Johnston v QBE Insurance (Australia) Limited
[2023] NSWPICMP 21
•27 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Johnston v QBE Insurance (Australia) Limited [2023] NSWPICMP 21 |
| CLAIMANT: | Allen William Johnston |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Leslie Barnsley |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 27 January 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; dispute about treatment (shoulder surgery) and insurer’s review under section 63; the Medical Assessor had determined that the surgery was not related to the injuries sustained in the accident and not reasonable and necessary; at the time of the original assessment the surgery had taken place; Held – the Panel found the claimant injured his left shoulder in the accident; the diagnosis was of bursitis with impingement and a likely capsular strain; the injury was a material cause of the need for surgery and thus the surgery was related to the injury sustained in the accident; the surgery was reasonable and necessary in the circumstances; cases referred to included AAI Limited t/as AAMI v Phillips (causation); Diab v NRMA Limited (reasonable); Clampett v Workcover Authority of NSW (necessary). |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the two certificates issued by Medical Assessor Woo on 16 June 2022. 2. Certifies that the left shoulder surgery undertaken by Dr Yalizis in November 2021: (a) was related to the left shoulder injury caused by Mr Johnston’s motor accident on 21 September 2017, and (b) was reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
Introduction
Mr Allen Johnston was involved in a four-car motor accident on 21 September 2017. The claimant was stationary at traffic lights when he was hit from behind by a truck. The force of the impact was sufficient to force Mr Johnston’s vehicle into the vehicle in front and then that vehicle into the vehicle in front of it[1].
[1] This version of events comes from the claim form – page 4 of the claimant’s bundle.
Mr Johnston made a claim for damages against QBE, the third-party insurer of the truck.
A medical dispute has arisen in connection with that claim involving surgery to the claimant’s left shoulder. The insurer referred that dispute to the Personal Injury Commission (the Commission) for medical assessment.
On 16 June 2022, Medical Assessor Woo certified that the surgery was not related to the injury caused by the accident and was not reasonable and necessary. The claimant lodged an application for review of that decision with the Commission.
On 15 September 2022, a delegate of the President of the Commission, determined that there was reasonable cause to suspect the assessment was incorrect, and on
26 September 2022 the President convened this Panel.
Legislative framework AND RELEVANT CASE LAW
Jurisdiction
Mr Johnston’s claim is governed by the provisions of the Motor Accidents Compensation Act1999 (the MAC 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 compensation by way of lump sum damages for persons injured in motor accidents in New South Wales.
Section 83 of the MAC Act imposes a duty on insurers to pay for treatment as the claim progresses as follows:
“(1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of—
(a) hospital, medical and pharmaceutical expenses, and
(b) rehabilitation expenses, and
(c) respite care expenses in respect of a claimant who is seriously injured and in need of constant care over a long term, and
(d) attendant care services expenses in respect of a claimant who is seriously injured and in need of constant care over a long term (being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services for which the claimant has not paid and is not liable to pay),
as incurred.
(2) The duty of an insurer under this section to make payments applies only to the extent to which those payments—
(a) are reasonable and necessary in the circumstances, and
(b) are properly verified, and
(c) relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates.”
If, as in this case, a request is made to the insurer to fund particular treatment but the insurer refuses to pay for that treatment, s 58(1) provides that the following medical assessment matters can be determined by the Commission:
(a) “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances”, and
(b) “whether any such treatment relates to the injury caused by the motor accident”.
A medical assessment certificate issued by the Commission in respect of treatment disputes are binding upon the parties[2].
[2] Section 61(2).
Not all medical disputes have to be referred to the Commission for determination. Under the MAC Act and common law principles concerning the assessment of damages, damages for pecuniary (economic losses) can be assessed and awarded by a legal member. Pecuniary losses include damages for loss of earnings and earning capacity as well as damages for expenses incurred in connection with treatment, care provided to the claimant, replacement care and respite care[3].
[3] The damages that can be awarded for attendant and respite care services are regulated by ss 141B and 141C of the MAC Act. Damages for the replacement of domestic services to dependants are regulated by s 15B of the Civil Liability Act 2002.
Treatment related to the injury resulting from the motor accident
Section 83(2)(c) provides that the insurer’s duty to pay for treatment is not enlivened if the treatment in dispute does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine what were the injuries caused by the accident before determining whether the treatment relates to those injuries.
Proceedings concerning treatment disputes do not concern the assessment of whole person impairment (WPI) therefore the provisions about causation of injury in the AMA4 Guides and Chapter 6 of the Motor Accident Guidelines (the Guidelines) do not determine the issue currently before the Panel. Provisions of the Civil Liability Act 2002 and the common law therefore applies to the issue of causation.
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[4] (Phillips) 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[5]. 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.”
[4] [2018] NSWSC 1710.
[5] Emphasis added.
Treatment that is reasonable and necessary in the circumstances
In order for the insurer to be under a duty to pay for the treatment, the claimant must also establish in accordance with s 83(2)(a) that the treatment is “reasonable and necessary in the circumstances”.
This test is different to the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”. The Panel has not been taken to any judicial pronouncements in relation to the interpretation of the motor accident test but is aware of cases from the workers compensation scheme which will be mentioned later in these reasons.
Dispute resolution
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments (and the review of medical assessments by this Review Panel[6].
[6] Sections 61, 62 and 63 of the MAC Act.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the original assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the 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 Woo examined the claimant on 3 June 2022 and issued his certificate on 16 June 2022 determining that the claimant’s left shoulder surgery (arthroscopy, biceps tenotomy and possible rotator cuff repair) was not related to the accident and therefore not reasonable and necessary in the circumstances.
Medical Assessor Woo has a history of the claimant’s previous accidents (2014, 2016 and 2017) and notes that the claimant was still having back pain at the time of the current accident. He has a history of the accident consistent with other histories noting Mr Johnston’s seat “snapped” during impact.
Medical Assessor Woo says the claimant was taken to Mount Druitt Hospital by his wife, was assessed and sent home the same day. Medical Assessor Woo says there was no mention of shoulder complaints in the discharge summary. Medical Assessor Woo has the history of neck and back treatment from Dr Ng on 9 October 2017 and that on 13 November 2017 the claimant said his left shoulder pain had come on a few days after the accident but had become persistent and more obvious since then.
Medical Assessor Woo has a history of the further treatment leading up to the surgery on 3 November 2021. He documented the concerns of the treating surgeon that the claimant’s pain may not be improved with the surgery.
Medical Assessor Woo says that the claimant’s left shoulder pain and stiffness did not improve after the surgery and that a steroid injection to the left shoulder gave no relief.
Medical Assessor Woo compared the range of motion in the right shoulder (normal) and the left shoulder (significantly reduced) and noted these were similar to those found by Dr Machart. He found no inconsistency.
Medical Assessor Woo considered the Mt Druitt clinical notes where the claimant’s operation took place but there were no operation notes, so he was unable to determine what was done and what was found.
Medical Assessor Woo’s finding was that even after the claimant’s surgery there was no confirmed diagnosis, the pain and restriction of movement remained the same and the left shoulder injury was only ever soft tissue and surgery is not indicated for soft tissue injuries. He therefore determined the surgery was not related to the injuries resulting from the accident or reasonable and necessary in the circumstances.
Issues for determination
Claimant’s submissions
In his submissions in support of the application for review, the clamant takes issue with the reasons, the history taken by the Medical Assessor and a failure to engage with the recommendations of Dr Yeoh, the claimant’s treating surgeon.
The claimant notes the surgery was undertaken by Dr Yalizis on 3 November 2021 and that Medical Assessor Woo did not appear to have the operation report.
The claimant submits he has had a biceps tenodesis in November 2021 not a biceps tenotomy which was proposed and says Medical Assessor Woo has dealt with the procedure that has been done not the procedure that was the subject of the referral to the Commission without seeing the report of the operation.
The claimant argues that Medical Assessor Woo has said there is no explanation for the claimant’s pain and restrictions.
The claimant says the Medical Assessor has not explained sufficiently his reasons.
The claimant says he had no significant pre-accident injuries and impairments, he has made contemporaneous complaints of symptoms and impairments, he has had multiple treatments and the medical evidence of his treating specialist is consistent with the claimant’s presentation and restrictions.
Insurer’s submissions
The insurer’s review submissions focus on the allegations that Medical Assessor Woo failed to properly assess and consider the evidence and explain his reasons. In other words they were submissions focussed on the gatekeeper role of the President’s delegate. Now that the review has been allowed, the insurer’s original submissions are more relevant to the issues before the Panel.
The insurer says[7] the left shoulder surgery is not reasonable, is not necessary and is not related to the accident.
[7] The insurer’s bundle includes the original submissions and document R1 in the Commission’s electronic file contains the insurer’s submissions.
The insurer points to other relevant incidents and accidents as follows:
(a) 17 April 2014 – lacerated finger;
(b) 19 July 2014 – assault on the claimant by three people;
(c) 21 February 2016 – claimant fell causing complete ruptures of ligaments in his knees, and
(d) 5 July 2017 (11 weeks before the current accident) – he was a pedestrian struck on left hip following which a sign fell onto his left hand – there is a claim against NRMA pending in relation to that claim.
The insurer submits the claimant did not go to hospital after the car accident and that ambulance did not attend.
The insurer summarised the physiotherapy notes and general practitioners notes and the report of Dr Machart orthopaedic surgeon dated 2 August 2018. Dr Machart had recorded injuries to neck and lower back but said there was no evidence of an injury to the left shoulder to explain the diminished range of motion present. A further report of Dr Machart notes minimal pathology in the left shoulder and that there was an element of pain reaction.
The insurer also refers to the decision of Medical Assessor Sam Perla on
19 February 2019 in relation to the degree of the claimant’s WPI. The insurer says that this Medical Assessor diagnosed a soft tissue injury to the left shoulder but that bursitis, subacromial and subdeltoid bursitis with impingement and rotator cuff injury was not caused by the accident.
The insurer says that Dr Yeoh, the claimant’s treating orthopaedic surgeon, said the claimant’s pain was unlikely to improve without surgery but whether the surgery would improve all of the pain was questionable.
Procedural matters
The Panel met on 21 November 2022 and issued a report to the parties on
23 November 2022.
The Panel confirmed receipt of the bundles of documents from the parties (AD2 from the claimant and AD3 from the insurer). The Panel noted there appeared to be a dispute about the precise type or name of the surgery to be undertaken and advised the parties that the Panel would proceed on the basis it was determining the surgery that was actually done as identified in the operation report.
The Panel determined a re-examination was necessary and requested the claimant attend with his imaging studies.
Review of the evidence
The Panel has received a bundle of documents from the claimant with more than 420 pages. The insurer’s bundle of documents contains more than 280 pages. Both bundles include a set of Dr Ng’s notes, the physiotherapy notes, and the notes of
Mt Druitt Hospital. There are multiple copies of various imaging reports in both bundles.
The Panel notes the decision of Basten J in Rahman v Insurance Australia Ltd t/as NRMA Insurance[8] at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. - endnotesAs noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[8] [2022] NSWSC 1079.
Noting the dispute before the Panel is a dispute about shoulder surgery and noting the claimant does not dispute the pre-accident injuries and considering the words of Justice Basten above, the panel does not intend to refer to all of the documents that have been put before the Panel but only those documents that are relevant to the matters in issue.
Claim form and claim documents
The claim form signed by the claimant as true and correct and dated 31 January 2018[9] lists the following injuries:
(a) neck;
(b) left shoulder pain, and
(c) lower back throughout.
[9] Page 4 of the insurer’s bundle.
The pain diagram clearly identifies injuries to the back of the neck, left shoulder and the lower back.
The claimant discloses the previous accident when he was hit by a car as a pedestrian saying he injured his lower back in that accident.
The medical certificate attached to the claim form completed by Dr Ng on
13 November 2017[10] lists only soft tissue injuries to the cervical and lumbosacral areas although the pain diagram appears to show a mark on the left shoulder.
Treating medical records and reports
[10] Page 99 of the claimant’s bundle.
Hospital
The discharge summary from Mt Druitt Hospital[11] notes injuries to the neck and lower back and recommended physiotherapy.
[11] Page 13 of the claimant’s bundle.
General practitioner
Dr Ng in a report dated 2 March 2018[12] says the claimant first saw him on
9 October 2017. He has a history of the claimant’s seat “snapping” in the accident and that he went to Mt Druitt Hospital complaining of neck and back pain. Dr Ng reports that the claimant had returned to work on 5 October 2017 and was finding it difficult. Dr Ng says:
“Examination revealed restricted neck movement in all directions due to pain and stiffness, localised tenderness to palpation over the lower thoracic and lumber spine, more on the right side. There was no neurological deficit.”
[12] Page 11 of the claimant’s bundle.
On 11 October 2017 the claimant had X-rays of his cervical, thoracic and lumbar spine did not suggest any bony injury and a CT or MRI scan was recommended to ascertain discopathy or nerve root involvement. Scans done on 20 October 2017 showed a mild bulge in the lumbar spine at 4/5.
Due to persisting pain in the neck and lower back, Dr Ng says he referred the claimant to Dr Kam, neurosurgeon and says it was at his first consultation 13 November 2017 that the claimant “complained of a painful left shoulder which came on a few days after the motor accident … and has become persistent and more obvious”. The claimant was tender over the left shoulder and had restricted motion.
Dr Ng records that an ultrasound on 17 November 2017 noted “subacromial/subdeltoid bursitis with painful impingement”. On 29 November 2017 an ultrasound guided left shoulder injection occurred into the subacromial space which was repeated on
23 January 2018.
Dr Ng expressed the view that the prognosis was guarded.
Dr Ng’s notes are handwritten[13] and commence in February 2015. There is reference in February 2016 to the claimant’s fall while intoxicated noting scans were done of the claimant’s head, cervical spine and chest and there is reference to left knee issues and lumbosacral spine.
[13] Page 77 of the claimant’s bundle.
Dr Ng has also recorded notes following the claimant’s 6 July 2017 accident at work. He notes an impact to the claimant’s left hip and left side of the body. The claimant had back ache and thoracic (11/12) issues with “L paraspinal muscle spasm”. By 17 August 2017, the claimant had achieved 80% improvement and his straight leg raising was 75 degrees on each side.
The notes confirm the first attendance on 9 October 2017 and the first record of left shoulder pain on 13 November 2017.
Within Dr Ng’s notes are the following:
(a) discharge summary Nepean Hospital following the February 2016 incident noting knee complaints but no complaint of neck or upper limb symptoms;
(b) 17 July 2017 – medical certificate in respect of the 5 July 2017 accident noting soft tissue injuries to the right hand and left thoracolumbar region;
(c) a referral to Dr Yalizis dated 1 December 2020 and a letter from Dr Yalizis to Dr Ng dated 31 May 2021[14] noting the claimant’s two accidents and recommending surgery. The claimant had 60 degrees of active flexion but a greater range of passive motion;
(d) 8 June 2018 – referral to Dr Kam[15] for continuing neck pain and back ache and a referral to Dr Gothelf for left shoulder pain;
(e) 30 November 2018 - letter neurosurgical registrar Westmead to Dr Ng[16] noting “neck and back pain” with the neck pain “radiating to the left shoulder” but not in a particular nerve distribution. There were no neurological defects and considered conservative management should be followed, and
(f) 4 December 2018 - letter Crystal physiotherapy (Hai Le)[17] noting tender left shoulder and neck with limited shoulder motion (90 degrees of flexion and abduction) with a query about a brachial plexus injury and requesting a referral to a neurologist.
[14] Page 138 of the claimant’s bundle.
[15] Page 93 of the claimant’s bundle.
[16] Page 89 of the claimant bundle.
[17] Page 88 claimant’s bundle.
Specialists
Dr Yeoh wrote to Dr Ng on 15 November 2019 noting the continued complaints since the accident, the treatment (physiotherapy). The claimant detailed his treatment including four injections into the left shoulder. Mr Johnston had limited range of motion and there were positive signs of a superior labral tear from anterior to posterior (SLAP tear). He thought the pathology was unclear and recommended an MR arthrogram and further X-ray.
After those investigations were done, in a letter dated 24 January 2020, Dr Yeoh says the X-ray was “relatively normal” but the arthrogram shows tendinosis and he thought the symptoms pointed towards a SLAP tear. Dr Yeoh was still unsure and wanted an image guided injection into the glenohumeral joint but he flagged “I think we are probably heading towards an arthroscopy given the duration of symptoms despite nonoperative management”.
On 11 March 2020 another letter was written to Dr Ng this time with a settled diagnosis of left shoulder pain with likely SLAP tear and known upper border subscapularis partial tear. Dr Yeoh recommended “Shoulder arthroscopy, biceps tenotomy, possible rotator cuff repair”. He said he thought the pain was coming from the potential SLAP tear and thought surgery might improve the pain but may not eliminate the pain.
In a letter to the claimant’s solicitors dated 18 January 2021, Dr Yeoh estimated the fee for his part in the surgery ($3,400) and indicated the recuperation and rehabilitation period would be six to twelve months. He confirmed his diagnosis was “left shoulder rotator cuff tear involving the upper border of subscapularis, with irritation to the nearby biceps tendon and a possible SLAP tear”.
In a letter from Dr Yeoh to Dr Ng dated 31 May 2021 he said “I have explained to Allen that the chances of him improving with the surgery are quite small, given that his presentation is quite unusual”.
Surgery notes
The hospital notes and operation report suggest, the following surgery was undertaken by Dr Yalizis on 3 November 2021[18]:
(a) acromioplasty of shoulder arthroscopic;
(b) manipulation of one or more joints;
(c) shoulder – arthroscopic division of coraco-acromial ligament;
(d) shoulder decompression of subacromial space by acromioplasty, excision of coraco-acromial ligament and distal clavicle, and
(e) tenodesis of biceps by open or arthroscopic means, performed as an independent procedure.
[18] See for example page 162 of the claimant’s bundle.
In a letter to Dr Ng from Dr Yalizis dated 11 April 2022[19] Dr Yalizis reports that it is five months since surgery and the claimant had developed mild capsulitis and that the “pain level is about the same as they [sic] were preoperatively”.
Medico-legal reports
[19] Page 261 of the claimant’s bundle.
Dr Giblin
Dr Matthew Giblin provided a report dated 14 May 2018 to the claimant’s solicitors. He has a history of the July 2017 accident and that the claimant injured his back and left hip when he was hit from the left hand side before a pole “slammed across his right hand”. Dr Giblin has a history of the current accident and injury to the neck, left shoulder and an aggravation of lower back pain. Dr Giblin notes restriction of the left shoulder (including flexion and abduction reduced to 90 degrees).
Dr Giblin provided a further report dated 15 October 2018 which adds little to the previous report. Movement of the left shoulder was still restricted. He assessed WPI at 16% including 8% for the left shoulder.
Dr Giblin wrote a separate short report dated 15 October 2018 to the claimant’s solicitors on the issue of causation. He says:
“Mr Johnston openly admits that the pain in his neck and shoulder became an issue to him about two to three weeks after the accident, once he returned to work. He said he always had some discomfort in the neck and the trapezius area after the accident, but it wasn’t a major concern to him and his main focus of pain at that time was on his lumbar spine. It was only after he returned to work that the neck and the shoulder started to become an issue to him. Dr Machart indicates that there was no structural damage on the MRI. This is correct, but he does have a bursitis and he admits to getting 80% reduction of his symptoms for a period of two weeks following the injection of steroid, but his symptoms returned. The fact that he got a good result, even through it was for a short period of time, would indicate that he does have a pathological process. In view of the fact that he had no shoulder pain before the accident and he has only shoulder pain since the accident, I think it is fair to assume that the shoulder pain relates to the accident.”
A further report from Dr Giblin dated 27 April 2022 confirms the surgery and the development of a painful frozen shoulder. The examination confirmed restriction of movement (flexion 90 degrees and abduction 80 degrees for example). Dr Giblin expressed the same opinions as in his earlier reports and found 19% WPI including 12% for the left shoulder.
Dr Davis
Dr Davis occupational physician provided a report to the claimant’s solicitors dated
7 April 2020. He has a history of both the claimant’s 2017 accidents. The claimant reported left sided neck pain and pain in the trapezius with sharp pain with left shoulder movement.
The claimant’s shoulder movements were restricted (flexion and abduction were 90 degrees). He assessed WPI for the neck and lower back at 5% each but thought it was too early to assess the shoulder as the impairment was not permanent.
In a supplementary report dated 7 April 2020, Dr Davis expressed the view that the proposed surgery by Dr Yeoh was reasonable and necessary and related particularly in the light of the CT guided injection into the gleno-humeral joint.
Dr Machart
The claimant was examined by Dr Machart an orthopaedic surgeon on 2 August 2018 and the insurer relies on his report dated 17 August 2018.
Dr Machart has a consistent history of the two accidents although the claimant said he had immediate neck and left shoulder pain although the claimant then corrected that history confirming his shoulder symptoms arose two to three weeks after the car accident. Dr Machart measured the claimant’s left shoulder motion noting flexion at 90 degrees and abduction at 80 degrees.
Dr Machart was of the view neither of the claimant’s two accidents caused any “structural damage”. Dr Machart also noted there was no “documented injury” in the hospital notes and that the “minor bursitis … is not responsible for the drastically diminished movement”. He assessed 0% WPI for all of the claimant’s injuries.
In a second report dated 22 May 2019, Dr Machart refers to only the decision of
Medical Assessor Perla and the MRI of 13 July 2018. Dr Machart notes the improvement of the claimant’s back pain and suggests the claimant’s symptoms and disability are overstated based on pain behaviours.
The Panel notes it is not clear whether Dr Machart has all the documentation that other experts have referred to. Dr Machart for example in the second report refers to only
Dr Ng as the claimant’s doctor and does not refer to Dr Yeoh or Dr Yalizis.
Other assessments
Medical Assessor Perla undertook a WPI Assessment dated 12 March 2019[20]. He was asked to assess injuries to the cervical, lumbar and thoracic spine as well as the left shoulder.
[20] The examination took place on 19 February 2019. The WPI assessment was undertaken by the Medical Assessment Service of the State Insurance Regulatory Authority before the Commission had been formed.
The claimant gave a history of the accident in July 2017 with Medical Assessor Perla recording that the claimant was thrown two metres and a sign fell on his right hand. The claimant conceded to ongoing lower back pain but that he was improving at the time of the current accident.
Medical Assessor Perla had a history of the current car accident noting the airbags did not deploy but that his seat “snapped of its rail”. The claimant recalled being thrown backwards and forwards. Medical Assessor Perla had a history of immediate neck, mid back and low back and left shoulder pain and that currently he had chronic neck pain left shoulder pain and low back pain which was improving.
Medical Assessor Perla measured the claimant’s shoulder movement which showed a normal shoulder and restriction in the left.
The claimant’s spine was assessed and in all three regions there was no impairment found. In relation to the neck, there was no dysmetria, guarding or spasm and there were no neurological signs.
Medical Assessor Perla found the claimant’s thoracic injury had resolved but diagnosed a soft tissue injury to the left shoulder and assessed WPI at 7%.
Re-examination findings
Mr Johnston was examined by panel members Medical Assessors Barnsley and Home on Monday 19 December 2022.
Mr Johnston is 40 years of age, married with four children and seven stepchildren. He is a non-smoker. His wife undertakes all domestic chores and gardening. He has resumed occasional fishing with a rod off the pier alongside his child. He says that he has not managed to continue with gymnasium-based exercise.
History from the claimant
History of the previous and current accident
Mr Johnston denies any history of neck or shoulder conditions before the subject accident.
Mr Johnston said he had been involved in a motor vehicle accident as a pedestrian struck by a car two months before the subject accident in July 2017. In that accident, he suffered a contusion to his left hip and his right hand. He recalls that he went on to make a near full recovery from those complaints within a short period. The Panel notes the claimant’s claim form and the medical certificate in particular note back symptoms improving but continuing to the time of the current accident.
On 21 September 2017, Mr Johnston was the seat-belted driver of a car stationary at Rooty Hill with his hands on the wheel when his car was struck from behind by a truck. His car was pushed forward. His car struck the car in front which in turn struck a fourth vehicle. He recalls that after the impact with the car in front, his car re-bounded and struck the truck again. Mr Johnstone said that the airbags in his vehicle did not deploy but that his seat dislodged from its mooring and the seat back broke. The Panel notes this description of the accident suggests there appears to have been some considerable force applied to the claimant’s vehicle in this accident.
After a short period, the claimant got out of his vehicle without assistance. He exchanged details with the other involved drivers. The police attended the accident, and his car was towed and eventually written off. Mr Johnstone declined ambulance transfer but was subsequently driven by his partner to Mt Druitt Hospital from the scene of the accident. His complaints and concerns at that time were neck pain and particularly left-sided low back pain.
History of treatment undertaken
Following assessment at the hospital, Mr Johnston said he was discharged on the same day. About two weeks later he then attended his general practitioner, Dr Andrew Ng in Blackett.
Mr Johnston confirmed that at the first few consultations with Dr Ng he was primarily concerned about his neck and back. He recalls that he experienced left shoulder soreness which first became apparent one or two days after the accident. He thought this was merely a bruise and he says he did not report it to his doctors initially as it was overshadowed by his low back pain. He was referred for physical therapy.
Mr Johnston recalls that due to persisting pain, he returned to his doctor on
13 November 2017 and at that stage reported intrusive left shoulder pain. He was referred for an ultrasound of the left shoulder which was performed 17 November 2017.
Following this, he was referred for ultrasound guided left subacromial bursal injections performed on 29 November 2017 and 23 January 2018. Mr Johnston reported temporary symptom benefit for possibly a week after each of the injections, as well as immediate relief from the local anaesthetic component of the injection. Mr Johnston said there was no durable benefit.
Subsequently his treatment was primarily directed toward his complaints of neck and back pain. He attended the neurosurgical unit of Westmead Hospital for review of his spinal injuries.
Mr Johnston recalls that his left shoulder pain continued. He recalls difficulty raising his arm much above the horizontal. Due to persisting symptoms, he returned to his physiotherapist in December 2018. Eventually he was referred to Dr Yeoh, upper limb surgeon on 15 November 2019. He confirms that Dr Yeoh was concerned about a SLAP lesion and he was referred for MRI arthrography of the shoulder.
Dr Yeoh arranged for a further injection. On this occasion, the injection was performed into the glenohumeral joint. Mr Johnston recalls symptom benefit for one or two weeks after the injection however his symptoms soon returned.
The claimant confirms that Dr Yeoh recommended shoulder surgery in the form of arthroscopy, biceps tenotomy and possible rotator cuff repair. Funding was declined by the insurer.
Mr Johnston was later referred by his general practitioner to a second orthopaedic surgeon, Dr Yalizis whom he attended on 31 May 2021. Dr Yalizis recommended shoulder surgery in the form of subacromial decompression and biceps tenodesis.
He recalls that in the period leading up to his surgery, he continued to experience fairly constant low-grade ache at the left shoulder which increased with activity. He recalls difficulty raising his arm much above the horizontal due to sharp pain in the shoulder. He was unable to sleep over his left shoulder at night. He performed manual tasks primarily using his right hand, including steering his motor vehicle.
He worked as a traffic control officer after the accident but found that his duties changed and he was required to lift sand bags and multiple cones. He was unable to tolerate this work and eventually sought alternative employment. At that stage, he retrained to work as a forklift operator using a machine which was steered with the right hand. He his employer accommodated Mr Johnston’s lifting difficulties.
On 3 November 2021, Mr Johnston underwent left shoulder arthroscopic acromioplasty and biceps tenodesis surgery at Mt Druitt Hospital under the care of Dr Yalizis.
He recalls that in the post-operative period, he experienced increased pain and stiffness in his shoulder. A diagnosis of adhesive capsulitis was made.
He subsequently underwent a glenohumeral joint injection and a hydro dilatation procedure in April 2022, with some temporary benefit. He has since continued with home-based range of motion exercises. He avoids the use of medication.
Current symptoms
Mr Johnston states that he experiences persisting mild pain in the shoulder. This has improved by about 80% compared to his pre-operative symptoms.
He continues to experience restriction of motion at the shoulder. He is unable to reach behind his back.
He cannot lie comfortably over his left shoulder at night. He describes four to six hours of broken sleep.
He is able to lift only 2 or 3 kg with his left hand, compared with 20 kg in his right.
He is right hand dominant. There is a normal tolerance for sitting, standing and walking.
He describes persisting mild neck stiffness but no significant radicular symptoms.
He describes intermittent sharp pain in the left side of his lower back. There are no radicular symptoms in the lower extremities.
Review of imaging
The claimant did not bring the imaging film to the re-examination for direct review. Based on review of the medical file the Panel reports on the following relevant scans:
(a) Ultrasound left shoulder, 17 November 2017 - subacromial subdeltoid bursitis with painful impingement;
(b) MRI left shoulder, 13 July 2018 - this is reported to demonstrate low grade supraspinatus tendinopathy and subdeltoid bursitis;
(c) Ultrasound left shoulder, 29 July 2019 - there is subacromial bursitis with evidence of impingement and a small amount of fluid around the anterior labrum, which may suggest an underlying labral injury/ tear;
(d) MRI left shoulder, 24 September 2019 -mild bursal swelling. Mild joint effusion. Mild tendinosis anterior rotator cuff interval extending into the insertional component of the supraspinatus tendon, without a tear. Subtle increased signal anterior superior labrum, without distinct tear;
(e) X-ray left shoulder, 13 December 2019 - no Hills Sachs or bony deformity demonstrated, the articular surface of the humeral head and glenoid fossa is smooth. The AC joint is congruent, there is no acromial spur. Smooth mild lateral down sloping is present but no significant outlet obstruction is evident, and
(f) MRI arthrogram left shoulder, 13 December 2019 - distension of the axillary recess with no features of capsulitis. The long head of biceps is not thickened. There is no adhesion identified in the rotator interval; There is some tendinosis of the superior 8mm of subscapularis tendon extending to the joint line 2cm in length. No definite tear. Supraspinatus and infraspinatus intact. There is chondrolabral separation present at the anterior equator extending down to the anteroinferior 5 o’clock position, with some chondral thinning. The anterior labrum is intact.
Examination
Mr Johnston is 163 cm tall and weighs 82 kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. There is a full range of active cervical spine motion in all planes without muscle guarding[21].
[21] While the degree of WPI is not a matter before the Panel, the Panel notes the same findings were made by Medical Assessor Woo and the claimant qualifies for a DRE category I assessment of 0%.
Upper extremities
Neurological examination of the upper extremities is normal. There is normal upper limb power in all muscle groups. There is normal sensibility. The deep tendon reflexes are symmetrically preserved.
Right shoulder
At the uninjured right shoulder, there is no muscle wasting and the claimant has a full range of movement in all six planes.
Left shoulder
At the left shoulder, there is a 4 cm anterior pigmented scar raised in contour without further adverse features. There is a posterior 2 cm scar, again with slight trophic change but no other adverse features.
There is no muscle wasting but significant restricted active motion measured and documented in the table below.
The examining Medical Assessors record:
(a) clinical findings of early scapular movement during shoulder elevation; There is restricted external rotation with the elbow adducted by the side. These are signs of persisting capsulitis;
(b) impingement testing was not possible due to restricted motion at the shoulder, and
(c) there is MRC Grade 5 power of resisted movements across the rotator cuff.
Measurements of the active motion of each shoulder using a goniometer are included in the table below[22]:
[22] While the issue of WPI is not before the Panel, on the above measurement the claimant would appear to have a WPI of 8%. There may need to be an assessment of the surgical scarring to be added to that.
Shoulder Movements
Active ROM Measured
Right degrees (°)Active ROM Measured
Left degrees (°)Flexion
180
90
Extension 60 40 Abduction 180 100 Adduction 50 30 External rotation 90 45 Internal Rotation 90 40
CONSIDERATION OF THE ISSUES IN DISPUTE
Did the claimant injure his shoulder in the accident?
The panel is satisfied that the claimant suffered a soft tissue injury to the cervical spine with subsequent imaging demonstrating very early disc desiccation but no significant underlying degenerative changes. There are no radicular complaints. There are ongoing complaints of intermittent left-sided neck pain.
The panel is also satisfied the claimant sustained a soft tissue injury to the lumbar spine, however, this was not the focus of the current assessment.
The panel finds that the claimant did sustain an injury to the left shoulder for the following reasons:
(a) the Panel has not been taken to any records which suggest the claimant has any pre-existing left shoulder pain either because of the July 2017 accident or for any other reasons;
(b) while the Panel notes that there is the suggestion in the Westmead Hospital documentation of referred pain from the neck to the shoulder, the claimant described to the examining panel members, and consistently elsewhere pain in the left shoulder region;
(c) while the claimant did not report left shoulder pain to the staff at Mt Druitt Hospital or his treating general practitioner during the first two months after the accident, the Panel accepts the claimant’s explanation that he was focussed upon the more intrusive symptoms in his lower back at that time. Noting his July 2017 accident and the previous complaints of back pain it is, in the view of the Panel, not surprising that Mr Johnston’s focus was on his lower back pain;
(d) Mr Johnston also recalls immediate symptoms of neck pain, which the medical members of the Panel note in their clinical experience can mask local symptoms at the shoulders;
(e) the claimant recalls being aware of left shoulder pain within two days of the accident and reported this to his doctor, seven weeks later, due to the persistence of his symptoms. The Panel accepts this explanation as this history is consistent with the medical file noted by his treating general practitioner who advises that on or about 13 November 2017, the claimant advised him that he had developed left shoulder pain within two days of the accident;
(f) the Panel accepts that the claimant waited to see how his injuries progressed before seeing his doctor (on 9 October) and then raising the shoulder (on 13 November). There were only three attendances after the accident before the fourth attendance when the left shoulder symptoms were mentioned. The medical members of the Panel note in their clinical experience this is not unusual for someone like the claimant who was not, before the accident, and has not been, since the accident, a frequent attender at Dr Ng’s surgery;
(g) the mechanism of the accident involved significant forces. While the members of the Panel are not biomechanical experts, the medical members of the Panel are of the view that the mechanics of this particular accident (where the evidence is that the seat came loose from its moorings) would be sufficient to cause a significant strain injury. The claimant’s left shoulder was unrestrained (the right shoulder being restrained by the seatbelt) and as the claimant’s vehicle was struck from behind by a truck his seat broke while he was still holding the steering wheel.
(h) furthermore, the Panel notes that there is no history from Mr Johnston or in the medical records of any competing cause for the development of new shoulder pain in a non-dominant arm so soon after the accident;
(i) Mr Johnston told the Panel and others that his work duties were modified after the accident to take account of the restricted movement in his shoulder and that he eventually had to change jobs. This is behaviour consistent with an injury to his shoulder, and
(j)
the ultrasound examination of the left shoulder performed on
17 November 2017, two months after the accident demonstrated subacromial and subdeltoid bursal thickening, indicating bursitis with impingement on dynamic assessment.
The Panel notes that consistent complaints of left shoulder pain were documented by prior examiners, including Dr Matthew Giblin, who assessed the claimant in May 2018 and noted restricted left shoulder elevation to 90 degrees and the reports of Dr Machart commencing in August 2018, who also documented restriction of flexion motion to 90 degrees and abduction to 80 degrees.
What is the nature of the left shoulder injury resulting from the accident?
The Panel notes that initial diagnoses centred around bursitis and impingement.
The opinion of Dr Machart expressed in a report dated 2 August 2018 was that there was no evidence of an injury to the left shoulder that would explain the diminished range of motion present. The Panel has concerns about the reports of Dr Machart as it appears he may not have had all of the documentation and he has focussed on the absence of any contemporaneous complaint of left shoulder injury in the hospital notes.
The medical members of the Panel are of the view there was early evidence of impingement based upon the previously mentioned clinical and ultrasound imaging findings. The Panel notes this accords with the opinions expressed by other examiners.
Medical Assessor Perla, in 12 March 2019 diagnosed a soft tissue injury. He did not provide reasons why he found that the subacromial and subdeltoid bursitis and impingement were not caused by the accident.
The Panel is satisfied that the findings of bursitis with impingement were caused by the accident.
At subsequent specialist orthopaedic review by Dr Yeoh, there was concern about a capsular injury to explain Mr Johnston’s persisting anterior left shoulder pain.
Further MRI imaging was requested. While the imaging failed to demonstrate an overt capsular tear, the medical members of the Panel note that two specialist orthopaedic surgeons remained concerned about intrinsic injury to the shoulder.
Therefore, the Panel is satisfied that the plaintiff suffered an injury to the left shoulder with chronic pain and symptoms due to subacromial bursitis and impingement and a likely capsular strain injury, in addition to subscapularis tendinosis.
Is the surgical treatment related to the left shoulder injury?
The parties referred a dispute about the following treatment, left shoulder surgery, arthroscopic biceps tenotomy and possible rotator cuff repair. This was the surgery proposed by Dr Yeoh and refused by the insurer. Dr Yalizis proposed a subacromial decompression and biceps tenodesis.
The Panel has considered the hospital notes and particularly the operation report concerning the surgery that was undertaken on 3 November 2021. The claimant underwent left shoulder arthroscopic acromioplasty and biceps tenodesis not tenotomy.
The medical members of the Panel note that biceps tenodesis involves excising the biceps tendon off the labrum (a pad of cartilage inside the glenoid) and reattaching it to the humerus (upper arm). Biceps tenotomy involves cutting off one tendon and not reattaching it, allowing it to heal to the humerus over a few weeks. They are similar procedures used to treat chronic shoulder pain and inflammation due to injury in the long head of the biceps tendon and to treat SLAP tears. Tenodesis is usually recommended for younger patients (such as Mr Johnston) who want to return to sport or with a need to return to manual work. Also relevant is that tenotomy can result in a pop-eye bulge of the biceps which younger patients may consider unsightly.
The medical members of the Panel note that ultimately the decision to proceed with biceps tenodesis is one made at the operating table under the direction of the treating surgeon depending on the findings as the shoulder joint is examined arthroscopically.
The Panel has considered the judgment in Phillips referred to in paragraph 14 above and finds that the accident caused an injury to the claimant’s left shoulder joint. While the precise nature of the left shoulder injury has not been clear from the outset, due to the limitations of imaging, the left shoulder injury sustained in the accident is the material cause of the need for the surgery. The Panel is also satisfied that had the accident not occurred the need for surgery would not have arisen.
Is the surgery reasonable and necessary in the circumstances?
Reasonable
In Diab v NRMA Ltd[23] (Diab) at [88] the following factors were found to be relevant to, but not determinative 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.
Appropriateness – four years after the accident, with continuing symptoms including pain, it was appropriate for a treating surgeon to recommend arthroscopic surgery both for diagnostic and therapeutic purposes.
The Panel also notes that gleno-humeral injections gave the claimant some relief albeit temporary, which would have given the treating surgeon reason to believe that tenodesis or tenotomy surgery would be effective in alleviating symptoms.
Alternative treatment - the Panel is aware that the claimant has undertaken a long period of treatment alternative to the surgery including targeted physical therapy, exercise, subacromial bursal injections on two occasions, a glenohumeral joint injection and multiple diagnostic imaging.
Cost effectiveness – the Panel notes the claimant’s left shoulder surgery was performed as a public patient at Mt Druitt Hospital[24] therefore the surgery has been undertaken at no direct cost to the insurer. The Panel is of the view that had the claimant or the insurer paid for the treatment, it is likely to have been more cost effective than continued conservative treatment such as physiotherapy and cortisone injections over a longer period.
[24] See page 151 of the claimant’s bundle.
Actual or potential effectiveness - the Panel notes that both of the claimant’s treating surgeons documented reservations about the efficacy of surgery to alleviate the claimant’s pain. The medical members of the Panel note that this is not an absolute contraindication to surgery and, despite their reservations, both surgeons recommended operative treatment.
The claimant’s current diagnosis is of adhesive capsulitis following his shoulder surgery. This is a rare but well recognised complication of surgical management. Based upon the clinical findings, there has been partial recovery from the adhesive capsulitis. The prospect of developing capsulitis would not, in the Panel’s view be reason to not proceed with the surgery four years after the accident.
At the time the Panel assessed Mr Johnston, a year after his surgery, he had not increased his range of motion significantly, although there had been some improvement on some planes of movement when compared to the assessment of Medical Assessor Woo. Of significance to the Panel is that the claimant did report an 80% reduction of pain, which suggests that the surgery has been effective.
Acceptance - both Dr Yeoh and Dr Yalizis recommended arthroscopic surgery due to the persistence of symptoms. The medical members of this Panel are of the view that the surgery as proposed and the surgery that was undertaken is an acceptable form of treatment for the claimant’s left shoulder injury.
For all the reasons above, the Panel is satisfied that the surgery performed by
Dr Yalizis was a reasonable form of treatment to address the claimant’s left shoulder symptoms.
Necessary
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987, Grove J in Clampett v WorkCover Authority of NSW (Clampett)[25], said:
“[22] I return to the expression ‘reasonably necessary’ in s 60. 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.
[23] 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.”
[25] [2003] NSWCA 52.
While related to a different scheme and another test, the Panel considers these observations are relevant to the decision of whether Mr Johnston’s surgery is “reasonable and necessary”.
Justice Grove had cited definitions of “necessary” and the Panel notes synonyms for “necessary” include words such as “needed” or “essential”.
Mr Johnston’s surgery was undertaken four years after his accident. Mr Johnston had four years of treatment to deal with his pain and limitation of movement. The surgery was, in the Panel’s view essential in order to complete the diagnosis of the claimant’s injuries in circumstances where imaging options had been exhausted. The surgery was also needed to address his left shoulder symptoms as Mr Johnston had exhausted conservative and non-invasive treatments. While questions had been raised about the likely success of the surgery, the medical members of the Panel note that successful surgery would have reduced or minimised the claimant’s symptoms.
The Panel is therefore satisfied that the surgery was necessary to address the claimant’s longstanding left shoulder complaints.
In the circumstances
The words “in the circumstances” refer to the particular circumstances of the claimant in the proceedings before the Panel.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment but the relationship between the accident-related injuries and the treatment for those injuries.
Mr Johnston had a significant reduction in shoulder motion, being unable to lift his arm above 90 degrees and this restriction had been present for over four years. In a document from Dr Yalizis[26] dated 31 May 2021 Mr Johnston indicated it was impossible to comb his hair, impossible to hang clothes in his wardrobe, and it was moderately difficulty carrying a tray of food across a room. The left shoulder surgery performed in November 2021 was aimed to helping Mr Johnston to get back to his usual duties (noting that his employer was making adjustments for him) and activities of daily living.
[26] Page 271 of the claimant’s bundle.
Mr Johnston has had significant levels of pain in his left shoulder. In the document referred to above, the claimant reported severe pain in his shoulder in the last four weeks, moderate pain levels on a daily basis, his pain levels greatly impact his usual work activities, and he has pain in his shoulder every night when in bed. The treatment proposed was aimed at reducing these pain levels.
CONCLUSION
The Panel is satisfied that the claimant injured his left shoulder in the accident, causing pain and restriction of left shoulder motion.
The Panel is satisfied that the left shoulder surgery undertaken by Dr Yalizis in November 2021 was reasonable and necessary in the circumstances and related to the left shoulder injury caused by Mr Johnston’s motor accident on 21 September 2017.
As the Panel has come to a different conclusion to Medical Assessor Woo, it follows that the two certificates issued by the Medical Assessor must be revoked.
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