Kochappan v State of New South Wales (South Eastern Sydney Local Health District)
[2025] NSWPIC 280
•18 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kochappan v State of New South Wales (South Eastern Sydney Local Health District) [2025] NSWPIC 280 |
| APPLICANT: | Kochappan |
| RESPONDENT: | State of New South Wales (South Eastern Sydney Local Health District) |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 18 June 2025 |
CATCHWORDS: | Workers Compensation Act 1987; section 4; whether applicant received injury to right shoulder during workplace incident; disputed on the basis that right shoulder symptoms said to be referred from cervical spine; section 60 medical expenses claim; applicant seeks an order the respondent pay costs of, and incidental to right shoulder surgery; whether not reasonably necessary; Held – discrete right shoulder injury during workplace incident; proposed treatment for right shoulder injury is reasonably necessary as a result of the injury; respondent ordered to pay the costs of and incidental to the recommended surgery. |
| DETERMINATIONS MADE: | 1. The applicant injured her right shoulder in the course of employment with the respondent on 12 May 2023. 2. The surgery proposed by Dr Pant to treat the applicant’s injury is reasonably necessary. 3. The respondent is to pay the costs of the surgical procedure recommended by Dr Pant in his letter of request dated 31 August 2023. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Leena Kochappan, is employed by the respondent, State of New South Wales - South Eastern Sydney Local Health District, as a registered nurse. She claims to have injured her right shoulder on 12 May 2023 while at work while attending to a combative dementia patient. A claim was made for weekly compensation and medical treatment expenses related to the contended injury. Liability for the injury is disputed by the respondent.
The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 20 November 2024, initiating these proceedings.
PROCEDURE BEFORE THE COMMISSION
The matter was before the Commission for arbitration hearing on 7 March 2025. Mr Moffet of counsel, instructed by Ms Giusti from eJustice solicitors, appeared for the applicant, who was also present. The respondent was represented by Ms Compton of counsel, instructed by Ms Talevski from Bartier Perry Lawyers. A representative of the respondent’s insurer was also present. As the matter was not completed at the hearing, the parties were given leave to provide written submissions in the weeks following.
The ARD originally referred to a dispute about other claimed injuries, the applicant’s neck, both shoulders and a psychological condition, however leave was sought at the arbitration hearing as well as in the later submissions for amendments. Leave was granted, without objection by the respondent, and the effect of the amendments is that the dispute for resolution now relates only to medical treatment for the claimed right shoulder injury.
ISSUES FOR DETERMINATION
The following issues remain in dispute and require determination by the Commission:
(a) whether applicant’s right shoulder was injured at work on 12 May 2023 and, if so
(b) whether the proposed shoulder surgery is reasonably necessary.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to the ARD with attachments (Reply);
(c) Application to Lodge Additional Documents from the applicant dated 10 January 2025 with attachments (ALAD1);
(d) Application to Lodge Additional Documents from the respondent dated 7 February 2025 with attachments (ALAD2);
(e) Application to Lodge Additional Documents from the applicant dated 4 March 2025 with attachments (ALAD3);
There was no application to call oral evidence or cross-examine any witness at the hearing.
CONSIDERATION, FINDINGS AND REASONS
The applicant contends a right shoulder injury occurred when she was attending to a patient. Her statement evidence is that:[1]
“On or about 12 May 2023 I injured my neck and right shoulder when I was changing the incontinence pad of a resistive patient which required the assistance of two other nurses due to the combative nature of the patient. I applied an ice pack and took pain medication.”
[1] ARD p 2 at [24].
The injury is claimed to have been either a frank and distinct problem or an aggravation, acceleration, exacerbation or deterioration of an existing condition.
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) is relevant and provides that an injury must have arisen out of, or occurred in, the course of employment for compensation to be available. Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury where it arises from a frank event (s 4(a)). In the event it was aggravation, etc of an existing condition then employment must have been the main contributing factor (s 4(b)(ii)).
The applicant bears the onus of establishing her case of workplace injury on the balance of probabilities with reference to s 4 of the Act: Department of Education and Training v Ireland [2008] NSWCCPD 134.
An ‘injury’ refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (at 429). The Commission has consistently applied this meaning to injury: Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6.
The meaning of a personal injury was considered in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), with Roche DP observing:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in [Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286] at [39]). In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead)] it is “a sudden identifiable pathological change”
The applicant’s primary contention is about sustaining an injury to her right shoulder when she was attending to a restive patient at work on 12 May 2023. A report of the incident was made to the respondent on 16 May 2023.[2] Although the event is undisputed, the nature and cause of the pathology related to the injury is not. Examination is therefore required about whether there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of the applicant’s right shoulder and the cause.
[2] ARD p 751.
Dr Anish Ahmed
The applicant consulted her general practitioner (GP), Dr Anish Ahmed, on 16 May 2023 in relation to her right shoulder. Clinical notes for the consultation refer to the description of the 12 May 2023 and recorded that the applicant “felt pain in her shoulder” at the time.[3] Dr Ahmed noted restricted movement in the shoulder and referred the applicant for ultrasound investigation. The 18 May 2023 ultrasound scan report identified “bursal thickening with impingement but without rotator cuff tear”.[4] She was later referred for a right shoulder CT guided cortisone injection, followed by a course of physiotherapy. By 9 August 2023 the applicant’s right shoulder pain was reported as being aggravated despite “doing well” with physiotherapy. She was referred to Dr Sushill Pant, orthopaedic shoulder surgeon, for specialist treatment.[5]
[3] ARD p 154.
[4] ARD p 847.
[5] ARD pp 163 and 860.
Dr Sushill Pant
Dr Pant examined the applicant on or about 16 August 2023 and recorded that the applicant “had an injury on 12 May 2023 when she sustained an injury to the right shoulder and has had ongoing shoulder pain on the right side”. He made some general observations in a reply to the GP, including that the applicant had: [6]
“…forward elevation to 95 degrees, external rotation to 30 degrees and IR to her sacrum. She has no significant tenderness over her supraspinatus fossa. She is tender over her AC joint, which is really tender today to examination. She is very tender over her biceps which accounts for a lot of her pain. She has a positive O'Brien's. This causes pain within the biceps and the AC. She has impingement signs and weakness to superior cuff loading. She has no crepitus within the glenohumeral joint.”
[6] Reply p 16.
Dr Pant referred the applicant for an MRI scan. That investigation occurred on 29 August 2023.[7] The applicant further consulted with Dr Pant on 30 August 2023 when his diagnosis was reported as:[8]
“Right sided shoulder pain with traumatic shoulder injury with biceps medial instability + upper border subscapularis rotator cuff tear + subacromial bursitis + AC joint inflammation +/- rotator interval capsulitis”
[7] ARD p 830.
[8] Reply p 22.
It was noted by Dr Pant at the time that there was “biceps instability and changes in the upper border of the subscapularis” and, on that basis, corrective surgery was recommended. A request for surgery was submitted by Dr Pant to the respondent’s insurer on 31 August 2023, seeking approval for the applicant to receive:[9]
“Right Shoulder Arthroscopy + Subacromial Decompression + Acromioplasty + Biceps Tenotomy + Subscapularis Debridement/Repair + AC Joint Decompression + Distal Clavicle Excision +/ Rotator Interval Release”
[9] ARD p 866.
Dr Saeed Kohan
The applicant was also referred for specialist consultation with Dr Saeed Kohan, neurosurgeon. In his initial report of 17 October 2023, having reviewed imaging investigations of the applicant’s cervical spine, Dr Kohan opined:[10]
“…there is combination of injury to her right shoulder but also component of cervical radiculopathy particularly in relation to right C4 nerve root which could be associated with the distribution of the pain that she is experiencing.
…
I believe with the description of the event the injury sustained at the time of the incident on 12th May is a significant and substantial contributory factor to her current symptoms. This includes the nature of the event handling aggressive and combative patient, start of her symptoms soon after the event. While she certainly does have spondylitic changes in the cervical spine and has pre-existing shoulder injury, she reports she was completely asymptomatic prior to the incident.”
[10] ARD p 720.
Dr Kohan arranged for further investigations of the applicant’s cervical spine by way of a repeat MRI scan and magnetic resonance angiogram (MRA) scan of the C3 and C4 area of the cervical spine. Once those investigations reports became available, Dr Kohan further consulted with the applicant and made a referral for bilateral C2/3 facet injections for symptomatic relief. He also made recommendations about her return-to-work arrangements.
In his 1 December 2023 referral of the applicant for an exercise program, Dr Kohan explained the applicant “primarily has neck pain and bilateral shoulder pain, worse on the right side which also may be associated with the right shoulder injury”.[11]
[11] ARD p 714.
On 29 February 2024, Dr Kohan noted the applicant received the C2/3 facet injections which were said to have “significantly improved her neck pain”. There was also improved range of shoulder movement “with mild discomfort only”, however she continued to have “some mild symptoms with pain and stiffness in the right shoulder”.[12] He recommended the applicant receive physiotherapy and undertake a swimming regime.
[12] ARD p 712.
Dr Peter Conrad
The applicant qualified Dr Peter Conrad, consultant surgeon, to examine and report on her right shoulder condition. In his 8 April 2025 report,[13] following his examination of the applicant on 2 April 2025, Dr Conrad identified her as having “pain and restriction of movement” in her right shoulder and that the incident on 12 May 2023 was a “significant injury”. He referred to a previous right shoulder injury that “was adequately repaired in 2008” while the applicant was in Austria, which had been “relatively asymptomatic”.[14] Dr Conrad opined the applicant “re-injured her right shoulder during the 12 May 2023 incident” and that there was “very clear-cut liability to the accident”.
[13] ARD p 73.
[14] ARD p 76.
Dr Ron Haig
The respondent qualified Dr Ron Haig, orthopaedic surgeon, to conduct an independent medical examination of the applicant. He examined the applicant on 22 August 2023 and again on 16 September 2024. Five reports were prepared: 30 August 2023,[15] 15 September 2023,[16] 21 December 2023,[17] 10 January 2024[18] and 17 September 2024.[19]
[15] Reply p 23.
[16] Reply p 30.
[17] Reply p 41.
[18] Reply p 47.
[19] Reply p 1.
During the 22 August 2023 examination, Dr Haig noted the applicant had “some claimed tenderness anteriorly”, where the “contour was normal”. He found there “was a full range of motion of each shoulder though on the right side reproducing some pain”[20] (which is noted to be in contrast with the examination of Dr Pant less than a week earlier on 16 August 2023[21]). Dr Haig did though accept the applicant was injured during the 12 May 2023 incident at work, despite referring to the event as “relatively minor episode” that may have occurred whether she was at work or not given “underlying…cervical spondylosis”.[22] On that basis he considered the applicant’s “symptoms are not entirely related to the incident”,[23] but he did “consider the [applicant’s] employment to be a substantial contributing factor to her current symptoms”.[24]
[20] Reply p 26.
[21] See above at [16].
[22] Reply p 28.
[23] Reply p 28.
[24] Reply p 27.
At that time, it was Dr Haig’s “impression that her symptoms have their origin in the cervical spine rather than the shoulders”[25] that was “based on the history and the clinical examination and, in particular, the MRI of the cervical spine report”.[26] He did note the 18 May 2023 ultrasound report citing right shoulder “bursal thickening with impingement but without rotator cuff tear”,[27] but that it was:[28]
“…appropriate that she does undertake the MRI of the right shoulder to absolutely exclude significant pathology there. This is a preferable investigation to the ultrasound.”
[25] Reply p 26.
[26] Reply p 27.
[27] ARD p 847.
[28] Reply p 29.
An MRI scan followed a week later, on 29 August 2023,[29] (the basis for Dr Pant’s diagnosis of 30 August 2023[30]) and was subsequently provided to Dr Haig. In his supplementary report dated 15 September 2023, Dr Haig reported the “MRI of the right shoulder does not cause me to change my diagnosis” and restated that the applicant’s “complaint is cervical (radicular) in origin”. He considered there to be “no indications for shoulder surgery” and that he could “see nothing in the MRI of the right shoulder report that would suggest surgery is required”.[31] Dr Haig thought “referral to a neurosurgeon may be appropriate” as an alternative to surgery; surgery which had by then been requested by Dr Pant.
[29] ARD p 830.
[30] Reply p 22.
[31] Reply p 31.
It seems the applicant acted on that suggestion, because she obtained a referral to Dr Kohan (neurosurgeon) thereafter and received a course of treatment from him, including referral for an exercise program and facet joint injections.[32] His reports of 17 October 2023 and 1 December 2023 were provided to Dr Haig for comment.
[32] See above at [19] – [22].
In his 21 December 2023 report, Dr Haig considered that Dr Kohan’s “diagnosis of ‘right shoulder injury’ is not a diagnosis”, reiterated that he did “not believe [the applicant] injured her right shoulder” and held steadfast to his belief that “the pain around the right shoulder was cervical in origin”.[33] In this regard, he believed:[34]
“…the recently included “aggravation of cervical spondylosis” is the causative pathology of her symptoms in both the right and left shoulders. I do not believe she has shoulder pathology that is responsible for her pain in those areas. I agree with the diagnosis of aggravation of cervical spondylosis.”
[33] Reply p 42.
[34] Reply p 44.
Dr Haig’s report of 17 September 2024 considered the facet joint injections arranged by Dr Kohan and then essentially reiterated his earlier opinions that the diagnosis for the applicant’s shoulder issue was cervical spondylosis, that he did “not believe there is any significant shoulder pathology” and that “any pain she complains of in the shoulder is likely referred from the cervical spine”. He continued to accept it was a “work-related injury” where the applicant “suffered an aggravation of her cervical spondylosis”.[35] Dr Haig remained of the view that the applicant’s “employment was the main contributing factor to the aggravation of the pre-existing cervical spondylosis”.
[35] Reply p 4.
Nature of the injury
The expert medical evidence is clear and consistent with respect to the applicant having been injured at work on 12 May 2023. The disputed issue is whether the applicant has a distinct shoulder injury. The applicant’s treating orthopaedic surgeon, Dr Pant, and her treating neurosurgeon, Dr Kohan, as well as the independent medical examiner qualified by her, Dr Conrad, are all of the view that she has a distinct shoulder injury. They have each provided reasoning for their diagnoses and opinions, which are reasonable, refer to the medical investigations evidence and relate to the consistent history of the precipitating event given to them by the applicant.
Dr Haig accepts the applicant was injured at work, but considers her right shoulder pain is a result of an aggravation of a pre-existing cervical spine condition. It is evident that the applicant acted on the suggestions and recommendations in the reports of Dr Haig at each step in relation to additional investigations and referrals. Indeed, the consequential treatment provided by Dr Kohan seems to have been to the applicant’s benefit. While it seems that treatment ameliorated her neck pain, her right shoulder restriction, while improved, persisted.
It is clear from the MRI scan reports, as interpreted by Dr Pant, that the applicant has a right shoulder injury. It is puzzling that Dr Haig eschews that evidence. As was submitted by the applicant’s counsel, which is accepted, Dr Haig did not adequately explain why the incident on 12 May 2023 is said to have been “relatively minor”, contrary to the weight of the evidence and his own ultimate finding of work injury. He also failed to address the reason for determining an aggravation of underlying cervical spondylosis is said to be the cause of the applicant’s right shoulder pain rather than that joint itself, which had previously been the subject of repair and presumably therefore susceptible to damage. The evidence of shoulder injury including unambiguous imaging, while considered, seems to have been disregarded by Dr Haig. I prefer the findings and opinions of the other specialists in the circumstances.
The evidence establishes to my reasonable satisfaction that the applicant sustained a frank injury to her right shoulder on 12 May 2023 when she was attending to the combative dementia patient at work and there was a sudden and ascertainable or dramatic physiological change or disturbance in the state of that shoulder.
The effect was immediately known to the applicant and she sought assistance from her GP about the issue in the following days after some self-treatment. It was thereafter an on-going and constant ailment. Employment was the substantial contributing factor per s 9A, the effect of her prior shoulder injury treated in 2008 was either completely or essentially asymptomatic. The definition of injury at s 4(a) of the 1987 Act is satisfied accordingly.
Reasonably necessary
The applicant relies on the opinion of her treating orthopaedic surgeon, Dr Pant, that she requires surgery to ameliorate the effect of the work-caused injury to her right shoulder.[36] She claims medical expenses pursuant to s 60 of the 1987 Act and that it is reasonably necessary to undertake that surgery, which results from her work injury.
[36] As described above at [18].
A commonsense examination of the causal chain is required to determine whether the need for the claimed treatment arises as a result of the work-related injury: Kooragang Cement Pty Ltd v Bates (Kooragang).[37]
[37] Kooragang Cement Pty Ltd v Bates (1994) 10 NSW CCR 796.
The relevant test to establish reasonable necessity is whether it is better for the applicant to receive the treatment than not to have it: Bartolo v Western Sydney Area Health Service.[38] The applicant is not required to prove the requested surgery is absolutely necessary, only that it be reasonably so: Diab v NRMA Limited.[39] This means I must determine whether it is reasonable and preferable for the applicant to have the shoulder surgery requested.
[38] [1997] 14 NSWCCR 233.
[39] [2014] NSWWCCPD 72.
In making that determination, relevant considerations include the suitability of the treatment, availability of alternative treatment (and the potential effectiveness of those), cost of the proposed treatment, potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.[40]
[40] Rose v Health Commission (NSW) [1986] NSWCC 2 (Rose).
Although Dr Haig considers the requested surgery to be unnecessary, that seems to be on the basis he does not believe the applicant sustained a right shoulder injury. For the reasons already given, that opinion has not been accepted. Dr Haig did however go on to state that, in relation to the surgery identified as recommended by Dr Pant, he believed “not only is it not indicated but she would be an exceedingly poor candidate for surgery generally” but without providing any reasoning for that opinion.
Dr Pant did provide an explanation of why it would be beneficial, including with reference to the risks:[41]
“Given the biceps instability and changes in the upper border of the subscapularis we talked about surgical treatment options. I have recommended surgery… We will address the biceps, the AC, the distal clavicle, the bursa and the anterior cuff +/- the rotator interval capsule. This is quite an extensive procedure that is required to treat all the pain generators at once. The main risk of surgery is post-surgical capsulitis which sits at 5%, otherwise the risks are routine.”
[41] Reply p 22.
Dr Pant provided adequate reasons about why the proposed treatment is reasonably necessary. Other modes of treatment have been used in the past, right shoulder CT guided cortisone injection and physiotherapy, but has failed to fully and finally rectify the problem. It is apparent the applicant is unlikely to improve without the proposed surgical intervention.
There seems to be a reasonable chance of a successful outcome from the proposed surgery, according to Dr Pant and Dr Conrad, which is an accepted form of treatment for the applicant’s condition. On balance it would appear better for the applicant to have it than not.
I have weighed the matters identified in Rose and consider the evidence supports a finding the proposed treatment is reasonably necessary in the circumstances for the purposes of s 60 of the 1987 Act. Accordingly, the respondent is liable to meet the cost of the surgical treatment as recommended by Dr Pant in his Request for Surgery Approval letter dated 31 August 2023,[42] that is:
“Right Shoulder Arthroscopy + Subacromial Decompression + Acromioplasty + Biceps Tenotomy + Subscapularis Debridement/Repair + AC Joint Decompression + Distal Clavicle Excision +/- Rotator Interval Release”
SUMMARY
[42] ARD p 866.
The applicant injured her right shoulder at work on 12 May 2023 and she now requires treatment by way of corrective surgery. The respondent is liable for the injury and the treatment.
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