McEwen v Direct Freight (Aust) Pty Ltd
[2021] NSWPIC 120
•14 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McEwen v Direct Freight (Aust) Pty Ltd [2021] NSWPIC 120 |
| APPLICANT: | Leigh McEwen |
| RESPONDENT: | Direct Freight (Aust) Pty Ltd |
| MEMBER: | Mr Brett Batchelor |
| DATE OF DECISION: | 14 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits and section 60 expenses including the cost of shoulder surgery; respondent disputes work capacity from the date to which weekly payments were made by the respondent’s insurer based on the opinion of its independent medical examiner; Held- finding that the applicant suffered injury to the cervical spine, right upper extremity (shoulder) and right upper extremity (aggravation of carpal tunnel syndrome) on the claimed date of injury; finding that the applicant had no current work capacity from the date from weekly payments are claimed; finding that the surgery to the right shoulder proposed by the treating orthopaedic surgeon is reasonably necessary as a result of injury to the right shoulder; respondent ordered to pay weekly benefits to the applicant pursuant to section 37 of the 1987 Act from the date from such benefits are claimed and section 60 expenses including the cost of and incidental to the surgery to the right shoulder. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury arising out of or in the course of his employment with the respondent on 3 July 2019 to the: (a) cervical spine; (b) right upper extremity (shoulder), and (c) the right upper extremity (aggravation of carpal tunnel syndrome). 2. As a result of such injury the applicant is totally incapacitated for work and has had no current work capacity since 22 January 2021. 3. The applicant’s pre-injury average weekly earnings are $974. 4. The respondent is to pay the applicant $779.20 per week from 22 January 2021 to date and continuing pursuant to s 37(1) of the Workers Compensation Act 1987. 5. The respondent is to have credit for weekly payments made to the applicant after 22 January 2021. 6. The surgery proposed by Dr D Gill in his report dated 21 October 2020, namely right shoulder scope and subacromial decompression with bursectomy and resection of coracoacromial ligament and arthroscopic or if needed open AC joint resection, is reasonably necessary as a result of injury on 3 July 2019. 7. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987, including the cost of and incidental to such surgery |
STATEMENT OF REASONS
BACKGROUND
Leigh McEwen (the applicant/Mr McEwen) claims weekly benefits and expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of his employment with Direct Freight (Aust) Pty Ltd (the respondent) on 3 July 2019. The applicant was employed by the respondent as a delivery truck driver at the time and suffered injury as he stepped down from the back of his truck whilst making a delivery. The step on which Mr McEwen went to place his foot was bent as a result of a previous rear end accident in which the truck had been involved. As a consequence, he fell and grabbed onto the safety rail and swung around, thereby sustaining injury to his right shoulder and neck.
The applicant was paid weekly benefits by the respondent’s insurer, icare, until 22 January 2021. The s 60 expenses claimed by the applicant include the cost of surgery to his right shoulder proposed by the treating orthopaedic surgeon, Dr David Gill. In a notice issued to Mr McEwen on 2 December 2020 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) icare:
(a) noted its previous acceptance of liability for injury to the right shoulder on 3 July 2019;
(b) referred to radiological investigation of the right shoulder dated 12 September 2019 and comment by Dr Gill on that investigation;
(c) referred to a report received from Dr Anthony Smith following his independent medical examination of the applicant on 23 November 2020,
and stated that
(d) in accordance with the opinion of Dr Smith it was of the view that the applicant had completely recovered from any work related injury sustained on 3 July 2019 and was therefore no longer entitled to workers compensation benefits.[1]
[1] Application to Resolve a Dispute (the Application) p 11.
Icare accordingly declined liability for weekly payments from 22 January 2021 and for expenses for medical or related treatment pursuant to s 60 of the 1987 Act.
The solicitor for the applicant requested a review of icare’s decision which was completed on 4 February 2021. In a review notice of that date[2] icare summarised the medical evidence relied upon by the parties and maintained its decision to decline liability on the basis of ss 33, 59 and 50 of the 1987 Act.
[2] Application p 17.
ISSUES FOR DETERMINATION
The parties agree that the pre-injury average weekly earnings are $974, and that the following issues remain in dispute:
(a) Does the applicant have total or partial incapacity for work from 22 January 2021 as a result of on 3 July 2021?
(b) Is the surgery to the applicant’s right shoulder proposed by Dr Gill in his report dated 21 October 2020[3] reasonably necessary as a result of injury on 3 July 2021?
(c) Is the applicant entitled to the payment of his costs and expenses pursuant to s 60 of the 1987 Act?
[3] Application p 107.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration on 5 May 2021 conducted via telephone conference. Mr L Robison of counsel appeared for the applicant briefed by Mr C Santone. The applicant attended on a separate line. Mr D Toohey of counsel appeared for the respondent briefed by Ms Rosie Petrolo. Representatives of the case manager for icare Employers Mutual Limited (EML) also attended.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a)the Application and attached documents;
(b)Reply and attached documents;
(c)Application to Admit Late Documents (AALD) dated 27 April 2021 lodged by the applicant with the clinical notes of Dr Gill attached, and
(d)AALD dated 27 April 2021 lodged by the respondent with the following attachments:
(i)icare correspondence dated 8 August 2019;
(ii)icare correspondence regarding weekly payments dated 25 March 2020;
(iii)List of Payments of EML, various dates, and
(iv)Wage Advice of the respondent dated 31 January and 7 February 2021.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
The applicant’s case
The applicant consulted his general practitioner, Dr F Wasti on 3 July 201, the date on which he was injured, for a non-work related matter. Dr Wasti provided the applicant with a medical certificate and sent him for an x-ray and ultrasound which was carried out on 4 July 2019. Mr McEwen was off work for a couple of days. On 8 August 2019 Dr Wasti referred Mr McEwen to Dr Gill in respect of complaint of right shoulder pain. Dr Gill first saw Mr McEwen on 28 August 2019[4] and said that the diagnosis seemed like either a SLAP lesion, a glenoid labral lesion or even an episode of inferior instability. He sent the applicant for an MRI arthrogram and review. The MRI was carried out on 11 September 2019[5]. When Dr Gill reviewed this on 24 September 2019[6] he noted that the recent MRI scan was not impressive and sent the applicant for an MRI scan of the cervical spine, for a review when that was received. This was carried out on 3 October 2019[7]. Based on the MRI scan of the cervical spine Dr Gill reported to icare on 14 October 2019[8] that it was likely that the applicant was suffering from a right sided C5 nerve root irritation. He referred the applicant to Dr Richard Ferch, neurosurgeon/spinal surgeon, who saw him on 14 November 2019[9].
[4] Application p 86.
[5] Application p 123.
[6] Application p 90.
[7] Application p 125.
[8] Application p 92.
[9] Application p 76.
Dr Ferch reviewed the recent cervical spine MRI scan which he said demonstrated mild degenerative change but no real neural compromise. In particular the C6 nerve root was not compromised. He said the applicant’s symptoms would be highly consistent with a C6 nerve root irritation, and that he would be unlikely to benefit from any surgical treatment on his neck. The applicant was reassured that the neck was stable. Dr Ferch was comfortable with the applicant undergoing physical therapy based treatments around his neck in order to improve his mobility about it.
Dr Ferch reviewed the applicant on 23 January 2020[10] following nerve conduction studies which were carried out by Dr Katekar on 10 December 2019[11]. He said that a component of the applicant’s symptoms may well be responsive to treatment of his medial nerve compression shown on the nerve conduction studies. Approval from the respondent’s insurer was sought, and Dr Ferch carried out a right median neve neurolysis on 13 July 2020[12]. This provided substantial improvement to the tingling and numbness experienced by Mr McEwen in his right hand, as reported by Dr Ferch on 1 September 2020[13]. Dr Ferch said that the persistent right shoulder pain experienced was likely to be associated with pathology affecting the shoulder itself and noted that Mr McEwen had already made arrangements to see Dr Gill for advice. Dr Ferch wrote out a referral.
[10] Application p 77.
[11] Application p 117.
[12] Application p 84.
[13] Application p 85.
Dr Gill saw the applicant again on 15 September 2020[14] and sent him for a simple x-ray and ultrasound, noting that “…will need to consider a scope and decompression.” He also noted in respect of his examination of the right shoulder that:
“This examines just like an impingement. The previous MRI scans show the cuff as basically ok, and the neurosurgeon tells me that the neck is not the cause of the current problems. The previous ultrasound was normal without impingement.”
In a separate report of 15 September 2020 to Strategic Industry Solutions[15], Dr Gill said that Mr McEwen was “…exhibiting classic signs of impingement of the RIGHT shoulder. We have arranged some test to be done to confirm this diagnosis.”
[14] Application p 100.
[15] Application p 102.
The applicant underwent an x-ray and ultrasound of his right shoulder on 20 September 2020[16].
[16] Application pp 127.
Dr Gill reported to Dr Wasti on 25 September 2020[17]. He reviewed the x-ray and ultrasound results and said that the new ultrasound confirms impingement and that that “…there are cuff changes present (new from 2019)”. Under discussion he said:
“This ultrasound does confirm clinical impingement, and this fits the clear clinical pattern. If this was the case and cuff was the same, I would recommend to proceed with surgical subacromial decompression.
Now the ultrasound has confirmed changes to the cuff that are close to the possible need to repair point which are new. An ultrasound can not be trusted alone for determination of surgical management.
We are best to re-image the cuff with an MRI scan and see what comes up.
I explained this to Mr MCEWAN.
The next review will be when the MRI scan is to hand. I will correspond with you at that time.”
[17] Application p 104.
The applicant underwent an MRI arthrogram of the right shoulder on 20 October 2020[18], and Dr Gill reported on this investigation to Dr Wasti on 21 October 2020[19]. His diagnosis was that the MRI scan suggested that “… the cuff is intact, there is a spur and prominent CALR, and the AC joint is inflamed.” Dr Gill’s plan was to book for surgery being:
“RIGHT SHOULDER SCOPE AND SUBACROMIAL
DECOMPRESSION WITH BURSECTOMY AND RESECTION OF CORACOACROMIAL LIGAMENT and ARTHROSCOPIC or if needed OPEN AC JOINT RESECTION,”
[18] Application pp 60 and 128.
[19] Application p 107.
Dr Gill said that he certainly thought that the primary pathology was impingement secondary to large spur and prominent CAL. The AC was said to be really quite abnormal which was a likely contributor to the impingement with the interior osteophyte and the shoulder pains.
Dr Gill sought approval for the surgery. The respondent then arranged for the applicant to
be medically examined by Dr Colin Massie for an injury management assessment on 26 October 2020[20], and by Dr Anthony Smith on 10 November 2020 for an independent medical examination[21]. Icare then issued the s 78 notice referred to in [2] above. Liability was denied on the basis of the report of Dr Smith dated 23 November 2020.[20] Application p 41.
[21] Application p 34.
Dr Massie made a possible diagnosis of:
(a) Carpal Tunnel Syndrome;
(b) right subacromial bursitis with impingement, and
(c) traction injury, right brachial plexus.
Dr Massie found the applicant totally unfit for work.
Dr Smith found that it was more likely than not that the applicant sustained an aggravation of his cervical degenerative disease getting out of the truck and dropping to the ground suddenly. In his opinion that had resolved leaving no disability. In respect of the right upper limb Dr Smith found no organic illness that could produce the pattern of weakness exhibited by the applicant in the upper limb. He said that it is inconsistent that he would have a weak right upper limb but work hypertrophy of the muscles of the right upper limb in comparison with the left. He said that the applicant was embellishing his condition.
The applicant’s solicitor arranged for Mr McEwen to undergo an independent medical examination by Dr Tim Anderson, occupational physician, on 17 December 2020. In a report of that date[22] Dr Anderson noted the surgery proposal of Dr Gill but said that whilst some form of surgical procedure to the shoulder may ultimately be needed, he was not persuaded that the procedure proposed by Dr Gill would be of significant benefit to Mr McEwen. He said:
“Whatever else is going on, and however negative the nerve conduction studies may be, from a clinical perspective it looks very much as though his major pathology is an effect on the C6 nerve root.”
Dr Anderson said that it is likely that it will take a good two years before it can be considered that the applicant’s neurological condition is fully stable and that it should be looked at again not earlier than July 2021. He found Mr McEwen not fit to return to his previous occupation but only fit for a sedentary or preferably semi-sedentary office based or similar type of occupation.
[22] Application p 48.
The applicant had been previously examined by Dr Michael Mc Glynn, hand and plastic surgeon, at the request of EML on 20 April 2020. Dr McGlynn produced a report dated 24 April 2020[23] in which he found Mr McEwen’s history, clinical presentation and diagnostic investigations consistent with the diagnosis of:
(a) right subacromial bursitis, and
(b) right carpal tunnel syndrome.
Dr McGlynn expressed the opinion that it was more likely than not that the applicant’s post-traumatic subcondylar bursitis of the right shoulder together with the aggravation of pre-existing right carpal tunnel syndrome were both caused by the work-related accident. He found that the effects of the work-related injury had not ceased and that the applicant had had no effective treatment thus far. Dr McGlynn said that the appropriate treatment for the applicant’s right carpal tunnel syndrome was surgical release of the carpal ligament to decompress the median nerve. It appears that, on the basis of this report, EML approved the carpal tunnel surgery which was carried out on 13 July 2020.
[23] Application p 25.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. A summary of the submissions is as follows.
Applicant
Dealing firstly with the issue of incapacity, the applicant notes from his statement evidence his desire to return to work as soon as possible, and the necessity for the shoulder surgery proposed by Dr Gill before this can occur. His work background is as a storeman/driver and supermarket store manager, physical work of which he is not currently capable.
The applicant emphasises the mechanism on the injury on 3 July 2019. As he grabbed the rail at the back of his truck to prevent him falling to the ground, the full force of his body weight was taken on his right shoulder causing injury to the shoulder and neck.
The applicant notes the examination and diagnosis of Dr McGlynn, who found bursitis in the shoulder and a diagnosis of carpal tunnel syndrome, and that the effects of the injury had not ceased. The mechanism of injury noted by Dr McGlynn, a sudden forceful twisting of the right arm when gripping with the right hand holding his 70 kg body weight, is consistent with the doctor’s finding that the aggravation of a pre-existing carpal tunnel condition was caused by trauma.
The applicant rejects the finding of Dr Smith that the aggravation of the pre-existing cervical degenerative condition would have resolved of its own accord after three months, leaving him with no disability. The applicant submits that there is internal inconsistency in Dr Smith’s report when he expresses the “extraordinary” opinion that he is as fit for work as at the date of examination as he was before the accident of July 2019 and finds no contraindication to him returning to his old job yet recommends this be on a graduated basis over two or three weeks.
The applicant notes that Dr Smith in his report speaks in generalities when describing the expected recovery time from an aggravation of the pre-existing cervical degenerative condition but submits that it is his actual situation that must be considered. There is no finding by any of the other doctors who have examined him of embellishment, and Dr Smith’s opinion in this regard should be rejected unless there is a finding that he is not a truthful witness. In this regard the applicant relies upon the finding of Dr Massie that he is totally unfit for work.
The applicant submits that there is no evidence that suitable work was made available to him, and that he cannot drive using one hand only.
The applicant submits that his diligent approach to work is apparent from the history and findings recorded by Dr Anderson in his report dated 17 December 2020, the latest report in evidence. Dr Anderson is not able to reach a complete diagnosis, but nevertheless finds that Mr McEwen is not fit for his previous occupation, and the prognosis is not good.
The applicant relies on the opinion and findings of Dr Gill in respect of the reasonable necessity for surgery, noting the doctor’s observation that he is keen for the surgery to be carried out to improve his right shoulder symptoms and allow a return to work.
Respondent
The respondent takes issue with the applicant’s assertion that he has never been the subject of a performance appraisal whilst working for the respondent (see [15] of his statement dated 10 October 2019). Mr McEwen was the subject of a performance appraisal, as is apparent from the documents attached to the Reply. On 20 June 2018, the respondent issued the applicant a Final Formal Warning Notification in respect of inappropriate conduct when making a delivery on 12 June 2018[24]. On 1 July 2019, the respondent hand delivered to Mr McEwen a “FORMAL MEETING NOTIFICATION” in respect of his inappropriate conduct alleged to have occurred over the period from 23 March 2019 to 28 June 2019 when making deliveries. A formal meeting was fixed for 2.30 pm on Wednesday 3 July 2019 at the respondent’s premises. This meeting did not take place because of the applicant’s accident on that day. These two instances of alleged poor behaviour are referred to in the statement of Patrick McKay, the Newcastle Depot Manager, dated 17 October 2019[25].
[24] Reply p 70.
[25] Reply p 38.
The respondent further submits that what the applicant says at [41] in his statement dated 10 October 2019[26] is inconsistent with the obligation of the applicant to return to suitable work provided by the respondent in accordance with s 49 of the 1998 Act.
[26] Application p 6.
These matters cast doubt on the credibility of the applicant when he asserts that he is keen to return to work.
The respondent refers to the applicant’s evidence at [7] and [12] of his statement dated 17 February 2019[27], noting the allegation of the localisation of the pain complained of to the right shoulder. The respondent submits that Dr Gill does not, in his reports dated 28 August 2019 and 15 December 2020[28], address incapacity for work as a result of the shoulder condition. The respondent also submits that:
(a) Dr Gill in his report dated 15 December 2020 does not comment on the MRI arthrogram dated 20 October 2020 referred to above at [16];
(b) the recommendation for surgery in this report is a mere assertion,
and that
(c) pursuant to rule 15.2(3) of the Workers Compensation Commission Rules 2011 which provides that evidence based on speculation or unsubstantiated assumptions is unacceptable, the assertion should be given no weight.
[27] Application pp 9-10.
[28] Application pp 86 and 56.
The respondent relies on the opinion of Dr Ferch in his report dated 10 February 2021 that he found that the MRI of the cervical spine demonstrated mild degenerative change but that there was no neural compromise affecting the right sided nerve roots. In particular the C6 nerve root was not compromised. Dr Ferch also recommended no further wrist surgery and said that surgery to the neck is unlikely to improve the applicant’s symptoms. Dr Ferch’s recommendation that, if a shoulder injury was contributing to the applicant’s symptoms then advice from a shoulder surgeon would be most appropriate, was noted by the respondent.
The respondent submits that Dr Ferch finds that incapacity has ceased unless it is related to the right shoulder.
The respondent notes that Dr Massie in his report dated 26 October 2020 discussed the applicant’s fitness for work with the general practitioner, Dr Wasti, who agreed that Mr McEwen could manage work in a limited capacity and was fit for modified duties, and that it was also apparent from this report from discussions which Dr Massie had with Isabella Snaidero and Ms Kathryn Mladeneo that suitable duties were available but rejected. Dr Massie suggested that the workplace suitable duties be revisited. The respondent submits that if the applicant would have followed the offer of suitable duties made, he would be back at work on such duties.
The respondent relies on the opinion of Dr Anderson in respect of his opinion that the applicant is fit for sedentary or semi-sedentary duties and on the opinion of Dr Smith that the work caused effects of the injury have ceased. The embellishment of the applicant’s condition asserted by Dr Smith is noted, as is Dr Smith’s comment at the end of his report that it would have been propitious if treatments of the cervical spine referred to by him in his report had been undergone at the beginning of the saga of the applicant’s injury.
In summary the respondent submits that the applicant has been paid compensation for a period of about 18 months for what appears to be a mild aggravation of the cervical spine, and that there is no pathology demonstrated in the right shoulder that would justify the surgery proposed by Dr Gill. Dr Anderson rejects the need for surgery.
The respondent submits that the applicant is simply not prepared to return to work until he has undergone the shoulder surgery, despite the continued availability of suitable duties offered by the respondent. It submits that there should be an award for the respondent in respect of the claim for weekly benefits, and a finding that the surgery proposed by Dr Gill is not reasonably necessary as a result of injury on 3 July 2019.
Applicant in response
The applicant submits that the potential suitable duties identified in the report of Strategic Industry Solutions dated 20 September 2019, namely:
(a) forklift driving;
(b) operating sweeping machine;
(c) general clean up;
(d) administration – organising delivery runs (booking deliveries), and
(e) scanning freight with handheld scanner,
are significantly out of date, and that there is no evidence that such duties are available or appropriate in this case.
The applicant also refers to the email from Lauren McElvaney dated 22 September 2020[29] in respect of the applicant’s fitness for work. That email refers to an attached document in respect of a potential recover at work plan that outlined available administration duties, although the document itself was not in evidence. The author of the email also notes that “…the shoulder continues to be a barrier,”. The applicant submits the picture in respect of his condition changed after that date, with the shoulder surgery recommended by Dr Gill. The applicant submits that the requirement for such shoulder surgery prevents the applicant from returning to work on suitable duties.
[29] Reply p 4.
In respect of the opinion of Dr Anderson that the shoulder surgery recommended by Dr Gill is not reasonably necessary as a result of the injury of 3 July 2019, the applicant submits that Dr Anderson is talking about such surgery being carried out at the present time. He does not rule out the possibility that surgery to the shoulder complex may be needed in the future. He was not persuaded that such was the case at the present time. Dr Anderson is of the view that the traction injury suffered by the applicant affected at least the right C6 and possibly the C7 nerve root, although that seems to have settled down. In effect, Dr Anderson does not rule out injury to the shoulder on 3 July 2019.
The applicant submits that he should be accepted as a credible witness and based on the finding of Dr Gill in respect of radiological evidence when he found impingement of the right shoulder, there should be a finding that the surgery proposed by Dr Gill is reasonably necessary as a result of the accident on 3 July 2019.
FINDINGS AND REASONS
Capacity for work
The applicant claims weekly payments from 22 January 2021, although it appears from the EML List of Payments (see [8(d)(iii)] above) that he was paid by the insurer until 24 January 2021. It is the applicant’s capacity for work from that time which must be determined.
Prior to when liability was declined by the respondent in accordance with the s 78 notice dated 2 December 2020, the applicant had been seen by a number of different doctors who had given different diagnoses of his condition following the injury on 3 July 2019, and undergone treatment, including carpal tunnel surgery on 13 July 2020. Dr Gill treated Mr McEwen from August 2019, and after reviewing the MRI scan that was carried out on 11 September 2019, which he said was “…not that impressive”, sent him for an MRI scan of the cervical spine. He noted at that time that the applicant kept on expressing that pain was radiating down the lateral forearm into the thumb and index finger. He said that may be a referred issue from a brachial plexus stretch or a cervical spine problem. Based on the MRI scan of the cervical spine dated 3 October 2019 and his “suspicions from the previous review,” he thought it likely that the applicant was suffering from a right sided C5 nerve root irritation. Dr Gill referred Mr McEwen to Dr Ferch.
The course of the applicant’s treatment thereafter is set out at [11]-[18] above. The carpal tunnel release recommended by Dr Ferch and endorsed by Dr McGlynn, was carried out on 13 July 2020. It provided a substantial improvement in the numbness and tingling in the right hand, but Dr Ferch noted that Mr McEwen continued to experience pain directly around his shoulder. He referred him back to Dr Gill.
Dr Gill further investigated the applicant’s shoulder, including significantly, by way of MRI arthrogram on 20 October 2020. He then made the recommendation for the shoulder surgery referred to in [16] above.
Dr Massie, who saw the applicant on 26 October 2020, made a provisional diagnosis of carpal tunnel syndrome, right subacromial bursitis and a traction injury to the right brachial plexus. He found Mr McEwen totally unfit for work.
Dr Smith’s findings in respect of the applicant on examination on 10 November 2020 are referred to in [20] above, and those of Dr Anderson who examined him on 17 December 2020 at [21] above.
Thus by late 2020 when Dr Gill recommended the surgery which is the subject of the current proceedings, the applicant had been diagnosed with the following resulting from his injury of 3 July 2019:
(a) symptoms highly consistent with C6 nerve root irritation, although no compromise of the nerve root, by Dr Ferch. Dr Anderson is of the opinion that the traction injury affected at least the C6 nerve root, and possibly the C7 nerve root earlier on, which seemed to have settled by the time of his examination of the applicant;
(b) right carpal tunnel syndrome, successfully operated on by Dr Ferch. Dr McGlynn endorsed this diagnosis and treatment, and Dr Massie made a provisional diagnosis of carpal tunnel syndrome, and
(c) a right shoulder injury diagnosed by Dr Ferch as an aggravation of pre-existing degenerative changes in the shoulder or a frank injury to the shoulder occurring on 5 [sic, 3] July 2019, and by Dr Gill as set out in detail in [16] and [17] above. Dr Massie also made a possible diagnosis of right subacromial bursitis and traction injury to the right brachial plexus.
What is significant in my view in respect of the diagnosis of Dr Gill is that it was made with the benefit of the MRI arthrogram of 20 October 2020. The respondent submits above at [35] that Dr Gill did not in his report dated 15 December 2020 comment on this MRI arthrogram. That is correct, but if one looks at the doctor’s report dated 21 October 2020 it is quite clear that Dr Gill made his findings and recommendation for surgery on the basis of the MRI arthrogram. He found the primary pathology to be impingement secondary to large spur and prominent CAL. The acromioclavicular joint was found to be quite abnormal and was also thought to be a large contributor to the impingement with the inferior osteophyte and the shoulder pains. The respondent’s submission that Dr Gill’s recommendation for surgery is a mere assertion is rejected.
It is also clear from the reports summarised above that the applicant consistently complained to the doctors of constant pain radiating from his neck, down his right arm into his hand. None of these doctors found that Mr McEwen was embellishing his symptoms or not presenting in a genuine manner. This contrasts with the opinion of Dr Smith, who saw the applicant on one occasion only, that Mr McEwen was embellishing his symptoms.
Dr Smith does find that the applicant suffered an aggravation of his cervical degenerative disease getting out of the truck and dropping to the ground suddenly. The applicant’s evidence is that he did not drop to the ground, but swung on his right arm, taking his full weight of about 70 kg, to prevent him falling to the ground. The applicant in submissions emphasises the mechanism of the injury, described as a traction injury. I accept the submission that the mechanism of injury is consistent with injury to the applicant’s right shoulder and consistent with the traumatic carpal tunnel injury as found by Dr McGlynn.
Dr Smith is of the opinion that the aggravation of the pre-existing condition in the cervical spine has resolved causing no disability. He says that this aggravation to the pre-existing, fairly extensive and probably more severe than average, cervical degenerative disease would have resolved of its own accord within three months. This is not consistent with the findings of Dr Ferch or Dr Anderson. Dr Smith’s opinion that there is no post-traumatic rotator cuff pathology[30] also contrasts with the opinions of Dr Ferch and Dr McGlynn.
[30] See Application p 37.
I do not accept the opinion that an aggravation of the pre-existing cervical degenerative disease has resolved. I do not accept that the applicant has been embellishing his symptoms. I accept the applicant has consistently presented to both the treating and qualified doctors with the genuine symptoms of which he complains.
Dr Massie finds the applicant is totally unfit for work. Dr Anderson finds him fit for sedentary or semi-sedentary duties only. It was submitted by the respondent that the applicant will not entertain a return to work until the treatment on his shoulder is completed. Having regard to my findings in respect of injury to the shoulder in accordance with those of Dr Gill, this is not unreasonable. The applicant’s employment with the respondent was of a moderately heavy physical nature. He had previously worked as a storeman/driver and before that as a store manager. He would have difficulty driving for extended periods with his shoulder injury.
As noted above, the applicant’s fitness for work must be considered as at January 2021 from when he seeks weekly payments after the cessation thereof by the respondent’s insurer. I note the applicant’s submission that the offer of suitable duties of 20 September 2019 referred to in [42] above is now significantly out of date.
I find that the applicant is a worker who is totally incapacitated for work with no current work capacity and entitled to an award of weekly payments in accordance with s 37 of the 1987 Act. I make this finding notwithstanding the respondent’s submissions that doubt should exist as to the applicant’s credibility because of the Final Formal Warning Notification issued to him on 20 June 2018 (some 12 months before the accident the subject of these proceedings) and the Formal Meeting Notification issued to him on 1 July 2019 in respect of inappropriate conduct alleged to have occurred between March and June 2019. These matters are referred to in [32] above. The respondent has at no time disputed the circumstances of the incident in which the applicant was involved on 3 July 2019, and I accept that the complaints of the applicant to his doctors of the sequalae if his injuries sustained on that day are genuine, and that he is not embellishing his symptoms.
Surgery
The respondent in submissions referred to the well-known matters which must be taken into account when considering whether surgical treatment as a result of a work injury is reasonably necessary in accordance with s 60 of the 1987 Act. It relies on what Burke CCJ stated in Rose v Health Commission (NSW)[31]. Deputy President Bill Roche (as he then was) at [88] in Diab v NRMA Ltd[32] summarised the relevant matters, according to the criteria of reasonableness, as including, but not necessarily limited to the matters noted by Burke CCJ in Rose, as follows:
(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.
[31] [1986] NSWCC 2; (1986 (NSWCCR) 32 (Rose).
[32] [2014] NSWWCCPD 72.
At [89] the Deputy President said that in respect of (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.
Dr Gill, an orthopaedic surgeon who has treated Mr McEwen since shortly after the injury in July 2019, is of the opinion the surgery he proposes is “reasonable and necessary” (not the correct but a more onerous test), and that it has a high likelihood of improving the right shoulder symptoms. Dr Anderson, an occupational physician, states that even at the stage of his report in December 2020, a complete diagnosis of the shoulder is not yet all that obvious. He is not persuaded that there has been any significant injury to the right shoulder complex, saying that the radiological picture is more suggestive of degenerative change. It appears from his report that he did not have access to the MRI Arthrogram dated 20 October 2020 on which Dr Gill made his current diagnosis and recommendation for surgery[33]. Dr Anderson does not rule out the possibility of shoulder surgery at some time in the future but recommends ongoing conservative management of the shoulder.
[33] See “INVESTIGATIONS” and “DIAGNOSIS” in Dr Anderson’s report – Application p 52.
In the circumstances of this case and having regard to the definitive diagnosis of Dr Gill, I think that his opinion should be accepted in preference to that of Dr Anderson on the issue of the reasonable necessity of surgery.
There has been no questioning of the cost of the proposed surgery and Dr Gill has addressed the actual or potential effectiveness of the proposed surgery. He is an orthopaedic surgeon and his expertise has not been called into question.
My finding is that the surgery proposed by Dr Gill in his report dated 21 October 2020 is reasonably necessary as a result of injury to the applicant’s shoulder on 3 July 2019.
SUMMARY
The applicant sustained injury arising out of or in the course of his employment with the respondent on 3 July 2019 to the:
(a) cervical spine;
(b) right upper extremity (shoulder), and
(c) right upper extremity (aggravation of carpal tunnel syndrome).
As a result of such injury the applicant is totally incapacitated for work and has had no current work capacity from 22 January 2020.
The applicant’s pre-injury average weekly earnings are $974.
The respondent is to pay the applicant $779.20 per week from 22 January 2020 to date and continuing pursuant to s 37(1) of the 1987 Act.
The respondent is to have credit for weekly payments made to the applicant after 22 January 2020.
The surgery proposed by Dr D Gill in his report dated 21 October 2020, namely, right shoulder scope and subacromial decompression with bursectomy and resection of coracoacromial ligament and arthroscopic or if needed open AC joint resection, is reasonably necessary as a result of injury on 3 July 2019.
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act including the cost of and incidental to such surgery.
0