116 of the joint bundle and also in the records of Dr Lieu AD3.
A further letter from Dr Lieu to Dr McMahon[13] dated 30 June 2021 comments on the MR arthrogram noting a “full-thickness retracted tear involving the posterior supraspinatus and anterior infraspinatus” and says, “this is a major injury that requires surgical intervention at his age. He requires arthroscopic rotator cuff repair”. The claimant was placed on the waiting list after the insurer denied the treatment.
[13] Page 117and 161 of the joint bundle and AD3.
Dr Lieu wrote to Dr McMahon on 16 August 2021 noting the claimant had been denied the arthroscopy by the insurer and that Mr Francisco had been placed on the public hospital waiting list.
On 20 August 2021 Dr Lieu wrote to Dr McMahon noting the claimant had been carrying some shopping two weeks previously and felt a tearing sensation in his right shoulder, he had pain and loss of movement and there was clicking. An ultrasound was reported to show “complete new tears of his subscapularis”.
Dr Lieu saw the claimant again on 5 November 2021 and reported to Dr MacMahon noting the MRI “confirms a massive irreparable tear of his supraspinatus, infraspinatus and subscapularis. There is some developing glenohumeral joint arthritis”. Dr Lieu advised that the best surgical solution was a reverse shoulder replacement.
On 6 April 2022, the claimant was reviewed by Dr Lieu and was complaining of severe and constant right shoulder pain and that his shoulder had “popped out of position” and his wife had to manipulate it back. It was affecting all of his activities of daily living and the claimant was hoping for surgery. Dr Lieu placed him on the waiting list pending review at a combined orthopaedic meeting (due to the claimant’s age he was at an increased risk of failure and revision). The claimant was recommended for surgery at that meeting.
On 4 November 2022 a letter was sent from Dr Lieu to Dr McMahon which says:
“Apparently his left shoulder surgery has now been approved through CTP insurance. He is keen to have this performed as soon as possible.”
The left surgery was planned for Sydney Southwest Private Hospital and a copy of the letter was sent to NRMA.
The claimant’s right shoulder replacement surgery occurred in late 2022 and on

18 January 2023 when reviewed by Dr Lieu he was doing well. The left shoulder surgery was to be done when the claimant was recovered from his right shoulder surgery.
On 24 February 2023 there was further improvement, and he was now said to be suitable for the left rotator cuff repair. On 24 March 2023, Dr Lieu wrote:
“He is happy with his progress, and there were no ongoing concerns. He should maintain his 5 kg lifting restriction lifelong, and should be revieed aginst in 3 to 6 months time. I will otherwise see him next for his left shoulder surgery.”
The claimant’s left arthroscopic rotator cuff repair was undertaken on 28 March 2023 at Sydney Southwest Private Hospital. The operation report[14] notes the intra-operative findings were of a “full thickness complete tear of supraspinatus and full thickness tear of anterior infraspinatus”. The report also notes that the tears were identified and a subacromial bursectomy was performed. This involved the removal of the bursal sac by way of a burr device and then the repair of the rotator cuff using Fibretak and Swivelock anchors.
[14] Page 50 of AD3.
The claimant was discharged from physiotherapy for his right shoulder replacement and on 11 April 2023 the claimant was reviewed for his left shoulder arthroscopic repair, and all was going well.

Radiology

On 9 September 2020[15] the claimant had an ultrasound of his right shoulder, having received a referral for it on 2 September. The history given was “an MBA followed two rotator cuff tendon repairs are noted”.
[15] Page 113 of the joint bundle.
On 10 September 2020[16] the claimant had an "ultrasound guided right subacromial subdeltoid bursal injection with clinical details of “painful arc, impingement and previous rotator cuff repair”.
[16] Page 112 of the joint bundle.
The claimant was referred by Dr MacMahon on 23 March 2021 for an X-ray and ultrasound of the left shoulder with a clinical note of “motorbike accident one week ago, pain and impingement on the left”.
The conclusion was “full width and partial width tear of the supraspinatus tendon. Subacromial bursitis with impingement. Delaminating tendinosis of the infraspinatus tendon.”
On 9 June 2021, the claimant had an X-ray of his left shoulder which revealed no fracture, “flattening and cortical irregularity at the greater tuberosity compatible with chronic rotator cuff tendinopathy / tear”. There was also mild to moderate AC joint degeneration reported.
On the same day an MRI arthrogram of the left shoulder was undertaken which reported “incomplete full thickness tear of the mid-posterior fibres of supraspinatus and anterior two thirds of infraspinatus, high grade bursal sided tear, rotator cuff muscle bulk is preserved”.
There is a further X-ray and ultrasound of the claimant’s right shoulder on

13 September 2021.[17] This identified extensive tearing of the biceps, subscapularis, supraspinatus and infraspinatus tendons. There was also subacromial bursa collection with bursal impingement on abduction.
[17] Page 144 of the joint bundle.

RE-EXAMINATION FINDINGS

The claimant attended a medical examination with Medical Assessor Stubbs at the Commission’s medical suites on 23 May 2023.
Medical Assessor Stubbs reports that he was pleasant and co-operative throughout the examination. Mr Francisco used unsophisticated language and gave his history simply but without embellishment.

History provided by the claimant

Pre-accident history

Mr Francisco is 45 years of age and said he has been on a disability support pension for several years. He lives with his partner and eight-year-old daughter in Liverpool and travelled to the examination by taxi.
In 2016 Mr Francisco said he had a rotator cuff repair of his right shoulder at the Fairfield Public Hospital (this was done arthroscopically). The results were satisfactory but with time he said he started to have increasing problems. Because of a large recurrent rotator cuff tear, he had a reverse geometry total shoulder replacement performed at Fairfield Public Hospital in December 2022 all by Dr Lieu.
Mr Francisco has had gastric sleeve procedure later revised to a gastric bypass (in 2022) as a public patient for morbid obesity. He formerly worked as a security guard and as a factory hand.

History of the accident

Due to the issue of inconsistency issue raised by the insurer, Medical Assessor Stubbs asked the claimant to provide a detailed history of how he said the accident happened.
Mr Francisco said that his motor accident occurred on the morning of 10 March 2021. He was riding a Yamaha 1000 cc customised motorcycle with a friend who was riding a Honda Gold Wing with sidecar. They were approaching a sweeping left hand bend with Mr Francisco in the lead. He looked back to see that his friend had lost control of the motorcycle, failed to complete the left-hand turn, and had hit the guardrail on the opposite side of the road.
Mr Francisco started to pull over, concerned about his friend. A driver following behind clipped his motorcycle. Mr Francisco struggled to stop and control his motorbike.

Mr Francisco’s motorbike was falling, and Mr Francisco came off the bike and while the bike was still moving, he was trying to keep the bike upright. The full weight of the motorbike was, in the process loaded onto the claimant’s left shoulder. Mr Francisco said that he felt immediate pain in the left deltoid region during this manoeuvre. When he had stopped, his friend had to get the bike upright because Mr Francisco could not lift it.
Mr Francisco confirmed that it was his bike that fell and not him. When he was asked about it, he was adamant he did not fall and hit his shoulder.
After the incident Mr Francisco and his friend rode the 20 minutes or so from where this happened to Mr Francisco’s home.

History of symptoms and treatment following the accident

Mr Francisco confirmed that he sought attention from his local doctor the next day due to worsening pain in his left shoulder and because of pains in his neck, chest and arms. He reported these soon resolved and his only continuing complaints are in the left shoulder. The claimant could not explain why his GP had recorded arms complaints but had not recorded left shoulder complaints.
Imaging of the left shoulder on 17 March 2021 revealed a full thickness rotator cuff tear of the left shoulder and he was again referred by his GP to Dr Lieu.
The claimant has seen Dr Lieu a number of times before and after the accident for treatment to his right shoulder including the December 2022 surgery and several times in the lead up to his left shoulder surgery on 28 March 2023.

History of pe-existing injuries and conditions

Noting the insurer’s arguments concerning causation, Mr Francisco was asked about the attendance at the Liverpool Hospital in February 2021, a few weeks before the accident.
The notes from the hospital report him having pain in the left shoulder with a possible diagnosis of a biceps strain. The notes made by his GP at the teleconference of the following day also refer to left shoulder pain. A diagnosis of deltoid strain was made by the hospital.
Mr Francisco described the pain he experienced from that incident as being of quite different character than the left shoulder pain he experienced after the motorcycle accident. The pain was not in the anterior deltoid region (near the shoulder) but was rather in the distal biceps/cubital fossa region of the left forearm.
Over the following weeks Mr Francisco said this pain settled and he was able to resume activities including manhandling his large motorcycle before heading out on the ride of 10 March 2021.
Mr Francisco added that he has not ridden his motorbike since the accident.

Clinical examination

Mr Francisco stands 172 cm tall and currently weighs 114 kg (this gives him a body mass index of 38.5 which the Panel notes is in the obese range). He had no difficulty moving about during the examination and undressed to the waist by himself. In his right shoulder there is an old anterior deltoid splitting incision from the rotator cuff tear which is well healed still livid deltopectoral approach scar from the total shoulder replacement. On the left there are three arthroscopic portals from the recent rotator cuff surgery. These are not obvious.
The rotator cuff and deltoid musculature of both shoulders is quite wasted. There is normal movement in both elbows, both wrists, hands, and fingers. There was 5/5 power in grip in both arms with normal reflexes, and sensation. Elbow flexion on the left with the elbow by the side was only 4/5 power. The left biceps muscle shows a normal appearance. There is no visible rupture of the long head of the biceps tendon in the shoulder and the February 2021 “biceps strain” was probably a strain to the distal biceps.
The range of left shoulder motion with the elbow at both sides shows unrestricted internal and external rotation but was otherwise untested as Mr Francisco is only six to eight weeks post rotator cuff repair and his rehabilitation is still limited to active and assisted range of motion exercises.
There were no imaging studies bought to the assessment however the available reports were reviewed and noted.

CONSIDERATION OF THE ISSUES IN DISPUTE

Did Mr Francisco injure his left shoulder before the accident?

Mr Francisco said he enjoyed good function in his left shoulder before the accident in particular he was participating in activities of daily living and was able to take his motorbike out for a ride on the day of the accident.
The insurer points to the hospital entry of 21 February 2021 and says the claimant injured his left shoulder before the accident and it was this injury that caused the full thickness rotator cuff tear in his left shoulder that led to the surgery.
Mr Francisco said that the injury to his left shoulder before the accident caused pain that was quiet distinct and different from the pain he experienced in the accident. He described the pain as being principally in the biceps radiating down to the forearm. The pain he had after the accident he described and was as reported to Dr Lieu being deep within and localised to the shoulder.
The Panel notes that the hospital the claimant attended in February 2021 offered a possible diagnosis of a biceps tendon injury.
It is the clinical judgment of the medical members of the Panel that the claimant’s injury was more likely to be a muscular biceps strain injury which would have caused relatively short-term symptoms. It is possible Mr Francisco also sustained some damage to the rotator cuff but without imaging studies it is impossible to determine that.
The Panel notes the insurer’s argument that the claimant would have been favouring his left shoulder due to the problems with his right shoulder and that therefore there would have been damage to the left shoulder at the time of the accident. The insurer offers no medical evidence to support this argument.
Mr Francisco has a long history of right rotator cuff problems following a motor accident in 2016. Given the history of issues in the right shoulder, and the lengthy periods it would have been out of use following the various surgeries, it is the clinical judgment of the medical members of the Panel that there would have been some pre-existing left rotator cuff pathology at the time of the motor bike accident.

How did Mr Francisco’s accident happen?

A history is recorded in the insurer’s IPAR report and by Medical Assessor Bodel that the claimant fell from his bike and onto his left shoulder. Dr Lieu has a history of the claimant being “thrown off his bike”. The claimant’s GP on the day after the accident records that the claimant did not fall onto his left shoulder but landed on his feet and he was trying to hold the bike up.
The two versions of events are inconsistent and if that inconsistency cannot be resolved this would cast doubt upon the reliability of the claimant’s evidence generally.
The history given to Medical Assessor Stubbs is more detailed that those recorded by the other health practitioners who have examined the claimant and is consistent with the version of the accident given to the GP the day after the accident. Medical Assessor Stubbs was aware of the issue of causation and spent time clarifying with

Mr Francisco the details of how the accident happened.
The claimant has explained that he did not fall onto his shoulder, but that his motorbike fell onto its side. The mechanism of the accident as reported by the claimant to Medical Assessor Stubbs was not straightforward and the Panel accepts that Dr Lieu,

Ms Goundar (from IPAR) and Medical Assessor Bodel may not have appreciated the complexity of the circumstances of the accident and may have misunderstood what Mr Francisco was trying to communicate about the detail of the accident. Without the opportunity of questioning the doctors it is difficult to take this further.
The claimant said he experienced left shoulder pain immediately after being hit from behind and while struggling to maintain control of his heavy motorbike. The Panel accepts his detailed version of who this accident happened.

Did Mr Francisco injure his left shoulder in the accident?

Whatever the pre-existing left shoulder pathology was at the time of the motor vehicle accident, it is the clinical judgment of the medical members of the panel that the mechanism of the accident could cause damage, or further damage to Mr Francisco’s shoulder.

The Panel notes that Mr Francisco’s motorbike was a 1000 CC bike which is a large motor bike and that in the Panel’s experience such a bike could weigh in the order of 200 kg or more. The medical members of the Panel are of the view that the circumstances of this particular accident (struggling to control a heavy motorbike and attempting to keep it upright) could cause an injury to the claimant’s left shoulder particularly as his was a vulnerable shoulder as explained in the Panel’s findings earlier. The Panel also notes that had he fallen from his bike onto his left shoulder this could also have led to a rotator cuff injury.
The insurer says there is no record of any complaint of shoulder pain in the GP’s notes when Mr Francisco was seen on the day after the accident. The insurer says this supports its argument that the claimant did not injure his left shoulder in the accident.
In Norrington v QBE Insurance (Australia) Ltd[18] the Court held that a Medical Review Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive of the issue of causation of a left shoulder injury and thereby failed to properly discharge their statutory function to decide the issue of causation.
[18] [2021] NSWSC 548 (Norrington).
The Court in Norrington referred to and applied the decision of the Court of Appeal in AAI Ltd t/as GIO for the Nominal Defendantv McGiffen[19] and noted that the presence or absence of a contemporaneous complaint of injury “is relevant in this context, it must not be treated as conclusive of the question of causation”.
[19] [2016] NSWCA 229 at [64]- [66] (McGiffen).
The Panel accepts that the claimant’s GP has a record of neck, chest and arm pain and does not specifically mention shoulder pain in the first part of the note of

11 March 2021 however, the full clinical note includes a report of an examination which includes the shoulder. This reports that the claimant has pain had limited movements the left more than the right. The fact that the shoulders were mentioned as tender, and movement was limited suggests to the Panel that the claimant had in fact reported an injury in his shoulders.
Seven days after the accident, on 17 March 2021, the GP records that his pains were now “localised to left shoulder”.
The Panel is of the view that the absence of a record in the GP’s notes of a specific complaint of pain in the left shoulder on the day after the accident is not dispositive of the issue of causation.
The immediate sensation of pain and the reporting of that pain to his GP within a week after the accident satisfies the Panel that the claimant did injure his left shoulder rotator cuff in the accident.

Is the surgery related to the injuries sustained in the accident?

The insurer is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine the injuries caused by the accident before determining whether the treatment relates to those injuries.
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[20] where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents. The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to “the injury caused by the motor accident”.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery.[21] Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[20] [2018] NSWSC 1710 (Phillips).
[21] Emphasis added.
The Panel has reviewed the GP records and the records of Dr Lieu and apart from the attendance at hospital in February 2021, there are no complaints of left shoulder problems before the accident and in particular no complaints to Dr Lieu who he had been seeing regularly up until April 2018 for right shoulder problems. If the claimant was having left shoulder problems before April 2018, the Panel is of the view Dr Lieu would have recorded it.
The accident clearly, in the Panel’s view caused an asymptomatic shoulder to become symptomatic and it was the progression of symptoms that has led to the need for the surgery for what was a disabling tear. The Panel accepts that the nature of the claimant’s injury to his left shoulder was an aggravation of degenerative changes in the shoulder and the further tearing of already torn ligaments and tendons in the area of the rotator cuff.
It is the clinical judgment of the medical members of the Panel that the injuries sustained by Mr Francisco in the accident of 10 March 2021 were a material contribution to the need for the surgery and that, but for this accident the claimant would not have progressed to the surgery he has had on 28 March 2023.

Is the surgery reasonable and necessary in the circumstances?

The Panel has not been taken to any cases of the District or Supreme Courts where the phrase “reasonable and necessary” has been considered. There are however several workers compensation cases although in that scheme, the relevant test is whether treatment is “reasonably necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[22] Grove J stated
“[107] I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
[108] The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[22] [2003] NSWCA 52; (2003) 25 NSWCCR 99 (Clampett).
Mr Francisco’s rotator cuff tear is a disabling tear, profoundly affecting his ability to undertake activities of daily living. The Panel is of the view that it was necessary for him to have some form of surgery to give him greater movement in his shoulder.
In Diab v NRMA Ltd[23] at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a)     the appropriateness of the treatment in dispute;
(b)     the availability of alternative treatment;
(c)     the cost effectiveness of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the appropriateness of the treatment.
[23] [2014] NSWWCCPD 2 (Diab).
In terms of whether the surgery was reasonable and necessary in the circumstances, adopting the criteria suggested by the insurer, the medical members of the Panel are of the view that it is directly related to the injury sustained to the left shoulder in the motor vehicle accident, that the aim of the surgery was to fix a disabling tear and help
Mr Francisco return to his usual activities.
The Medical Assessors are of the view the surgery undertaken by Dr Lieu was appropriate for the type of injury and was provided by an appropriately qualified health profession who in particular had a long-standing professional relationship with the claimant.
While the cost of the surgery (and the associated expenses involved with rehabilitation and review) is in excess of $15,000, the Panel notes this is accordance with what is usually charged for operations of this nature.

CONCLUSION

As the Panel has come to the same view as Medical Assessor Bodel as to the reasonableness and necessity of the left shoulder surgery proposed by Dr Lieu in
July 2021, if follows therefore that the Panel should affirm his certificate.
The Panel notes that shortly before these reasons were to be issued to the parties the Panel was advised that the insurer had, on 15 November 2022 approved the surgery based on the repot of Dr Lieu dated 4 November 2022. The Panel was told the insurer agreed to pay for it on a “without prejudice” basis. The email dated 15 November 2022 was sent to the claimant and his solicitor was copied into the email however it does not appear that the insurer’s solicitor was included in that email.
The Panel queries whether there remains a dispute in the statutory benefits claim about the surgical treatment provided to the claimant however as the Panel had made it decision, finalised the reasons, and were on the brink of issuing the decision to the parties, the Panel is of the view it should issue the certificate and reasons and not delay the progress of Mr Francisco’s claims any further.

[2023] NSWPICMP 271

15 June 2023