Lewis v DMS Maritime Pty Ltd
[2023] NSWPIC 231
•22 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Lewis v DMS Maritime Pty Ltd [2023] NSWPIC 231 |
| APPLICANT: | Chuck Lewis |
| RESPONDENT: | DMS Maritime |
| Member: | Diana Benk |
| DATE OF DECISION: | 22 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim pursuant to section 60 for costs of and incidental to right shoulder arthroscopy and excision of the acromioclavicular joint; whether the need for surgery arose from workplace injury or was to correct pre-existing degenerative pathology; Held – the proposed surgery is reasonably necessary as a result of the work injury; award for the application for the costs of and incidental to the procedure. |
determinations made: | 1. The respondent to pay the costs of and ancillary to the procedure undertaken by Dr Trantalis with reference to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
It is not in dispute that the applicant was employed by the respondent since 17 August 2009 on a full-time basis and at the time of injury on 30 August 2020 held the position of bunker masker (or liquid cargo officer). It is also undisputed he sustained an injury to his right shoulder and arm which ultimately, after a prolonged period of failed conservative management required surgical intervention in the form a right shoulder arthroscopic rotator cuff repair and subacromial decompression performed on 18 February 2021 by orthopedic surgeon, Dr Trantalis on 18 February 2021. Liability for the injury was accepted by the respondent. The applicant has not worked since his redundancy in late 2020.
The initial surgery was reported to be successful. The applicant alleges that as a result of post-surgical participation in exercise physiology he suffered increased pain and restriction in movement after the lifting of heavy weights resulting in him returning for review by
Dr Trantalis.Reassessment, further radiological investigation via MRI, referral to a sports specialist, extensive physiotherapy and three corticoid steroid injections failed to alleviate symptoms ultimately resulting in Dr Trantalis recommending further surgery in the form of a right shoulder arthroscopy and excision of the acromioclavicular joint. The applicant sought a second opinion hoping to avoid surgery, although Dr Geoffrey Smith, orthopedic surgeon confirmed surgery as an appropriate option to improve function and symptoms and return him back to the workforce.
The applicant approached the respondent requesting it fund the proposed surgical treatment. In response, the respondent arranged an independent medical review. On 24 August 2022, the respondent declined liability for further treatment on the basis of Dr Rimmer’s findings that revision surgery was not reasonably necessary.[1] (At this point it is noted that revision surgery was not sought, but rather excision of the acromioclavicular joint.).
[1] Section 78 notice of the Workplace Injury Management and Workers Compensation Act 1998 refers dated 24 August 2022 – Folio 75 of the Application refers.
In the interim, the applicant sought and obtained early release of superannuation monies via a hardship application and paid for the surgery privately.
By way of Application to Resolve a Dispute (Application) before the Personal Injury Commission (Commission) the applicant now seeks an Order the respondent pay the reasonably necessary treatment costs associated with the surgery undertaken on
6 March 2023. The Application also sought a review of a work capacity decision however that matter is no longer in dispute.
ISSUE FOR DETERMINATION
The parties agree the issue in dispute is:
(a) whether the surgery undertaken by Dr Trantalis on 6 March 2023 is reasonably necessary as a result of the injury to the upper limb on 20 August 2020.
PROCEDURE BEFORE THE PERSONAL INJURY 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.
The parties participated in a conciliation conference and arbitration hearing on 9 May 2023. The applicant was represented by Mr S Hickey of counsel, instructed by Mr M Lawandi. The respondent was represented by Mr T Grimes, instructed by Ms O Raiman.
EVIDENCE
Evidence
Neither party applied to adduce oral evidence or cross examine any witness. The following documents were in evidence before the Commission and considered in making this determination:
Date filed
Document
Filed by
13/03/2023
Application to Resolve a dispute and attached documents
Lawandi Lawyers
04/04/2023
Reply to Application to Resolve Dispute and attached documents
Hall & Wilcox Lawyers
28/04/2023
Application to Admit Late Documents
Lawandi Lawyers
2 May 2023 & 10 May 2023
Application to Admit Late Documents
Hall & Wilcox Lawyers
I was assisted by the submissions of counsel. In the interests of brevity, the submissions will not be repeated here but rather summarised below. To make the complex simple, the applicant contends the second surgical procedure to his right shoulder is directly related to his injury on 20 August 2020 and the consequences of his participation in rehabilitation following his initial surgical procedure.
In support, the applicant relies on the reports of his treating surgeon, Dr Trantalis and the second opinion of Dr Smith. The procedure was also supported by an independent medico legal assessment of Dr Bodel.
The respondent contends the surgical procedure undertaken treated pathology that was unrelated to the original injury and relies on the report of Dr Rimmer. There was also reference to a report of Dr Antoun, however this was an Injury Management Consultant file review with no examination of the applicant. I note his comments were largely limited to work capacity as it is beyond the role of an injury management consultant to comment on treatment.[2]
[2] Section 45A of the Workplace Injury Management and Workers Compensation Act 1998 and Part 6 Workers Compensation Guidelines - SIRA
The applicant’s evidence
The applicant’s statement is consistent with the medical reports on file. That is, following the right shoulder arthroscopic rotator cuff repair and subacromial decompression performed on 18 February 2021 he obtained some relief and increase in range of movement which plateaued and then regressed following his compliance with an exercise physiology program where the use of heavy weights resulted in additional pain and restriction in range of movement.
The applicant in his statement confirms he had been involved in heavy work whilst employed by the respondent and was asymptomatic prior to his injury on 30 August 2020. He had not returned to any form of paid employment and submits that the increase in symptoms and the need for further surgery in the form of right shoulder arthroscopy excision of the acromioclavicular joint was entirely the result of the original injury, his subsequent compliance with rehabilitation and aggravation of symptoms arising therefrom. This is consistent with the examination findings recorded in the clinical notes.
The above is also consistent with the sequence of reports of Dr Trantalis who had regularly assessed the applicant prior to and post the initial surgical procedure. On 30 January 2023, Dr Trantalis reported;
“He returns for review of his right shoulder. He continues to suffer with pain over the superior aspect of his shoulder originating from the AC joint. He has exhausted non operative measures and has been very patient with the pain coming from his shoulder. He has already seen a sports doctor and tried multiple non operative measures but is suffering with pain. I discussed with him management options and he is keen to proceed with surgical management in the form of a right shoulder arthroscopy and excision of AC joint. We once again went through the surgery, and he is keen to proceed and I will keep you informed of his progress.”[3]
[3] Folio 26 Application.
Prior to Dr Trantalis recommending such procedure, the applicant had been regularly reviewed by Dr Martin, a fellow for Dr Trantalis who also made similar recommendations.[4]
[4] Folio 24 Application refers.
Dr Geoffrey Smith, in a report dated 14 October 2022 offered a second opinion regarding treatment options and stated relevantly;
“Symptoms: right shoulder pain
Progress: prior to his work injury in August 2020 he reports a normal shoulder. He developed the acute onset of severe pain and weakness after the injury. During rehabilitation after surgery, there was a deterioration in symptoms after he started strengthening with physiotherapy. 3 corticosteroid injections have been tried. This occurred at the time of getting COVID and therefore he’s not sure how much are benefit he got from the injections but he estimates 30% at best….
In the presence of are well-healed rotator cuff repair then ongoing symptoms can be attributed to other symptoms generators. I suspect that in this case there is a combination of symptomatic ACJ OA, biceps pathology and possibly a concealed subscapularis tear. This would explain the only limited success of the ACJ corticosteroid injection.
My understanding is that a request for arthroscopic AC joint excision by Dr Trantalis has been declined by WorkCover following an independent medical examination report. I do not believe that the ACJ OA is the sole pathology that is responsible for his ongoing symptoms and the biceps and subscapularis are likely additional culprits. These are more clearly attributable to the workplace injury and this should be taken into account by Workcover. Although the AC joint OA was likely pre-existent to the injury, in the absence of any symptoms prior to the injury, then the subsequent pain may be attributable to the workplace injury causing a flare up the arthritis.”[5]
[5] Folio 34 Application refers.
Dr Bodel, in an independent medico legal capacity assessed the applicant prior to his second surgical procedure, reporting relevantly;
“I have read the material that you have provided, which includes the initial referral forms, the report from Dr Trantalis and the supplementary report from Dr Geoffrey Smith, another orthopaedic shoulder surgeon who has assessed him and estimated the treatment protocol. Both Dr Trantalis and Dr Smith agree that further surgery is required, particularly involving the AC joint, but Dr Smith is also of the view that the subscapularis tendon and the biceps tendon are also culprits and should be part of the surgical repair, and I would agree with that…..
The further surgery, if successful, may help him to return to that type of activity, but it is unlikely that he will ever be fit to return to all of the operational duties of a ferry master of a ships master, with the ongoing disability in the region of his shoulder…
I confirm that the proposed surgery on balance is reasonably necessary for the management of the ongoing injury to the region of the right shoulder, which occurred with the incident at work on 30 August 2020.”[6]
[6] Folio 53 of the Application.
I find there is consistency between the reports of Dr Trantalis, Dr Smith and Dr Bodel in that ongoing symptoms and deterioration in function resulted from participation in a rehabilitation program which aggravated previously asymptomatic degenerative pathology in the right shoulder. The participation in the rehabilitation program and specifically exercise physiology arose from the initial surgical procedure directly related to the original injury and for which liability was accepted by the insurer.
The respondent’s evidence
The respondent relies on the series of reports of Dr Rimmer. The s 78 notice dated
24 August 2022 was generated as a result of his findings and relevantly stated;“You sustained a Right shoulder injury on 30/08/2020 whilst pushing a handle to open a valve during your employment with DMS Maritime P/L. Your injury was confirmed as a ‘Right shoulder biceps rupture + supraspinatus tendon tear’. Surgical intervention for a Right shoulder arthroscopic subacromial decompression and rotator cuff repair was completed on 18/02/2021. The pre-existing LHB tendon tear was not surgically repaired as this appeared to be chronic and pre-existing to the workplace injury. On the 2/8/2022 a surgery request for Right Shoulder Arthirscopy, AC Join Repair surgery was received from Dr J Trantalis. The consultation report from Dr J Trantalis of 27/7/2022 and the Independent Medical Examination report from Dr S Rimmer of 9/8/2022 where reviewed. The report form Dr Rimmer included a response to a proposed question relating to if revision surgery would be considered reasonably necessary as indicated by Dr M Bassam prior to your review with Dr Trantalis on 27/07/2022. Dr Rimmer stating that you "do not required revision surgery". The most recent MRI scan shows no surgical Pathology present". Dr Rimmer also stated that he does not consider that you require any ongoing treatment other than a self-managed activity program.” [sic][7]
[7] Folio 77 of the Application.
Two further supplementary reports provided by Dr Rimmer again reinforce his view; relevantly
“I do not believe the proposed surgery is accepted by medical experts as appropriate….
I would also like to highlight the findings of Dr James Bodel (orthopaedic surgeon) on the 3/11/2022 who did not find any abnormality of the right acromioclavicular joint which was consistent with my clinical findings.”[8]
[8] Application to Admit Late Documents – Dr Rimmer supplementary report dated 19 April 2023.
Overall, Dr Rimmer reported no further treatment was required apart from a self-managed activity program. His report does acknowledge the 77 physiotherapy sessions but did not comment on the failure of cortisone injections and exercise physiology but did however, opine that the conservative treatment received to date was ‘prolonged and ineffective’.
It needs to be highlighted at this point, that there was no request for revision surgery. The initial surgery was a right shoulder arthroscopic rotator cuff repair and subacromial decompression. The surgery subsequently proposed and indeed undertaken was a right shoulder arthroscopy excision of the acromioclavicular joint. There was no plan to revise the rotator cuff but rather address the inflammation and pain arising from the rehabilitation injury and previously asymptomatic changes dealing solely with the acromio clavicular joint as diagnosed by Dr Trantalis on his subsequent examinations of the applicant. I so find.
Dr Rimmer correctly points out degenerative changes and expressed concern that ongoing symptoms related to pre-existing pathology. This was addressed by Dr Smith who deals with the issue of pre-existing osteoarthritic change summarised in paragraph 18 above, and who opined that as the applicant was asymptomatic prior to the workplace injury, the injury caused a ‘flare up’ of the arthritis. Dr Bodel supported Dr Smith’s view.
Further, I note, Dr Rimmer’s reinforced that Dr Bodel found no abnormality of the shoulder. This conclusion is at odds with the reduced range of motion recorded in Dr Bodel’s report dated 3 November 2022 which shows significant reduction in the right shoulder as compared the left uninjured shoulder.[9] Similar restricted range of movements were reported in
Dr Smith’s assessment dated 14 October 2022.[10] Dr Rimmer however found near normal range of motion apart from internal rotation, reporting he considered the applicant was voluntarily exaggerating symptoms. [11][9] Folio 49 refers.
[10] Folio 33 of the Application refers.
[11] Folio 6 of the Reply refers.
FINDINGS AND REASONS
Section 9 of the Workers Compensation Act 1987 (the1987 Act) provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
Section 60 of the 1987 Act provides:
“60 (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).”
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW).[12] Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[12] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
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.
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 Ltd,[13] Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[13] [2014] NSWWCCPD 72 (Diab).
“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, 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.
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.”
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case as discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) (Kooragang) and it was the principles outlined in this case that formed the mainstay of the applicant’s contentions.
In this matter the applicant must establish that the injury he sustained to his right shoulder while working with the respondent materially contributed to the need for the proposed surgical treatment. This requirement was confirmed by former Deputy President Roche in Murphy v Allity Management Services Pty Ltd[14] where he stated:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang) that the treatment is reasonably necessary ‘as a result of’ 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 surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[14] [2015] NSWWCCPD 49.
Here, it was not denied that there may have been multiple causes for the applicant’s symptoms, including underlying osteoarthritic changes as emphasised by the respondent, however it was submitted the common sense test of causation can only result in a conclusion that the second surgical procedure was related to the original work injury and the consequences of treatment resulting from that injury, particularly in circumstances where the right shoulder was asymptomatic prior to the workplace injury, plateaued following surgery only then to wane following involvement in the rehabilitation process. Surgical treatment in this matter was taken as a last resort, after extensive physiotherapy treatment (over 77 sessions), corticosteroid injections, a second opinion and persisting pain and lack of function.
The respondent’s argument also has merit. There are clearly degenerative changes of osteoarthritis evidence on the sequence of MRI scans. Dr Rimmer considered that on the basis of his physical findings (which largely revealed a near normal range of movement (apart from internal rotation) but in the presence of voluntary exaggeration), and the previous osteoarthritic changes identified on investigations that further surgical treatment was not reasonably necessary, recommending the mainstay of treatment to be a self directed management program. The inconsistencies on examination by Dr Rimmer and the other medical practitioners with regards to range of movement have already been discussed.
Overall, on assessment of the evidence globally, I am not satisfied that the second surgical procedure was entirely unrelated to the original injury and its sequalae, particularly when regard is had to the principles summarised in paragraph 33 of these Reasons. This is further supported by the respondent’s evidence, wherein, Dr Rimmer opines the presentation was ‘a combination of a work-related injury and pre-existing degenerative tendinopathy of the rotator cuff’. [15]
[15] Folio 5 of the Reply.
Considering the evidence of Dr Trantalis, Dr Martin, Dr Smith and Dr Bodel, coupled with the applicant’s history and ‘common sense’ interpretation of the causative chain as particularised above, I am satisfied the applicant has discharged the onus of proof required of him and I accept the surgical treatment was connected to his original injury.
I further find that the surgical treatment was reasonably necessary because the applicant exhausted physiotherapy, exercise physiology and corticosteroid injections and these were shown to be ineffective in relieving the symptoms both in terms of pain and restricted function, a finding supported by Dr Rimmer, who correctly reported that the 77 sessions of physiotherapy were ineffective! The need for surgery was supported by both Dr Trantalis, his fellow, Dr Martin, Dr Smith and Dr Bodel who on assessment considered it to be a viable option to alleviate the effects and consequences of the injury and aggravation of symptoms whilst undertaking rehabilitation, given that the prolonged conservative management protocols failed to produce sustained benefit. Dr Rimmer reported that only home-based exercises were required but this was on the finding of near normal range of motion, which as indicated was inconsistent with the examination findings of other assessors.
There has been no suggestion in the submissions or the evidence generally that the costs of the treatment were inappropriate or excessive. I have not disregarded that alternative treatment was proposed, however, having regard to the nature of the injury, the severity of the symptoms and the significant attempts at non operative management, and applying the principles discussed in Diab, I find that the surgery by way of right shoulder arthroscopy excision of the acromioclavicular joint is/was reasonably necessary treatment.
SUMMARY
40. The applicant required medical and related treatment as a consequence of the workplace injury he has sustained to his right shoulder. The right shoulder arthroscopy excision of the acromioclavicular joint as performed by Dr Trantalis is reasonably necessary treatment arising from his workplace injury.
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