Kumar v The Star Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kumar v The Star Pty Limited [2022] NSWPIC 375
APPLICANT:	Santosh Kumar
RESPONDENT:	The Star Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	13 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for treatment expenses (right middle trigger finger release surgery) pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in relation to an accepted right hand injury; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the injury, and whether the injury materially contributed to the need for the surgery; Rose v Health Commission (NSW), Diab v NRMA Limited, Murphy v Allity Management Services Pty Limited, Hancock v East Coast Timber Products Pty Limited and Drca v KAB Seating Systems Pty Ltd considered; Held – the surgery proposed for the applicant is reasonably necessary medical treatment as a result of an injury to her right hand arising out of or in the course of her employment with the respondent; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The surgery proposed for the applicant by Dr Chang (right middle trigger finger release surgery) as referred to in her 18 November 2021 report, is reasonably necessary medical treatment as a result of an injury to the applicant's right hand which arose out of or in the course of her employment with the respondent on 29 June 2021.
ORDERS MADE:	2. The respondent is to pay for the costs of and incidental to the surgery (right middle trigger finger release surgery) proposed for the applicant by Dr Chang in her 18 November 2021 report, pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Santosh Kumar (the applicant) is 56 years old. She was employed by The Star Pty Limited (the respondent) as at 29 June 2021. She worked for it as a security guard.
On 29 June 2021, she injured her right hand when it was struck by a door. The respondent has accepted that this injury arose out of or in the course of her employment pursuant to section 4 of the Workers Compensation Act 1987 (the 1987 Act), and it has also accepted that her employment was a substantial contributing factor to the injury pursuant to section 9A of the 1987 Act.
However, the respondent issued a notice denying ongoing liability with respect to the injury, under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 25 November 2021.
The applicant’s treating orthopaedic surgeon, Dr Chang, has recommended to the applicant that she undergo surgery to treat the injury. On 18 November 2021, the doctor recommended that she undergo right middle trigger finger release surgery. The doctor sought that the respondent approve the costs involved in this surgery, and the applicant’s solicitors also wrote to the respondent on 31 January 2022 requesting that it approve those costs.
The respondent relies upon its section 78 notice, and refuses to pay for the costs of and incidental to the surgery.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Chang in accordance with section 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery proposed by Dr Chang is reasonably necessary medical treatment as a result of the injury to the applicant’s right hand which arose out of or in the course of her employment with the respondent on 29 June 2021.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A conciliation conference was held in the dispute on 24 June 2022. On that occasion, Mr Petrie of counsel appeared for the applicant, instructed by Mr Lemoto, and Mr Robison of counsel appeared for the respondent, instructed by Mr van der Hout. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the applicant’s Application to Admit Late Documents (applicant’s AALD) lodged 1 June 2022 and attached documents; and
(d)    the respondent’s Application to Admit Late Documents (respondent’s AALD) lodged 30 June 2022 and attached documents – this application attaches a report from Dr Miniter dated 20 June 2022, which was emailed to me prior to the arbitration hearing commencing and admitted into evidence by consent – the report was subsequently lodged formally with the Commission on 30 June 2022.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided two particularly brief statements.
According to the statement signed on 2 March 2022 (page 1 of the ARD), the applicant’s right hand was “crushed between a heavy door and the wall” on 29 June 2021. The accident was witnessed by a cleaner. Following the accident, she needed two days off work, and then returned to performing her normal employment duties. Her treatment had involved medication and radiological tests, and her treating specialist (Dr Chang) had recommended surgery to her right hand, which the respondent had denied. She was still waiting to undergo that surgery.
According to the statement signed on 26 April 2022 (page 1 of the applicant’s AALD), the accident occurred when a cleaner asked the applicant to open a door that needed a security swipe. The door opened mechanically and “smashed by [sic] right hand against the wall”.
In the second statement, the appliocant described ongoing symptoms from the accident, which included sharp pain in the palm of her right hand that travelled to the finger joint of her middle finger. It was difficult for her to bend her middle finger or to make a fist. There was a lump in the middle of the palm of the hand.
She wished to undergo the surgery recommended by Dr Chang.
The report from Dr Chang (dated 18 November 2021) recommending the surgery can be found at page 6 of the applicant’s AALD. In that report, the doctor noted that the applicant had undergone a corticosteroid injection on 29 October 2021 but that it had not provided her with any significant relief from her symptoms. She continued to struggle with middle finger flexion, extension, and power grip. Examination of the finger revealed “a very tender swelling at the level of the A1 pulley”. The doctor considered that the applicant was “at the stage where she will benefit from right middle trigger finger release”. She noted that the applicant wished to proceed with the surgery.
The applicant’s solicitors also requested a report (dated 28 April 2022) from Dr Chang, in which she responded to a number of questions of theirs (page 2 of the applicant’s AALD). The doctor advised:
“Since her injury, she had been experiencing pain and swelling over the palmar surface of the right middle finger at the level of the metacarpophalangeal joint. She also complained of pain over the right middle metacarpophalangeal joint extensor surface when she lifts heavy objects.”
and:
“Her injury had resulted in right middle finger flexor tenosynovitis most marked around the A1 pulley and likely continued to be exacerbated by having to glide under the A1 pulley. Therefore, an A1 pulley release would likely improve her symptoms.”
The applicant’s symptoms had not improved for over six months and were not likely to improve without surgical release. The surgery that the doctor proposed had a high likelihood of success in reducing the applicant’s symptoms.
The doctor was asked to comment upon opinions expressed by Dr Miniter, and she advised:
“I disagree with A/Prof P Miniter in that there was MRI evidence of tenosynovitis combined with clinical swelling and pain over the flexor tendon at the A1 pulley level. These are consistent with a trigger finger. Dr Roger Pillemer, who also assess Santosh on 20/1/2022 came to the same conclusion as me and agreed that a trigger finger release is a reasonable surgery.”
Dr Pillemer’s report dated 20 January 2022 can be found at page 12 of the ARD.
The doctor took a history that the applicant had worked for the respondent for 10 years. She sustained an injury to her right hand on 29 June 2021 when it was caught between a door that was closing and a wall. She was immediately aware of pain in the palm of the hand. She only needed a day or two off work.
Her treatment history included medication and extensive physiotherapy. The doctor noted her complaints involving “ongoing problems with the palm of her right hand extending into her right middle finger”. There was a constant awareness of discomfort especially when making a fist, difficulty straightening her right middle finger often requiring her to shake her hand, and discomfort levels up to “8/10”.
On examination, the doctor found a full range of movement of all the joints of her right hand. He also found however a nodule present in relation to the middle finger over the flexor tendon where it entered the flexor sheath, which he found to be typical of a trigger finger. He also found hypoaesthesia to pinprick along the radial border of the middle finger. As a result of these findings, he diagnosed that the applicant had sustained damage to the flexor tendon and sheath of her right middle finger resulting in a trigger finger, together with some damage to the radial digital nerve of the middle finger. He attributed the applicant’s ongoing symptoms to her 29 June 2021 injury.
Dr Pillemer agreed that “release of the trigger finger is definitely indicated”, and believed that the applicant’s symptoms due to the trigger finger would likely settle after that operation.
The only other medical evidence relied upon by the applicant is an MRI right hand scan report (undated) found at page 10 of the ARD, and a report in relation to the injection into her right middle finger that the applicant underwent on 29 October 2021 (page 11 of the ARD). I note that Dr Chang had access to the MRI scan report (see paragraph 20 above) and I also note that the applicant told her that she received no symptom relief from the injection.
The findings in the MRI scan report include:
“There is mild thickening and hyperintensity of the flexor tendon sheath of the middle finger, consistent with tenosynovitis. This extends from the level of the A1 pulley towards the level of the PIP joint.”
“Alignment of the MCP joint is normal. The volar plate is intact. The radial and ulnar collateral ligaments are intact. There is no bone marrow oedema.”
The final comment in the report is:
“Mild flexor tenosynovitis in the middle finger. No discrete ganglion. The extensor tendon appears normal.”

Respondent’s evidence

The respondent relies upon two reports from Dr Miniter dated 15 November 2021 (page 5 of the Reply) and 20 June 2022 (page 1 of the respondents AALD).
In the first report, the doctor takes a history of the accident on 29 June 2021 when the applicant’s right hand was caught between a “quite heavy” door and a wall. She told the doctor that there was bruising and swelling in the right hand afterwards. The doctor noted that she had since received an injection into the flexor tendon sheath of the right middle finger, and undergone an MRI scan – he considers the findings in the scan to be “relatively minor” with “no evidence of serious injury”.
On examination, the doctor found no swelling, but did find discomfort with flexion of the metacarpophalangeal joint (which he found to be unusual with a flexor tendon injury). The doctor found no synovitis of the metacarpophalangeal joint, but did find overall tenderness over the volar aspect of the joint itself. He also did not find any evidence of flexor tenosynovitis.
The doctor summarises his opinion as follows:
“The clinical diagnosis is not clear. The MRI scan does not demonstrate any significant findings. Granted, there may be some small amount of soft tissue swelling over the volar aspect of the MCP joint of the middle finger of the right hand but there are no major pathological features identified.”
and:
“There is a degree of inconsistency because she reports significant symptoms and yet there are very few, if any, findings on the MRI scan to confirm these symptoms.”
and:
“I do believe that there is some evidence to suggest that her employment with The Star casino has been a substantial contributing factor to the initiation of this matter. The absence of any significant physical findings and a slightly inconsistent physical examination make it difficult for me to associate her current presentation in its entirety with her employment.”
The doctor finds a guarded prognosis, but places no restrictions on the applicant’s work capacity, and opines that “she should have all treatment withdrawn”.
In the doctor’s second report, he recommends further investigation, specifically a fresh MRI scan with specific attention directed towards the metacarpophalangeal joint of the right middle finger. He makes this recommendation on the basis of his examination findings that the applicant had significant pain with flexion of that joint, which he believed was “more in keeping with a metacarpophalangeal joint problem than an underlying flexor tendon issue”. He opines that flexion of the joint should not cause pain if the diagnosis was flexor tenosynovitis, and yet the applicant experiences significant pain with flexion. Also, if the diagnosis was flexor tenosynovitis, the injection that the applicant underwent on 29 October 2021 should have provided her with some benefit over a short period of time.
The doctor concludes that he is unable to identify the exact nature of the injury suffered by the applicant, as further investigation is needed. In relation to the surgery suggested by Dr Chang, he advises that he is not at this stage satisfied that the applicant has triggering, and she requires further investigation. In relation to
Dr Pillemer’s opinion, he states:
“I note that Dr Pillemer believes that Ms Kumar has triggering, but he has failed to identify the fact that she has issues with the metacarpophalangeal joint. If
Ms Kumar has true evidence of triggering, and agitation of the flexor tendon sheath, there should not be marked discomfort in the flexed position.”

Applicant’s submissions

The applicant’s submissions have been recorded and I will not repeat them in detail.
The applicant commences with a statement that the evidence in this case is “relatively brief”. That is clear to the Commission.
The applicant then refers to her statements, as well as the medical evidence in the MRI scan, and that proffered by Drs Chang and Pillemer.
She criticises Dr Miniter’s first report on the basis that he does not address the central issue before the Commission in this case regarding the applicant’s need for the surgery recommended by Dr Chang. The doctor “makes light of the applicant’s symptoms”, simply opining that no treatment is reasonably necessary for her.
The applicant then concedes that the doctor is more accepting of her ongoing complaints in his second report, but as he cannot make a definite diagnosis in that report (as he believes that she requires further investigation), the report still does not assist the Commission to deal with the case that the applicant has put before it.
In those circumstances, the applicant submits that the Commission should accept the evidence of Drs Chang and Pillemer.

Respondent’s submissions

The respondent’s submissions have been recorded and I will not repeat them in detail.
The thrust of the submissions is that the applicant has not discharged her onus of proof. She has not provided properly reasoned medical evidence in order to justify the award that she seeks. The Commission should not be persuaded that the accident on 29 June 2021 caused symptoms necessary to justify the surgery proposed by
Dr Chang. The respondent concedes that the accident occurred, but does not concede the extent of the “mechanism of injury” which then occurred.
The respondent refers to the applicant’s two statements. The first statement does not properly set out her symptoms in order to justify that she requires any treatment whatsoever. The second statement, while referring to some ongoing symptoms, does not go through her functional problems in detail, by providing examples as to how those symptoms affect her. The Commission would have doubts as to whether the symptoms justify the proposed surgery when the symptoms are not mentioned in the first statement and only briefly mentioned in the second statement.
The severity of the applicant’s symptoms is also contradicted by her swift return to work following her accident.
In relation to Dr Pillemer’s report, the respondent submits that the complaints that the applicant made to the doctor are not supported by the statements that she has provided to the Commission. It also submits that the doctor’s opinions, especially in relation to attributability, are ipse dixit statements, devoid of reasoning.
In relation to Dr Chang’s reports, the respondent submits that the doctor’s opinions also contain ipse dixit statements, whereas she should have provided proper reasoning, especially as she claims in the reports that she was complying with the PIC 4 Procedural Direction.
The respondent finally refers to Dr Miniter’s reports, especially his opinion regarding the lack of significant pathology, and therefore the absence of any need for treatment, in his first report. In relation to the second report, the respondent points out the doctor’s criticism of the opinions provided in Dr Pillemer’s report. The respondent also submits that on the basis of the opinions in the doctor’s second report, the surgery proposed by Dr Chang would not be appropriate until the investigation proposed by Dr Miniter has taken place.

FINDINGS AND REASONS

Whether the surgery proposed by Dr Chang is reasonably necessary medical treatment as a result of the injury to the applicant’s right hand which arose out of or in the course of her employment with the respondent on 29 June 2021

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
The first question to therefore determine is whether the surgery proposed by Dr Chang is reasonably necessary treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
It would have been preferable to have more statement evidence from the applicant. However, her ongoing significant symptoms from her accident on 29 June 2021 have been consistently recorded by the doctors who have examined her. There is no evidence of any prior symptoms, and I do not believe that her swift return to work following the accident can be used as evidence (as sought by the respondent) that her ongoing symptoms are not as significant as she reports. The symptoms that she reports would not incapacitate her for her work as a security guard with the respondent, where range of movement of her right hand is not a significant requirement. As Dr Pillemer observed in his report:
“Ms Kumar is obviously a very well-motivated person and doing her normal duties at the present time, and I see no reason why she should not continue in this fashion until such time as she has her surgery.”
I reject the submission of the respondent that the symptoms described by her are insufficient to justify the surgery proposed by Dr Chang. That is not the view of
Dr Chang nor Dr Pillemer, and Dr Miniter also records symptoms similar to those recorded by Drs Chang and Pillemer. Although the applicant’s statement regarding her symptoms is very brief (see paragraph 15 above), I accept it, especially as it has been corroborated by the histories recorded by the doctors who have examined her.
I also accept that the applicant has attempted non—operative treatment for those symptoms, including physiotherapy, medication and a corticosteroid injection.
In relation to the surgery proposed by Dr Chang, I accept that the doctor arrived at that proposal after careful consideration of the extent and duration of the applicant’s pain symptoms, her restriction of movement, and her other disabilities flowing from her injury. The doctor has reviewed the applicant from at least 1 September 2021 (there is a mention in Dr Miniter’s 15 November 2021 report of an MRI scan referral from
Dr Chang of that date, and there is a mention in his 20 June 2022 report of him reviewing five reports from the doctor) and has consulted with her on a number of occasions before finally proposing the surgery. In that time, the doctor ordered radiology and a corticosteroid injection.
Having regularly consulted with the applicant, I find that Dr Chang is in the best position to comment regarding the reasonableness of the surgery proposed by her. She explains her reasons for recommending the surgery (see paragraphs 18-19 above) and the high likelihood of the surgery being successful. I do not find her opinions in this regard to be ipse dixit, especially as she also explains why she disagrees with Dr Miniter’s opinions (see paragraph 20 above).
I also find Dr Chang’s opinion is supported by Dr Pillemer. While Dr Pillemer’s opinions are brief regarding attributability, I do not find his opinions regarding future treatment, and especially the surgery proposed by Dr Chang to be devoid of reasoning, as submitted by the respondent.
Dr Pillemer believes the surgery to be “definitely indicated”. In coming to this conclusion, he has considered and recorded the complaints of the applicant, his examination of her, her previous treatment, and his diagnosis. He is also confident that her trigger finger symptoms will settle following the surgery.
I propose to place little weight upon the opinions proffered by Dr Miniter, for the following reasons:
(a)    his opinions are inconsistent with the opinions proffered by both Drs Chang and Pillemer;
(b)    his opinions in his first report are inconsistent with his opinions in his second report – the suggestion in the second report that the applicant requires further investigation is made as the doctor questions whether the applicant has a previously undetected metacarpophalangeal joint problem, as her significant pain with flexion of that joint suggests a joint problem rather than a flexible tendon issue - however, in his first report, he also identified the applicant’s pain with flexion as being inconsistent with a flexor tendon issue (“if the flexor tendon itself was the cause of her problem, there should not be any pain with flexion”), but he did not make any recommendations regarding further treatment or investigation in that report – instead, he advised that all treatment should be withdrawn, even suggesting that the applicant had been overtreated in the past;
(c)    in my opinion, he has underestimated the pathology shown in the applicant’s MRI scan report – this was pointed out by Dr Chang (see paragraph 20 above) - he finds “no major pathological features identified”, whereas the scan report identifies tenosynovitis on the basis of mild thickening and hyperintensity of the flexor tendon sheath of the middle finger, extending from the level of the A1 pulley towards the level of the PIP joint - the identification in the scan report of tenosynovitis is also inconsistent with the comment in his first report that “there are no features of flexor tenosynovitis on today’s evaluation”, and
(d)    as submitted by the applicant, he does not in his first report address the specific question as to whether the surgery proposed by Dr Chang is reasonably necessary - then in his second report, he still does not fully answer the question (which on this occasion was squarely put to him by the respondent’s solicitors), simply commenting that he was not satisfied that the applicant had triggering and that further investigation was needed.
In considering the matters referred to in Rose and Diab, I find:
(a)    the surgery proposed by Dr Chang is appropriate treatment for the applicant’s right hand and middle finger symptoms – this is clearly the opinion of both Drs Chang and Pillemer, and the evidence from Dr Miniter fails to squarely provide an opinion;
(b)    there is no medical evidence suggesting any alternative treatment is available to the applicant – Dr Miniter in his second report suggests further investigation before he can opine regarding any alternative (or indeed any) treatment, but Drs Chang and Pillemer only mention the right middle trigger finger release surgery as appropriate treatment at this stage;
(c)    there has been no evidence presented by the applicant regarding the costs involved in the proposed surgery - I do not however consider this to be fatal to the applicant’s case as the available evidence suggests the surgery to be fairly uncomplicated (involving a full recovery period of 4-6 weeks and heavy bandaging of the hand for only two days, according to Dr Chang’s 18 November 2021 report) - it does not seem that significant costs would be borne by the respondent for extensive hospitalisation – I would also have expected the respondent to raise the issue as to the costs of the surgery if those costs were prohibitive;
(d)    both Drs Chang and Pillemer are confident that the proposed surgery will be effective, Dr Chang referring to “a high likelihood of success”, and
Dr Pillemer opining that her trigger finger symptoms will “settle after the operation”, and
(e)    as only Drs Chang and Pillemer have specifically opined regarding whether the surgery is reasonably necessary treatment for the applicant and there is no significant disagreement between them, I find that the proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective.
Having considered all of the medical evidence presented by both parties, I find that
Dr Chang’s proposed surgery is reasonably necessary treatment for the applicant’s right hand and middle finger symptoms. In so doing, I give little weight to the evidence relied upon by the respondent, from Dr Miniter.
It is now necessary to consider whether there is a material contribution between the injury to the applicant’s right-hand which occurred on 29 June 2021 and the surgery proposed by Dr Chang. The respondent concedes that injury occurred on that date, but does not concede that the applicant developed symptoms from that injury necessary to justify the proposed surgery. The respondent submits that the applicant has not discharged her onus of proof in this regard.
In Murphy, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
While I have determined to place little weight upon Dr Miniter’s opinions, I also note that (see paragraph 31 above) in his first report, he seemed to concede that the
29 June 2021 injury was still playing a part (which I conclude to be a material contribution) in the applicant’s then presentation although not “in its entirety”. This is the presentation that led Dr Chang to recommend the right middle trigger finger release surgery, which I have found to be reasonably necessary treatment for the applicant.
Drs Chang and Pillemer are much more definite in their conclusions as to the material contribution between the 29 June 2021 injury and the need for the right middle trigger finger release surgery.
I reject the respondent’s submission that Dr Chang does not provide proper reasons in this regard. A proper consideration of her 28 April 2022 report reveals that she describes the applicant’s symptoms since her injury at point 5, that she describes how the symptoms have not improved at point 6, that she describes the current nature of the symptoms at point 7, and that she provides her reasons for proposing surgery at point 11.
In relation to the respondent’s submission that Dr Pillemer does not provide proper reasons for his opinion as to attributability in his report, I accept that his comment in this regard lacks explanation when viewed separately. However, when viewed in the context of the report, following the doctor’s comments on history, work history, treatment, complaints, and examination, the doctor then provides his “conclusions” with respect to diagnosis, attributability, future treatment, fitness for employment, prognosis, and stability. The report could have been set out better and more reasoning could have been provided in its “attributability” section, but I do not find that section to be devoid of reasoning – the section is a conclusion section based upon the histories and examination findings recorded above it.
I do however find that I need to give the opinion of Dr Pillemer regarding attributability less weight than I otherwise would have.
In Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, Beazley JA discussed the acceptability of expert evidence before the then Workers Compensation Commission at [82] and [83]:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report . In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with
Dr Summersell's evidence in this case, so that is not the relevant error.”
Weighing up the evidence given by Drs Chang, Pillemer and Miniter, I have still concluded that while Dr Pillemer’s opinion regarding attributability has weight issues,
I prefer his evidence as a whole to that of Dr Miniter, for the reasons provided at paragraph 59 above. I also note the support given by Dr Chang to Dr Pillemer’s opinions on attributability and treatment needs. As a result, I find that the 29 June 2021 injury of the applicant’s has materially contributed to her need for the right middle trigger finger release surgery.
Given that the evidence presented by the applicant could have been more detailed, the respondent’s submission that the applicant has not discharged her onus of proof needs to be dealt with.
In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10, Roche DP stated:
“103. Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
104.   A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP[2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw[1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen[1940] HCA 20; (1940) 63 CLR 691 at 712).
105.   Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes[2008] NSWCA 246).
106.   The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
While it may be difficult for me to be “comfortably satisfied” that the evidence presented by the applicant is sufficient to prove her case that her 29 June 2021 injury has materially contributed to her need for the right middle trigger finger release surgery, I do feel persuaded on the balance of probabilities as to the material contribution in this regard. I have accepted Dr Chang’s evidence as the applicant’s treating specialist who has consulted with her on a number of occasions and planned her treatment. Any deficiencies in the detail provided in the applicant’s statement evidence and in Dr Pillemer’s evidence is countered by my findings regarding not being able to accept Dr Miniter’s evidence.

SUMMARY

On the balance of the medical evidence, I find that the surgery proposed for the applicant by Dr Chang (right middle trigger finger release surgery) as referred to in her 18 November 2021 report, is reasonably necessary medical treatment as a result of the injury to the applicant's right hand which arose out of or in the course of her employment with the respondent on 29 June 2021.

I note that the respondent has already accepted that an injury to the applicant’s right hand arose out of or in the course of her employment with it pursuant to section 4 of the 1987 Act, on 29 June 2021.
There will be an award for the applicant pursuant to section 60 of the 1987 Act, and the respondent will be ordered to pay for the costs of and incidental to the surgery proposed by Dr Chang in her 18 November 2021 report.

[2022] NSWPIC 375

13 July 2022