Macca v Disability Services Australia Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Macca v Disability Services Australia Ltd [2022] NSWPIC 730
APPLICANT:	Jun Macca
RESPONDENT:	Disability Services Australia Limited
Member:	Gaius Whiffin
DATE OF DECISION:	19 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injuries to left shoulder; claim for proposed future treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); left shoulder subacromial decompression; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence and factual material; respondent concedes that applicant sustained a personal injury to his left shoulder on 18 May 2020 but denies that he sustained a ‘disease’ injury to his left shoulder in the course of his employment with the respondent as a result of the nature and conditions of that employment; consideration of whether the ‘disease’ injury was sustained in the course of employment and to which employment was the main contracting factor; consideration of whether the proposed surgery is reasonably necessary medical treatment as a result of the injury on 18 May 2020 and/or any ‘disease’ injury found; AV v AW, Rose v Health Commission (NSW), Diab v NRMA Limited and Murphy v Allity Management Services Pty Limited considered; Held – the applicant sustained a ‘disease’ injury to his left shoulder in the course of his employment with the respondent pursuant to section 4(b)(i) of the 1987 Act, being the contraction of a disease to which his employment was the main contributing factor; pursuant to section 15(1)(a)(i) of the 1987 Act the injury will be deemed to have occurred on 17 July 2021; the surgery proposed for the applicant (left shoulder subacromial decompression) is reasonably necessary medical treatment as a result of the injuries to the applicant's left shoulder on 18 May 2020 and 17 July 2021 (deemed); the respondent is to pay for the costs of and incidental to the surgery (left shoulder subacromial decompression) proposed for the applicant by Dr Viswanathan in his 8 April 2021 report, pursuant to section 60 of the 1987 Act.
determinations made:	1. The applicant sustained a personal injury to his left shoulder on 18 May 2020 arising out of or in the course of his employment with the respondent, pursuant to s 4(a) of the Workers Compensation Act 1987 (the Act). His employment with the respondent was a substantial contributing factor to that injury, in accordance with s 9A of the Act. 2. The applicant sustained a ‘disease’ injury to his left shoulder in the course of his employment with the respondent pursuant to s 4(b)(i) of the Act, being the contraction of a disease to which his employment was the main contributing factor. Pursuant to s 15(1)(a)(i) of the Act, the injury will be deemed to have occurred on 17 July 2021. 3. The surgery proposed for the applicant by Dr Viswanathan (left shoulder subacromial decompression) as referred to in his 8 April 2021 report, is reasonably necessary medical treatment as a result of the injuries to the applicant's left shoulder on 18 May 2020 and 17 July 2021 (deemed).
orders made:	1. The Application to Resolve a Dispute is amended with the consent of the respondent, as follows: (a) the pleadings under Injury Details are confirmed as alleging both a personal injury on 18 May 2020, and a ‘disease‘ injury deemed to have occurred on 17 July 2021 and alleged to be due to the nature and conditions of the applicant’s employment with the respondent; (b) any claim for injury to the applicant’s cervical spine is withdrawn; (c) the claim for weekly benefits compensation is withdrawn, and (d) the claim for past medical and treatment expenses pursuant to s 60 of the Act is withdrawn. 2. The respondent is to pay for the costs of and incidental to the surgery (left shoulder subacromial decompression) proposed for the applicant by Dr Viswanathan in his 8 April 2021 report, pursuant to s 60 of the Act.

STATEMENT OF REASONS

BACKGROUND

Jun Macca (the applicant) is 52-years-old. He was employed by Disability Services Australia Limited (the respondent) from 2013, but has not now worked for it since 17 July 2021. He was employed by it as a forklift driver.
He injured his left shoulder whilst performing these employment duties on 18 May 2020. The respondent has accepted liability for this injury, and has made various workers compensation payments to him in the past in this regard.
He also alleges that the general nature and conditions of his employment as a forklift driver over the years of his employment with the respondent led to him developing a left shoulder condition as early as 2017, which then progressed until 17 July 2021 (when he last worked for the respondent). The respondent has denied liability for this ‘disease’ injury.
The applicant’s treating orthopaedic surgeon, Dr Viswanathan, has recommended to him that he undergo surgery to treat his left shoulder. On 8 April 2021, the doctor recommended that he undergo a subacromial decompression. The doctor sought that the respondent approve the costs involved in this surgery.
However, the respondent issued notices denying liability for the costs involved in the surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 3 May 2020 [sic – should be 2021] and 23 June 2021. It then denied liability for any ongoing medical or treatment expenses of the applicant’s as well as for any ongoing incapacity of the applicant’s, by way of a notice dated 29 July 2021. It reviewed the 29 July 2021 notice, but maintained its denial of liability in a further dispute notice dated 17 August 2021. Finally, it specifically denied liability for any ‘disease’ injury (see paragraph 3 above) of the applicant’s due to the nature and conditions of his employment with the respondent by way of a further notice dated 5 July 2022.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Viswanathan in accordance with s 60 of the Workers Compensation Act 1987 (1987 Act).
The ARD also initially claimed orders for weekly benefits compensation and past medical and treatment expenses already incurred by the applicant. It also alleged that the applicant had sustained injuries to his cervical spine. All these claims were withdrawn by the applicant at the conciliation/arbitration on 18 November 2022. On that date, the applicant also confirmed that he was alleging that his need for the surgery proposed by Dr Viswanathan arose out of the injury which he sustained on 18 May 2020 and/or the ‘disease’ injury which he allegedly sustained as a result of the general nature and conditions of employment. The respondent confirmed it was able to meet this allegation.
Therefore, on 18 November 2022, the ARD was amended by consent in this regard. The only dispute left for determination by the Commission was the dispute in relation to the surgery proposed by Dr Viswanathan.

ISSUES FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) whether the surgery proposed by Dr Viswanathan (left shoulder subacromial decompression) as referred to in his 8 April 2021 report, is reasonably necessary medical treatment as a result of the injury to the applicant's left shoulder on 18 May 2020 and/or a ‘disease’ injury to the applicant’s left shoulder due to the nature and conditions of his employment with the respondent.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A conciliation conference was held in the dispute on 18 November 2022. On that occasion, Mr Paul Stockley of counsel appeared for the applicant, instructed by Mr Gall; and Mr Dewashish Adhikary of counsel appeared for the respondent, instructed by Ms Singer. The applicant was present, as was a representative from the respondent’s insurer, Ms Kruse.
As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
I made the ARD amendments (see paragraph 7 above). I noted that the respondent did not deny that an injury had occurred on 18 May 2020, but alleged that the applicant had recovered from that injury. I also noted that while the respondent did not concede that a ‘disease’ injury had occurred due to the nature and conditions of the applicant’s employment with it, it withdrew any allegation of delay in the making of a claim for that ‘disease’ injury by the applicant.
I dealt with the following preliminary issues:
(a) I admitted into evidence, with the consent of the applicant, the Applications to Admit Late Documents which had been lodged by the respondent, dated 14 September 2022 and 14 November 2022, and
(b) I withdrew from the respondent’s Reply (Reply) the reports prepared by Dr Keller dated 7 September 2020, 30 March 2021, 12 April 2021, and 20 April 2021 – on the basis that I found that the respondent’s reliance upon reports from both Dr Keller and Associate Professor Miniter infringed cl 44 of the Workers Compensation Regulation 2016, as those reports were all ‘forensic medical reports’ within the meaning of that clause, and as the applicant had not been treated by more than one specialist medical practitioner with different qualifications for cl 44(3) to be applicable – I therefore requested that the respondent choose between relying upon Dr Keller’s reports and relying upon Associate Professor Miniter’s reports, and the respondent chose to rely upon Associate Professor Miniter’s reports.

EVIDENCE

Documentary evidence

The following documents were therefore in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the Reply and attached documents;
(c)    the respondent’s Application to Admit Late Documents (respondent’s first AALD) lodged 14 September 2022 and attached documents, and
(d)    the respondent’s Application to Admit Late Documents (respondent’s second AALD) lodged 14 November 2022 and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant’s statement dated 19 January 2022 is found at page 1 of the ARD.
The applicant was born in the Philippines and moved to Australia in 1988. He obtained employment as a cleaner, then in a picture framing facility, then in a warehouse, and then in the printing industry (where he occasionally operated forklifts).
He had no problems with his left shoulder prior to commencing his employment with the respondent.
He began his employment with the respondent in 2013 as a forklift driver. He says that his employment with the respondent was different to his previous roles as there was a “very high volume of work”. He was regularly required to work through his breaks. He says:
“The forklift driving was the main part of my work and involved loading and unloading pallets of goods from trucks and organising them in the warehouse. The forklift had a steering wheel to the left of centre with levers on the right-hand side for operating other parts of the machinery. Forklift steering was then totally performed with my left arm, with my left shoulder doing most of the work. The steering wheel of the forklift that I used was stiff and challenging to operate.”
He says that operating the steering wheel of the forklift “caused quite a lot of strain to my shoulder”. Upon reviewing the clinical notes from his general practitioner (Dr De Leon), he remembers complaining about left shoulder pain to the doctor on 22 September 2014, 5 September 2015, and 24 April 2017.
In late 2017, Dr De Leon referred him for radiological tests and injections into his left shoulder.
He says that the pain in his left shoulder worsened in 2018, and he therefore reported that pain to his supervisor, Sorin. As a result, his forklift was serviced, which:
“significantly helped with the steering moving forward. However, I was still performing the same action and the discomfort didn’t really go away it was just slightly easier.”
He understands that his left shoulder injury was recorded with the respondent’s insurer at this time. He had a number of sessions of physiotherapy, but otherwise continued to work with the respondent.
He mentions a further problem that he experienced with forklift driving, which involved the surface of the ground on which he was driving (especially potholes and humps) causing the steering wheel of the forklift to jerk suddenly and violently while he was holding it. He attaches to his statement some photographs of the relevant ground surface.
In 2019, as a result of staff shortage, he advises:
“There were very few people working on site and the forklift operators were basically just me and my partner on the job Nick doing all of the forklift work on site. This further increased my workload. I was working approximately 8-hour days plus regular unpaid overtime of 30-45 minutes several times a week in order to complete the unloading of the trucks. I worked very hard and was very committed to getting the work done well even though the conditions were difficult.”
Then, on 18 May 2020, he was operating the forklift when one of its wheels hit a pothole while he was holding its steering wheel. He felt a “particularly awkward jolt” and “pain like electricity running up my arm to the shoulder”. He initially attempted to continue to work over the next few days, but then reported his pain to his supervisor, and consulted with Dr De Leon (on 27 May 2020).
He was certified as unfit for work, and he was referred for radiological tests, injections, and physiotherapy.
He returned to work on 19 June 2020, working restricted hours. He continued however to have ongoing left shoulder pain while driving the forklift. He resumed full-time work towards the end of 2020, but was only allowed to operate the forklift for no more than 45 minutes per day. Then, by May 2021, he was no longer performing any forklift driving, but only supervising and packaging. These suitable employment duties were eventually withdrawn from him on 17 July 2021, and he has not worked since. He says that he is no longer able to work as a forklift driver or to perform work that requires heavy use of his left arm, but that he would be happy to resume suitably light employment duties.
He continues to take medication for his left shoulder condition. He continues to experience pain in the shoulder while both moving and resting, which sometimes causes sleep disturbance. He has a limited range of movement in his left arm, which affects his ability to lift objects and to perform household tasks. He can only drive short distances, and he sometimes has difficulty getting dressed.
He was referred to an orthopaedic surgeon (Dr Viswanathan) who has recommended left shoulder surgery, and he is eager to proceed with that surgery.
The applicant also relies upon a 10 December 2021 statement from Bidhan Shrestha (Bidhan), which is found at page 12 of the ARD.
Bidhan worked for the respondent from 2015 to 2019. He was employed as a production assistant, but visited the warehouse where the applicant worked four or five times per day. He says that the applicant worked long hours and was often late to morning teas or lunches that he had arranged with the applicant, because of the applicant’s work commitments.
Bidhan says:
“Jun was an extremely hard worker. When I started there were two people working in the warehouse and one left quite early on. For a long period especially in 2018 and 2019, Jun Macca was the only person who was driving forklifts in the warehouse. There were 200-300 employees in the company, and it was a very, very busy warehouse.
The job of driving the forklift appeared to me to be very physically demanding, although I never drove forklifts myself. I recall forklifts were driven in the same way with one hand on the steering wheel and the other on the tools operating the forklift prongs. These were driven in this manner all the time, even when the prongs were not in operation, as it was just how the forklifts were set up.”
Bidhan recalls the applicant complaining to him about shoulder pain in 2017 or 2018. He also recalls Sorin being aware of the applicant’s pain and arranging for maintenance to be performed upon the forklift. He further recalls the applicant taking sick days, leaving work early on occasions, and attending physiotherapy, because of his shoulder pain.
Bidhan also confirms that the surface of the warehouse had “irregularities”, which he noticed as he was required to move trolleys across that surface.
The ARD also contains (page 14) the applicant’s notification of injury form in relation to his left shoulder injury on 18 May 2020. The description of the injury is consistent with the description provided in the applicant’s statement.
There is other documentation in the ARD which is now of limited relevance (following the amendments which were made to it at the conciliation/arbitration) to the sole issue in dispute that I need to determine.
In relation to the medical evidence, the applicant relies upon two reports from Dr Viswanathan.
In the report dated 8 April 2021 (page 73 of the ARD), the doctor refers to the applicant being a forklift driver, who injured his left shoulder in 2018 and 2020. He refers to the applicant’s radiological tests (“MRI’s and X-rays”) showing subacromial bursitis, AC joint inflammation, and tendinosis of his supraspinatus tendon.
The doctor finds positive impingement signs and tenderness over his AC joint. He notes a history of a cortisone injection that only relieved the applicant’s pain for two days. He considers that the applicant requires a subacromial decompression, considering that the applicant’s left shoulder condition had not settled following physiotherapy, medication, and injections.
There is a further report from Dr Viswanathan dated 29 November 2021 at page 79 of the ARD.
The doctor confirms his diagnosis of subacromial impingement in the applicant’s left shoulder, for which he wants to perform a subacromial decompression, which he considers to be necessary surgery considering that the applicant still has left shoulder symptoms despite “a significant amount of non-operative intervention”. Without surgery, the doctor’s prognosis is that the applicant “will continue in this fashion since he has had symptoms for over two years, which have not settled on their own”.
It seems clear to me that the doctor is then asked to review opinions expressed by Associate Professor Miniter, and he opines:
“I would not agree with Associate Professor _____ contention that proposed surgery is not reasonably necessary because Jun has not settled despite two years’ worth of anti-inflammatories and physio. My belief is that he injured himself twice at work and sustained this problem. Prior to this, his anatomy was very similar and he had no issues prior to his injury.”
The doctor also opines:
“I believe Mr Macca’s work has contributed to his injuries and a description of injury in 2020 involved him jolting his right shoulder when his steering wheel spin rapidly and hit his left arm and since then he has had at least a year of physiotherapy and steroid injections which temporarily helped but continued to go back to his previous work and his recovery has stalled, so I suspect his work is a substantial contributor to his activity.
I do not think it is an exacerbation or deterioration of a disease process since this is all attributable to one injury. I think the accident is the main contributing factor to his ongoing incapacity.”

The applicant’s solicitors qualified Dr Endrey-Walder, and his report dated 22 July 2021, can be found at page 81 of the ARD.
The doctor takes a similar history from the applicant regarding his employment activities to the history provided by the applicant’s statement, especially in relation to “most of the steering of his forklift would be performed with his left upper limb”. The doctor then notes his complaint to the respondent about the stiff steering on his forklift in 2018, and he also notes “a more acute” injury to the left shoulder on 18 May 2020.
The history taken by the doctor of the applicant’s work activities and treatment since 18 May 2020 is also consistent with the history in the applicant’s statement. The doctor mentions various radiological investigations, ultrasound-guided injections, and around 15 sessions of physiotherapy treatment, before Dr Viswanathan’s recommended surgical intervention.
The doctor reviews the applicant’s radiological investigations (an ultrasound on 30 May 2020 showing subacromial bursitis and supraspinatus tendinosis, without an obvious tear; and a MRI scan on 23 July 2020 again identifying tendinopathy of the supraspinatus tendon without evidence of a full thickness tear), and he notes the applicant’s restrictions involving sleep disturbance, regular shoulder pain when waking, limited range of movement, interference with household activities, and interference with driving.
On examination, the doctor relevantly finds:
(a)    “his left arm was ½ cm smaller in circumference than the right, the forearms of equal calibre”;
(b)    left shoulder restrictions with abduction, adduction, flexion, extension, external rotation, and internal rotation, and
(c)    grip force with the left hand at 20kg compared with 42kg with the right hand.
The doctor concludes:
“As a consequence of the nature and conditions of his daily work, practically fulltime forklift driving over a period of about five years, the steering wheel operated with the left upper limb, Mr. Macca began experiencing significant difficulties on account of left arm pain around 2018.
Test driving by his boss confirmed the stiffness of the steering, the machine was serviced and there was some improvement in the condition of the steering.
He still continued to struggle but managed until the acute jarring he suffered in the accident of May last year.
Radiological investigations had highlighted tendinosis of the supraspinatus tendon, and while there is no radiological evidence of a tear of the rotator cuff, this man had clearly displayed symptoms of impingement with bunching at the sub-acromial bursa at only 45 degrees abduction.”
The doctor then refers to Dr Viswanathan’s recommendation that the applicant undergo a subacromial decompression as a “most reasonable proposition given the chronicity of your clients ongoing symptoms and especially the very marked restriction in the range of motion of the shoulder, attesting to failure of the conservative regime”. The doctor advises that without surgery, the applicant would never again be able to return to any physically demanding work.
The doctor is also asked to review opinions expressed by Associate Professor Miniter, and criticises the adequacy of that doctor’s examination of the applicant on the basis that his examination findings were very different to that doctor’s, despite the examinations only taking place two months apart. The doctor also counters Associate Professor Miniter’s opinions as follows:
“It is unrealistic to refer to age-related rotator cuff tendinosis without acknowledging the nature and conditions of this man’s daily work in his job at Disability Services Australia.”
Finally, the doctor opines:
“I consider the acute injury of 18.5.2020, superimposed on some tendinopathy secondary to the nature and conditions of his years of work as a Forklift Driver, to be the main contributing factor to his subsequent debility and his inability, to this very day, to return to his fulltime forklift driving.”
The evidence in the ARD from the applicant’s general practitioner (Dr De Leon) includes:
(a)    a referral to Dr Viswanathan dated 29 March 2021 (page 72) – in which the general practitioner provides a brief history of the applicant’s 18 May 2020 injury and treatment for it (medication, physiotherapy, gym program, and a steroid injection) and then requests “an opinion for further management” as the applicant’s “improvement has stalled”.
(b)    a referral to Dr Biggs dated 29 July 2021 (page 74) – in which the general practitioner provides the same history that he provided to Dr Viswanathan but updates it to include Dr Viswanathan’s surgery recommendation as well as the applicant being advised that the respondent had no work for him after 19 July 2021 – the general practitioner advises that the applicant had no improvement with his gym program, could still not “work above chest height”, suffered from severe pain at night, and had pain while just performing simple household chores;
(c)    a certificate of capacity dated 29 July 2021 (page 76) – in which the general practitioner certifies the applicant as having capacity for full-time work but with lifting restrictions, driving restrictions, pushing/pulling restrictions, and restrictions performing work over chest height with his left arm, and
(d)    the general practitioner’s clinical notes from page 90 – I will refer to these notes more specifically if directed to aspects of them during the parties’ submissions, but I do note that the entries in the notes go back to 21 July 2004 and I can find the following entries regarding left shoulder issues (prior to 27 May 2020, when the applicant reported his 18 May 2020 injury):
(i)22 September 2014 – pain in both shoulders – cause not recorded;
(ii)24 November 2014 – strain in both shoulders – after painting and cleaning bathroom;
(iii)8 September 2015 – left shoulder pain – cause not recorded;
(iv)13 September 2017 (with follow ups on 15 September 2017 and 27 November 2017) – left shoulder pain – cause not recorded;
(v)22 January 2018 – left shoulder pain – aggravated by driving a forklift, and
(vi)9 May 2018 (with a follow-up on 7 August 2018) – left shoulder pain – condition started in June 2017 due to forklift driving.

Respondent’s evidence

Much of the evidence relied upon by the respondent is now of limited relevance (following the amendments which were made to the ARD at the conciliation/arbitration) to the sole issue in dispute that I need to determine. The respondent for example has put in evidence a substantial amount of financial, vocational and other documentation (including its letter to the applicant dated 19 July 2021 withdrawing his suitable employment duties) relevant to the applicant’s (now withdrawn) claim for weekly benefits compensation.
I also find the respondent’s internal emails found at pages 108, 111, 118, 119 of the Reply to be of no relevance to the dispute that I need to determine, especially as they have not been adopted as part of a signed statement, and as the respondent does not dispute the applicant’s left shoulder injury on 18 May 2020. The respondent’s reliance upon documentation regarding back injuries sustained by the applicant on 3 August 2004 and 1 October 2004 also seems to me to lack relevance to the dispute that I need to determine.
The respondent has however included documentation in its Reply (from page 173) regarding the applicant’s notification (see paragraph 24 above) in 2018 (incident report completed by Ken Martin on 2 February 2018) of his left shoulder problems from using a forklift which was “not operating smoothly”. The incident report refers to the applicant as jarring his shoulder and needing physiotherapy. The applicant was followed up by the respondent’s insurer after the incident report, and the applicant apparently advised that he was not intending to make a formal compensation claim. The insurer then confirmed this with him by letter dated 13 February 2018.
The respondent largely relies upon the opinions of Associate Professor Miniter in denying liability for the applicant’s proposed surgery with Dr Viswanathan. There are four reports in this regard contained in the Reply.
The first report is dated 27 May 2021 and found at page 46.
The doctor takes a history of the applicant complaining to the respondent in 2018 that the steering wheel of the forklift that he was operating was too stiff. He was placed on suitable duties employment and had some physiotherapy treatment, but his left shoulder and upper arm “never returned to normal”. Then, on 18 May 2020, he drove the forklift over a bump and jarred his left arm in what the doctor describes as “a fairly minor process”. He had about four weeks off work, and was then placed on suitable duties again. He had a short course of physiotherapy which offered him little benefit, as well as a subacromial injection which produced no lasting relief. He had a MRI scan which the doctor found demonstrated age-related rotator cuff tendinosis and some osteoarthritis of the AC joint.
The applicant’s complaints were focused on the upper aspect of his left shoulder, towards the root of his neck. He had some alteration in sensation down his arm from time to time, as well as discomfort at night. He took medication.
On examination, the doctor finds no evidence of shoulder wasting, entirely normal neck movement, no muscular weakness in the hand, no sensory changes of consistency, and no features of impingement. The doctor did find slight restriction in range of movement of the shoulder.
The doctor opines:
“He does have some discomfort in his neck but these are age-related changes and are not related to the workplace. His shoulder pathology is fortunately minor and is, once again, not related to the workplace. One is concerned at his pain-related behaviour today and his insistence that he cannot perform even minor activities in the workplace.”
The doctor finds no indication to proceed to surgical treatment, advising:
“I would strongly advise against any suggestion of surgery for the reasons that | have given above. | refer you in particular to the MRI scan findings and to the overall opinion amongst the orthopaedic community that isolated arthroscopic acromioplasty has no place in the management of shoulder discomfort. This is especially so when the shoulder itself is not clinically involved.”
Curiously, the doctor also concedes:
“In my opinion, the matter as it currently stands is not related to the workplace. He has not recovered following the very minor episode in May 2020 but this is not an indication of a work injury.”
The doctor’s second report is dated 8 July 2021 and found at page 52 of the Reply. This report largely provides opinions regarding the applicant’s capacity for work, the doctor advising:
“You will note that in the correspondence that | sent you, | was of the opinion that this gentleman’s pain was above the shoulder joint itself. It had no clear explanation. Perhaps it relates to early osteoarthritic disease of the neck….In any event, there was no evidence of shoulder wasting and you will note that he had an effortless range of motion when he put on his clothing at the end of the consultation…. In short, | could see no evidence of significant pathology and | felt that he was fit to return to his normal duties.”
The doctor also seems to contradict the opinion referred to at paragraph 66 above, by advising that he could find no evidence of “ongoing effects due to a work injury”.
The doctor examines the applicant again on 6 May 2022 and prepares a report dated 24 May 2022 (page 55 of the Reply).
On examination, the doctor finds no evidence of muscle wasting at the left shoulder, but a particularly unusual movement pattern, which he believes to be the result of an “abnormal behavioural pattern”. He finds restrictions with forward elevation of the left shoulder, abduction, and internal rotation.
The doctor diagnoses:
“The diagnosis is of pain in the left upper extremity and root of the neck on the left hand side. There is degenerative change in the neck and there is a degree of bursitis identified on the ultrasound. He has a number of abnormal physical features and if he simply had bursitis associated with impingement, then he should not have the dramatic restriction in range of motion that is evident today without clear evidence of capsulitis.”
He then opines that any incapacity of the applicant’s is not related to any work injury on the basis that any work injury should have settled as it was only a minor episode “when he drove over a bump”. He concludes:
“I regard this matter as largely non-genuine. There is no evidence of a significant injury and I do not believe that it is in his interest to undergo a shoulder decompression procedure as recommended by Dr Viswanathan.”
The doctor’s final report is dated 20 June 2022 and found at page 60 of the Reply. The doctor answers a number of questions put to him by the solicitors for the respondent.
He says that he is not aware of any documentation “to support the concept that nature and conditions of employment are relevant in this particular claim”. He describes the applicant’s work as “driving a forklift and so on” and opines that it is highly unlikely to be associated with the development of shoulder pathology, based upon “medical literature” as well as the applicant’s history and his 2020 MRI scan which does not show a full thickness rotator cuff lesion. He does not however quote from or specifically reference any “medical literature”.
He maintains that there is no history of the applicant suffering a significant injury and that the 2020 MRI findings are not those of trauma.
In relation to the surgery recommended by Dr Viswanathan, the doctor opines:
“I have reviewed the report from Dr Viswanathan dated 29 November 2021. You may be aware that isolated subacromial decompression has not been shown to have positive benefit in the recent orthopaedic literature and, except in unusual circumstances is not recommended at this stage. I do not share the surgeons optimism that this procedure will allow return to normal duties.”
Again however, the doctor does not quote from or specifically reference any “recent orthopaedic literature”.
The doctor finally refers to Dr Endrey-Walder’s criticism of his examination of the applicant (see paragraph 53 above) and asserts strongly that he did examine the applicant, and to suggest otherwise is to suggest that he is dishonest.
The Reply also contains a number of certificates of capacity from the applicant’s general practitioner, Dr De Leon (from page 64). The certificates dated 21 April 2021 and 6 May 2021 refer to the applicant as awaiting approval for surgery, but subsequent certificates do not mention the proposed surgery, and only concentrate on the level of the applicant’s incapacity.
The respondent also relies upon a certificate completed by Dr De Leon on 6 December 2021 (at page 20 of the respondent’s first AALD), regarding an income protection claim submitted by the applicant to Hannover Re. In this certificate, the general practitioner:
(a)    advises that he has treated the applicant for 21 years;
(b)    outlines his objective clinical findings relating to the applicant’s left shoulder as being restrictions with elevation, adduction, abduction, internal rotation, external rotation, and back extension;
(c)    confirms the applicant’s diagnosis as left shoulder supraspinatus tendinopathy with bursitis, caused by “injury at work”;
(d)    confirms that the applicant had previously complained to him about a similar or related condition on 14 September 2017;
(e)    advises that the applicant has pending surgery – and that his future treatment plan for the applicant includes surgery “if his workers compensation appeal is successful”;
(f)    advises that there has been minimal improvement in the applicant’s condition with physiotherapy, and
(g)    opines that the applicant’s future work capacity will depend upon whether he undergoes surgery.
Finally, the respondent relies upon the applicant’s clinical file that it obtained from Dr Viswanathan (from page 93 of the Reply). I cannot see that this file includes any relevant information that I have not already considered.

Applicant’s submissions

The applicant’s submissions have been recorded and I will not repeat them in detail.
The applicant submits that his statement contains a detailed and careful description of his work duties as a forklift operator, as well as a description of how the operation of the forklift was affected by the ground surface at the respondent’s premises. The statement provides the “factual underpinning” for the applicant’s allegation that he was injured due to the nature and conditions of his employment, and it has not been challenged by the respondent. It also contains a well recorded description of the onset of his left shoulder symptoms from 2017 and 2018.
Dr Endrey-Walder also provides a detailed reference to the nature of the applicant’s work when opining as to the causative nexus between the nature and conditions of that work and the applicant’s left shoulder condition.
In relation to Associate Professor Miniter’s opinions, the applicant submits that the doctor does not explain his views that any left shoulder symptoms of the applicant’s from any work injury of his should have abated, and that the applicant’s ongoing symptoms are an expression of an underlying condition (especially as to why the symptoms from the injury have abated at the same rate as the increase in symptoms from the underlying condition).
The applicant also specifically points out the following deficiencies in the doctor’s reports:
(a)    he refers to having been provided with factual investigations and a report from Dr Smith, but these documents are not in evidence – it is therefore not known what assumptions the doctor made based upon those documents;
(b)    he provides limited commentary regarding the applicant’s radiology, and
(c)    his reference to “medical literature” and “recent orthopaedic literature” without any further details or summaries is unhelpful – the applicant actually submits that it is an “unpersuasive piece of rhetorical flurry from the doctor that takes the consideration no further”.
In relation to Dr Viswanathan’s reports, the applicant specifically points out:
(a)    the positive impingement signs that he finds on examination of the applicant;
(b)    his recommendation for a not particularly invasive surgical intervention (being day surgery) in the form of a subacromial decompression, and
(c)    his confirmation of the location of the applicant’s condition based upon his diagnosis of subacromial impingement – for which a diagnostic injection into his subacromial space did not relieve his pain.
According to both Dr Viswanathan and Dr Endrey-Walder, there are symptoms of left shoulder impingement both on physical examination and on the radiological evidence, and it is to this impingement that the proposed surgery recommended by Dr Viswanathan is directed. Associate Professor Miniter has in contrast not considered the applicant’s radiology adequately, especially the findings of tendinosis.

Respondent’s submissions

The respondent’s submissions have also been recorded and I will not repeat them in detail.

The respondent relies upon the opinions expressed by Associate Professor Miniter, and submits that despite the applicant’s criticisms in its submissions regarding those opinions, the evidentiary basis for the opinions is well outlined by the doctor, and based upon his specialised knowledge. Those opinions should be preferred to the opinions expressed by Drs Viswanathan and Endrey-Walder.
The respondent specifically points out the following aspects in Associate Professor Miniter’s reports:
(a)    the history that he took from the applicant of a fairly minor incident on 18 May 2020;
(b)    his clinical findings of no impingement in the applicant’s left shoulder;
(c)    his inability to find any significant pathology in the applicant’s left shoulder, and
(d)    his opinion that the applicant’s 2020 MRI scan only showed age-related tendinopathy, not caused by the workplace.

The respondent also submits that the applicant had left shoulder issues unrelated to work, and it specifically refers to the two entries in the applicant’s general practitioner’s clinical notes in 2014, which are referred to at paragraph 55(d) above.
The respondent finally submits that even if it could be shown that the applicant had signs of left shoulder impingement, that is not indicative of his need for the surgery proposed by Dr Viswanathan. It again relies upon the opinions of Associate Professor Miniter in this regard (see paragraphs 65 and 76 above).

FINDINGS AND REASONS

Whether the surgery proposed by Dr Viswanathan (left shoulder subacromial decompression) as referred to in his 8 April 2021 report, is reasonably necessary medical treatment as a result of the injury to the applicant's left shoulder on 18 May 2020 and/or a ‘disease’ injury to the applicant’s left shoulder due to the nature and conditions of his employment with the respondent

I am not satisfied that I can accept the opinions expressed by Associate Professor Miniter. There are issues with his history taking, his examination findings, and his review of the radiological evidence.
In relation to the 18 May 2020 incident, he describes (see paragraph 61 above) the incident as a minor one, following the applicant jarring his left arm after driving a forklift over a bump. The applicant describes in his statement (see paragraph 27 above) a ”particularly awkward jolt” and “pain like electricity running up my arm and shoulder”. He eventually needed around three weeks off work.
In the absence of any real evidence to suggest otherwise (and considering the corroboration provided by Bidhan’s statement to many of the matters mentioned in the applicant’s statement), I accept the evidence of the applicant as outlined in his statement. I find the statement evidence to be inconsistent with the history taken by Associate Professor Miniter.
Importantly, Dr Endrey-Walder’s history taking is more consistent (than Associate Professor Miniter’s) with the applicant’s statement, as he describes (see paragraph 47 above) the 18 May 2020 incident as an “acute” injury.
Similarly, I accept the applicant’s submissions that both his statement and the history taken by Dr Endrey-Walder are consistent in their description of the nature and conditions of the applicant’s employment, and especially the stress placed on his left shoulder by operating the stiff steering wheel of his forklift solely with his left arm. Associate Professor Miniter does not obtain any history that the applicant needed to use his left arm only to operate the forklift, only obtaining a history (see paragraph 61 above) that the steering wheel of the forklift was stiff.
In relation to his examination findings, Associate Professor Miniter only finds slight restriction of movement of the left shoulder (see paragraph 63 above) when he first examines the applicant, and he then discounts the restrictions found on his second examination of the applicant (see paragraph 70 above) as due to an “abnormal behavioural pattern”.
The doctor’s findings are in stark contrast with:
(a)    the significant objective clinical findings outlined by Dr De Leon in his certificate to Hannover Re – see paragraph 79(b) above;
(b)    the positive impingement signs described in both of Dr Viswanathan’s reports, and
(c)    Dr Endrey-Walder’s examination findings (see paragraph 50 above) – as a result of which the doctor questions the adequacy of the examinations performed by Associate Professor Miniter.
I also accept the applicant’s submissions regarding Associate Professor Miniter’s inadequate review of the applicant’s radiological evidence. He only refers to a MRI scan, whereas both Dr Viswanathan (see paragraph 40 above) and Dr Endrey-Walder (see paragraph 49 above) refer to more radiological tests.
Importantly in the context of the applicant’s submission that Associate Professor Miniter has failed to explain his opinion that the applicant’s symptoms from his work injury have abated at the same rate as the increase in his symptoms from an underlying condition, the contradiction in the doctor’s evidence (see paragraphs 66 and 68 above) is unexplained. The doctor opines that the applicant has not recovered from the 18 May 2020 incident, but also opines that he has no ongoing effects from a work injury.
Further, I place no weight upon Associate Professor Miniter’s assertion that his opinions are supported by “medical literature” and “recent orthopaedic literature”, as none of that literature has even been identified. I agree with the applicant that the comments of the doctor in this regard are unhelpful.
In contrast, the evidence presented as to the opinions of Dr De Leon, Dr Viswanathan, and Dr Endrey-Walder is broadly consistent.
Dr Endrey-Walder has obtained an accurate history regarding the difficulties experienced by the applicant in operating the stiff steering wheel of his forklift with solely his left arm, and his subsequent left shoulder pain. He has reviewed the applicant’s radiological evidence, and his clinical findings are similar to those of Dr De Leon and Dr Viswanathan. I accept his conclusions (see paragraphs 51 and 54 above), and as a result am satisfied that as well as suffering injury on 18 May 2020, the applicant has also sustained a ‘disease’ injury within s 4 of the 1987 Act due to the nature and conditions of his employment as a forklift driver with the respondent.
In accordance with s 4, the employment with the respondent needs to be the main contributing factor to the contraction of the disease. Although Dr Endrey-Walder does not specifically opine in this regard (instead opining that both the 18 May 2020 injury and the ‘disease’ injury were the main contributing factor to the applicant’s “subsequent debility” and incapacity), it seems clear to me that the thrust of his report (see paragraph 51 above) is that the applicant’s left shoulder pain which began in 2018 was the direct consequence of “the nature and conditions of his daily work”.
There are no other factors mentioned as contributing factors to the disease in the applicant’s statement.
Only Associate Professor Miniter provides evidence of any other contributing factor to the applicant’s disease, being age-related factors, but as stated earlier, I am not satisfied that I can accept that doctor’s opinions.
Dr Viswanathan (although not specifically referring to the nature and conditions of the applicant’s employment with the respondent) does acknowledge a history that the applicant injured his left shoulder at work in 2018. I am satisfied in the context of his report that he is referring to the injury that the applicant reported to Sorin in 2018 (when he initially complained about his left shoulder symptoms due to operating the stiff steering wheel of his forklift), and which was then the subject of an incident report by the respondent dated 2 February 2018.
Further, Dr De Leon records entries in his clinical notes on 22 January 2018, 9 May 2018, and 7 August 2018, of the applicant’s left shoulder pain due to driving a forklift since June 2017. No other contributing factor to the pain is mentioned in those notes.
The definition of ‘main contributing factor’ is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
Having considered all the medical evidence presented by the parties together with the statements from the applicant and Bidhan, I am comfortably satisfied that the nature and conditions of the applicant’s employment with the respondent (specifically his operation by his left arm only of a forklift with a stiff steering wheel) was the main contributing factor in the development of his left shoulder symptoms, which commenced while he was performing those employment activities around 2017 and 2018. In weighing up the competing causative factors referred to in AV, I cannot find any convincing evidence of non-work factors.
I do not regard the entries in the applicant’s general practitioner’s clinical notes regarding left shoulder pain being experienced by the applicant in 2014 after painting and cleaning a bathroom to be a factor to weigh up in this regard. There is no medical evidence to suggest any real lasting effect of this pain or that the applicant required any time off work for it or significant treatment for it. Indeed, the applicant continued to work for the respondent for around three years after the dates in the clinical notes before he experienced the symptoms which he experienced in 2017 and 2018, from operating a forklift with a stiff steering wheel.
The ‘disease’ injury first manifested itself in 2017, and was the subject of an incident report to the respondent dated 2 February 2018. It is not clear whether the applicant was incapacitated for work at that time, but in any case, the applicant continued to perform forklift driving duties (with restrictions at times) up until 17 July 2021. The deemed date of injury for the ‘disease’ injury in my opinion should therefore be 17 July 2021, as that was the first date of the applicant’s incapacity following the end of the period during which the nature and conditions of his employment led to the contraction of the disease.
Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,”.
The first question to therefore determine is whether the surgery proposed by Dr Viswanathan is reasonably necessary treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), where his Honour said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary 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 is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I have accepted the statement evidence of the applicant. He has been referred for physiotherapy treatment, taken medication, and undergone injections. None of this treatment has been particularly effective, and his left shoulder restrictions are still significant (see paragraph 30 above). He wishes to undergo the surgery recommended by Dr Viswanathan.
Dr Viswanathan has considered the applicant’s radiological investigations and his history of treatment that has failed to relieve his symptoms. Considering the doctor’s clinical findings of subacromial impingement in the applicant’s left shoulder, the doctor has recommended a subacromial decompression to treat those clinical findings.
Dr De Leon has been treating the applicant for 21 years and is particularly well placed to provide opinions regarding the applicant. He (in his certificate to Hannover Re) advises that there has been minimal improvement in the applicant’s condition with physiotherapy, and opines that his future work capacity will depend upon whether he undergoes surgery.
Dr Endrey-Walder (see paragraph 52 above) agrees with the recommended surgery as the most reasonable option for the applicant given the ongoing nature of his symptoms and restrictions. The applicant’s previous conservative treatment regime had failed, and without the proposed surgery, the applicant would not be fit to return to physically demanding work.
I propose to accept the opinions of these three doctors, especially as two of them are treating doctors. I do not propose to accept the opinion of Associate Professor Miniter as to whether the proposed surgery is reasonably necessary, especially in circumstances where I find that the doctor has failed to properly explain his opinion, basing it upon “the overall opinion amongst the orthopaedic community” and “recent orthopaedic literature”, without any further references or detail.
In considering the matters referred to in Rose and Diab, I find:
(a)    the surgery proposed by Dr Viswanathan is appropriate treatment for the applicant’s back symptoms – this is clearly the opinions of Drs Endrey-Walder, Viswanathan, and De Leon;
(b)    in relation to alternative treatment, the applicant has tried physiotherapy, medication, and injections, without any significant relief to his left shoulder symptoms – his attempts in this regard have been acknowledged by Drs Endrey-Walder, Viswanathan, and De Leon – the proposed surgery is now the only treatment option for the applicant mentioned by any of those doctors – according to Dr Viswanathan (see paragraph 43 above), without the surgery, the applicant’s symptoms will continue;
(c)    I accept the submission of the applicant that the proposed surgery is minimally invasive as it will be day surgery – in this context, I believe that its proposed costs will be reasonable, especially considering its potential to significantly relieve the applicant’s symptoms and restrictions;
(d)    in relation to the potential effectiveness of the proposed surgery, both Dr Endrey-Walder and Dr De Leon consider that without it, the applicant’s work capacity will continue to suffer – while Dr Viswanathan does not seem to have specifically addressed the potential effectiveness of the surgery, he has recommended it to the applicant (see paragraph 43 above) as his only option other than continuing “in this fashion”, and
(e)    considering the support given by Drs Endrey-Walder, Viswanathan, and De Leon to the proposed surgery being required, I find that it has acceptance by medical experts as being appropriate and as likely to be effective – although Associate Professor Miniter disagrees in this regard, he has not provided any appropriate particularisation of its lack of acceptance in the medical community.
I therefore determine that the proposed surgery recommended to the applicant by Dr Viswanathan is reasonably necessary treatment for his current left shoulder symptoms.

It is now necessary to consider whether there is a material contribution between the injuries to the applicant’s left shoulder (both the personal injury which occurred on 18 May 2020 and the ‘disease’ injury deemed to have occurred on 17 July 2021) and the surgery proposed by Dr Viswanathan.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49, Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
Dr Viswanathan’s opinion that the applicant’s injuries in 2018 (the ‘disease’ injury which I have found – see paragraph 108 above) and 2020 have materially contributed to the surgery that he proposes is quite clear. He provides specific opinions in this regard – see paragraphs 44 and 45 above. He specifically notes his disagreement with Associate Professor Miniter.
Dr De Leon confirms (see paragraph 79(c) above) that the applicant’s left shoulder supraspinatus tendinopathy (for which the proposed surgery is required) was caused by “injury at work”. He is well placed to provide this opinion considering the extended period of time he has treated the applicant.
Dr Endrey-Walder also is firm in his conclusions and his reasoning regarding the relationship between the applicant’s acute injury of 18 May 2020 “superimposed on” the tendinopathy secondary to the nature and conditions of the applicant’s employment, and his “subsequent debility”. He finds left shoulder impingement in this regard based upon his review of the applicant’s radiological evidence and his physical examination of the applicant. He agrees that the surgery proposed by Dr Viswanathan is necessary because of the marked restriction of range of movement of the left shoulder and the applicant’s ongoing left shoulder symptoms.
Again, the only evidence contrary to the opinions expressed by these three doctors is found in the opinions expressed by Associate Professor Miniter. I have already found that I cannot accept those opinions, and I therefore find that the applicant’s work injuries have materially contributed to his need for the surgery proposed by Dr Viswanathan, based upon the opinions of Drs Endrey-Walder, Viswanathan, and De Leon.

SUMMARY

The respondent has not disputed that the applicant sustained a personal injury to his left shoulder on 18 May 2020 arising out of or in the course of his employment with the respondent, pursuant to s 4(a) of the 1987 Act. His employment with the respondent was a substantial contributing factor to that injury, in accordance with s 9A of the 1987 Act.
I find that the applicant also sustained a ‘disease’ injury to his left shoulder in the course of his employment with the respondent pursuant to s 4(b)(i) of the 1987 Act, being the contraction of a disease to which his employment was the main contributing factor. Pursuant to s 15(1)(a)(i) of the 1987 Act, the injury will be deemed to have occurred on 17 July 2021.
Considering the whole of the medical evidence presented, I find that the surgery proposed for the applicant by Dr Viswanathan (left shoulder subacromial decompression) as referred to in his 8 April 2021 report, is reasonably necessary medical treatment as a result of the injuries to the applicant's left shoulder on 18 May 2020 and 17 July 2021 (deemed).
There will be an award for the applicant pursuant to s 60 of the 1987 Act, and the respondent will be ordered to pay for the costs of and incidental to the surgery (left shoulder subacromial decompression) proposed for the applicant by Dr Viswanathan in his 8 April 2021 report.

[2022] NSWPIC 730

19 December 2022