Lazar v Parexdavco (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lazar v Parexdavco (Australia) Pty Ltd [2021] NSWPIC 180
APPLICANT:	Ashoor Lazar
RESPONDENT:	Parexdavco (Australia) Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	10 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for proposed surgery for disputed left shoulder condition consequential to accepted right shoulder condition; fair climate for provision of opinion; Paric v John Holland (Constructions) Pty Ltd and Booth v Fourmeninapub Pty Ltd considered; material contribution test identified in Murphy v Allity Management Services Pty Ltd considered; reasonably necessary considered; Diab, Rose and Bartolo considered; Held- found that the injury to the right shoulder made a material contribution to the condition of the left shoulder that now needs surgery; Respondent ordered to pay the costs of the proposed surgery.
DETERMINATIONS MADE:	1. Left shoulder surgery as proposed by Dr Dave, being left shoulder reconstruction or repair, including repair of rotator cuff, by arthroscopy and tendon or ligament transfer, (the surgery) is reasonably necessary as a result of injury sustained by the applicant on 3 July 2015.
ORDERS MADE	2. The respondent to pay the costs of and incidental to the proposed surgery in accordance with section 60(5) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr Ashoor Lazar (the applicant) claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the cost of left shoulder surgery proposed by Dr Dave as a result of injury to the right shoulder on 3 July 2015 and consequential left shoulder condition.
The section 78 notice dated 28 May 2019 disputed that the claimed consequential left shoulder injury resulted from the accepted right shoulder injury. The section 78 notice also disputed that the claimed arthroscopic surgery is reasonably necessary as required by section 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration of this matter the applicant was represented by Mr P Perry of counsel, instructed by Mr Putrus, solicitor, and the respondent by Mr Toohey of counsel, instructed by Ms Davis, solicitor.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents; and
(b) Reply and attached documents.

Oral evidence

There was no application to take oral evidence or to cross-examine the applicant.

Statements of Ashoor Lazar

The applicant provided two statements dated 2 May 2018 and 12 February 2021.
He was born in Iraq on 13 March 1970 and he came to Australia in 1992.
The applicant said that he commenced employment with the respondent as a machine operator in 1999. The applicant recounted the circumstances of the injury to his right shoulder on 3 July 2015.
He stated that on 7 November 2015 he underwent a right shoulder arthroscopic rotator cuff repair that was performed by Dr Dave.
The applicant said that as part of the approved rehabilitation program for the right shoulder injury he was advised by his exercise physiologist to use a rowing machine to improve the pain and range of motion in his right shoulder. He was approved for 13 sessions of physiotherapy, the first eight of these were supervised by the physiotherapist, with the remainder unsupervised. He was given a program that was a circuit that used about eight or nine machines in total.
The applicant stated that on 11 October 2018, on his 11^th or 12^th session, he was using the rowing machine as part of the circuit and in the middle of a pulling stroke he felt a sudden sharp pain in his left shoulder. He stated that he stopped using the machine immediately and rested for a few minutes while the pain subsided and he then tried to continue returned much worse.
He said that when he undertook these exercise sessions without supervision he made sure to follow the same circuit that was given to him by the physiotherapist and he ensured that each exercise machine was set to the correct weight before he began and he did the same number of sets and “reps” that the physiotherapist had him doing in the supervised sessions.
The applicant stated that he read the email correspondence between the insurer and Ms Quan, exercise physiologist (see below). He said that he injured himself when he completed the program set out in Ms Quan’s email in one of the unsupervised sessions after his last session with Ms Quan.
The applicant said that he had been diagnosed with a major depressive disorder following the injury to his right shoulder and the loss of his job in 2016.
The applicant stated that he had previously never had any problems with his left shoulder.
He said that he consulted his GP, Dr Nguyen, about his left shoulder condition and he was referred to Dr Dave, orthopaedic surgeon. Dr Dave recommended surgery on his left shoulder. The applicant stated that he wishes to undergo surgery to his left shoulder as the previous surgery to his right shoulder assisted and he cannot cope with the continued pain and restrictions on movement in his left shoulder.

Dr Chandra Dave

Dr Dave provided a number of reports.
In his treating report of 16 March 2016, Dr Dave noted that the applicant was making good progress with his shoulder and recommended that he can start a strengthening program.
In a treating report dated 27 November 2018, Dr Dave reviewed the MRI scan of the left shoulder which confirmed a bursitis and SLAP tear and interest substance tear. Dr Dave stated “this explains his symptoms and as he is in significant pain he will need to have his tears repaired and a shoulder arthroscopy…”
In a medicolegal report to the applicant’s solicitors dated 20 November 2019, Dr Dave reported the following
“The circumstances of the injury were that Mr Lazar has had rotator cuff repaired on the right shoulder and the rehab part of this treatment has been satisfactory as he could not move his shoulder prior to this accident and has now got some reasonable function.
During the course of his rehabilitation he had to use a rowing machine which happened around October 2018 and he describes an event where he was using the machine and he strained his left shoulder awkwardly and subsequently developed pain anterolaterally in the shoulder and difficulty lifting his arm above. He has not had these sort of symptoms prior to this accident. This has been further investigated using an MRI scan and this is shown a SLAP tear and some rotator cuff tendinitis.
He has tried physiotherapy to try and alleviate his symptoms but this has not improved and as such has been recommended to have a repair of the labrum as requested. A satisfactory explanation is that he probably had a centric loading of his shoulder which caused his labral tear.
In my opinion, then the intervention proposed – that is arthroscopy of the left shoulder is reasonable in the circumstances as this has a good chance of alleviating his symptoms.
…
Treatment for SLAP or labral lesions is indeed a surgical intervention and this been quoted in the literature on numerous occasions. The alternative treatments are physiotherapy but are not as effective. The cost of surgery is in accordance with NSW workers compensation Gazette rates AMA code MT790. The potential effectiveness of this treatment would be pain alleviation, increased strength as well as function.”

Dr Peter Giblin

Dr Peter Giblin, orthopaedic surgeon, recorded a history that the applicant after losing his job in 2016 did not get back to any paid work so rehabilitation services intervened and directed that he should have 14 sessions of gym-based rehab program. Dr Giblin noted that the first eight sessions were supervised by the physiotherapist and the last six sessions were to be non-supervised. He recorded that the applicant was on the fifth unsupervised session on 11 October 2018 using a rowing machine in the gym and this machine had weight related tension cables that could be anywhere between 5 and 200 kg and on the date in question he had a 12 kg session. Dr Giblin also noted that the usual gym program was spread over half an hour and the applicant used between six and eight machines. He recorded that the rowing machine was 15 strokes and then he would get onto another machine in a similar timeframe to use the half-hour program. Dr Giblin recorded that when the applicant was on the rowing machine he was in the middle of pulling on a stroke when he developed acute left shoulder pain and had to cease immediately, rested for two minutes then restarted but the same pain returned with increased intensity. Dr Giblin noted the MRI scan and the recommendation for surgery.
On examination of the left shoulder, Dr Giblin noted palpable and audible crunching and grinding of the rotator cuff but this was said to be pain free. He noted the salient physical findings were that there was a cute focal tenderness over the long head of the biceps, restriction of both active and passive extension of the joint with a complaint of pain and in addition provocation tests for rotator cuff impingement were weakly positive.
Dr Giblin made a provisional diagnosis of soft tissue injury to the left shoulder reasonably causally related to the injury on 11 October 2018.
Dr Giblin noted that the rowing machines place maximum focal tension on the subscapularis muscle and the biceps tendon and to a lesser extent the anterior rim of the supraspinatus tendon.
Dr Giblin was of the opinion that on the basis that there was a good result from the right shoulder operation, the surgery proposed by Dr Dave was reasonably necessary as the intention is to ameliorate the pain to an extent where it would allow the applicant greater work opportunities in the open labour market and also diminish his current symptomatology.

Dr Thanhtam Nguyen

In his report to the applicant’s solicitors dated 23 October 2019, the treating GP, Dr Nguyen, recorded the history of injury to the right shoulder on 6 July 2015. Dr Nguyen noted that investigations revealed a supraspinatus tendon tear on the right shoulder and the applicant subsequently underwent arthroscopy to repair the tendon tear by orthopaedic surgeon Dr Dave. Dr Nguyen noted that the applicant’s shoulder condition improved after the surgery but he still had recurrent pain when doing some lifting or raising his hand above his shoulder. He tried to return to work but after abrupt termination of employment in August 2016 the applicant became depressed and subsequently was diagnosed with anxiety and major depression and treated with multiple medications, counselling and psychiatric review.
Dr Nguyen recorded a history that the applicant presented on 12 October 2018 with left shoulder pain. The applicant stated that on 11 October 2018 he went to the gym for exercise as part of the rehabilitation program for his right shoulder injury as advised by his exercise physiologist. Dr Nguyen recorded that the applicant “experienced sudden onset of pain on his left shoulder when he exercised on a rowing machine with pulling/pushing movement”. Dr Nguyen recorded that on examination of the left shoulder on 12 October 2018 there was mild tenderness and restricted movement.
Dr Nguyen noted that “investigations including left shoulder MRI scan (19/10/2018) confirmed partial tear of the supraspinatus tendon, subacromial bursitis and a tear of superior labrum (SLAP tear)”.
Dr Nguyen stated
“in my opinion Mr Lazar has left shoulder injury of the supraspinatus tendon subacromial bursitis and SLAP tear. The nature of his left shoulder injuries is consistent with the stated history, examination and the results of investigations. It is consistent that his left shoulder injury is caused while using his rowing machine as part of the recommended exercise rehabilitation program. It is likely that exerted a lot more pressure on the left shoulder when doing the rowing exercise because of the ongoing right shoulder injury and his right hand dominance.”
As to the applicant’s left shoulder condition at the time of his report, Dr Nguyen noted that “despite all the conservative treatments, his left shoulder has not been improved. Mr Lazar still has persistent pain and restriction of movements of his left shoulder.”

Ms Catherina Quan

It is necessary to refer in detail to an email exchange between Ms Catherina Quan, exercise physiologist, and the insurer.
On 22 February 2019 Ms Bolante, of the workers compensation insurer, sent the following email to Catherina Quan
“Can you please confirm the exact exercise program recommended to Ashoor last 11/10/2018. Ashoor reported to have torn a muscle on his left shoulder while doing the prescribed exercises.”
On the same day, Ms Quan replied to Ms Bolante
“Thank you for your email.

That is incorrect. My last session with Ashoor was on 03/09/18.

The exercises we completed at the time included:
- treadmill walking
- standing mid rows
- triceps pull downs
- bicep curls
- seated chest press
- trunk rotation
- wall ball squats
- step lunges
- bicycles
Progression was slow and were careful not to over extend his arm or perform overhead work such as shoulder press or lat pull down. Home exercised were also given as a theraband was provided to Ashoor.

I did send through a subsequent AHRR for review and approval. However I have since left the company and moved onto a different role on 10/09/18.

Regards,
Catherina Quan
Accredited Exercise Physiologist”

Associate Professor Paul Miniter

In his medicolegal report to the workers compensation insurer dated 26 April 2019, Prof Miniter, orthopaedic surgeon, noted that the applicant presented on the day of the report “as an anxious man who has had a poor outcome from right shoulder surgery which followed upon an injury in the workplace in 2015”. Prof Miniter recorded a history of the injury to the right shoulder in 2015. He noted that on the basis of an MRI scan which demonstrated a rotator cuff tear and ongoing pain in the right shoulder, the applicant underwent an arthroscopic rotator cuff repair under the care of Dr Dave. Prof Miniter noted that the outcome of the surgery from the applicant’s perspective had been less than satisfactory even though he felt that his shoulder had improved as at no stage had he returned to full-time work.
Prof Miniter noted among the documents that he reviewed the following
“8. IME response to query 22/02/19
…
10. EP Progress report 03/09/18”
Prof Miniter recorded a history of pain in the left shoulder girdle said to have begun on 11 October 2018. Prof Miniter stated that
“I was surprised to hear that he was engaged in any type of supervised gym program so long after his original surgery, but he told me that he was involved in using a rowing machine on the day in question. He experienced some discomfort in his left shoulder girdle. I understand that there is some contention as to the exact nature of the injury itself. He told me that he was using a rowing machine and that he felt shoulder discomfort.”
With respect to the left shoulder, Prof Miniter noted that he had seen an MRI scan. He observed that
“The changes on the MRI scan are of longstanding downsloping of the lateral aspect of the left acromion. There is an intrasubstance tear of the supraspinatus lesion and there is a degree of subacromial irritation.

Reference is made to a SLAP tear but I looked carefully at the scan and would find
this a contestable evaluation of the insertion of the biceps tendon. If there is a SLAP
tear, it is likely to be degenerative.”
On examination, Prof Miniter noted that on the left-hand side the applicant had a full range of motion and there were “subtle signs of impingement and load applied to the rotator cuff does reproduce some of his symptoms. There is a small degree of wasting on the parascapular musculature.”
With reference to the possibility of an injection into the subacromial space, Prof Miniter noted that the applicant said that Dr Dave had informed him that such an injection would be “a temporising manoeuvre only”. Prof Miniter stated that this is not necessarily the case and “even though he appears to have rotator cuff pathology on his MRI scan, much of this is age-related. It is to be noted that he is right hand dominant.”
Prof Miniter was of the opinion that the mechanism of injury described by the applicant was not likely to have resulted in the current presentation. Whether work-related or otherwise, Prof Miniter was of the opinion that injection into the subacromial space and nonoperative management was the appropriate treatment at that point.
In relation to restrictions for employment, Prof Miniter stated that “as he appears to have a robust rotator cuff repair on the right-hand side, I would suggest that all restrictions be lifted and that Mr Lazar be allowed to return to the workplace.”
Prof Miniter continued
“I do not believe that you are responsible for the age-related changes in the issues associated with his left shoulder. May I comment also that his outcome from the original surgery has been poor, he has no stage attempted to return to work since losing his employment in 2016. This does not bode well for a good surgical outcome on the left-hand side.”
Prof Miniter was of the opinion that “there is no evidence of injury at the left shoulder. There are age-related changes present and he has subtle signs of impingement which are indeed subtle”.
Prof Miniter also stated
“In my opinion, the workplace is not a substantial contributing factor to this issue. I make this comment based on the mechanism of injury described by the physiotherapist and the findings on the MRI scan.”
Prof Miniter was of the opinion that an arthroscopy is inappropriate for the applicant as the outcome from the right shoulder had not been effective and he suggested that the applicant is best managed non operatively.

Reasons and Decision

The respondent did not dispute that the applicant was on an approved exercise program at the time of the incident on 11 October 2018. The section 78 notice dated 28 May 2019 disputed the causal nexus between the left shoulder symptoms and the right shoulder injury and treatment, and also whether the proposed surgery was reasonably necessary, but not that the applicant was on an approved exercise program for strengthening treatment of his right shoulder on 11 October 2018. However, the respondent has disputed the causal nexus, as noted above.
The respondent challenged the applicant’s evidence as to the exercise program. The respondent submitted that there was no evidence of any exercise program that specifically stated that there were in total 13 sessions of physiotherapy, the first eight being supervised and the remainder being unsupervised, and that there was a program for a circuit that used about eight or nine machines in total, including a rowing machine as part of the circuit.
The respondent submitted that it was not clear from the applicant’s statement what weights were attached to the rowing machine at the time of the incident. The email of Ms Quan, it was submitted, was not entirely clear as to a rowing machine and the nature of the weights used.
The section 78 notice dated 28 May 2019 was more specific in respect of the email of Ms Quan. It was alleged in the section 78 notice that the email of Ms Quan indicated that the exercises performed were designed not to extend the arm or perform overhead work and Ms Quan was of the opinion that the allegation of injury was incorrect.

I do not accept the respondent’s submissions. In respect of the email of Ms Quan, it is important to note the context. Ms Quan was responding to an email from the insurer which stated
“Can you please confirm the exact exercise program recommended to Ashoor last 11/10/2018. Ashoor reported to have torn a muscle on his left shoulder while doing the prescribed exercises.”
Ms Quan responded by stating “that is incorrect. My last session with Ashoor was on 03/09/18.”
In my view, the better interpretation of Ms Quan’s response was that she was stating that she had not had a session with the applicant on 11 October 2018 as she last had a session with him on 3 September 2018 and subsequently left her employer on 10 September 2018.
Ms Quan also listed the exercises that she completed with the applicant on 3 September 2018 and among them were “standing mid rows”. This part of her response was in respect of the enquiry from the insurer as to the “exact exercise program” that had been recommended to the applicant on 11 October 2018. Ms Quan did not say precisely what exercise program had been recommended after 3 September 2018, however she said that she sent “a subsequent AHRR for review and approval” but she had since left the company. I note that the “AHRR” is not in evidence before me. Prof Miniter in his report also referred to documents that had been provided to him including an “EP Progress report 03/09/18”. That is also not in evidence before me.
In my view, the email of Ms Quan does not contradict the applicant’s evidence as to the details of the exercise program, and in particular the use of a rowing machine. Indeed, Ms Quan’s reference to “standing mid rows” supports the applicant’s evidence that he was using a rowing machine as part of the exercise program. Further, the report of Dr Nguyen of 23 October 2019 confirms that the applicant attended the GP on the next day and reported that on the previous day he went to the gym for exercise as part of the rehabilitation program for his right shoulder injury as advised by his exercise physiologist and he experienced sudden onset of pain on his left shoulder when he exercised on a rowing machine with pulling/pushing movement.
There was some variation as to the number of sessions in the sequence of the exercise program that had been performed. The applicant in his statement said that he was on his 11^th or 12^th session at the time of the incident on 11 October 2018. Dr Giblin recorded that the applicant had done eight supervised sessions and at the time of the incident on 11 October 2018 he was on his fifth of six unsupervised sessions. I could see no other reference to the number of sessions. This in my view is not relevant to the question of causation, as it was not disputed that the applicant was on an exercise program at the time of the incident on 11 October 2018.
The applicant in his statement was clear that when he undertook these sessions without supervision he made sure he followed the same circuit given to him by the physiotherapist and he ensured that each exercise machine was set to the correct weight before he began and that he followed the same exercise routine that was set by the physiotherapist.
In my view, the email exchange between Ms Quan and the insurer did not dispute that an exercise program was in place at the time of the incident on 11 October 2018. The email of Ms Quan, in my view, did not challenge the applicant’s evidence that he was performing the exercise program that had been given to him when the incident on 11 October 2018 occurred. Also, in my view, the email of Ms Quan did not challenge the applicant’s evidence as to the activity of using the rowing machine on 11 October 2018, in the course of which he experienced painful symptoms in his left shoulder.
The respondent submitted there was a substantial period in which it was suggested that the applicant had no real reason for doing physiotherapy, in this case the exercise program. It submitted that Dr Dave’s reports in 2016 indicated good progress and that he could slowly reduce his lifting restrictions. However, Dr Dave’s report of 28 June 2016 while noting the applicant was doing well indicated that there was a change in lifting restrictions from a maximum of 22 kg to 5 kg. Dr Dave’s report of May 2016 indicated good progress with the shoulder reconstruction and the reduction of some lifting restrictions. I accept that in 2016 the applicant’s right shoulder was improving slowly, although this appeared to be variable and the applicant still had restrictions. The applicant’s statement of 2 May 2018 stated that the applicant had continuing right shoulder pain and restrictions. In my view, the opinion of Dr Nguyen was consistent with the applicant’s history of slow but steady progress with continuing right shoulder pain and restrictions but in the context of becoming depressed and diagnosed and treated for anxiety and major depression. In my view, this slow progress in respect of the right shoulder is consistent with the applicant continuing with the approved exercise program that he was undertaking at the time of the incident on 11 October 2018, notwithstanding the “surprise” expressed by Prof Miniter that the applicant was continuing with the exercise program on 11 October 2018. In any event, the workers compensation insurer in the email exchange of 22 February 2019 noted above, conceded that an exercise program was in place and that it was being undertaken by the applicant, although the query by the insurer was to the content of the exercises that were recommended.
In relation to the issue raised by the respondent of the significance of weights attached to the rowing machine, there is lacking in the medical evidence an opinion that the weight attached to the rowing machine was significant, with the exception of Dr Giblin, who did note the weight.
Prof Miniter did not take a history of the weight attached to the rowing machine, but was still able to opine that the left shoulder condition was a result of a degenerative condition. Prof Miniter made no mention of the importance or otherwise of the weight attached to the rowing machine.
Similarly, neither Dr Dave nor Dr Nguyen referred to the weight attached to the rowing machine. For both Dr Dave and Dr Nguyen it was the activity of using the rowing machine which was sufficient. In the case of Dr Dave, the applicant “strained his left shoulder awkwardly” and it was his opinion that “a satisfactory explanation is that he probably had a centric loading of his shoulder which caused his labral tear”.
I do not accept the respondent’s submissions as to the weight to be given to the opinions of Dr Dave and Dr Nguyen. In my view, both doctors took histories of the incident on 11 October 2018 which were consistent with the applicant’s statement. Both doctors took histories of the applicant sustaining pain in his left shoulder while using a rowing machine as part of an exercise program for his right shoulder. In my view, Dr Dave’s history of “straining awkwardly” is not at odds with the applicant’s evidence that he was in the middle of a pulling stroke when he felt a sudden sharp pain in his left shoulder. Dr Dave had been the applicant’s treating orthopaedic surgeon following the right shoulder injury on 3 July 2015, and he performed the initial right shoulder surgery in 2015.
Dr Nguyen was also of the opinion that it was likely that the applicant exerted a lot more pressure on the left shoulder when doing the rowing exercise because of the ongoing right shoulder injury and his right hand dominance. The respondent took issue with this opinion as “filling in the gaps” without foundation. I do not accept this submission. In my view, Dr Nguyen was able to give this opinion on the basis of his knowledge of his treatment of the applicant’s right shoulder condition, the reported activity of using the rowing machine and the sudden onset of left shoulder pain while using the rowing machine and the nature of the left shoulder condition. Dr Nguyen saw the applicant on the day after the incident of 11 October 2018 and recorded a consistent history.
In my view, the histories taken by Dr Dave and Dr Nguyen were sufficient and consistent to provide a sound basis for their opinions. Both the opinions of Dr Dave and Dr Nguyen were also based upon the findings of the MRI scan of the left shoulder and report of radiologist Dr Markson in respect of that MRI scan of 19 November 2018. Both treating doctors were of the view that the findings of the MRI scan were consistent with the history given and a diagnosis of a SLAP or labral tear. In my view, what is significant is that both doctors were of the opinion that the use of the rowing machine resulted in the SLAP or labral tear. A variation between the doctors as to awkwardness or exerting a lot of pressure does not detract from their shared view as to exercising on the rowing machine causing the left shoulder condition.
Dr Giblin took the history that the weight related tension cables on the rowing machine were 12 kg on the date in question. He took a detailed history of the rowing activities at that time. Dr Giblin diagnosed injury to the left shoulder reasonably causally related to the injury of 11 October 2018. Even if it were to be accepted that the question of the significance of the weight used with the rowing machine, as distinct from the activity of using the rowing machine, is required for the applicant to show the causal connection between the rowing activity and the symptoms of pain he felt in his left shoulder, in my view the opinion of Dr Giblin provides the foundation for the premise that the weight attached to the rowing machine was considered. Dr Giblin noted that rowing machines place maximum focal tension on the subscapularis muscle and the biceps tendon and to a lesser extent the anterior rim of the supraspinatus tendon. I note that Dr Giblin in making that observation in relation to causality did not attribute significance to weight.
In relation to the opinion of Prof Miniter, he reviewed the MRI scan of the left shoulder dated 19 November 2018 and was of the opinion that there were long-standing changes and with respect to the SLAP tear, he regarded this as a contestable evaluation and if there was a tear it was likely to be degenerative. He was of the view that “the workplace” is not a substantial contributing factor to the left shoulder issue, based on the mechanism of injury described by the physiotherapist and the findings on the MRI scan. In my view there are difficulties associated with the approach adopted by Prof Miniter. The “mechanism of injury described by the physiotherapist” is not described in Prof Miniter’s report. It is not known what “mechanism of injury” is used as the basis of Prof Miniter’s opinion. This is also a reliance upon hearsay of another party where that party and the content of their report or communication have not been appropriately identified. This goes to the weight to be given to the opinion, rather than admissibility.
While Prof Miniter might have regarded the interpretation of the SLAP tear as a contestable evaluation, Dr Dave and Dr Nguyen considered the MRI scan and report of the radiologist, Dr Markson, dated 19 November 2018 and were of the view that there was a labral or SLAP tear consistent with the history of injury.
The reasoning of Prof Miniter with reference to an unexplained “mechanism of injury described by the physiotherapist” is similarly preceded by his conclusion that “there is no evidence of injury at the left shoulder” as it was “based on my clinical examination and review of the attached correspondence”. This is also opaque and the reasoning is unclear. It is not stated as to which correspondence he has referred and the relevant facts upon which he has based his conclusion and opinion.
If the “contention as to the exact nature of the injury itself”, and the “mechanism of injury described by the physiotherapist” referred to by Prof Miniter, were based upon the email of Ms Quan of 22 September 2019, then I have found to the contrary that the email did not refer to the mechanism of injury as being “incorrect” nor did her email, in outlining being careful not to overextend the arm or perform overhead work, contest an incident which occurred at a time after her last consultation with the applicant.
Additionally, I accept the applicant’s submissions that the opinion of Prof Miniter is based upon reasons which are either incompatible or internally inconsistent. Prof Miniter on the one hand was of the opinion that the applicant appeared to have a robust rotator cuff repair on the right-hand side and he would suggest that all restrictions be lifted and that the applicant be allowed to return to the workplace. On the other hand, Prof Miniter did not believe that the workers compensation insurer was responsible for the age-related changes in the issues associated with the left shoulder and that the outcome from the original surgery to the right shoulder has been poor. It is difficult to reconcile this reasoning of a robust right rotator cuff repair with a suggestion of lifting of all restrictions, as against a poor outcome from the original surgery not boding well for a good surgical outcome on the left-hand side.
The opinion of Prof Miniter, in diagnosing long-standing age-related changes did not deal with the issue of an aggravation on 11 October 2018 rendering age-related changes symptomatic. Prof Miniter noted the history provided by the applicant of discomfort in the left shoulder at the time of using the rowing machine and since that time the applicant had not been able to sleep and he had been finding the left shoulder was most uncomfortable. In my view, in attributing the applicant’s left shoulder condition, including pain and restriction of movement, to age-related changes it is necessary to account for why the current presentation, which had on the applicant’s history persisted since 11 October 2018, was not the result of the incident on 11 October 2018.
In noting the rotator cuff pathology on the MRI scan, Prof Miniter was of the opinion that “much of this is age-related”. What was not explained is what part of the rotator cuff pathology on the MRI scan was not age-related. In my view, this is not insignificant in the context of the history taken by Prof Miniter of continuing discomfort in the left shoulder from the time of using the rowing machine.
I do not accept the opinion of Prof Miniter. I prefer the opinions of Dr Dave and Dr Nguyen, with support from the medicolegal opinion of Dr Giblin. The applicant’s evidence was that prior to the incident of 11 October 2018 he never had any problems with his left shoulder and at the time of the incident he was in the middle of a pulling stroke and he felt a sudden sharp pain in his left shoulder. The symptoms of which the applicant complained were diagnosed by Dr Dave and Dr Nguyen with reference to the MRI of the left shoulder of 19 November 2018. The histories recorded by Dr Dave and Dr Nguyen were consistent with the applicant’s evidence as to the onset of pain while using the rowing machine, without reference to weight, and Dr Giblin recorded a similar history with additional reference to weight without ascribing significance or otherwise to that weight. In my view, this is a fair climate, Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 and Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57, for the opinions of Dr Dave and Dr Nguyen and also Dr Giblin.
In my view, taking a common sense approach to causation, Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang), within the statutory context of the 1987 Act, there is a causal relationship, or “chain of causation” between the left shoulder condition and the accepted right shoulder injury of 3 July 2015. Following the injury to the right shoulder, and surgery for a rotator cuff repair of the right shoulder on 8 November 2015, the applicant underwent an exercise program to strengthen his right shoulder. There was slow progress with improvement of the right shoulder, and an exercise program for strengthening the right shoulder was recommended by Dr Dave and commenced. At the time of the incident on 11 October 2018 the applicant was engaged in the exercise program. The last supervised session in the accepted exercise program prior to 11 October 2018 was with Ms Catherina Quan on 3 September 2018. The applicant's evidence, which I accept, was that when he undertook unsupervised sessions he ensured that he followed the circuit, exercises and routine that was prescribed by the physiotherapist, and that he was doing so at the time of the incident on 11 October 2018. The applicant’s evidence was that, although he disagreed with a suggestion that it was incorrect that he sustained injury on 11 October 2018, he had followed the exercise routine, exercises and circuit that was identified by Ms Quan in her email dated 22 February 2019.
I find that the applicant sustained a left shoulder condition, as diagnosed by Dr Dave, consequential to the injury to the right shoulder on 3 July 2015.
The applicant submitted that in applying the test as outlined in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 the question to be answered is did the injury to the right shoulder make a material contribution to the condition of the left shoulder that now needs surgery. I accept that submission.
I accept the opinion of Dr Dave that the applicant had a labral tear of his left shoulder probably caused by centric loading of his shoulder while using the rowing machine and that he should have surgical intervention in the form of arthroscopy of the left shoulder.
Taking a common sense view of causation, within the statutory context of a claim pursuant to section 60(5), I find that the injury sustained to the applicant’s right shoulder on 3 July 2015 has made a material contribution to the need for surgery proposed by Dr Dave in respect of the left shoulder. In my view, the standard of “material contribution” is met specifically by the report of Dr Dave and also more generally in support by Dr Nguyen and Dr Giblin.
The surgery proposed by Dr Dave is left shoulder reconstruction or repair, including rotator cuff repair, by arthroscopy as well as tendon or ligament transfer. In considering whether the proposed surgery is reasonably necessary, the decision of Diab v NRMA Ltd [2014] NSWWCCPD 72, with reference to the authorities of Rose v Health Commission (NSW) (1986) 2 NSWCCR 32, and Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233, elucidated the principles to be considered. In my view, based upon the opinions of Dr Dave, Dr Nguyen and Dr Giblin, the proposed treatment is appropriate. Alternative treatment, in the form of conservative treatment as noted by Dr Nguyen has been pursued, without improvement and with persistent pain and restrictions of the left shoulder. The respondent has not suggested that the proposed cost of the surgery is unreasonable. The proposed surgery is potentially effective, with Dr Nguyen providing the opinion that the applicant will have a chance to get better physically and mentally and Dr Giblin was of the opinion that amelioration of the pain by way of surgery would allow the applicant greater work opportunities in the open labour market and also diminish current symptomatology. Dr Dave was of the opinion that the potential effectiveness of the treatment would be pain alleviation, increased strength as well as function. Dr Dave, Dr Nguyen and Dr Giblin were all of the opinion that the surgery was appropriate and effective. Prof Miniter had a contrary view as to the appropriateness and effectiveness of the proposed surgery, however, for the reasons noted above I prefer the opinions of Dr Dave, Dr Nguyen and Dr Giblin.
I find that the surgery proposed by Dr Dave, that is the left shoulder reconstruction or repair, including rotator cuff repair, by arthroscopy as well as tendon or ligament transfer, is reasonably necessary as a result of the injury on 3 July 2015.

[2021] NSWPIC 180

10 June 2021