Mahe v Metcash Trading Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mahe v Metcash Trading Limited [2022] NSWPIC 507
APPLICANT:	Sione Mahe
RESPONDENT:	Metcash Trading Limited
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	14 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of proposed surgery to left shoulder that is left labral repair of biceps tenodesis, cyst decompression and acromioclavicular joint excision, and post-surgical rehabilitation; and general order for cost of psychological treatment, pursuant to section 60 of the Workers Compensation Act 1987; medical evidence that suggested pain in applicant’s left shoulder was due to pathology in his cervical spine; applicant had injection to cervical spine with no reduction in pain in his left shoulder; respondent’s qualified psychiatrist opined the applicant had Somatoform Chronic Pain Disorder; Facebook posts and You Tube videos relied on by respondent; Consideration of Diab v NRMA Ltd; Held – award for the applicant for the cost of proposed surgery; and general order for the cost of psychological treatment.
determinations made:	1. That the respondent is to pay, pursuant to section 60(5) of the Workers Compensation Act 1987, the cost of left labral repair of biceps tenodesis, cyst decompression and acromioclavicular joint excision, as proposed by Dr Manish Gupta, and post-surgical rehabilitation. 2. That the respondent is to pay, pursuant to section 60 of the Workers Compensation Act 1987, the cost of psychological treatment.

STATEMENT OF REASONS

BACKGROUND

The applicant, Sione Mahe (Mr Mahe) was employed by the respondent, Metcash Trading Limited (Metcash) as a fault chaser and picker.
Mr Mahe sustained an accepted injury to his left shoulder and cervical spine on
20 September 2018. It has also been accepted that he has a consequential secondary psychological condition. He has made a claim for the cost of proposed left shoulder surgery, that is labral repair of biceps tenodesis, cyst decompression and acromioclavicular joint excision. He also claims the cost of attendances on a psychologist.

On 5 November 2021, the respondent’s workers compensation insurer, Employers Mutual NSW Limited (EML), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML 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 s 60 of the Workers Compensation Act 1987” (the 1987 Act).
On 21 January 2022, EML issued the applicant with a second notice pursuant to s 78 of the 1998 Act. It disputed liability for ongoing weekly payments and medical treatment. EML maintained that the applicant did not “suffer from a partial or total incapacity” for work, or the need for reasonably necessary medical or related treatment. EML confirmed that it accepted that Mr Mahe had sustained a consequential psychological condition.
On 3 May 2022, the applicant’s solicitors requested that Insurance and Care NSW (iCare) review EML’s decisions to dispute liability, relying on the evidence of Dr Eugene Gehr, orthopaedic surgeon.
On 17 May 2022, iCare advised the applicant’s solicitors that it had reviewed EML’s decision dated 21 January 2022, and the decision was maintained. It noted that the decision dated
5 November 2021 had been superseded by that dated 21 January 2022.
The applicant lodged an Application to Resolve a Dispute (the Application) on 23 May 2022. He claimed that on 20 September 2018, he was working on a conveyor line when a sliding door became jammed. As he attempted to push the door open, he felt a click in his left shoulder, followed by an immediate onset of severe pain. Approximately 30 minutes later, there was another fault in the line, and he was required to push wine bottles manually along the line. As he pushed the bottles, he felt another click in his left shoulder, which resulted in further significant pain, and radiated into his neck and back.
The applicant claims that, as a result of the above, he has sustained permanent injuries to his left shoulder, cervical spine and lumbar spine. In addition, he claims to have developed consequential conditions to his right shoulder due to over reliance, lower stomach due to the prolonged use of medication and a psychological condition diagnosed as Adjustment Disorder with Mixed Anxiety and Depression, due to the prolonged rehabilitation process.
The Application claimed weekly benefits compensation from 15 March 2022, ongoing; and future medical expenses pursuant to s 60 of the 1987 Act, in the amount of $25,000, being the cost of surgery in the form of a labral repair of biceps tenodesis, cyst decompression and acromioclavicular joint excision, as proposed by Dr Manish Gupta, and post-surgical rehabilitation; consultation fee for attendance on Dr Rita Lin, gastroenterologist, the initial consultation fee being $290; and consultation fees for attendances on Mr Patrick Marando, psychologist.
The respondent lodged its Reply on 10 June 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the reasonable necessity of the proposed surgery, and
(b) the reasonable necessity of psychological treatment.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 26 August 2022. Mr Young of counsel, instructed by Mr David, appeared for the applicant, who was present. Mr Stockley of counsel appeared for the respondent, instructed by Ms Tippett. Ms O’Grady of EML sent her apologies. She was available to provide instructions by telephone.
The applicant amended the Application to discontinue the claims for weekly benefits; injury to the cervical and lumbar spines; to have sustained a consequential condition of the right shoulder; to have sustained a consequential condition of the lower stomach; and for referral to Dr Lin. He sought an order for the cost of surgery, and a general order for the cost of psychological treatment.
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 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, and
(b) Reply and attachments (including a letter from the respondent’s solicitors dated 21 June 2022, which for technical reasons attached the link to the YouTube videos relied on by the respondent and referred to in its Reply).

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, Sione Mahe

Mr Mahe’s statement, dated 3 May 2022, is headed “Supplementary Statement”, and refers to a statement dated 27 May 2021, but there is only one statement in evidence.
Some of the statement addresses matters that are no longer pressed in this Application, and it is not necessary to refer to that evidence.
The applicant had not sustained any significant injuries or suffered from any significant medical conditions that impacted his ability to work before sustaining the subject injury. He had considered himself to have a happy and calm disposition, with a strong mental fortitude. His personal and family life was unproblematic, and he enjoyed great social relationships, good health and overall wellbeing.
During April 2020 to June 2021, the applicant attended specialist consultations for his shoulder, neck and back pain. He also consulted Mr Marando for management of his Adjustment Disorder with Mixed Anxiety and Depressed Mood. Despite treatment, he continued to struggle with constant pain and stiffness in his left shoulder, neck and back, and low moods and anxiety.
The applicant had an MRI of his right shoulder on or about 29 July 2021 and consulted
Dr Gupta on or about 18 August 2021. Dr Gupta recommended that he have updated scans to his neck and shoulders.
On or about 29 September 2021, the applicant received an injection into his neck. He did not find it helpful, as it only provided temporary relief. He told Dr Gupta this on or about
14 October 2021. Dr Gupta recommended surgery to his left shoulder.
During November 2021 to February 2022, the applicant tried to treat his physical conditions with medication, home stretches and exercises. He stopped seeing his doctors regularly, as they could no longer provide him with any further help. He had tried to come to terms with his constant pain and tried his best to put up with it.
After the insurer cut off his weekly payments and medical treatment, the applicant had struggled to support his family and pay bills. As he cannot look after his children, his wife has had to help around the house, further contributing to their money issues. The financial difficulty has contributed to his heightened stress and anxiety. He had recently received a termination of his rental agreement as he could not afford the rent.
The applicant’s current treatment involved consultations with Dr Gupta, pending approval for surgery; home stretches and exercises; and medication.
The applicant’s disabilities include pain and restricted range of motion in his left shoulder, neck and back; difficulty raising his left arm from the shoulder; radiation of pain to the left arm and hand, resulting in paraesthesia; aggravation of neck pain when turning or moving his head up and down; aggravation of pain in the neck and back when sitting or standing for extended periods; reduced tolerance for driving, and capacity to bend, weight bear, pull and push; loss of libido, reliance on medication; loss of concentration; broken sleep and lethargy; psychological sequelae; reclusive habits, loss of self-esteem and loss of confidence; stress on relationship with spouse; inability to return to pre-accident employment, loss of income and loss of career opportunities; and loss of independence and reliance on family for home support.
The applicant’s past treatment includes general practitioner (GP) and specialist consultations; physiotherapy; cortisone injections; radiological scans; and analgesic medication. He believed that he needed surgery to his left shoulder, because he still suffered from severe pain, restriction, discomfort, and stiffness in his shoulder. The symptoms restricted him significantly from undertaking any of his daily duties and limited his ability to function. He struggled to lift his arm above shoulder height and carry heavy objects, which impacted his ability to complete daily chores.
The applicant had exhausted all conservative treatment options and surgery was his last resort to find lasting relief from his symptoms. He felt that this surgery could be life changing and give him the chance to live a less restricted life. He was desperate to get relief from his symptoms and believed surgery could improve his condition.
In response to the insurer’s reliance on the report of Procare, dated 8 February 2021, the applicant stated he had been encouraged by Mr Marando that posting on social media would be a good way of building up his confidence and “putting [himself] out there”. His wife took all the photos and wrote the captions, edited the photos, and posted them. Even when she was posting them, he still felt anxious about what people would say and felt like he had a hole in his gut.
In the photos, he is not doing any particular movements or positions that were overly straining on his left shoulder, neck and back. In most, he is standing or sitting, as these were the most comfortable positions. He would only hold the pose for a short period before moving again, to avoid any aggravation of pain. He made sure none of the photos showed he was in pain, as he wanted to portray to friends and family that he was fine and happy.
He posted the photos so his friends and family would not ask questions about him and where he was. Before the injury, he posted regularly on social media, and did not want to draw attention to the fact he was injured by not posting.
He came across the brand Calidi on social media and wanted to support the small business. He decided to do this by posing in their gym wear. The photo was taken in his wife’s home gym, and he is only sitting down, not doing anything physically straining or demanding.
The insurer also relies on two music videos he filmed with his brothers and posted on YouTube. They had recorded the music a while ago, but his brothers wanted to shoot a music video. Before he shot them, he increased his dosage of Panadeine Forte and took additional Panadol and Nurofen. He also drank some alcohol to get through the shoot. He had also heavily strapped his left shoulder.
He had long discussions with his brothers about how to include him in the videos, despite having an injury. They wanted to film it in one take, but he explained he could not film continuously without frequent breaks from the constant pain in his left shoulder, neck and back. They took multiple breaks to film the video as he relaxed and recovered between shoots.
They used filming and editing tricks to hide his injury. They shot from a lower angle, which made his movements look freer and more fluid, when he was in fact barely moving. They also relied on quick cuts to give the impression he could move more than he actually could. When the scene required a lot of movement, he was placed in the background to avoid bringing attention to his stiffness and pain.
He had not talked to his brothers much after their mother passed in January 2019. The idea of getting back together and making music had given him a much-needed boost in his mood and mental health. He felt a lot of security from interacting with his family again and thought this would be a great way to reconnect with his brothers. Making the videos brought them closer together, as music had always been a part of their family and lives. For a brief moment, he could try to focus on something that was not involved with his injury or pain.
In response to [the insurer relying on] his lack of physiotherapy, he previously attended it for his neck and back. He received [in] house physiotherapy at his work premises weekly for six months following the injury, with Matt Lorenc. He believes this was funded by the insurer.
He did not find physiotherapy helpful, and in fact found it made his condition and pain worse. He was now very cautious about going back, considering he had such a bad experience in the past. He did not believe further physiotherapy would help him, as his injury had gotten to a point where it could not be improved without surgery. He had been relying heavily on pain medication to manage the injury. This only gave temporary relief and masked the constant pain. He believed surgery was his last option to find lasting relief, and no further treatment would provide him with significant improvements.

Evidence of Procare c & a investigations

Procare’s first report is dated 8 February 2021. It is headed Desktop Investigation Report.
The report attached the YouTube videos of The Mahe Brothers referred to by the applicant in his evidence. I have reviewed both the Facebook posts and the videos (several times) and will discuss them later in these reasons.
The Mahe Brothers’ Instagram profile had 17 posts, 934 followers and it was following 1,398. It was last visibly updated on 2 January 2021. The profile had posted in relation to the release of the group’s latest song (2 January 2021), their first video passing 10,000 viewers (27 October 2020), the release of their first song and video (25 September 2020), and photos of the applicant and group members (August and September 2020).
The applicant had an active profile on Facebook, last visibly updated on 2 January 2021. He had posted on 2 January 2021 about the video. He had applied privacy settings, so further posts may have been hidden.
The applicant also had an Instagram profile with nine posts, 708 followers, and was following 852. Since the injury, he had posted photos of his wife and children outdoors, his wedding anniversary, and his wife and daughter sitting inside a car.
Procare again reported on 15 October 2021. This was a further Desktop Investigation Report.
The business name “The Mahe Brothers” was deregistered on 9 April 2021. There were no new videos on YouTube and no new posts on its Instagram profile.
The applicant remained active on his Facebook profile. He had only posted photos of himself standing on the street in front of his address, and friends wishing him happy birthday.
The applicant’s previous Instagram posts had been removed and replaced with 14 posts from 25 April 2021 to 15 September 2021. The new posts showed him wearing and sponsoring a Calidi.co shirt, sitting on a bench in the gym, walking on bridges, standing next to his car, socialising with friends, and sitting on the street in front of his address.

Medical evidence

Jobfit Health Group Pty Ltd – general practitioners

The practice’s records commence on 25 September 2018.
Dr Lazarus Chiwara recorded that the applicant had a painful left shoulder when he was moving a safety glass door – “Panel got stuck”. He had increasing pain over the next few days. Dr Chiwara noted no previous injuries to the shoulder and rotator cuff tear. The applicant was to have MRI of the left shoulder.
On 9 October 2018, Dr Chiwara recorded that the applicant had a SLAP (superior labral tear from anterior to posterior) of the left labrum and needed follow up with an orthopaedic surgeon. He was booked to see Dr Gupta on Friday.
Dr Chiwara recorded on 16 October 2018 that the applicant had seen Dr Gupta, who advised conservative treatment with physiotherapy for four weeks. If there was no improvement after four weeks, surgery would be considered. The applicant would continue with twice weekly physiotherapy.
On 30 October 2018, Dr Chiwara recorded that the applicant still had pain and restricted movement. He thought Mr Mahe would need surgery. He had just noticed the applicant “is not very keen on the surgical route, and he wants a second opinion on this”. The applicant was to advise who he wanted to see. Otherwise, Dr Chiwara would refer him to Dr Herald.
On 21 November 2018, Dr Chiwara recorded that the applicant had been away for the past two weeks and had not had much physiotherapy. He reported little pain in the left shoulder, but movement was still very restricted. He was “not keen on surgery at all”. He was to see
Dr Bassam Moses on 28 November 2018 for a PRP injection. In the meantime, he continued with physiotherapy.
On 12 December 2018, Dr Chiwara recorded “a few issues”. The applicant did not see
Dr Moses as he had “situation at home”. He had not had much physiotherapy. He had been having it onsite and had to take some time off to deal with issues at home, so had not been able to attend. His left shoulder was still very stiff, with limited movement in all planes.
Dr Chiwara had encouraged the applicant to re-book with Dr Moses, as the PRP injection was crucial for ono-surgical management. He had also referred the applicant for physiotherapy “here”, which allowed for flexible times, including Saturday mornings. He needed to “squeeze in at least one session” per week. He was in danger of developing frozen shoulder.
On 21 December 2018, the applicant was reviewed by Dr Doumit Saad. Dr Saad recorded that Mr Mahe was not responding to conservative management. There was “very inconsistent therapy with onsite physio – due to personal issues etc”. The applicant had been having days off work due to bad days with his shoulder. He had been referred to a sport specialist to consider injection therapy but had not attended. He was now starting physio at SWSM and had seen Jessica (Ms Karafilis) for the first time.

Dr Saad opined that the applicant needed aggressive trigger point therapy and thoraco-scapulae humeral control exercise therapy – “handover to Jessica today”. He was to re-assess the applicant in the New Year if he still needed sport specialist review.
On 3 January 2019, Dr Chiwara recorded that the applicant had repeated flare-ups in his shoulder pain. He had missed work on a number of days due to pain. Treatment had not been optimum as he had not attended a fair bit of the physiotherapy sessions due to the situation at home.
Dr Chiwara emphasised the need to attend all physiotherapy sessions at the minimum, and the appointment with Dr Moses was crucial for the applicant’s recovery.
On 25 January 2019, Dr Saad recorded that the applicant had flare-up of symptoms, especially in the morning, causing absenteeism. He was advised to trial regular Naprosyn SR 1090 before sleep and Panadeine Forte for break through pain, and encouraged to persist with physio.

Nelsons Ridge Medical Centre – general practitioners

The practice’s records commence on 5 February 2019.
Dr Aryan Hakimi recorded a left shoulder injury on 20 December [sic: 20 September] at work. The applicant had ongoing pain to his shoulder. His wife was pregnant, and he was there for advice about whooping cough immunisation.
On 14 February 2019, Dr Hakimi recorded that on 20 September 2018, the applicant was moving a safety glass door that got stuck and jarred his left shoulder. He complained of ongoing pain to his neck, shoulder and back, radiating to his neck, arm, and lower limbs. MRI noted left rotator cuff tear/SLAP of the left labrum. The applicant was referred to an orthopaedic surgeon. He was to continue with physiotherapy and medications.
On 15 February 2019, Dr Hakimi recorded that the applicant woke up with pain. He reported a tingling sensation radiating to both sides, but more to the left arm, and down to the fingers, “more radial aspect”. Dr Hakimi requested MRI of the cervical spine.
On 28 February 2019, Dr Hakimi took part in a case conference with the applicant’s work injury management adviser. The applicant still had pain. He was working less hours and had not taken days off since working a 20 hour week. He was waiting to see if MRI of his neck was approved. He was advised to see orthopaedic doctor for a second opinion. They discussed surgery, and Dr Hakimi advised that if the orthopaedic doctor advised him, “he should go for it”.
On 11 March 2019, Dr Hakimi noted and explained the MRI of the applicant’s cervical spine. The reason for the visit was recorded as C5-C7 cervical canal stenosis.
On 19 March 2019, Dr Hakimi recorded that the applicant woke up with pain to his neck and shoulder. He had still not started Lyrica and Mobic. He was advised to start the new medication and about good neck posture and the use of a good pillow and mattress.
On 28 March 2019, Dr Hakimi again took part in a case conference. The applicant still had pain and did not go to work that day. He was working less hours (still 20 hours), which was better. He had been seen by an orthopaedic doctor who advised no surgery but was to see
Dr Dalton and a neurologist for a second opinion. He was advised to start work late, take breaks, and move around.
On 8 April 2019, Dr Hakimi recorded that the applicant had spoken with Dr Khan from the insurance. He was advised he needed to see Dr Gupta for follow up and a neurologist for a nerve conduction study.
On 15 April 2019, Dr Hakimi recorded that the applicant had been referred to Dr Gupta for follow up of surgical opinion. He had been referred to Dr Anil Nair for assessment of cervical neck radiculopathy.
Dr Hakimi noted “physio Voltaren + Panadeine Forte and referral to Orthopaedic, MRI of the cervical spine (Lt sided radiculopathy)”. The applicant would need to see a neurosurgeon or neurologist for assessment of his moderate cervical canal stenosis, confirmed by MRI.
On 29 April 2019, Dr Hakimi recorded that the applicant had been seen by Dr (Seamus) Dalton, who advised him to see another physiotherapist to improve his muscles and advised against surgery to his shoulder. He still had neuropathic pain and numbness to his left side.
Dr Hakimi advised the applicant to take Lyrica and regular analgesia. He was to see an exercise physiologist and was referred to a neurosurgeon for a second opinion, and to continue with the same restriction and hours.
On 6 May 2019, Dr Hakimi recorded that the applicant woke with neck and shoulder pain on Friday and did not go to work. He was advised to continue with physiotherapy and analgesia to maintain good posture.
On 21 May 2019 Dr Hakimi recorded that the applicant woke with pain to his shoulder and neck. He still had not started Lyrica and Mobic. He was advised to start the new medication, about good posture of the neck and to use a good pillow and mattress.
Dr Hakimi recorded on 3 June 2019 that for the past two to three weeks the applicant was feeling more tired, “low moods and anxious (worried about his feature [sic: future] and his ability)”. He became overwhelmed seeing different doctors. He could not sleep, “feeling pain all the time”.
Dr Hakimi advised the applicant to see a psychologist, have a nerve block to his cervical spine, and take Panadeine Forte. He was advised to take Endep, as Lyrica made him sick.
On 6 June 2019, Dr Hakimi recorded that the applicant woke up with neck pain. Management was recorded as heat, Norflex, NSAID and Panadol.
Dr Hakimi recorded on 20 June 2019 that the applicant was in pain and feeling tired. He woke in the morning with pain. Dr Hakimi noted “psychological assessment and providing counselling and therapy”. He still suffered from ongoing pain that affected his mood. The reason for the visit was case conference and “Adjustment Disorder with mixed disturbance of emotions and conduct”. A letter to Mr Marando was printed.
On 1 July 2019, Dr Hakimi recorded that the applicant was stressed, worried that he was not improving. He felt pain to his shoulder and neck, especially when he woke in the morning. He was not able to go to work three days last week. He looked tired and anxious, “low moods”.
On 9 July 2019, Dr Hakimi recorded that the applicant “continues pain” and had seen the psychologist yesterday. He was advised “to [be] compliant to treatment” and come on the day when he felt unwell.
The applicant failed to attend a scheduled case conference on 19 July 2019.
On 22 July 2019, Dr Hakimi recorded that there were days when the applicant woke with pain and feeling tired from not being able to sleep because of neck and shoulder pain. There was pain with movement of his neck and left shoulder. He looked tired and worried. He was to continue with counselling and therapy.
On 29 July 2019, there was a case conference with Wellness Starts Here – “very long discussion”. Dr Hakimi noted that the applicant did not agree with the treatment offered by several specialists (cortisone injection, surgery, and even some medication). Management included Voltaren gel and Panadeine Forte. He was to see a neurosurgeon or neurologist for assessment of his moderate cervical canal stenosis. Dr Hakimi noted Lyrica, Mobic and Panadol Osteo.
They had discussed the opinion and advice of Drs Gupta and Nair and the neurosurgeon. The applicant did not agree. He was advised to see a psychologist (“low moods and anxious)”, to continue with therapy. He was to attend an exercise physiologist. Dr Hakimi advised repeat MRI of the shoulder to see the progress of his chronic symptoms.
Dr Hakimi recorded on 8 August 2019 that the applicant had Depression and Anxiety. He had “post-injury depression”. He had increasing symptoms of depression and had started a new antidepressant.
On 16 August 2019, Dr Hakimi recorded that the applicant was feeling very tired. He still had neck and shoulder pain. He was receiving counselling and therapy and waiting to see a psychiatrist on 3 September 2019.
This is the last entry in the records.
Dr Hakimi reported (it is assumed to EML) on 4 October 2020.
Dr Hakimi reported that Mr Mahe first consulted her about his injury on 14 February 2019, although it does appear that he mentioned it on 5 February 2019. In any event, the description of the injury was consistent.
Mr Mahe was having ongoing pain to his left side shoulder, as well as his neck, with radiation to his upper chest wall and shoulders, both sides, and his arm. It was difficult to weight bear on his left arm, he had persistent neuropathic pain and numbness and tingling to the left side since the injury.
Dr Hakimi then referred to Mr Mahe’s treatment by Dr Gupta and advice to undergo surgery, which he declined. She had referred Mr Mahe to Professor Bokor, who in turn referred him to
Dr Dalton.
Dr Hakimi noted the various investigations undergone by the applicant. The initial diagnosis was left shoulder SLAP; cervical spine C5-C7 disc herniation and C7-T1 mild to moderate right neural exit foraminal narrowing. This had progressed since then, as evidenced by further MRI reports.
Dr Hakimi opined that the cause of Mr Mahe’s symptoms was the injury on
20 September 2018. After the accident, he continued to work, albeit on modified duties, which may also have contributed to his progressively worsening symptoms.
Dr Hakimi believed that as a result of his incapacity for any work, the applicant’s mental health had been affected. He was currently under psychological therapy, receiving counselling and antidepressant medication. He had also been receiving physiotherapy and was on regular analgesia, Lyrica and Cymbalta.
Mr Mahe was advised to have surgical repair of the SLAP and cortisone injection to his cervical spine but declined as he had concerns about complications. He should continue with physiotherapy and medications and should consider surgery and cortisone injection if needed and advised by orthopaedic surgeons.

Dr Manish Gupta – orthopaedic surgeon

Dr Gupta reported to Dr Chiwara on 12 October 2018.
Dr Gupta recorded a consistent history of the injury. The applicant complained of shoulder and nocturnal pain. An MRI of the left shoulder on 2 October 2018 confirmed a subscapularis tear and a SLAP tear.
Dr Gupta had reviewed the nature of the applicant’s condition and the radiological findings with him. He explained that in the first instance, he would recommend a trial of physiotherapy and reduced work duties to assist with healing of the tears. He would like the applicant to return in four weeks, to check his progress and discuss further management.
Dr Gupta reported to EML on 29 March 2019. He had not re-examined Mr Mahe but was asked to provide an opinion on the file.
Dr Gupta had read Dr [sic: Prof] Bokor’s report and noted the findings on the MRI scan. Prof Bokor’s report essentially mirrored his own assessment from October 2018, in which he suggested a trial of physiotherapy for injuries to the shoulder that were likely not mechanically significant.
Dr Gupta differed from Prof Bokor in that he opined there was a structurally significant tear of the superior labrum, as noted in the MRI report. Only if physical therapy and rehabilitation failed to resolve the problem would that require surgical treatment. Dr Gupta had intended to review Mr Mahe a month or so after he had sent him for physical therapy. He had yet to review him, and it had been almost six months, but was happy to see him at any time.
On 18 August 2021, Dr Gupta again reported to Dr Chiwara, the applicant having consulted him by Telehealth. He noted it had been a long time since their last consultation.
Dr Gupta reported that Mr Mahe continued to have significant left shoulder and cervical spine pain that remained untreated and unresolved. He had developed compensatory overuse pain in the right shoulder.
Mr Mahe’s last scans of any sort were two years ago. Dr Gupta understood he saw the cervical spine specialist and indicated he was disinclined to surgery. He believed he was referred to a pain management specialist, but Dr Gupta was not sure exactly how that had gone.
What Dr Gupta did know from Mr Mahe was that he appeared not to be making any progress of any sort, either with regard to his cervical spine or shoulder injuries. He continued to experience intractable pain and was not working.
Based on the chronicity of Mr Mahe’s problems, along with the fact he had not had scans for two years, Dr Gupta wished him to undergo up-to-date scan of his cervical spine in [sic: and] both shoulders. He wanted to see the films and reports for all three, and he would, based on the structural pathology, make recommendations.
Dr Gupta thought they needed to chalk out a definitive management plan for the applicant for all these problems, “rather than having the odd opinion from here and there and no real cohesive plan”.
On 10 September 2021, Dr Gupta reported to Dr Chiwara that he had reviewed Mr Mahe’s MRI scans of both shoulders and his cervical spine.
The left shoulder superior labrum tear with a paralabral cyst continued to be present and may have been a source of ongoing left shoulder pain. Otherwise, there were no significant issues in the shoulders.
There was a significant finding on the MRI scan of C6/7 spondylosis with foraminal stenosis. This may explain the shoulder pain. However, C7 nerve root pain is usually referred more distally in the arms. The rest of the cervical spine did not show any nerve root impingement more proximally.
Dr Gupta thought it was reasonable to trial an injection at C6/7 and review Mr Mahe after that. If he had persistent pain in the left shoulder, he may warrant arthroscopic surgery and biceps tenodesis.
On 14 October 2021, Dr Gupta reported to Dr Chiwara that he had consulted with the applicant that day.
Mr Mahe reported a single day response for his neck pain to the recent C7 nerve root injection. There was no change at all in his shoulder pain. Based on the failure of injection therapy at the neck to solve his shoulder pain, and the presence of structural pathology seen on the MRI scans of his shoulder, it was reasonable and necessary to offer him arthroscopic shoulder surgery. The surgery would consist of labral repair biceps tenodesis, cyst decompression and acromioclavicular joint excision.
Dr Gupta reported to Mr Mahe’s solicitors on 3 February 2022.
Dr Gupta had consulted only twice with the applicant. At his first consultation, Mr Mahe was 29, working in a warehouse, and reported an injury to his left shoulder some three weeks before. Prior to that, he had no clinical concerns with his shoulder and was undertaking heavy work without any concerns.
The injury occurred when a product got stuck on a conveyor belt, jolting Mr Mahe’s arm, resulting in a clicking or popping sensation, with immediate onset of pain.
In October 2018, Dr Gupta performed a physical examination that confirmed limitation in active motion at the shoulder, with weakness and a positive O’Brien test. This test is strongly suspicious of a SLAP tear. The overall weakness, particularly of the rotator cuff muscles, is consistent with a paralabral cyst that may impinge on the suprascapular nerve.
At that time, Dr Gupta determined that the injury would be appropriately managed in the first instance with a course of physiotherapy and reduced physical activity at work, and then embarking on surgical treatment “in the first instance”. He advised Mr Mahe of this and sent him away for a course of physiotherapy, intending to review him in four weeks, to ensure he was responding to this non-surgical treatment pathway.
Mr Mahe was not reviewed for follow up until almost three years later, in August 2021. He had significant left-sided shoulder girdle pain and neck pain. MRI scans of the cervical spine and both shoulders were performed.
A posterior superior glenoid labrum tear was again demonstrated, with a paravertebral cyst. Pathology was also demonstrated, which can continue to cause symptoms and had likely evolved subsequent to the original workplace injury, in the absence of any other injury or overuse. The findings were mild to moderate glenohumeral joint arthropathy with posterior glenoid chondral loss and osteophytes at the humeral head and neck junctions, and acromioclavicular joint arthritis.
On the basis of significant injury dating back to September 2018, with a failure to respond to prolonged protracted course of activity modification and relative rest, along with physiotherapy, to resolve the situation in a very strong young man, Dr Gupta determined that surgical treatment was warranted. He noted that a cervical spine injection failed to improve the outlook, and the likelihood was that most of the symptoms were rising from the shoulder.
Dr Gupta noted that another orthopaedic surgeon (Prof Bokor) was consulted. He referred
Mr Mahe to a sports physician who specialised in shoulder and neck rehabilitation
(Dr Dalton). Dr Gupta had no correspondence about that, but he assumed it was organised and failed to deliver the expected recovery.
On the basis of structural findings in the shoulder and the incidence of painful weakness not responding to rest and physiotherapy, Dr Gupta appropriately offered Mr Mahe surgery. He noted that the applicant did not have a course of physiotherapy following his initial consultation. This did not change his opinion regarding the need for surgery.
Dr Gupta opined that the clinical concern was certainly injury-related. Appropriate treatment had been implemented, initially non-surgical and now offering surgery. Surgery must have a goal, with specific surgical pathologies demonstrated on the MRI scan, which was consistent with the clinical assessment. Alternatives had been tried and failed.
Dr Gupta further opined that it was appropriate and reasonable to offer surgical treatment to address the pathologies seen on MRI scan, which were clinically consistent.
The other shoulder surgeon suggested that the problem was likely scapulothoracic. This may be true with regard to a cause for pain and abnormal scapular motion. However, it was also possible, and in this case likely, that the scapulothoracic concerns were secondary to primary shoulder pathology, which was related to the mechanism of injury as described. It was unlikely that an injury as described led to a primary neurogenic scapular motion issue, but rather created discrete structural pathologies in the shoulder joint itself.

Ms Jessica Karafilis

Ms Karafilis reported to Dr Chiwara on 14 December 2018.
She had seen Mr Mahe on 12 December 2018. He had presented with complaints of left shoulder pain. The description of the injury was consistent.
The applicant had had eight sessions of physiotherapy and light duties. This was followed by a period on and off work for personal reasons. At that stage, Mr Mahe did not want surgery, but stated that in future if conservative management failed, “he would oblige if necessary”.
Ms Karafilis opined that Mr Mahe’s clinical presentation was consistent with labral tear, with secondary impingement due to muscle weakness and altered biomechanics.
Mr Mahe was working “FTSD” (assumed to mean full time suitable duties) with less than 1kg lifting, avoiding pushing, pulling and forklift. His pre-injury duties consisted of lifting up to 25kg boxes, up to 400 boxes per hour.
The applicant had commenced treatment focusing on decreasing pain, increasing range of motion, strength, and control of shoulder stabilising muscles. His treatment plan included soft tissue release, joint mobilisations, and a progressive home exercise program.
Ms Karafilis advised a trial of physiotherapy for at least three months, with the aim to reassess symptoms and monitor for progress. She recommended nil increase in capacity until an increase in range could be seen. She anticipated at least 12 weeks until return to pre-injury duties.
There are no other reports from Ms Karafilis.

Professor Desmond J Bokor – orthopaedic surgeon

Prof Bokor reported to Dr Hakimi on 25 March 2019.

Prof Bokor recorded a consistent history of the injury. Mr Mahe complained of left-sided neck, shoulder and arm pain. He had had ongoing problems with pain over the top of his shoulder, radiating down his left arm. He had a clicking sensation as he shrugged his shoulder, and associated pins and needles going down his arm. He had pain with movement of the arm and difficulty elevating fully. He had had some physiotherapy for his shoulder only.
Prof Bokor noted that MRI of the shoulder showed some tendinosis, with some very minor bursal sided fraying. Mr Mahe had some minor labral tearing. An MRI of his neck showed some multilevel facet and disc disease.
Prof Bokor opined that Mr Mahe had a scapulothoracic dyskinesia with periscapular dyskinetic patterns of movement. There was no major mechanical damage in his actual shoulder. The clicking was coming from the scapulothoracic joint, and a lot of his pain was more neurogenic than mechanical. He did not require surgery to the shoulder.
Prof Bokor referred Mr Mahe to Dr Dalton, a specialist in shoulder and neck rehabilitation.

Dr Seamus Dalton – specialist in rehabilitation medicine

Dr Dalton reported to Prof Bokor on 29 April 2019.
Dr Dalton recorded no prior history of shoulder problems. He recorded a consistent history of the injury. Afterwards the applicant had difficulty lifting his arm. Most of the pain was in the scapular region and he was aware of intermittent paraesthesia in the hand.
Mr Mahe initially had treatment with the onsite physiotherapist, whom he had continued to see. Treatment had consisted of manual therapy, basic stretching exercises and some Theraband. He was not making much progress, so he was referred for MRI that reportedly revealed a labral tear and some rotator cuff pathology, after which he saw Dr Gupta, who recommended surgery. Mr Mahe was not that keen and consulted [sic] a second opinion.
Mr Mahe had good and bad days, but his primary complaints were left periscapular pain with occasional paraesthesia, occurring only during the day. He felt better if his shoulder was taped back and up, but still lacked elevation of the arm, which was limited by diffuse shoulder girdle pain and tightness. He was also getting some left-sided pain. He had had an MRI of his cervical spine, revealing some degenerative change and mild stenosis at C6 and C7.
The applicant was on suitable duties, avoiding overhead lifting and reaching, with a 5kg lifting restriction, and his hours were reduced to 20 hours a week about two months ago. Dr Hakimi had prescribed Lyrica, but he had not started taking it. He just took the occasional Panadeine Forte.
Dr Dalton had “a long talk” to Mr Mahe about pain mechanisms. He explained that the labral tear was probably a manifestation of longstanding occult instability. Whilst that may have been the initial site of his pain, he had developed some compensatory scapular dumping, and a lot of his current pain was due to disturbance in scapulohumeral mechanics in response to pain. He was getting some sleep disturbance and Dr Dalton thought there was probably an element of central/peripheral sensitisation. He had suggested that the applicant take the Lyrica, but if he did not tolerate it, they should change to low dose Endep.
The priority was to correct the applicant’s over-protraction. Dr Dalton had given him some strategies to try and switch off his pectorals and restore normal scapular position and rhythm. He had also referred Mr Mahe to a specialist physiotherapist in Blacktown, as he thought he needed a more specific and comprehensive exercise program, with some soft tissue releases, taping, and more importantly a scapular stability and postural correction program.
Dr Dalton was to assess the applicant’s progress in one month’s time. There are no further reports from him.

Dr Anil Nair – spinal surgeon

Dr Nair reported to Dr Hakimi on 28 May 2019.
Dr Nair recorded a history that, since the injury, the applicant had had significant and worsening issues with pain in his subaxial cervical spine and left upper extremity. He had consulted shoulder surgeons and occupational physicians. He remained troubled. He complained of significant pain but had not had a precipitous functional decline.
Dr Nair opined that the applicant’s symptoms were consistent with a C6/7 disc herniation, although he had intrinsic shoulder pathology as well. He had asked Mr Mahe to undergo a bone scan, CT scan and left C6/7 transforaminal corticosteroid injection.
On 18 February 2020, Dr Nair reported to Dr Sajida Atif (at Nelsons Ridge Medical Centre), having reviewed the applicant.
Mr Mahe continued to be troubled by left upper extremity radicular symptoms. He also complained of pain in both the thoracic and lumbar spines, which stemmed from his original injury.
The CT showed foraminal stenosis at C6/7. Dr Nair had asked the applicant to undergo repeat imaging, including MRI of his cervical, thoracic and lumbar spines, after which he would review him.

Mr Matthew Lorenc – physiotherapist

Mr Lorenc reported on 28 May 2019 to “Dear Doctor” that Mr Mahe had been attending physiotherapy onsite at Metcash. There are two reports of the same date, the second adding a request for an opinion.
There had been little change in the applicant’s active range of motion, in flexion (to 110 degrees) and abduction (to 90 degrees) since the injury. He presented with pain and weakness, particularly in external rotation, and poor shoulder rotation in abduction.
The applicant reported intermittent symptoms ranging from a “heaviness” and “aching” to a sharper pain and instability when lifting his arm past 90 degrees. He often reported no specific aggravating factors and sometimes just woke in a lot of pain. He reported secondary compensatory muscle issues into the left side of his neck and around his scapula.
Treatment had consisted of interventions including:
(a)    soft tissue release of the “pecs”, biceps, posterior cuff, upper “traps” and “lev [ator] scap”, with no significant changes to active range of motion;
(b)     active assisted range of motion exercises to encourage stretching of the arm, and control of movement without guarding or other compensation;
(c)     stretching of the anterior and posterior shoulder structures and neck, and
(d)     rotator cuff muscle control and strengthening exercises, with which the applicant had made gradual progression.
Mr Mahe appeared to be quite compliant with his home exercise program. Unfortunately, this had not translated into any significant functional gains or improvement in symptoms.
Mr Lorenc asked whether the doctor supported progression to a gym based strengthening program to progress Mr Mahe’s work capacity. He opined that, in the absence of any specific aggravating factors at work, the applicant had the capacity for full-time suitable duties, with appropriate restrictions. He asked whether the doctor supported this.

Mr Patrick Marando - psychologist

Mr Mahe first consulted Mr Marando on 8 July 2019. I will not refer to every consultation.
The record of the first consultation is hand-written and somewhat difficult to read. However, it is apparent that Mr Marando recorded a consistent history of the injury.
Mr Marando recorded that Mr Mahe slept three to four hours a night. He thought about his family (four kids). He was worried that he might not be able to work again and be unable to support his family. His arm might not get better. He tried to be positive, but it was hard. He just wanted to get back to normal and felt stuck.
The applicant wanted to start a side business but could not work more. A lot of uncertainty made him really scared. His mother passed away in February and he had to put his father in a dementia unit at the same time. He felt (I believe the word may be “emotional”) when he thought about his mother. He felt he was not being the man of the house. He had almost dropped the baby due to arm spasm.
Mr Marando recorded that the pain was always there. Mr Mahe took Lyrica, but it made him worse. He was scared to take (possibly Voltaren). He had seen shoulder surgeons who said different things – operation or waiting. He was not ready to have surgery. He was quite self-critical, hard on himself, and felt weak.
The applicant was having onsite physio once a week and onsite gym at work with the physio. He was withdrawn at home and flat. He feared the worst, could be teary, and was nervous a lot. He had had thoughts of suicide but no plan or intent. He would try his hardest not to.
Mr Mahe was on reduced hours at work, working 20 hours a week on light duties. He did NMA training and had “family time – kids”. He drank alcohol on special occasions.
Mr Marando diagnosed Adjustment Disorder with Anxiety features.
On 14 August 2019, Mr Marando recorded that Mr Mahe’s GP had prescribed Cymbalta and given him a week off work. He was not feeling alert at work and felt scared of hurting himself and what others might say about him, or how they would treat him. He had been worrying and didn’t sleep well last night.
On 25 September 2019, Mr Marando recorded that the applicant had seen a specialist for impairment assessment. He had not started physio yet and was seeing the psychiatrist next week. He had been “hanging out” with his brother. He had a rehab provider now. His shoulder and neck had been the same, with random strikes of pain.
Mr Mahe had been worrying and feeling really nervous about money, food, family, and health. He was taking antidepressant every night. He reported paranoid ideation and ideas of persecution. Mr Marando contacted Dr Hakimi to inform him of possible psychotic symptoms and persecutory hallucinations, and Dr Hakimi was to advise Mr Mahe’s psychiatrist.
On 9 October 2019, Mr Marando recorded that the applicant had seen the psychiatrist last week and was seeing him again this week. He had started on Risperidone. He was feeling itchy from it. He didn’t want to go to hospital, as he was too anxious.
On 11 November 2019, Mr Marando recorded that Mr Mahe’s CT had not yet been approved. He was finding it really frustrating. His neck and back had been “giving him grief. All the way down his spine”. Physio had not been approved yet and he felt stuck. His anxiety had calmed a little and he was not as worried as he was. He was struggling financially.
The applicant failed to attend two appointments in November/December 2019. When he attended on 23 December 2019, he had been “struggling a bit. Rent and car payments”. He had nearly got evicted. He did not qualify for Centrelink. His wife was returning to work in February. He had had some issues with his phone. He was feeling a lot of guilt in the last month about not doing what he should and letting his wife down. He was still waiting to get a CT scan and had not had any physio or treatment.
On 15 January 2020, Mr Marando recorded that Mr Mahe was having a CT of his neck next week. He was seeing his GP tomorrow and getting a referral for physio. He had been falling behind financially, causing marital issues. He did not feel he could go back to working in a warehouse, as he was too scared of getting reinjured.
On 3 February 2020, Mr Marando recorded that Mr Mahe’s car was to be repossessed, but his super money came through. He had caught up on his rent and felt a little more at ease. He had been feeling “pretty anxious” about future finances. His pain had been getting worse. He had not had any physio yet and would get a referral. He had been taking pain medication. Lyrica affected his mental state.
On 17 February 2020, Mr Marando recorded that the applicant was getting bored, watching a lot of videos. His wife was doing casual work, when she would take the kids to her mum’s.
Mr Mahe had not been feeling anything. He was a little down. He felt hopeless at times, with some thoughts of dying, but no plan or intention. He had been tattooing himself. He finally had all the scans and was seeing a neurosurgeon tomorrow. He had not yet started physio.
On 4 March 2020, Mr Marando recorded that the applicant had seen the neurosurgeon and been referred for another MRI. He (assumed to be the neurosurgeon) said he was not sure what to do with him. He was not going to physio until the investigations were complete. The pain was the same and he felt he was getting used to it. He was angry about pain.
On 16 March 2020, Mr Marando recorded that Mr Mahe had an MRI on his back and was quite anxious during it. He felt quite stuck with things. His wage was to be dropped and he would probably have to move house soon. He could not afford to live there and could not afford his car payments again. He was not sleeping, as he was worrying about the future. He was not able to work and was scared of getting hurt again. He felt he would like more sessions to help him feel better.
Mr Marando reported to EML on 16 April 2020.
Mr Mahe had benefited moderately from sessions for Adjustment Disorder and Depressed Mood and pain management. He had gained knowledge about pain, anxiety, and depression, and learnt pain control techniques. He had also learnt pacing strategies and used them to increase his pleasurable activities and social and household activities. He had learnt the benefits of maintaining exercise levels and good nutrition to prevent further anxiety and depression.
Mr Marando opined that Mr Mahe’s mood and anxiety levels had improved slightly. He had been partaking in more activities by attempting to engage more with family. He appeared to be avoidant of certain activities that may fuel his pain, leading to further dissatisfaction. He still suffered from depressive symptoms. His prognosis was guarded.
On 7 May 2020, Mr Marando recorded that the applicant had looked into doing a security course at a cost of $700 for two weeks. His wife was approved for Centrelink and they got rental assistance. His rehab provider had stopped working with him. He had seen a spinal doctor and got approval for an injection but was too scared to go – “Woke up in surgery 6 years ago”.
On 21 May 2020, Mr Marando recorded that Mr Mahe had “been good”. He had spoken to the security company regarding courses. He was looking to see a pain doctor. He had been helping with home schooling. His rent had decreased “so can get by for now”. He felt more relaxed about finances.
Mr Mahe’s mood had been good. He had stopped Risperidone and antidepressant and felt better and more motivated. He had been looking at getting into music, singing and rapping. He had come to terms with not being able to train or fight. The pain was annoying but bearable.
On 4 June 2020, Mr Marando recorded that Mr Mahe’s mood had been a lot better. He felt he could still have problems but was coping a lot better with them. He had been sticking to his weekly schedule – walk, music, time with kids. He had been better able to push and motivate himself. The pain felt worse, and he was still taking Lyrica. The doctor had added his lower back pain to his WorkCover claim.
There is an entry, the date of which is not provided, but it records that Mr Mahe had been referred to a pain specialist. He had sent the security course information to the insurer but had not heard anything. He was coping financially. His wife was 10 weeks pregnant, and he was a little worried about it.
Mr Marando recorded on 19 June 2020 that Mr Mahe had “been good”. He was still setting little goals every day. He had caught up with his brothers more. His employer had terminated his employment. He felt a bit relieved. He did not have to go back and “can close the door”. He had been referred to a pain specialist. He had still been sore and was more aware of his pain, but it was not bothering him as much. He still felt anxious about… [not visible].
On 16 July 2020, Mr Marando recorded that Mr Mahe had “been pretty good”. He had been setting himself daily goals, trying to keep active, trying to run. He had been taking pain medication but ran out.
There is an undated entry that records [not visible] had caused a bit of stress financially.
Mr Mahe had still been doing music with his brothers. He had been dealing with the pain better and felt he was getting more used to it. He was sleeping better overall.
On 7 August 2020, Mr Marando reported that the applicant continued to benefit from the sessions. They had discussed him identifying and managing his triggers for anxiety and utilising courage. They had also continued to work on goal setting for pleasant activities and pacing skills and worked on his self-esteem.
Mr Mahe’s mood and anxiety levels had improved dramatically. He was attempting to engage more with his family, singing, helping at home, and doing some exercise. He was feeling more purposeful. Mr Marando felt he still required ongoing assistance.
On 24 September 2020, Mr Marando recorded that the applicant had been keeping himself busy. He had been struggling with pain a bit, but pacing. He had a music video and song releasing tomorrow. This had kept him busy and distracted and helped his mood a lot. He had also seen his friends a few times.
On 19 October 2020, Mr Marando recorded that Mr Mahe had released the song with his brothers. He was struggling a bit with things, just coping financially. He had been coping with current pain but was scared things could get worse if he did more. He did not know how to move forward.
On 13 November 2020, Mr Marando recorded that Mr Mahe’s back, neck and shoulder had been “playing up”. He had overdone things as he tried to do more with his family. He was trying to deal with the pain. He was seeing the pain specialist at the end of the month.
On 16 March 2021, Mr Marando reported that he had provided the applicant with psychoeducation, pacing, and relaxation. They had had to focus on many issues and at times be more reactive to his most pressing issue. Because of this, it may also be useful for Mr Mahe to take part in a more formal and pain targeted management plan, as suggested by Dr Ho, while Mr Marando continued to treat him.
On 22 April 2021, Mr Marando recorded that Mr Mahe had “been half half”. He was a bit more stressed lately and felt his anxiety had been up. Insurance was pushing him to do things he was not comfortable with. He went to an employment assessment but didn’t find it helpful. The insurer threatened to cut his pay if he didn’t go. He still had some financial stress. It had been hard with a newborn. He was trying to do more around the house.
On 10 May 2021, Mr Marando recorded that the applicant was seeing rehab providers for an occupational assessment. He was worried they would push him too hard and injure him again. He had been thinking of business ideas.
On 16 June 2021, Mr Marando recorded that Mr Mahe was “alright”. He had had a conference [in the Commission]. His body had been OK. He was trying to use lighter perceptions when in pain and trying to listen to his body more.
On 23 July 2021, Mr Marando recorded that the applicant was doing OK. He had a legal hearing this week. He felt a bit overwhelmed and told them to discontinue part of his claim. He felt he was more open now to the idea of surgery and was going to see a specialist about it.
Mr Marando recorded on 11 August 2021 that Mr Mahe was doing OK. He had just been trying to cope with lock down and home schooling. He felt the same amount of pain. Insurance had approved the pain specialist, but he was waiting to hear from him. He had found out he had a tear in his right shoulder too, which made him upset and worried how to cope. He was seeing the shoulder surgeon next week.
On 15 September 2021, Mr Marando recorded that Mr Mahe had extra scans and had been referred for an injection into his nerve. If it did not help, he would consider surgery. He felt he was coping but had lots of times when he struggled. He was worried about his health, money, and the possible outcome of the injection.
On 17 September 2021, Mr Marando reported that the applicant had continued to benefit from psychological sessions. He had made progress in many areas. They had worked on goal setting for pleasant activities and pacing skills. They had also worked on his self-esteem issues and created more ability for him to self-accept.

Mr Mahe’s mood and anxiety had been up and down. He reported constant pain, but had been taking part in more activities, by attempting to engage more with family, helping at home, and doing some exercise. His mood had improved a little and his anxiety levels reduced, though lock down had affected him detrimentally. He still required ongoing assistance. Mr Marando opined that his prognosis was good.
On 21 October 2021, Mr Marando recorded that the applicant was “doing good”. He had seen the specialist and decided to do the surgery. He felt a bit excited but quite worried. He was “willing to give it a go even though he feels scared”. He was a bit frustrated by the insurance process.
On 19 November 2021, Mr Marando recorded that Mr Mahe was doing OK. Insurance did not approve his surgery. They told him they didn’t support his injury. He had put in an appeal. He was seeing specialists for his lawyers.
On 6 December 2021, Mr Marando recorded that Mr Mahe felt his GP was not doing proper care. He had not been doing much. He did go out to dinner with his wife.
On 19 January 2022, Mr Marando recorded that the applicant had been alright. The insurer had still not approved surgery. He was finding it very frustrating as he could not move forward.
This is the last entry in the clinical notes.

Dr Min Fee Lai – general, plastic and reconstructive surgeon

Dr Lai was qualified by the applicant and reported first on 24 September 2019.
Dr Lai recorded a consistent history of the injury and treatment. Mr Mahe was continuing with physiotherapy and analgesics, was consulting a psychologist, and had been referred to a psychiatrist.
The applicant had some difficulties dressing and required help from his wife. He was totally dependent on her and the children for most domestic chores he used to perform. He could not carry out lawn mowing and depended for help on his wife and friends. He had had to cease cage fighting, rugby league, weight training and playing with his younger children. He could drive for 30 minutes before requiring a break.
Mr Mahe complained of pain in his left neck and shoulder region. It would start from his shoulder and move into his neck and behind his ear. It radiated to his shoulder blade at the same time. The pain was 5/10 at best and 10/10 at worst, aggravated especially with use of his left shoulder. Associated with the pain were symptoms of paraesthesia in his left ring and middle fingers. He did not complain of numbness. He had tingling in his upper arm at the same time.
Dr Lai diagnosed Mr Mahe with tendinopathy left shoulder supraspinatus muscle and labral tear of the left shoulder; cervical disc herniation at C6/7 and disc bulge at C5/6. His disabilities and impairments were pain and stiffness in the left shoulder, and left neck pain with radicular symptoms to the left upper limb. They were likely to be long term.
Dr Lai did not suggest that Mr Mahe required surgery. He assessed 14% whole person impairment (WPI), combining assessments of the left upper extremity and cervical spine.
Dr Lai next reported on 17 November 2020.
Mr Mahe was on Lyrica, Voltaren and Panadeine Forte. He had ceased antidepressants but continued to see his psychologist and psychiatrist every two weeks. His activities of daily living (ADLs) and capability remained as before.
As the applicant was “adamant” he did not wish to have surgery, he had been referred to the pain clinic. His physiotherapy had been ceased nine months after the injury, but he continued his own home based program.
Dr Lai’s diagnoses of the left shoulder and cervical spine remained unchanged. He added diagnoses of the thoracic and lumbar spines. He assessed 24% WPI, combining assessments of the left upper extremity, cervical spine, thoracic spine and lumbar spine.

Dr Tim Ho – pain and rehabilitation specialist

Dr Ho reported to Dr Nair on 18 January 2021.
Mr Mahe’s pain issues were recorded as chronic nociplastic left shoulder and neck pain, secondary to central sensitisation and RC (rotator cuff) tear/spondylosis; poor pain coping with catastrophisation, reduced self-efficacy and Adjustment Disorder; pain related disability; and workplace injury 2018 (lifting injury).
Mr Mahe was taking Lyrica but had stopped antidepressant and Risperidone. He had depression with “? psychotic features – Dr Ho (Blacktown) and follow up with psychologist”.
Dr Ho recorded a consistent history of the injury and treatment. Mr Mahe described his current pain as constant and fluctuating over the left shoulder, upper back, and neck. It was moderate to severe pain, worse with normal activity. There was spontaneous pain at night. There were significant functional interferences due to pain.
The applicant reported benefit with his medication, with no side-effects or aberrant behaviour. He was living with his wife and five children. He described significant pain-related disability, including with domestic ADLs. He was unable to return to work due to chronic pain. He had withdrawn from many social, recreational and sports activities due to pain. He reported poor and non-restorative sleep due to pain.
Dr Ho had done psychoeducation regarding chronic pain and set goals for pain coping, and not pain cure. He had done a motivational interview for pain self-management. He applied for a pain management program. This included six medical, six psychology, six physiotherapy sessions, and one planning session, over six to eight weeks, at the AMA gazetted rate. Dr Ho also planned to review Mr Mahe’s medication.
Dr Ho had considered alternatives. He concluded that the applicant had failed single discipline treatment. MDT (multi-disciplinary treatment) was most likely to result in superior outcome.

Dr Greggory Burrow – orthopaedic specialist

Dr Burrow was qualified by the respondent and reported first on 28 January 2021. He referred to reports dated 2 September 2019 and 6 November 2019, neither of which is in evidence.
Part of this report relates to Mr Mahe’s claims of injury to the lumbar and thoracic spines, which have been discontinued. It is therefore unnecessary to refer to it.
Dr Burrow stated that in his previous report, he had opined that the applicant had injured his cervical spine, which had pre-existing changes, as a result of the incident on
20 September 2018. Whilst he had upper extremity pain, particularly about the left shoulder, Dr Burrow opined that there was no structural lesion to the shoulder, despite degenerative type changes in the superior labrum and supraspinatus.
Mr Mahe told Dr Burrow that his shoulder and neck conditions remained unchanged. The pain in his thoracic and lumbar spines had “always been there” but was never as bad as the neck and shoulder.
The applicant was undergoing no interventional treatment but continued to seek treatment from a psychologist/psychiatrist. He took Lyrica, Panadeine Forte, Nurofen, Panadol and Voltaren for musculoskeletal pain. No surgery was planned for the short or medium term.
Dr Burrow reported that Mr Mahe had continued difficulty with home chores and gardening, could drive for about 30 minutes, and had been unable to resume football, weight training, martial arts, boxing, and cross fit.
Dr Burrow opined that there had been no specific injury to the applicant’s left shoulder. There was left upper extremity pain, which was most likely neural in nature and referred from the cervical spine. This opinion was supported by Prof Bokor.
Dr Burrow believed Mr Mahe’s left upper extremity pain was radicular-like, without evidence of radiculopathy that day, on the basis of pre-existing multilevel degenerative changes of the cervical spine, which was aggravated by the work incident. The aggravation continued.
Dr Burrow did not believe there was a standalone mechanical traumatic lesion in Mr Mahe’s shoulder. There were degenerative changes, echoed by various orthopaedic surgeons. His current symptoms and disabilities were related to the neck.
Dr Burrow opined that the applicant had no mechanical problem that could be fixed by surgery of the left shoulder. He had arm pain, coming from the neck. He may require support for psychological/psychiatric reasons.
In assessing Mr Mahe’s left shoulder, Dr Burrow found loss of active range of motion that was not consistent with the known pathology. There was no acute traumatic injury, and even the most severe labral tear does not result in loss of active range of motion of 90 degrees of flexion. Such severe loss of active range of motion is not caused by a standalone shoulder problem. It is caused by upper extremity pain as a result (assumed to mean of neck pathology) and is covered in the radicular-like pain when assessing the cervical spine.
Dr Burrow again reported on 3 March 2021 (the report is erroneously headed 3 March 2020, but it is clear it was issued in 2021).
Dr Burrow had been provided with Procare’s report. He noted that in the stills that accompanied the report, Mr Mahe did not appear to be in significant pain. At times he could be seen to elevate the left arm easily to 90 degrees, whereas during his examination, he had marked pain patterns with any movement of the shoulder and was only just able to get it to 90 degrees with marked discomfort. The images tended to contrast with his presentation to Dr Burrow.
Dr Burrow opined that Mr Mahe was fit for full time normal duties in his previous position. It was clear that the use of his arm was not as painful as he had made out. There was significant inconsistency between his claimed symptoms, physical signs, and the static photos and description as provided by “your investigation team”.
There was “no way” Mr Mahe could have danced or swung his left arm at any of the examinations performed by Dr Burrow, due to marked pain in the left upper extremity. It would seem he was not as symptomatic or debilitated as he made out. It appeared there was significant abnormal illness behaviour by way of functional overlay.

Dr Stephen Quain – orthopaedic surgeon

Dr Quain was qualified by the respondent and reported first on 26 November 2021. He recorded a consistent history of the injury, stating there was no history of dislocation.
The applicant advised that he is ambidextrous, writing with his right hand, but throwing and using sporting equipment with his left. Although he had not worked for two years, he complained of ongoing pain in the neck and shoulder. He believed this had caused alteration of posture in his spine, leading to back pain. He complained of occasional tingling in the ring and middle fingers of the left hand. He was “at home only”. He had been taking pain medication and antidepressants and undergoing psychological treatment. He could give no appropriate answer to the question why he felt his pain had not eased after not having worked in two years.
Dr Quain recorded that Mr Mahe formerly did gym work, followed mixed martial arts, and played rugby league, but he denied any injury to his left shoulder.
Dr Quain noted that MRI of the applicant’s cervical spine dated 26 August 2021 showed multiple mild disc wear and facet joints, with some small posterolateral osteophytes. This was unusual at the age of 32, but Dr Quain did not believe it related to the incident on
20 September 2018. MRI of the left shoulder showed no evidence of rotator cuff pathology but reported some mild fraying of the labrum and mild glenohumeral joint wear. Dr Quain opined that this was more likely to be related to previous sporting or martial arts activities.
Dr Quain opined that the applicant may have had a minor rotator cuff strain, but he could not give any reason for the alleged degree of pain and disability three years from the injury, other than pain-focused behaviour, perhaps some psychological reaction. He did not believe
Mr Mahe’s claim of disability could be justified. His level of pain “etc” was disproportionate.
Dr Quain reported no conscious guarding or restriction of movement in conversation but did when Mr Mahe attempted to remove his T-shirt and when he was asked to lift his left arm. It was very difficult to ascertain at a Telehealth consultation whether there was a range of movement during informal observation that was not consistent with clinical examination.
Dr Quain did not consider that Mr Mahe’s incapacity remained the result of the compensable injury. Apart from psychological/pain factors, he did not believe the applicant required any medical treatment and should be told he was fit to resume work.
Only on the basis of mild change on MRI of the left shoulder and cervical spine, Dr Quain opined that Mr Mahe had some early changes at multiple disc levels. On the basis of the description of the injury, his condition may have been aggravated by his employment, but resolution would have normally been expected within two to three weeks.
Dr Quain opined that the prognosis for improvement and resolution of the applicant’s condition was poor. The prognosis for return to work was not good, but he should be confronted with the fact that there was no ongoing pathology identified. Dr Quain understood there was video evidence of him using his arms normally in family and social activities. He did not believe there should be any restriction on ADLs.
Dr Quain did not believe any valid impairment [assessment] could be made. He believed there was considerable exaggeration to the alleged loss of movement in Mr Mahe’s shoulder. He was only 32 and the degree of injury as outlined was minor. He had “probably” sustained a psychiatric or psychological condition, but this was not in Dr Quain’s field of expertise.
On 6 December 2021, Dr Quain provided a supplementary report, regarding the request by Dr Gupta for approval of surgery.
Dr Quain did not consider the surgery reasonably necessary. The expected outcome was a stable, pain-free left shoulder and return to pre-injury duties. Dr Quain believed this was highly unlikely and there was significant risk of making the applicant worse. In his view, there had been no history of dislocation and the MRI changes were probably from previous martial arts, rather than the alleged work injury. He did not accept that Mr Mahe’s complaints were genuine or appropriate.

Dr Con Kafataris – injury management consultant

Dr Kafataris performed a file review and reported on 22 November 2021.
Mr Mahe was certified as having no capacity for work. He was having psychological sessions and cognitive behavioural therapy.
Dr Kafataris discussed the claim with Dr Hakimi. They agreed that the applicant had failed to improve, and it was clear he would not be returning to his pre-injury duties. He was not “completely disabled” and should be capable of returning to some form of suitable duties.
Dr Hakimi noted that a request for surgery had apparently been made by Dr Gupta, and
Dr Kafataris suggested this would need to be clarified by the insurer.
It was agreed that if no surgical intervention was planned within the next four weeks,
Mr Mahe should be upgraded to suitable duties. Dr Hakimi agreed but requested a copy of Dr Kafataris’ report, so she had some “backup” when she addressed this with the applicant.
Dr Kafataris also discussed the applicant with Mr Nathan Lang, rehab provider. Mr Lang did not dispute that Mr Mahe would have capacity for suitable duties. He stated that Mr Mahe was quite focused on symptoms and obtaining a cure. He also wonder whether solicitors’ involvement was “clouding the picture”. Mr Lang had identified suitable employment options, but the fact that the applicant had not upgraded to suitable duties meant there was little else he could do.
Dr Kafataris concluded that if surgery was not reasonably necessary, Mr Mahe should be upgraded to suitable duties for at least 20 hours per week. Vocational redeployment would be required.

Dr Graham Vickery – psychiatrist

Dr Vickery reported first on 10 December 2021. He recorded a consistent history of the injury and treatment.
The applicant had been subjected to significant financial pressures over the past year or more. He had throbbing pain from the left shoulder into the left side of the neck. It affected his sleep, so he only slept for six hours, but he was getting used to it.
Mr Mahe had been “overthinking” since the accident as he never wanted to be hurt like that again. He worried too much about what other people thought and was working on it with a psychologist. There had also been reduced socialising with friends, on which he was working with the psychologist and making progress. His medications were Lyrica, Panadeine Forte, Nurofen and Panadol.
Dr Vickery recorded that Mr Mahe had been undertaking fortnightly psychological counselling since July 2019. He was in constant pain and felt bad as he wasn’t working. He and his wife had both been working, but he was terminated, and his wife had not gone back to work for the last year, following her last pregnancy. A significant personal stressor was noted as the death of his mother in 2019.
Mr Mahe had been thinking more positively [since] about this time last year (that is, December 2020) and was able to cease the antidepressant and Risperdal, which he had taken for a year.
There had been thoughts of self-harm when the applicant was commenced on antidepressant two years ago, but not for the past year, and the psychologist had helped him see things differently. He enjoyed spending time with his five children and went to the park with them. “It’s a lot better than it was a year ago”.
Mr Mahe’s marital relationship was supportive, and he was close to his children and two sisters. He had an interest in sound engineering and was learning from YouTube for up to an hour or two.
Dr Vickery recorded that Mr Mahe was spontaneous and cooperative. His affect range was not restricted, and his behaviour and mood were appropriate. There was no melancholic depression, paranoid delusional ideation, formal thought disorder, or apparent cognitive impairment.
Dr Vickery referred to a report of Dr Peter Whetton, dated 5 February 2020, which is not in evidence. He quoted Dr Whetton as saying Mr Mahe had had ongoing pain and limitation of function, with resulting frustration and the development of Anxiety and Depression about his current state and future. The Adjustment Disorder was causally related to the injury. The prognosis was that the applicant would improve with time and treatment.
Dr Vickery reviewed the Desktop Investigation Report dated 15 October 2021. He opined that there was no apparent physical or psychological restriction in relation to Mr Mahe’s social media posts, which was not consistent with his reported incapacitating pain. His psychopathology was indicative of Somatoform Chronic Pain Disorder with “abnormal illness behaviour”, or he was malingering.
Somatoform Chronic Pain Disorder involves prominent somatic symptoms associated with incapacitating pain perception in the context of health concerns, which give rise to emotional distress and functional impairment, and significant disruption to daily life; and in which there is no apparent medical basis to account for the incapacitating pain perception and reduced functionality.
Dr Vickery opined that Mr Mahe had not sustained a diagnosable psychiatric or psychological condition as a result of the workplace. The reasoning by some psychiatric assessors that a work accident is causative in relation to the development of a pain disorder, simply because there was no prior psychopathology, is not based on the principles of logical reasoning and causation.
Dr Vickery reported that there is no scientific literature that validates the reasoning that a temporal association of an injury is causative of Somatoform Chronic Pain Disorder, as the onset is multifactorial, and it is an entirely separate psychopathological entity. There is often the misdiagnosis of Adjustment Disorder, Persistent Depressive Disorder or Major Depressive Disorder, in the context of incapacitating pain perception following an accident or injury, even where there is no apparent medical basis for either the reported incapacitating pain perception or the loss of function.

The prognosis for improvement, recovery and resolution in Mr Mahe’s psychological condition was positive, as it was for return to either pre-injury or alternate employment and to usual ADLs. Dr Vickery opined that there had been substantial psychological recovery. There was no WPI.
On 16 December 2021, Dr Vickery responded to questions posed by the respondent’s solicitors.
Dr Vickery was asked, noting the temporal connection between the injury and the development of Somatoform Chronic Pain Disorder, whether the applicant’s incapacity from a psychological perspective was causally related to the injury on 20 September 2018.
Dr Vickery’s response was that the diagnosis arises from the interaction of multiple biopsychosocial factors that affect how individuals identify and classify bodily sensations, perceive illness, and seek medical attention, within a particular cultural and social context. It is not directly due to a motor vehicle accident or work injury. It is not utilised in the assessment of WPI.
Dr Vickery was also asked about the applicant’s capacity, from a psychological perspective, to participate in a return-to-work plan. He opined that there had been a recovery over the past two years, with the cessation of psychotropic medication a year or so ago. The applicant was fit to participate in a graded return-to-work plan without any particular restrictions.

Dr E Gehr – orthopaedic surgeon

Dr Gehr was qualified by the applicant and reported on 25 February 2022. He recorded a consistent history of the injury and treatment.
Dr Gehr reviewed the reports of Mr Mahe’s investigations, various medical reports, functional capacity evaluation and vocational assessment report, Desktop Investigation Reports dated 8 February 2021 and 15 October 2021, and the YouTube video. I do not intend to refer in detail to this part of his report. I will also not refer in detail to his examination and opinion of the applicant’s thoracic and lumbar spines or right shoulder.
Dr Gehr recorded that Mr Mahe reported problems with washing, showering, and dressing, depending on using his right arm. He used to help with cooking and cleaning, but it was now left to his wife. He used to maintain the lawns and gardens, but now relied on his son to help. He could no longer do mixed martial arts training, weightlifting or football. He could drive, but only for 45 to 60 minutes.
The applicant had undergone steroid injection of his neck but said it did not really help. He had seen Dr Ho via video. He had chronic pain.
Dr Gehr recorded symptoms of pain over the anterior, superior and posterior aspects of the left shoulder; pain over the cervical spine, on both sides and dorsally, associated with occipital headache; and intermittent thoracic and right shoulder pain. There was stiffness of both shoulders and especially the neck. Mr Mahe had difficulty lifting with his left arm. Over the last six months, symptoms had plateaued.
The applicant’s medications were Panadeine Forte, Panadol and Brufen. He was no longer having physiotherapy and had been under the care of a psychologist. He had most recently consulted his GP in January, and had no current appointments with specialists, apart from the psychologist.
On examination, Dr Gehr recorded that Mr Mahe was cooperative, with no pain or non-physiological behaviours and no exaggeration or embellishments. Dr Gehr found rotator cuff muscle wasting of the left shoulder. He recorded decreased range of motion and positive impingement.
Dr Gehr diagnosed left shoulder soft tissue injury, SLAP lesion, rotator cuff pathology, with pain and decreased range of motion; right shoulder pain with decreased range of motion and positive impingement; cervical spine soft tissue injury with guarding, dysmetria and hyper paraesthesia left side; thoracic spine pain, with normal examination, and reported lumbar spine pain, with normal examination.
Dr Gehr had viewed the YouTube videos. He identified Mr Mahe in the first video as wearing a red shirt and red cap. He reported that on careful observation of his left shoulder, the applicant had limited movement in terms of flexion, extension or abduction. He only demonstrated rotation to the right of the cervical spine, and no clear movements in other directions.
Dr Gehr saw nothing that caused him to change his opinion, and the video seemed to be consistent with the history and examination. The applicant told him the video was highly edited, and during the breaks he was able to rest from the pain. He tried to project a happy image. His shoulder was strapped. He was taking a lot of Panadeine Forte and alcohol.
In the second video, Mr Mahe was wearing a yellow tracksuit. The man in yellow was in the background. There was very limited movement of his shoulders. He avoided moving his left arm “that much”. The applicant told Dr Gehr he was on strong analgesic medication and had his shoulder strapped.
Mr Mahe also told Dr Gehr that in both videos, the camera was aimed upwards to hide his reduced movements. His psychologist had encouraged him to go out and do such activities for the sake of his mental status. There are a lot of prominent singers in his family and his psychologist told him that music therapy could be useful for rehabilitation. He had never had any musculoskeletal injuries from martial arts.
Dr Gehr supported the recommendation for surgery on Mr Mahe’s left shoulder. It was reasonably necessary and was related to the workplace injury. He had a mechanical injury to the shoulder, as per imaging. Surgical procedure was his best option to correct the injury. It was appropriate treatment, and its cost was reasonable compared to other treatment. It had 70% to 80% effectiveness. The applicant had exhausted all other non-operative interventions, and the surgery was accepted practice in Australia.

Dr Ben Hooi-Beng Teoh - psychiatrist

Dr Teoh was qualified by the applicant and reported on 22 April 2022.
Dr Teoh recorded a consistent history of the injury and treatment. Mr Mahe had stopped work in August 2019 because of pain. He was told he had a torn ligament in his shoulder. He was angry that the request for surgery was declined.
The applicant reported insomnia. He had been experiencing intense pain in his neck, back and shoulder. He could not do anything physically strenuous. He had difficulty lifting weight and had restricted movements. He had struggled to pick up his children and had not been able to do activities he used to enjoy, including playing football, martial arts, boxing and weight training. He had lost interest in writing music.
Mr Mahe saw a psychologist fortnightly until January 2022. He said he had become withdrawn and lacked motivation, feeling “that everyone is against me”. He had been prescribed the antipsychotic medication Risperidone.
Dr Teoh recorded that the applicant had been preoccupied with negative thoughts and a sense of hopelessness. He worried about his future and physical condition. He had been irritable and argumentative and his relationship with his wife had been strained. There was no past history of psychiatric illness.
Dr Teoh opined that Mr Mahe’s presentation was consistent with a diagnosis of Chronic Adjustment Disorder with Anxious and Depressed Mood. The workplace injuries had not resolved. The applicant had persistent pain, physical disability, and depressive symptoms. The condition was consistent with mental state examination and the injury. The main contributing factor to his diagnosis was the injury to his shoulder and the subsequent disability and chronic pain, which had required psychological treatment and affected his incapacity [sic] to work.
Mr Mahe could benefit from continuing to see his psychologist, fortnightly to monthly, for six months. He would need to continue medication for two years. He also needed to continue to see his GP. His prognosis was guarded, as his condition had become chronic.

SUBMISSIONS

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

Applicant

The applicant submitted that he had exhausted conservative treatment, still suffered left shoulder symptoms, and wants to have surgery. The decision has not been taken lightly and was initially resisted. The pathology was shown by MRI in 2018 and updated in 2021.
Mr Mahe submitted he has explained the content of the social media. The photos were taken by his wife, to portray something positive in his life. He wanted to demonstrate support for Calidi. He was not doing anything much. There is nothing in the videos that is inconsistent with the injury.
The applicant submitted that Dr Lai saw the MRI dated 2 October 2018. It clearly says there was a suspected SLAP lesion. I would accept that doctors look at scans and draw their own conclusions. Drs Lai, Gupta and Gehr also place significance on the MRI of his cervical spine, which shows pathology from C5 to C7. Its relevance is that Prof Bokor and others thought it may be the source of his referred pain. Dr Lai did not alter his view about
Mr Mahe’s left shoulder between 2019 and 2020.
Mr Mahe submitted that Dr Gehr has provided a very comprehensive report. He has noted ongoing pain. Mr Mahe referred to his findings of wasting, decreased range of motion and impingement. He saw the video, commented on what he saw, and spoke to Mr Mahe about it. Dr Gehr’s understanding is consistent with his statement. He opined that surgery was reasonably necessary, with 70% to 80% effectiveness. Mr Mahe submitted it need not be that high to satisfy me that it is reasonably necessary.
The applicant referred to Dr Teoh’s evidence. He made the same diagnosis as his treating psychologist. His recommendations for treatment are also consistent, and Mr Mahe submitted that I would accept them.
Mr Mahe submitted that he had had at least eight sessions of physiotherapy, not, as maintained in the s 78 notice, only one. Mr Lorenc’s evidence is relevant.
As regards Prof Bokor’s opinion, Mr Mahe submitted that, even on his interpretation, the MRI in 2018 showed pathology at the level where surgery is sought. It was not unreasonable, given the level of pathology at that stage, and the symptoms, to conclude they were coming from the neck. Dr Dalton also appeared to work on that assumption. Mr Mahe is not critical of them. The timing of the examination, and there was only one, is important.
The applicant referred to the evidence of non-surgical attempts at treatment, and his ultimate referral back to Dr Gupta. A cervical spine injection failed to improve his condition. Dr Gupta referred to a significant injury. While Prof Bokor thought it was more neural, we now know, from the expert treatment of Dr Nair, and treatment of Mr Mahe’s cervical spine, the source of his pain is, as Dr Gupta thought in 2018, his shoulder. Dr Gupta differed from Prof Bokor in that he opined Mr Mahe had a structurally significant tear. Only if physical therapy and rehabilitation failed to resolve the problem would that require surgical treatment.
The applicant submitted that no other doctor has seen him as often or more recently than
Dr Gupta. He had suspected the problem from the outset. Mr Mahe conceded, on review of the MRI scans, that they do not say the tear was getting bigger. Dr Gupta has seen the scans, which he interpreted in a certain way.
Mr Mahe referred to Mr Marando’s clinical records, and submitted he has a real psychological issue that requires treatment. The situation is not as dismissed by Dr Vickery. He had access to reports of Drs Whetton and Malik that are not in evidence. Dr Vickery’s opinion is highly dependent on the social media posts. He does not appear to have asked
Mr Mahe about them. What Mr Mahe says about them is important. He submitted I would not give the report much weight.
The applicant submitted that it is not clear whether Dr Quain has seen the latest MRI. If he has not seen it, then little weight can be placed on what he said. The second MRI was of both shoulders, while Dr Quain referred only to the MRI of the left shoulder, so Mr Mahe submitted that he perhaps saw only the earlier scan. Referring to Dr Quain’s opinion that the MRI changes are probably from martial arts, Mr Mahe submitted that there is no history of a martial arts injury.
Mr Mahe relied on Mr Marando’s evidence that he obtained benefit from psychological counselling. Mr Marando recommended a further eight sessions in September 2021.
The applicant submitted that Dr Burrow focused on the lumbar and cervical spines, which are no longer before me. He does not appear to have seen the latest MRI. He believed the pain was coming from the applicant’s neck but was also not aware of the outcome of the injection, which puts his opinion in context. He referred to the opinion of Prof Bokor, who is an eminent shoulder surgeon, but did not have the benefit of knowing what followed.
In reply to the respondent, the applicant conceded he could not find anything specific in
Mr Marando’s notes that suggested he should see family more or go on social media more. He urged me to read Mr Marando’s records, which include reference to re-establishing motivation and self-esteem. He submitted they are consistent. They paint a picture of his mental health to the point where there was some improvement. The singing, music and rapping were clearly shared with Mr Marando.

Respondent

The respondent submitted that in cases regarding the reasonable necessity of surgery, there are “often two camps”, that is the treating doctor, who proposes surgery, often supported by medico-legal opinion, and an opposing view almost invariably presented by the insurer’s medico-legal expert. This case is a bit different, because there is one treating doctor,
Prof Bokor, who said there is no need for surgery. Dr Dalton also did not support the need for surgery.
The respondent submitted that the Application seeks the extensive surgery proposed by
Dr Gupta. The difference of opinion is as to the existence or not of the significant lesion that he described as a labral tear, and others described as a strain. I must assess to what extent I think Dr Gupta is correct.
The respondent submitted there are also the opinions of two radiologists, Dr (Tej) Dugal and Dr (Andrew) van den Heever. It may be that, on viewing the film, Dr Gupta has a different opinion from them. Other than him saying what he interpreted the film to show, we get no further insight into his difference of opinion from Prof Bokor, Dr Quain and Dr Burrow. I can be confident that Dr Quain saw the second MRI, because he referred to the MRI of
26 August 2021. In any event, the MRI in 2021 appears to show precisely what Dr Dugal reported in 2018.
The respondent submitted that, without criticism of the applicant, his statement does not give any insight. He had a number of pre-injury recreational activities. It would be unsurprising that there would be some degree of radiological evidence of wear and tear. The radiology may be explained by this.
The respondent’s case is that there is significant disagreement on diagnosis. It submitted that if I accept the opinions of the radiologists, Prof Bokor, Dr Quain and Dr Burrow, the nature of the pathology is not amenable to the type of surgery Dr Gupta proposes. Someone is wrong.
The respondent submitted that Dr Gupta has seen the applicant only twice, two years apart. He does not have some primacy of opinion because of the number of times he has seen the applicant. I would not be satisfied that the proposed surgery is reasonably necessary as a result of the injury.
The respondent submitted I would obtain no assistance from Dr Gehr’s report, as he has provided no reasoned opinion at all, but rather quoted verbatim from the reports of Dr Gupta and the other doctors.
The respondent submitted that the proposed surgery is to alleviate the applicant’s pain, but it is not going to alleviate anything if the diagnosis is incorrect.
As regards the applicant’s recreational activities, the respondent submitted that its real significance is that it has not been taken on board by Dr Teoh. It is “all very well” for the applicant to provide the explanation that it’s therapeutic, but it does not appear that his treating psychologist has picked up on this. Mr Marando has provided a number of reports, but the respondent does not see that he’s recommended participation in this sort of activity, whether it was part of the therapeutic process or something the applicant told him about.
The respondent submitted that the applicant was on reduced hours and restricted duties. He was having difficulty attending the physiotherapy programs that had been recommended, because of time constraints and availability. Part of that was unspecified family problems that distracted him from his own treatment. Whatever they may have been, there is no acknowledgment, description, or consideration of them by Dr Teoh. Dr Teoh’s opinion takes us nowhere.
The respondent submitted that I would accept the proposition advanced by Dr Vickery and would not be persuaded that the applicant has made out a case that his physical condition resulted in a psychological condition that warrants treatment at the expense of the respondent. That submission is made on the basis that, contrary to what the respondent has already said, I accept the gravity of the musculoskeletal condition of which the applicant complains.
The respondent finally submitted that Mr Mahe had given in his statement some sort of explanation of what he was doing in the videos. It is an evaluative process as to whether I find it a plausible explanation. The respondent has not cross-examined him to the contrary, but it may seem like a pretty feeble explanation to some extent. That is a matter for my judgment and assessment.

SUMMARY

The applicant seeks awards in his favour for the cost of proposed surgery to his left shoulder, and a general order for the cost of psychological treatment, pursuant to s 60 of the 1987 Act.
To some extent, the issues and the evidence to be considered overlap. The respondent contends that the condition of the applicant’s left shoulder is not such that he requires the proposed surgery, which in turn raises the issue of whether his physical condition is such as to have resulted in a secondary psychological condition for which he requires treatment.
The respondent submitted that, even if I accept the gravity of the applicant’s physical condition, I would determine that psychological treatment is not reasonably necessary.
The applicant has given evidence about the conservative treatment he has undergone. I accept his submission that, contrary to the s 78 notice served by the respondent, he did not undergo only one session of physiotherapy. He was treated by both Ms Karafilis and
Mr Lorenc. Mr Lorenc reported that he was compliant with his home exercise program, but it did not result in significant improvement.
The applicant’s evidence is that he continues to have pain and restricted range of motion in his left shoulder, neck and back, with associated sequelae. He believes he has exhausted all conservative treatment options. After being initially most reluctant to undergo surgery, he now wishes to go ahead with it.
Before turning to the medical evidence, I will discuss what may be referred to as the social media evidence.
I am not assisted in my determination by the Facebook entries. Mr Mahe has explained his participation, which in any event is entirely passive. He was either standing or sitting. He posed in gym wear but was not photographed doing anything active in the gym.
I doubt that Mr Mahe is the only person to have posted on social media only photos that paint an optimistic picture of his or her life, or to have posed in gym wear without having actually engaged in any exercise. In my view, the posts are not inconsistent with him suffering either a physical injury or a psychological condition.
As regards the YouTube videos, the first video comprises 3:11 minutes. According to Procare’s report, it was uploaded on 25 September 2020, and that would accord with
Dr Marando’s records.

The video is titled “The Mahe Brothers – We Ain’t Going Anywhere”. Mr Mahe appears in a red baseball cap and red T-shirt, under a denim jacket, initially in a street scene, talking on the phone. He is then seen walking/dancing through a liquor store. He does not appear to be moving particularly freely. He moves both arms, below the waist, in dance moves.
Mr Mahe removes from the refrigerator with his left hand a small carton of cider, which he then moves to his right hand. He moves through the store, briefly raising his left arm at the elbow (but not above shoulder height). He is next seen in a car driven by another man in a patterned shirt, whom I assume to be his brother (and I will refer to him as such).
The two arrive at what appears to be a party, or gathering, at someone’s home. Mr Mahe is seen in the background, moving both arms, but otherwise mainly obscured. He and his brother are then seen smoking. His brother then continues to sing, with Mr Mahe in the background.
Another man, whom I assume to be another brother, wearing a black T-shirt, then takes centre stage, with the applicant again at times seen in the background. Later, the three men sit side by side, with Mr Mahe on the right. He moves to the music. He is later seen with a drink in his right hand, moving with his brothers to the music. He moves both arms but does nothing strenuous with either. At one stage, he shakes his left arm. He holds out his left arm in salute to the camera at the end of the video.
The second video, according to Procare’s report, was uploaded on 2 January 2021. It comprises 2:34 minutes and is titled “The Mahe Brothers – Statement”.
It commences with three men standing on a basketball court. Mr Mahe is in the centre, wearing yellow trackpants, yellow “hoodie”, a black hat with a patterned band, and what is colloquially known as a “bum bag”.
The action cuts between a basketball court and what appears to be a garage.
The three men are seen performing on the court. The applicant briefly holds his arms out from his sides. He is once again mainly in the background, while a man in a dark button down shirt, and then a man in a black T-shirt, are in the foreground. Mr Mahe is seen at times in the background with a basketball. There is no footage of him attempting to shoot a goal.
The brothers are later seen in the garage. They dance to the music. Mr Mahe moves both arms. There are what appear to be stoppages or cuts in the video, perhaps for effect, but it is impossible to know. None of the men appears to move particularly energetically.
Mr Mahe is later seen raising both arms from the elbow, but, again, not above his head.
The video is consistent with Mr Mahe’s evidence about his participation. He appears to have been very much a support player, with the focus mainly on his brothers. The videos are very short, although of course I have no way of knowing how much footage was shot to obtain this usable footage.
It does not appear that either Dr Burrow or Dr Vickery viewed the video footage, but rather were provided with Procare’s report. They do not appear to have discussed it with the applicant. Dr Gehr, on the other hand, obviously did view the videos. His description of their contents largely accords with my own observations. He also discussed them with the applicant.
In my view, there is nothing in either video that is inconsistent with the applicant’s evidence about the symptoms he experiences in his left shoulder.
The other aspect of the YouTube videos is whether they are inconsistent with the applicant’s claim to have a psychological condition. I do not believe they are.
Mr Mahe has explained why he took part in making music with his brothers, and why he believes it was beneficial to his mental health. While this may be seen to be self-serving evidence, it is supported by the evidence of Mr Marando’s clinical records.
Mr Marando recorded that the applicant was trying to increase his pleasurable activities, engage more with his family, and considering getting into music and rapping. He had caught up with his brothers more. He was releasing a song and video, which had kept him busy, distracted and helped his mood.
While it is correct to say, as the applicant conceded, that Mr Marando’s clinical records and reports do not explicitly say that he encouraged Mr Mahe to “put himself out there”, he reported to EML that the applicant was using pacing strategies to increase his pleasurable, social and household activities.
Mr Marando’s records are replete with references to such matters as discussing self-worth beliefs; goal setting (including for leisure); taking responsibility for his life; building confidence and self-worth; self-esteem; worthwhile risks; growing courage; self-appreciation and acceptance; facing fears of re-injury; lighter attitude and thoughts; reducing worry re: others’ opinion; and increasing social connection.
In my view, the inference may be drawn that Mr Marando was supportive of Mr Mahe’s efforts to re-connect with his family and engage in pleasurable activities that, as he noted, helped his mood. His doing so was entirely consistent with the goals recorded by
Mr Marando. I note that Dr Teoh recorded that the applicant had lost interest in writing music. I do not believe that is inconsistent with him taking part in making music videos with his brothers.
Turning to the medical evidence, the applicant initially consulted Dr Gupta, who recommended conservative treatment. Mr Mahe was then referred to Prof Bokor. Prof Bokor thought the applicant’s symptoms were in effect coming from his neck, although he found some minor labral tearing, and he did not require surgery to his shoulder. That was over three years ago, and it appears Prof Bokor has not again seen the applicant.
Dr Gupta has seen the applicant twice. Unlike Prof Bokor, he opined that the applicant’s labral tear was structurally significant, with reference to the MRI scan dated 2 October 2018, and reported by Dr Dugal.
Dr Dugal’s conclusion was, relevantly, “Intact rotator cuff with suspicion of tendinopathy of the supraspinatus. Suspected SLAP lesion with tear of posterosuperior to anterosuperior labrum from 9 – 3 o’clock position”.
The MRI reported by Dr van den Heever on 26 August 2021 concluded “Glenohumeral and AC joint arthrosis. Mild subacromial bursitis. Small posterosuperior para labral cyst”. Dr van den Heever also recorded labral fraying posterior to the biceps anchor.
There appears to be little difference between the reported findings on MRI scans in 2018 and 2021.
Dr Dalton also accepted that the applicant had a labral tear, which was probably related to longstanding occult instability. That may have been the initial site of his pain, but in response to that pain, he had disturbed scapulohumeral mechanics. A lot of his pain was due to this.
I do not see this opinion as greatly different to Dr Gupta’s opinion that the applicant had scapulothoracic concerns that were secondary to the primary shoulder pathology. Dr Lai and Dr Gehr also agreed that the applicant had a labral tear.
It is significant, in my view, that Mr Mahe had a nerve root injection of his cervical spine, which, according to Dr Gupta, resulted in a single day response for his neck pain, and no change at all to his shoulder pain. Based on this, and the pathology seen on MRI scans of his shoulder, Dr Gupta believed it was “reasonable and necessary” to offer him shoulder surgery.
Prof Bokor is of course unaware of the outcome of the cervical nerve root injection. There is no way of knowing whether it would have altered his opinion.
Dr Burrow also opined that the applicant’s left upper extremity pain was coming from his neck. There is no evidence that he was aware that the applicant had had nerve root injection of his cervical spine, or that it had no effect on his shoulder pain.
The opinions of Prof Bokor and Dr Burrow are, in my view, deprived of considerable weight by the fact that they are unaware that the applicant has undergone spinal injections.
Dr Quain, on the other hand, appears to accept that the applicant sustained injury to his left shoulder by way of a strain, but opined that the findings on MRI were more likely to be related to sports or martial arts.
There is no evidence that the applicant sustained injury to or reported any symptoms in his left shoulder before the work injury. Dr Chiwara recorded that he had no previous injuries to his shoulder. Dr Gupta reported that, before the injury, he had no concerns with his shoulder and was undertaking heavy work. Dr Dalton recorded no prior history of shoulder problems. Ms Karafilis recorded that, before the injury, the applicant was lifting 25 kg boxes, up to 400 times an hour. Dr Quain himself noted that the applicant denied any injury to his left shoulder. His opinion that the MRI findings were likely to be related to activities other than the applicant’s employment is not supported by the evidence.
The respondent submitted that there is no reason to give the opinion of Dr Gupta primacy over other medical opinion, as he has only examined the applicant twice. However, he has reviewed both MRI scans, albeit that he has come to a different view to that of other practitioners, he initially recommended conservative treatment, which the applicant has undergone, and did not initially recommend surgery. He had intended to review the applicant, but Mr Mahe did not return to see him.
Dr Gupta is aware of Prof Bokor’s opinion, but he disagrees. When he saw the applicant a second time, he recorded that Mr Mahe continued to have significant, “intractable” pain. He noted that the applicant appeared not to be making any progress.
Even so, Dr Gupta did not rush to recommend surgery. He wanted to see updated investigations of Mr Mahe’s cervical spine and shoulders. He thought Mr Mahe needed a definitive management plan. That appears to have been something that was lacking, probably because he did not return to see Dr Gupta when he was expected to do so.
After reviewing the updated MRI, Dr Gupta still did not immediately recommend surgery. Rather, to see whether the pain in Mr Mahe’s shoulder was radiating from his neck, he recommended that he undergo injection at C6/7. As I have noted, the injection did not alleviate the applicant’s shoulder pain.
Only after the failure of the injection did Dr Gupta recommend that the applicant undergo surgery. He has provided a comprehensive report to the applicant’s solicitors, setting out his reasoning for that recommendation. His opinion was unchanged by learning that
Mr Mahe did not have physiotherapy after his initial consultation. In fact, as may be seen from Ms Karafilis’s records, and those of Mr Lorenc, the applicant did have some physiotherapy after seeing Dr Gupta, although perhaps not as much treatment as he should have.
Dr Quain opined that the proposed surgery is not reasonably necessary because the expected outcome was a stable, pain-free shoulder and return to pre-injury duties, which was highly unlikely. Dr Gupta did not say this was the expected outcome. He said the surgery would be to address the pathologies demonstrated on MRI. Dr Gehr opined that the expected effectiveness of the treatment is 70% to 80%.
The case law relating to the reasonable necessity of medical treatment was discussed by Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (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’.”
Dr Gehr has addressed the matters referred to by Roche DP in Diab. I do not agree that his report is of no assistance. He has recorded his findings on examination, viewed and discussed with Mr Mahe the videos, and explained his reasoning.
The applicant’s treating specialist, having seen the MRI scans, and being aware of the conservative treatment he has undergone and the outcome of the cervical injections, believes that the surgery is “reasonable and necessary”, which, as Roche DP held, is a more demanding test than that required by s 60 of the 1987 Act.
For the reasons above, I am persuaded by Dr Gupta’s evidence, supported by that of Dr Gehr, that the proposed surgery to the applicant’s left shoulder is reasonably necessary as a result of the injury on 20 September 2018
As regards the claim for psychological treatment, the respondent largely relies on the social media evidence, and that of Dr Vickery. I have already said that the social media evidence is not, in my view, inconsistent with the applicant having either a physical injury or a psychological condition.
Dr Vickery recorded that the applicant demonstrated no voluntary exaggeration of symptoms or conscious guarding/restrictions of movement. His conclusion that Mr Mahe’s condition was either Somatoform Chronic Pain Disorder with abnormal illness behaviour, or he was malingering, therefore appears to be based on the social media evidence and Dr Burrows’ opinion of what it demonstrated.
Dr Vickery did not comment directly on the reasonable necessity of psychological treatment. He did say there had been substantial psychological recovery.
Dr Teoh apparently did not have access to the social media evidence, but he was provided with the s 78 notices and Dr Vickery’s report, in which Dr Vickery referred to that evidence. Dr Teoh has not addressed that evidence, but for the reasons above, I do not believe it establishes that the applicant does not have a psychological condition for which he requires treatment.
I do not believe it is determinative that Dr Teoh did not record a history of the family problems that are referred to in the applicant’s clinical records. Mr Marando has recorded the applicant’s reaction to his mother’s death and his father’s situation, money worries, and the strain on his relationship with his wife. It does not appear to me that these issues, some of which were in any event related to the injury, outweigh the effects of the injury on Mr Maher’s psychological condition.
The treatment provided by Mr Marando appears to have been beneficial. Mr Marando reported in September 2021 that the applicant had continued to benefit from the sessions. The applicant told Dr Vickery he was making progress. Dr Teoh opined that he could benefit from further sessions for six months.
I am satisfied that psychological treatment is reasonably necessary as a result of the injury. I prefer the evidence of Mr Marando and Dr Teoh to that of Dr Vickery, for the reasons above.
I have determined that the surgery proposed by Dr Gupta is reasonably necessary as a result of injury sustained by the applicant on 20 September 2018, arising out of or in the course of his employment with the respondent. I have also determined that psychological treatment is reasonably necessary as a result of that injury.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 507

14 September 2022