Lim v Allity Management Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lim v Allity Management Services Pty Ltd [2021] NSWPIC 349
APPLICANT:	Marites Lim
RESPONDENT:	Allity Management Services Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	15 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Applicant claimed cost of left rotator cuff repair and biceps tenodesis, pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act); accepted injury to left shoulder; respondent disputed that proposed treatment was reasonably necessary; statistically poorer outcomes of surgery in workers’ compensation population; consideration of Diab v NRMA Ltd; Held - the proposed surgery is reasonably necessary as a result of injury; award for the applicant for the cost of surgery and associated costs, pursuant to section 60(5) of the 1987 Act.
DETERMINATIONS MADE:	1. That the respondent is to pay, pursuant to section 60(5) of the Workers Compensation Act 1987, the cost of left rotator cuff repair and biceps tenodesis, as recommended by Dr Manish Gupta, and associated costs.

STATEMENT OF REASONS

BACKGROUND

The applicant, Marites Lim (Ms Lim) is employed by the respondent, Allity Management Services Pty Ltd, as a kitchen hand.
Ms Lim sustained an accepted injury to her left shoulder on 6 May 2019, when she was pushing and pulling a food trolley. She has made a claim for the cost of proposed left shoulder rotator cuff repair and biceps tenodesis.

On 1 December 2020, the respondent’s workers’ compensation insurer, AAI Limited trading as GIO (GIO), issued Ms Lim with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998.
GIO disputed liability for the proposed surgery, on the grounds that it was not reasonably necessary medical treatment as a result of an injury, “as required by sections 59 and 60 of the Workers Compensation Act 1987” (the 1987 Act).
By letter dated 8 April 2021, the applicant’s solicitors requested on her behalf that GIO review its decision, relying on medical evidence from Dr Mark Ridhalgh, orthopaedic surgeon.
On 21 April 2021, GIO advised the applicant’s solicitors that its decision to dispute liability had been maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 17 May 2021. She claimed that on 6 May 2019, she was working as a kitchen hand. She was pushing and pulling a food trolley. As she pulled the trolley towards her, she experienced pain in both her shoulders.
The applicant claimed the sum of $20,000 for [left] shoulder arthroscopy. It is clear that the claim is one for proposed left shoulder rotator cuff repair and biceps tenodesis.
The respondent lodged its Reply on 8 June 2021. It confirmed that it relied on the notices issued pursuant to section 78 of the 1998 Act, dated 1 December 2020 and 21 April 2021. It confirmed that it disputes that the medical and related treatment expenses claimed by the applicant, that is, left shoulder surgery proposed by Dr Manish Gupta, is reasonably necessary in accordance with section 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) the reasonable necessity of the proposed surgery.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 26 August 2021. Mr Trainor of counsel, instructed by Mr Joshua, appeared for the applicant, who was present. Mr Doak of counsel appeared for the respondent, instructed by Ms Corry.

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)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 10 June 2021 and attachments, filed by the applicant;
(d)    Application to Admit Late Documents dated 19 August 2021 and attachments, filed by the applicant, and
(e)    Application to Admit Late Documents dated 19 August 2021 and attachments, filed by the respondent.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Marites Lim

Ms Lim’s first statement is dated 23 September 2019.
Ms Lim is employed part-time as a kitchen hand at Brentwood Aged Care (Brentwood), having commenced employment in December 2016. She works three days a week, from 6.30 am to 3.00 pm. She also works part-time as a kitchen hand at Westmead Rehabilitation Hospital. She had been working there five days per week, but when her hours were reduced to 16 hours per week in 2016, she obtained employment at Brentwood.
On 6 May 2019, the applicant started to push a trolley, which was loaded with 30 meals, towards the kitchen door. The trolleys are very heavy and occasionally difficult to manoeuvre. The wheels of the trolley became stuck, and it did not move. Ms Lim “gave it a big pull to the right using both arms”. As she did so, she felt a sharp pain in her left shoulder.
The applicant did not cry out or tell anyone what had happened. She did not think too much of it, composed herself, gave the trolley another push, after which it moved freely, and continued her rounds. The pain in her shoulder was still there, but not too severe. She kept working, but as the shoulder pain did not go away, saw her general practitioner in late May 2019.
The applicant then provided details of her treatment, which is discussed later in these reasons.
The applicant’s second statement is dated 14 May 2021.
The applicant had no issues with her shoulders before 6 May 2019. She had had cortisone injections in both shoulders. This helped for approximately a month before the pain came back, worse than before. She had another cortisone injection in her left shoulder, again with improvement for a month, when the pain came back. This was in approximately July 2019.
It was at this stage that Ms Lim lodged a claim to help her manage expenses and time off work. The insurer accepted the claim, and she began physiotherapy. She was away from work for approximately two months.

The applicant returned to restricted duties at Brentwood until April 2020. From April 2020 to August 2020, she returned to her pre-injury duties, but was still in discomfort. There was a change in the roster in August 2020, and she was doing more work that involved using her shoulders. The pain continued to get worse. She was referred to see Dr Gupta, and in late August 2020 he suggested she have surgery.
The applicant has problems sleeping on her left shoulder and wakes two or three times a night. She has trouble lifting her hands above her head, which has restricted her ability to do tasks such as hanging out washing or reaching for things in high places. She struggles with regular household chores and requires her children to assist her.

Medical evidence

Fairfield Central Medical Centre – General Practitioners

The practice’s records are in evidence.
On 29 July 2019, Dr Ahila Sivaguru recorded that the applicant had decided to claim WorkCover for her left shoulder injury. He noted that both shoulder joints were painful, and ultrasound was ordered on 24 May 2019, with a two week history of pain in the shoulders.

Dr Sivaguru recorded the details of the applicant’s work, which included pushing trolleys, serving meals, preparing thickened fluids and food, lifting meal trays, cleaning trolleys, mopping floors, throwing out rubbish and serving residents morning tea.

Dr Sivaguru noted relevantly that the applicant had a partial thickness supraspinatus tear on the left; and subacromial/subdeltoid bursitis with features of impingement. He advised her to get approval to continue physiotherapy, and that she needed MRI of the shoulder joints. She may need an orthopaedic consultation.

On 8 August 2019, Dr Sivaguru recorded that the applicant complained of persisting pain in the left shoulder joint. He noted “supraspinatus tendon a partial thickness intrasubstance tear of the mid tendon is present measuring 7 x 6mm with tendinosis of the remaining tendon” (emphasis in original).

On 12 August 2091, Dr Sivaguru recorded that the applicant still had pain in her left shoulder, with slight improvement. The “main reason” was pushing a trolley with defective wheels. She had to exert more pressure to push the trolley.

Dr Sivaguru recorded on 26 August 2019 that the applicant complained of pain persisting “>severe in the left shoulder joint”. She needed physiotherapy and MRI. She was requesting therapeutic massage.

On 1 October 2019, Dr Sivaguru recorded that the applicant wanted to return to work – “2^nd job”. The work was lighter in this job, where she worked with another worker as a team. She felt it was easier.

On 10 October 2019, Dr Sivaguru recorded that the applicant was improving gradually. He recorded findings in her right shoulder.

Dr Sivaguru recorded on 29 October 2019 that the applicant had depressed mood, was anxious and “stress at work”. She had low self-esteem, financial problems, and irritability. She had tenderness over the left supraspinatus and subacromial and subdeltoid bursa.
On 8 November 2019, Dr Sivaguru recorded a case conference, involving the applicant and “Daniella” from Recovre. The applicant was working 15 hours per week in another job. This was much lighter work, across three shifts. Dr Sivaguru noted “question” as to whether the applicant needed referral to an orthopaedic surgeon. There is reference to an MRI of her left shoulder. She was “not happy re: surgical procedure”.
Dr Sivaguru again recorded depression and anxiety and “stress at work” on 15 November 2019.

On 10 December 2019, Dr Sivaguru recorded a teleconference that included discussion of surgery and referral to a shoulder orthopaedic surgeon. He noted “recovery post-surgery will be longer”. The applicant said she had a good range of movement.

The applicant continued to consult Dr Sivaguru, with persistent pain and tenderness, in December 2019 and January 2020. On 20 January 2020, he noted she would trial pre-injury duties, but on 30 January 2020 he recorded she had started a trial of full time duties and developed pain in the left shoulder joint.

On 17 February 2020, Dr Sivaguru recorded a complaint of severe pain in the left shoulder joint.

Dr Sivaguru issued the applicant with a final certificate on 15 April 2020, recording that she could continue with her pre-injury duties. Her shoulder movements were free, and she could raise her arm freely. She was to continue physiotherapy for another three months.

The applicant again consulted Dr Sivaguru on 27 July 2020. She was complaining of pain in her left shoulder and “finding it [there is a missing word] to lift her arm”. She requested a referral to an orthopaedic surgeon. Her physiotherapist had told her to consult a specialist. Dr Sivaguru noted impingement in the right shoulder. The applicant was able to raise her left arm up to 90 degrees. There was restricted movement.

On 27 August 2020, Dr Sivaguru recorded that the applicant was anxious, “stress at work. Was given heavy work to do”. She had seen an orthopaedic shoulder surgeon, Dr Gupta, who had requested approval of the insurer.

On 21 September 2020, Dr Sivaguru recorded right shoulder pain. He noted “Pushing trolleys and serving meals, lifting meal tray.” He arranged for MRI of the applicant’s right shoulder. This was not approved by the insurer.

The applicant continued to consult Dr Sivaguru for both left and right shoulder symptoms. On 9 October 2020 he noted she had been assessed by the insurance company’s selected specialist and “felt intimidated”. She was advised to have another MRI of the left shoulder.

On 20 November 2020, Dr Sivaguru recorded that there was a request for physiotherapy while the applicant waited for approval of surgical repair of her left shoulder. She was on light duties and complaining of pain in the shoulder joints. She also had an injury to her right shoulder joint and would benefit from physiotherapy.

Dr Sivaguru recorded on 3 December 2020 that the applicant was “under stress” and upset. Surgery had been declined by the insurer. She was unable to go to work and requested a medical certificate. Dr Sivaguru noted “Medicare”. She was prescribed Endone, which he noted on 21 December 2020 was for severe pain. Ms Lim was unable to sleep or go to work. She was to be assessed by another orthopaedic specialist to see whether she needed weekly physiotherapy. “They are planning to stop her physiotherapy”.

The last entry is dated 29 December 2020. The applicant was still having physiotherapy, “not this week”. There was tenderness over the left supraspinatus. She could raise her left arm slowly to 90 to 100 degrees, gradually but with pain.

Dr Con Kafetaris – Injury Management Consultant

Dr Kafetaris provided a report dated 19 December 2019.

The applicant was having physiotherapy twice a week and had had subacromial cortisone injection, which she said relieved most, if not all, of her pain, but only for one month. She was certified fit to work six hours a day, three days a week, on suitable duties. She was employed. She said she had improved approximately 80%, but there had been no discussion about returning to pre-injury duties.

Dr Kafetaris advised the applicant that he felt she had capacity for pre-injury hours and would continue to require restrictions. It would be reasonable to trial pre-injury duties over the next few months, to determine whether it was an achievable goal. The applicant agreed.

Dr Sivaguru agreed that the applicant would be upgraded to her pre-injury hours at the next consultation. He wished to obtain an orthopaedic opinion. Dr Kafetaris agreed with this but felt it was unlikely Ms Lim would benefit from surgery. He noted the “NTD [nominated treating doctor] did not dispute this”. It was agreed that if the applicant did not make substantial improvement over the next three months or so, it was highly unlikely she would return to pre-injury duties, and redeployment would need to be considered.

Dr Kafetaris concluded that the applicant had features of subacromial impingement syndrome and a high-grade partial thickness rotator cuff tear. Her symptoms were consistent with the radiology and with her substantial improvement with subacromial corticosteroid injection. Referral to an orthopaedic surgeon was reasonable, but Dr Kafetaris was “somewhat sceptical” that surgery would benefit the applicant. She did not present with evidence of any significant yellow flag or inorganic component.

Dr Manish Gupta – Orthopaedic Surgeon

Dr Gupta reported to Dr Sivaguru on 26 August 2020.

Dr Gupta recorded that the applicant presented with bilateral shoulder pain, less so on the right. She had an overuse injury of the left shoulder. MRI scan demonstrated a high grade rotator cuff tear.

Dr Gupta had advised the applicant that surgery, that is left rotator cuff repair and biceps tenodesis, was indicated. She had a series of questions, which he answered, and she indicated she would like to proceed with the surgery.

Dr Gupta recommended the use of Regeneten, which is a bioinductive augmentation patch, during the surgery. This would increase the reliability of healing and assist recovery and return to work. Dr Gupta also recommended VPulse treatment with Rehacare in the immediate post-operative period. VPulse is a device that uses wound compression and motorised cold therapy to assist in reducing operative site discomfort and inflammation.

Dr Gupta noted that the surgery could be performed without Regeneten and VPulse, but he would seek approval for their use, for the reasons given.

Dr Gupta provided a report to the applicant’s solicitors on 5 August 2021.

Dr Gupta had reviewed the report of Dr [sic: Associate Professor] Miniter, which is discussed below. He regarded most of what A/Prof Miniter reported as reasonable. However, A/Prof Miniter seemed to infer that pushing trolleys laden with meals, food preparation and cleaning cannot lead to obvious injury to rotator cuff tendons in the shoulder. Dr Gupta described this as a patently inappropriate and wrong conclusion.

Dr Gupta conceded that one must look at all potential causes for shoulder injury. The applicant did not identify any other occupational or recreational exposure, other than handling heavy trolleys at work. It was reasonable to draw a conclusion between this activity and rotator cuff aggravation leading to rotator cuff tendon tearing. Dr Gupta did agree that repeat MRI scans were indicated. If they showed a failure of the tear to heal, or rather an increase in its size (and it remained consistent with poor clinical progress), then surgical treatment was the most reasonable and necessary option.

In other words, Dr Gupta stated, any treatment needs to be tailored to current clinical status and capacity. “Obviously”, they started with less aggressive measures, such as reduced activity, physical therapy and injections as required. If they fail to improve the situation, surgery does become the most reasonable and necessary option.

Dr Gupta noted A/Prof Miniter’s reference to statistically poorer outcomes in rotator cuff repair surgery in the workers’ compensation population. Whilst this is statistically accurate, it does not therefore mean that rotator cuff injury suffered in the workplace should not be offered the same treatment offered to anyone else who sustained such injury. The implication is that because of a statistic, these injuries should be treated lesser than injuries sustained outside the workplace.

Dr Gupta proposed that the statistic was probably related to injudicious recommendation for surgery and on some occasions the motivation of the patient. If the right patient is selected, who has failed appropriate non-operative treatment, if that is appropriate, and who continues to be clinically disabled, with objective signs such as MRI scans showing pathology, then surgical treatment is the most right, reasonable and necessary option.

In summary, Dr Gupta opined that “we” have to be guided by the history provided by the patient and the clinical assessment. If the clinical assessment imaging shows pathology, then appropriate treatment is to be implemented. If that treatment is initially non-operative, then that should be what is undertaken. If tendon tear is full-thickness, or non-operative treatment fails to provide any clinical improvement needed, then surgical treatment is the right option.

Associate Professor Paul Miniter – Orthopaedic Surgeon

A/Prof Miniter was qualified by the respondent and reported first on 12 October 2020.

Much of A/Prof Miniter’s evidence is directed to causation of the applicant’s injury. The respondent does not dispute that Ms Lim has sustained an injury. I will accordingly discuss the evidence that is relevant to the dispute I must determine.

A/Prof Miniter recorded that the applicant felt her left shoulder discomfort may have been related to pushing a trolley, which she had reported as being defective. She had had physiotherapy and an injection into her left shoulder that gave partial benefit for a short time. Since that time, she had continued to have pain. She had been placed on light duties and had been seen by a shoulder surgeon, who felt she should undergo rotator cuff repair.
A/Prof Miniter noted that the applicant had undergone MRI scan of her shoulder in September 2019. It suggested a partial thickness tear of the supraspinatus. As the scan was over a year old, it would be appropriate to repeat it. If the insurer chose to accept the matter, an up to date MRI scan with arthrogram should be performed.

The applicant continued to work on light duties. She was “enthusiastic to embrace the concept of surgery”, as she felt she had failed non-operative management thus far.

A/Prof Miniter referred to Dr Gupta’s recommendation of Regeneron [sic: Regeneten] treatment. He was not certain why it was suggested where there was a relatively small partial thickness rotator cuff tear. A/Prof Miniter understood that this procedure, which had been strongly promoted by Dr Desmond Bokor, was used for degenerate and large rotator cuff tears, and in failed rotator cuff surgery. He was not certain it was directly indicated in this type of surgical management.

A/Prof Miniter then discussed causation of the injury. He again referred to the need for an up to date MRI scan to determine the true nature of the pathology, the extent of the rotator cuff lesion and whether there had been any increase in size. There were no features of adhesive capsulitis.
The applicant’s diagnosis appeared to be rotator cuff disease relating to the posterior aspect of the supraspinatus at the left shoulder. A/Prof Miniter found no inconsistencies on physical examination. There was “an inconsistency in the way that this matter presented in the first instance”.

A/Prof Miniter did not recommend any treatment at that stage, as the applicant’s symptom complex was relatively mild, but if she felt she needed surgical treatment, he strongly suggested an up to date MRI arthrogram of the left shoulder. Her prognosis was guarded. “As you know, the outcome from surgical treatment of a rotator cuff in the workers’ compensation population is often poor”, and surgery should be avoided if at all possible. He was not certain he could support surgery as being reasonably necessary. It is largely determined by the symptoms, as the rotator cuff was not retracted and “certainly not full thickness” at that stage.
A/Prof Miniter again reported on 17 November 2020. He had been asked to consider the imaging findings (this is clearly the report of MRI of the applicant’s left shoulder, dated 14 October 2020) and provide an opinion as to whether the proposed left shoulder rotator cuff repair and biceps tenodesis with Regeneten and VPulse was reasonably necessary.

A/Prof Miniter noted that the applicant was in her middle to late 40s. She had significant features of rotator cuff disease affecting the left shoulder. The anterior supraspinatus tendon was disrupted and there was severe tendinosis of the remainder of the supraspinatus tendon, extending medially to the musculotendinous junction. There was also a strong degree of infraspinatus tendinosis, but no discrete tear, though teres minor was intact. There was comment of mild to moderate acromioclavicular joint osteoarthritic change. Of greatest concern was that the applicant had a Type 2 acromion with significant under surface irregularity developing osteophytes. The biceps labral complex was intact, but there was severe tendinosis involving the biceps tendon towards its insertion.
A/Prof Miniter opined that “this bodes poorly for the long term”. Surgical treatment should be avoided if possible, but almost certainly the matter would progress and would come to surgical treatment, involving decompression and a form of rotator cuff reconstruction. He feared this would end in a poor outcome, whether or not Dr Gupta used Regeneten.
A/Prof Miniter “strongly” advised that if the matter was not regarded as GIO’s direct responsibility, surgery should be avoided, and the matter kept under observation. It was possible it would become more troublesome as time passed, but surgery was not likely to lead to a good outcome because of the severe underlying pathology, which in any event, in his opinion, was not related to the workplace.
A/Prof Miniter’s final report is dated 6 July 2021.
A/Prof Miniter referred to a report of Dr Mark Ridhalgh. It was “interesting” that the history given to him was that the applicant was pushing a trolley, but the history given to Dr Ridhalgh and in her statement was that she had pulled the trolley towards her. Her arms were at her side and her elbows were flexed. The applicant felt her left shoulder initially troubled her, and she did not mention her right shoulder in her statement.
A/Prof Miniter referred to his opinion that the matter was likely pre-existing, and he also felt it was important to have an up-to-date investigation to make “sensible comments in relation to the management of this issue.”
The applicant had stated that right shoulder pain became evident later. She decided to see her GP in May 2019. She was referred for ultrasound and was told she had “bursitis in the right shoulder and a muscle tear in the left shoulder.”
The up-to-date MRI of the applicant’s right shoulder (which is dated 2 June 2021 and attached to the Application to Admit Late documents dated 10 June 2021) showed significant age-related rotator cuff disease. There was a near full thickness tear of the anterior portion of the supraspinatus tendon. When the scan was compared with the previous scan, it was thought the tear had become more significant. Infraspinatus tendinosis was noted and there was moderate rotator cuff tendinosis throughout the cuff itself. Inflammation in the rotator interval was identified, but no inflammation was seen in the axillary recess.
The up-to-date MRI of the applicant’s left shoulder dated 21 May 2021 (also attached to the Application to Admit Late Documents dated 10 June 2021) was summarised as showing “Severe tendinosis of the supraspinatus tendon. Stable appearance of the anterior full thickness supraspinatus tendon tear measuring 6 mm. Progressive subacromial bursitis. Mild to moderate AC (acromioclavicular) joint osteoarthritis”.
A/Prof Miniter opined that the MRI appearances were very much those of significant age-related rotator cuff disease. This is very difficult to manage, and even though the applicant had near full thickness tearing of the rotator cuff on the right, and a very small area of full thickness tearing on the left, the results from surgery in this subgroup of patients, with severe underlying tendinosis, are not always satisfactory. The applicant had been improved by injection into the subacromial space, but only in the short term. She continued to work but was on restricted duties.
A/Prof Miniter summarised that age-related rotator cuff disease was very common in women of the applicant’s age group. The nature and conditions of her employment were not those of repetitive activity at or above shoulder level. She had significant rotator cuff disease, but the outcome of repair is not always satisfactory, and many patients are disappointed. This is often the result of poor underlying soft tissue. The best management is non-operative if possible.
The diagnosis of the applicant’s left shoulder was significant rotator cuff disease, almost certainly age-related. She had a small, stable anterior supraspinatus tear of only 6 mm. Her right shoulder demonstrated age-related rotator cuff disease. It was progressing, and there were features of near full thickness rotator cuff disease.
A/Prof Miniter was provided with three accounts of the mechanism of the injury. They may be summarised as that the applicant developed painful shoulders as a result of pushing heavy kitchen trolleys with damaged wheels; the trolley she was using became stuck on the edge of a tile and she pulled it briskly and firmly towards her; and she injured both shoulders while pushing and pulling a food trolley, experiencing pain in both shoulders as she pulled it towards her.
A/Prof Miniter opined that, as the applicant’s shoulder was at her side and not involved in activity at or above shoulder level, it was not likely she had done more than aggravate per-existing pathology. It was significant and clearly seen on the investigations. Its progressive nature was well seen on the MRI scan report, particularly on the right. He had discussed the non-progressive nature of her left shoulder. Ms Lim did not mention other than the left shoulder when he first saw her.
A/Prof Miniter’s response would not have differed whether the applicant was pushing or pulling the trolley. In either activity, significant load is not being placed through the shoulder, but mostly through the wrists and elbows. He suspected the applicant had aggravated an issue that was clearly longstanding, and this had caused at least temporary aggravation of the underlying nature of the matter. He regarded it as highly unlikely that she had injured her shoulders due to the nature and conditions of her employment.
A/Prof Miniter opined that the applicant had a disease of gradual onset in both shoulders. Aggravation may have occurred on 6 May 2019, but it was not likely to have been significant and there was more than sufficient pathology identified on the MRI scan to explain her presentation. He believed the majority of the matter was non-work-related.
Commenting on Dr Ridhalgh’s opinion, A/Prof Miniter reported he should perhaps be aware that rotator cuff surgery in this context is often disappointing. Non-operative management is the preferred option. While it would seem implicit that repair of a tendon process will absolve the patient of pain and allow a complete recovery, this is often not the case. It is the underlying degenerative nature of the tendon that is responsible for its disruption, and with aged quality tissue, the likely outcome from surgery is certainly not clear. This is seen in many patients with workers’ compensation claims who have similar pathology, and the poor outcomes from such surgery are well known.
A/Prof Miniter concluded that the decision to proceed with surgery or otherwise is difficult. He believed it would be appropriate to consider an independent opinion from an experienced surgeon, such as Dr David Duckworth. It is “all too common”, for what appears to be well-meaning surgery of the rotator cuff in a woman of the applicant’s age to be associated with a poor outcome, followed by revision surgery, (also) often with a poor outcome. The matter often leads to loss of employment and significant long-term hardship. An operation is not always a good idea in a situation such as this.

Dr Mark Ridhalgh – Orthopaedic Surgeon

Dr Ridhalgh was qualified by the applicant and reported first on 5 March 2021.
Dr Ridhalgh recorded a history that on 6 May 2019 the applicant’s trolley stuck on the edge of a tile, and she had trouble manoeuvring it. She pulled it briskly and firmly towards her, hurting both shoulders. She continued working but about two weeks later consulted Dr Sivaguru.
The applicant had had cortisone injections of both shoulders, with improvement for about a month, when the pain came back “with a vengeance”, affecting the left shoulder more. A second injection into her left shoulder improved her for another month. She had also undergone physiotherapy for three or four months and had a similar period off work.
Ms Lim returned to restricted duties at Brentwood from October 2019 to April 2020, working her pre-injury duties from April 2020 to August 2020. There was a change in her roster in August 2020 and the pain got worse with her different duties.
Dr Gupta had requested approval for surgery of the left shoulder. The applicant had been sent for a further opinion from A/Prof Miniter and surgery was declined. She had been working 38 hours a week and taking Endone and Panadeine. Physiotherapy had ceased. She continued to be troubled with her left shoulder, and to a lesser degree, her right.
Dr Ridhalgh recorded that the applicant had problems sleeping on her left shoulder, waking two to three times a night. She had trouble hanging washing on a high line and reaching to high cupboards. She had pain if she had to reach into the back seat of her car. Her daughters helped with vacuuming, mopping and sweeping, as well as grocery shopping. She avoided carrying shopping bags and used a trolley.
Dr Ridhalgh had available MRI of the right shoulder, dated 6 October 2020; and of the left shoulder, dated 14 October 2020. He opined that the applicant had sustained injuries to both shoulders. She had a full thickness tear of the supraspinatus tendon on the left, which was becoming symptomatic. The right shoulder had similar pathology, albeit not as bad.
Dr Ridhalgh has recorded the MRI dated 14 October 2020 as showing right rotator cuff tendinosis with severe supraspinatus involvement, full thickness supraspinatus tendon tear without retraction, mild subacromial bursitis, biceps labral fraying and intra-articular segment biceps tendinosis. The report is in evidence, and it clearly refers to the applicant’s left shoulder.
Dr Ridhalgh believed the applicant required rotator cuff repair of the right shoulder and may require the same of the left shoulder. It was required “now”. Her prognosis was guarded, depending on the results of surgery. He expected her to have an 80% to 90% chance of resuming normal duties.
Dr Ridhalgh had obtained a different history from A/Prof Miniter, who reported a pushing, rather than a pulling, action. He agreed that Regeneten patch was not indicated for the applicant. He felt that repair of the tendon in the acute phase was likely to give her the best result. She was a non-smoker, young and slim. She had an acute injury to the tendon, and repair was likely to be sound and long-lasting. Leaving her shoulder as it was, with continuing pain, especially waking at night, was “defeatist and cruel”.
Dr Ridhalgh again reported on 11 June 2021. He responded to a “specific question”, which is not recorded, that the applicant required rotator cuff repair of her left shoulder and may require rotator cuff repair on the right. This report was apparently provided to address the confusion in his first report regarding which shoulder was in worse condition, and thus required the more urgent surgery.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant submitted that the law on the reasonable necessity of medical treatment is well settled, referring to Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab); and she would therefore proceed to address the facts of the case.

The applicant referred to Dr Gupta’s report dated 5 August 2021. She submitted that the need for treatment needs to be viewed in the continuum of the injury. Conservative measures had been tried and were less than spectacular.
The applicant submitted that, while the respondent does not bear the onus to establish that the treatment is either unreasonable or unnecessary, its position appears to be neutral.
The applicant submitted that A/Prof Miniter’s reports represent the totality of the respondent’s evidence. He has commented on causation, which is not relevant, in his first report. He was not specifically against surgery, but rather saying “let’s play it out”. In his second report, he opined that surgical treatment should be avoided. In his final report, it is difficult to see that he provided an opinion. He stated that surgery potentially allowed a complete recovery. The outcome is not guaranteed, but the applicant submitted that no surgeon would give a guarantee. It is a difficult decision, but it was one for her to make, on the advice of her treating specialist.
The applicant then made submissions on the various heads considered in Diab. She referred to the evidence of Drs Gupta, Ridhalgh and Kafetaris; and submitted that even A/Prof Miniter suggested that surgery would ultimately come to pass.
The applicant submitted that there is no doubt she has a significant rotator cuff tear that is getting bigger and she has tried conservative treatment that has failed. The time for MRIs and other diagnostic tools is over. The only viable solution is surgical repair. She submitted I would be satisfied on the balance of probabilities that surgery is reasonably necessary.
In reply to the respondent, the applicant submitted that what A/Prof Miniter said in the context of the final MRI did not go to the reasonable necessity of the surgery, but to underlying degenerative condition, which is an issue of causation. It is assumed he was aware of the degenerative changes when he prepared his first and second reports. He negatived the treatment not on that basis, but because the applicant did not have a work-related injury.
The applicant asked “what are the treatment options?” The expected outcome of persisting with conservative options is not that the tear will resolve. She referred to Dr Gupta’s second report, which explained the situation perfectly. A/Prof Miniter opined that she would inevitably come to surgery.

Respondent

The respondent, referring to the matters in Diab, submitted that it does not cavil with the appropriateness of the treatment or its cost. The actual or potential effect of the treatment is the crux of its case.
The respondent did not agree that there had been a progression of the rotator cuff tear. There had been some development. Dr Ridhalgh had confused the applicant’s right and left shoulders more than once. He has the MRI scans “around the wrong way”. His opinion has less weight, as it is based on an assumption not borne out by the evidence. The respondent submitted I would not accept it as it is undermined by the errors.
The respondent submitted that there is a degree of patient choice involved, but it needs to be informed consent. It referred to Diab, and the acceptance of the treatment by medical experts. A/Prof Miniter opined that the outcome is unlikely to be effective, based on underlying pathology. Dr Gupta had put matters “pretty fairly” in his second report but did not entirely deal with and address the issues raised by A/Prof Miniter.

The respondent submitted that the issues of potential effectiveness and the availability of alternative treatment and its potential effectiveness are probably the only matters referred to in Diab that apply. The lack of potential effectiveness is the reason to make an award for the respondent.

SUMMARY

While A/Prof Miniter has expressed doubts as to whether the applicant’s injury arose out of or in the course of her employment, injury is not in issue, the respondent having accepted liability for injury. A/Prof Miniter’s views as to causation may be put to one side. The only issue to be determined is whether the surgery proposed by Dr Gupta is reasonably necessary medical treatment as a result of that accepted injury.
The evidence of the applicant herself is not expansive. She has given evidence that she is woken two or three times a night (it is assumed by pain), has trouble lifting her hands above her head, and is restricted in various activities. She stated that she had only short-term relief from cortisone injections.
The applicant relies principally on the evidence of her treating specialist, Dr Gupta, and Dr Ridhalgh, while the respondent relies on the evidence of A/Prof Miniter.

Both parties have referred me to the decision of Deputy President Roche in Diab.
Roche DP said in Diab at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP cited with approval the decision of his Honour Judge Burke of the Compensation Court in Rose v Health Commission (NSW) (1986) 2 NSWCCR (Rose), and said:
“[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…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.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo [Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233], is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.

I intend to apply the principles of Diab in making this determination.
The respondent referred in its submissions to, in particular, the issues of potential effectiveness and the availability of alternative treatment and its potential effectiveness. However, I will deal with each of the principles raised in Diab.
Firstly, as to the appropriateness of the proposed surgery, I do not understand that any of the practitioners who has given evidence disagrees that it is an appropriate form of treatment for the applicant’s condition. There is disagreement as to, for example, whether the use of Regeneten is indicated, but not as to whether surgical repair itself is appropriate treatment. Even A/Prof Miniter, while of the opinion that surgery should be avoided, believed the applicant’s condition would ultimately require that it be performed.
As to the availability of alternative treatment, the applicant has had physiotherapy and cortisone injections, with limited effect. She still has pain and restrictions on her activities. Dr Ridhalgh recorded that she had a period of improvement after the injections, after which the pain returned with a vengeance. A/Prof Miniter opined that the best management was non-operative, if possible, but has not made any recommendation as to what this alternative management should be.

The respondent has not submitted that the cost of the proposed treatment is a factor that militates against its acceptance. The estimated cost is $20,000. There is no evidence that it is excessive and it is not a reason to determine that the treatment is not reasonably necessary.
Turning to the actual or potential effectiveness of the treatment, I have found Dr Gupta’s report dated 5 August 2021 particularly persuasive. As the respondent fairly conceded, he has put matters “pretty fairly” in this report. I would describe it as a balanced and reasoned assessment of Ms Lim’s situation.
Dr Gupta accepted most of what A/Prof Miniter said as reasonable. He did not agree with A/Prof Miniter’s views on causation, which, as I have noted, may be put to one side.
Dr Gupta opined that any treatment needs to be tailored to a patient’s clinical status and capacity. It is obvious to start with less aggressive measures, which he described. That is exactly what occurred in the applicant’s case. Her work activities were reduced, she had physiotherapy and cortisone injections, and her condition failed to improve. That is when surgery became “the most reasonable and necessary” option.
Dr Gupta agreed that statistics demonstrate poorer outcomes of rotator cuff surgery in the workers’ compensation population. I accept his opinion that this does not mean that a person who sustains an injury to her rotator cuff as a result of a workplace injury should not be offered treatment that would be offered to another person with the same condition.
As Dr Gupta noted, the matters to be taken into account in selecting “the right patient” include whether she has failed appropriate non-operative treatment; continues to be clinically disabled; and has objective signs, such as MRI scans, showing pathology. If that is the case, then surgery is the most right, reasonable and necessary option.
The applicant meets these criteria, and there is no reason to conclude that she will have a poor outcome of surgery, just because she is part of the “workers’ compensation population”. In any event, as Roche DP held in Diab, a poor outcome does not necessarily mean the treatment was not reasonably necessary. Surgical treatment, in particular, always carries with it the risk of a less than ideal result.
As to the acceptance by medical experts of the treatment as being appropriate and likely to be effective, Drs Gupta and Ridhalgh accepted that the proposed surgery was required. Dr Ridhalgh opined that it was required “now”. I accept that there is confusion in his reports between the applicant’s left and right shoulders. However, he has clearly stated that repair in the acute phase is likely to give Ms Lim the best result. He has referred to the reasons why that is the case.

I do not understand A/Prof Miniter to take the position that the treatment is not appropriate and likely to be effective, in some cases, but rather that it is not likely to be effective in the applicant’s case.
I have found A/Prof Miniter’s reports somewhat contradictory, perhaps because of his opinion on causation of the applicant’s injury. In his first report, he did not recommend surgery, but opined that if the applicant felt she needed surgery, she should have an updated MRI arthrogram. He was “not certain” he could support surgery, as it is largely determined by the symptoms. In his second report, he discussed the findings of the MRI scan dated 14 October 2020. The findings “bode poorly for the long term”. While surgery should be avoided if possible, the applicant would almost certainly eventually come to surgery. A/Prof Miniter feared a poor outcome.
Finally, A/Prof Miniter opined that surgery should be avoided and the matter kept under observation, which appears to be at odds with his previously expressed opinion that surgery was virtually inevitable. As I have noted, he has not recommended any alternative treatment, apart from what may be described as “wait and see”.
A/Prof Miniter referred to Dr Ridhalgh’s “colourful language” in describing it as defeatist and cruel to leave the applicant’s shoulder as it is. It may be somewhat emotive language. However, if it is virtually inevitable that Ms Lim will eventually come to surgery, and if her treating specialist and Dr Ridhalgh are of the opinion that she requires it now, I do not accept that she should be denied it because the outcome is uncertain (which is always the case in any surgical procedure), and because it has a statistically poorer outcome in the workers’ compensation context.
Ms Lim is not a statistic. Dr Gupta has carefully considered her position and is of the opinion that she is an appropriate candidate for the proposed surgery. He is supported by Dr Ridhalgh, and even to some extent by Dr Kafetaris. Dr Kafetaris opined that referral to an orthopaedic surgeon was reasonable but was sceptical that surgery would benefit the applicant. He found no evidence of significant yellow flags or inorganic component. His report was provided almost two years ago, and the applicant’s condition has deteriorated in that time.
I am persuaded by the evidence of, in particular, Dr Gupta, and Dr Ridhalgh that the treatment proposed by Dr Gupta is reasonably necessary as a result of injury sustained by the applicant on 6 May 2019, arising out of or in the course of her employment with the respondent. I prefer this evidence to that of A/Prof Miniter, for the reasons provided.
The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 349

15 September 2021