Khuu v Yatsal Distributors Pty Limited
[2021] NSWPIC 94
•26 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Khuu v Yatsal Distributors Pty Limited [2021] NSWPIC 94 |
| APPLICANT: | Van Ty Khuu |
| RESPONDENT: | Yatsal Distributors Pty Limited |
| MEMBER: | Mr Philip Young |
| DATE OF DECISION: | 26 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to neck and right shoulder and consequential condition to neck and left shoulder; applicant had two shoulder operations and one neck surgery and claims section 60(5) declaration re further neck surgery; Held- applying the relevant criteria in Diab v NRMA Ltd the proposed surgery is reasonably necessary medical treatment; order accordingly. |
| DETERMINATIONS MADE: | 1. In the course of his employment with the respondent on 17 September 2012 the applicant suffered injury to his right upper extremity (right shoulder) and neck. 2. The applicant subsequently suffered consequential conditions to his neck and left shoulder. 3. The future medical treatment expenses being the costs of C6/7 anterior cervical discectomy and fusion and incidental expenses as well as C4/5 cortisone injections as recommended by Dr Parkinson are reasonably necessary treatment expenses as a result of the injury of 17 September 2012. 4. Pursuant to section 60(5) of the Workers Compensation Act 1987 the respondent is ordered to pay the reasonable costs of and incidental to those treatment expenses. |
STATEMENT OF REASONS
BACKGROUND
Van Ty Khuu (the applicant) is a 67 year old man who on 17 September 2012 suffered injury to his cervical spine in the course of his employment with Yatsal Distributors Pty Limited (the respondent).
The applicant also relies upon an alleged consequential neck injury resulting from two operations to his right shoulder on 3 May 2013 and 13 May 2014 and his need to wear a sling after this surgery which he says caused aggravation to his cervical spine.
The insurer has accepted liability concerning the applicant’s right shoulder and cervical spine injuries referable to date of injury 17 September 2012. The respondent agreed to pay for section 60 expenses of and incidental to a C6/7 foraminotomy proposed by Dr Parkinson.
ISSUES
The issue in this matter is whether a declaration should be made pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that future medical treatment proposed by Dr Parkinson namely C6/7 anterior cervical discectomy fusion is reasonably necessary and should be paid by the respondent.
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 18 March 2021. Mr S Hickey of counsel instructed by Mr D Lam appeared for and with the applicant. An interpreter,
Mr Dang, was present. Ms N Compton of counsel appeared for the respondent. Mr N Bennett represented the insurer.Discussions were held in an attempt to narrow the evidence and achieve settlement. Regrettably settlement was not achieved.
I am satisfied that I have used my best endeavours to attempt to effect settlement, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a)Application to Resolve a Dispute (ARD) lodged 22 January 2021 and attachments;
(b)Reply lodged 28 January 2021 and attachments (Reply), and
(c)Application to Admit Late Documents filed by the applicant on 9 March 2021 and attachments (AALD).
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Both counsel provided written submissions. I do not propose to set out the submissions in any detail, but will endeavour to address them in general terms where appropriate.
DISCUSSION AND REASONS
It is clear from the applicant’s statement 20 May 2021[1] that the applicant suffered pain in his right shoulder and neck on 17 September 2012, saw his general practitioner and was prescribed pain killers and a gel.
[1] ARD pp. 3-7
By December 2012 the applicant was experiencing left shoulder pain which he thought was due to the extra strain on the left because of his right shoulder problem. An MRI scan of the right shoulder showed various tendon tears and after referral to Dr Tan on 12 February 2013 arthroscopic right rotator cuff repair occurred on 3 May 2013.
The applicant’s problems with his right shoulder and neck appeared to have persisted throughout 2013[2] such that he underwent an MRI arthrogram of the right shoulder on 24 December 2013. Dr Tan on 13 May 2014 performed right shoulder debridement and by 2014 his neck pain was worse.[3]
[2] Ibid at p. 4
[3] p. 5
In the latter part of 2014 the applicant’s left shoulder and neck pain was said to be getting worse[4] and the right arm could not be used at all. An MRI scan of the applicant’s neck occurred in March 2013 but is not in evidence and Dr Tan referred the applicant to
Dr Parkinson who first saw the applicant on 2 December 2015. Dr Parkinson suspected a C7 nerve root lesion.[5][4] Ibid
[5] ARD p. 58
In mid and later 2016 Dr Tan referred the applicant again to Dr Parkinson because of ongoing discomfort and weakness of the shoulder and deteriorating radiculopathy from the neck.
The applicant continued under the care of Dr Parkinson and Dr Tan throughout 2017 with both doctors recommending decompression surgery for the neck at C6/7.[6] Surgery was performed by Dr Parkinson to the applicant’s neck on 30 July 2018 but by late 2018 reviews by Dr Parkinson revealed ongoing neck and shoulder pain.
[6] Ibid at p. 62
The applicant’s difficulties continued into 2019 with pain in the neck and pain and weakness in the right arm and he was referred to a further cervical spine MRI scan on 17 June 2019 demonstrating foraminal stenosis at C4/5 and retrolisthesis at C6/7.
Further reviews occurred by Dr Parkinson in 2020[7] and a further MRI scan of the neck on 30 March 2020. Following receipt of the further MRI scan report, Dr Parkinson by report of 13 May 2020[8] recommended further surgery to the applicant’s neck. So confident was
Dr Parkinson that he believed that the applicant should be able to return to “full duties” following further surgery. Dr Parkinson in a report of 10 September 2020 said:“…The recommended procedure will alleviate the patient’s disabilities and symptoms by eliminating movement at this segment which is causing his pain which is all related to both the neck injury and the need for surgery. The benefits are that elimination of movement in this segment due to the fusion should eliminate the majority of his neck pain”.
[7] Reply at p. 38
[8] ARD at p. 72
Dr P Bentivoglio saw the applicant on 18 November 2020. He thought that because the applicant continued to work after his shoulder surgery, it was the wearing of the sling which exacerbated pre-existing degenerative disease in the applicant’s neck.
I have mentioned the series of complaints of symptoms by the applicant chronologically and in some detail. This is because the point is pressed for the respondent that the applicant in his statement does not specify where his pain is coming from[9] but it is tolerably clear from histories given to various doctors from September 2012 that there was both neck and shoulder pain with the neck pain deteriorating following the applicant wearing a sling.
[9] Respondent’s submissions paragraph 5.
The respondent submitted that apart from pain medication, since the last of the applicant’s surgeries in 2018 there have been little alternative forms of treatment. There is, however, little evidence offered to suggest what alternative treatment is recommended and in the absence of medical recommendation it would be highly speculative and inappropriate for this Commission to propose an alternative medical treatment regime.
The opinion of Dr Bentivoglio was recommended by Dr Parkinson because the insurer had the applicant examined by Dr Miniter who was of the view that the surgery was not reasonably necessary. Dr Miniter[10] questioned the earlier surgery and concluded:
“His prognosis is poor. You will note that he has had no benefit from surgical treatment thus far and one would be most surprised to see that there would be any further benefit from surgical management that has been recommended”
[10] Reply page 17
Dr Miniter does not have the benefit of being the applicant’s treating surgeon over a number of years and would be expected to be less conversant with the applicant’s progress than would Dr Parkinson. For this reason and because Dr Miniter’s concern appears to be heavily reliant on the failure of past operative intervention, I prefer the opinion of Dr Parkinson, supported as it is by Dr Bentivoglio.
Dr Bentivoglio came to the view that the C6/7 anterior cervical decompression and fusion was appropriate but because there was foraminal compression of the right C5 nerve root as well he would also address this at the right C4/5 level with a cortisone nerve block.
In terms of the decision in Bates[11] a common sense approach to causation confirms that the need to continue to treat the applicant’s neck injury results from consequential injury to the neck because of the applicant’s need to wear a sling after his right shoulder surgery. In terms of the principles set out in Diab[12] it is clear from the medical evidence that both the surgery proposed by Dr Parkinson and the cortisone nerve block suggested by Dr Bentivoglio are appropriate treatment for this applicant. Dr Parkinson in his report of 25 February 2021 confirms that the cortisone injection could be performed either during or after the surgery at C6/7 and Dr Parkinson who is the doctor who has treated the applicant for many years is best placed to comment on the proposed effectiveness of this treatment for this particular applicant.
[11] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
[12] Diab v NRMA Ltd [2014] NSWWCCPD 72
FINDINGS AND ORDERS
The findings of the Commission are as follows:
(a) In the course of his employment with the respondent on 17 September 2012 the applicant suffered injury to his right upper extremity (right shoulder) and neck.
(b) The applicant subsequently suffered consequential conditions to his neck and left shoulder.
(c) The future medical treatment expenses being the costs of C6/7 anterior cervical discectomy and fusion and incidental expenses as well as C4/5 cortisone injections as recommended by Dr Parkinson are reasonably necessary treatment expenses as a result of the injury of 17 September 2012.
(d) Pursuant to section 60(5) of the 1987 Act the respondent is ordered to pay the reasonable costs of and incidental to those treatment expenses.
Philip Young
MEMBER
26 April 2021
0
0
0