McMillan v State of New South Wales (Mid North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McMillan v State of New South Wales (Mid North Coast Local Health District) [2024] NSWPIC 442
APPLICANT:	Christine McMillan
RESPONDENT:	State of New South Wales (Mid North Coast Local Health District)
MEMBER:	Jill Toohey
DATE OF DECISION:	15 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for right arthroscopic acromioplasty; no dispute that the applicant injured her right shoulder and developed consequential condition in her left shoulder; whether the proposed treatment is reasonably necessary as a result of injury; differing opinions as to the diagnosis of her condition and whether she could have injured her rotator cuff in the circumstances described; Held – treatment is reasonably necessary as a result of the accepted injury to the applicant’s right shoulder.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her right shoulder arising out of or in the course of her employment with the respondent on 22 June 2018. 2. The arthroscopic acromioplasty proposed by Professor George Murrell is reasonably necessary treatment as a result of the injury to the applicant’s right shoulder.

STATEMENT OF REASONS

BACKGROUND

The applicant, Christine McMillan, injured her right shoulder on 22 June 2018 when she pushed her car door fully open with her right arm in a bent position. As she did, she felt a sharp pain in her right arm radiating from her shoulder down to her elbow. The respondent, the State of New South Wales (Mid North Coast Local Health District), accepted liability for injury to her right shoulder and a consequential condition in her left shoulder.
Ms McMillan underwent various treatments for her injury. In these proceedings she claims compensation for the cost of a right arthroscopic acromioplasty recommended by Prof George Murrell.
By notices issued on 20 February 2023, 9 June 2023 and 22 December 2023, the respondent disputes Ms McMillan’s claim. In particular, the respondent disputes the diagnosis of her injury by her treating and assessing doctors and says if the proposed treatment is needed, it is not as a result of her accepted injury.

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the right arthroscopic acromioplasty recommended by Prof Murrell is reasonably necessary as a result of the injury to Ms McMillan’s right shoulder on 22 June 2018.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing before the Personal Injury Commission (Commission) on 16 July 2024. Ms McMillan was represented by
Mr Carney of counsel instructed by Ms Palivos. The respondent was represented by
Mr Grimes of counsel instructed by Mr Gilmore.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attachments, and
(c)    Application to Admit Late Documents (AALD) lodged by the respondent on
12 July 2024 and attachment.

Oral evidence

Neither party sought leave to adduce oral evidence or cross-examine any witness.

Ms McMillan’s evidence

Ms McMillan provided a statement of evidence dated 26 October 2023[1] in which she states that, at the time of the injury, she worked in community health services providing care at various locations. She describes the circumstances of her injury when she was in a rush and pushed her car door fully open with her right arm in a bent position. As she did, she felt a sharp pain in her right arm radiating from her shoulder down to her elbow. She reported it to her clinical coordinator who told her to see the “CAPACS doctor” straight away. The CAPACS doctor said she may have injured her supraspinatus and told her to see her general practitioner and have an X-ray and scans done. She saw her general practitioner that day. Her general practitioner also said she may have injured her supraspinatus muscle and referred her for an X-ray.
[1] ARD page 1.
Ms McMillan states that the pain and discomfort in her right arm and shoulder worsened over time. As she relied increasingly on her left shoulder and arm in order to protect her right shoulder, her left shoulder and arm started to get sore and painful as well.
Ms McMillan underwent further scans including ultrasound scans of her right shoulder on
22 June 2018 and 27 June 2018, and an ultrasound of her left shoulder on 15 April 2019. In May 2019 she had cortisone injections in her right shoulder and she had cortisone injections in her left shoulder in July 2019 and October 2019. They gave her minimal relief. In March 2020, she had an MRI scan of both shoulders.
In February 2021, Ms McMillan underwent arthroscopic acromioplasty of the left shoulder under Prof Murrell and more cortisone injections in her right shoulder. The surgery to the left shoulder gave her some relief but the injections gave no relief to the right shoulder. She underwent physiotherapy and saw an exercise physiologist until 28 February 2023 when the insurer denied liability for further sessions.
Ms McMillan states that she wishes to undergo the surgery recommended by Prof Murrell. She refers to the dispute notices by which the insurer declined her request on the basis of two “flareups” of her injury on 5 January 2023 and 6 February 2023 while doing activities at home unrelated to her employment. The respondent asserted that, if there was any need for the proposed surgery, it was due to non-work-related factors.
Ms McMillan outlines the circumstances of the “flareups”, the first when she was taking down Christmas lights and the second when she was trying a yoga pose similar to an exercise recommended by the exercise physiologist. She sets out why she does not agree that these incidents played any role in the need for the proposed surgery, including that the second occurred after Prof Murrell had recommended the surgery.

General practitioners’ records

Two sets of clinical records from Toormina Medical Centre are in evidence. They cover the periods from 24 June 2011 to 5 September 2022[2] and from 1 October 2022 to
[2] ARD page 68.
[3] ARD page 59.
10 January 2024.[3]
On 22 June 2018, Dr Shaun Bond recorded the injury to Ms McMillan’s right shoulder at work that day. He noted “likely small SST tear”. He prescribed medication and referred her for an ultrasound and physiotherapy.[4]
[4] ARD page 96.
On 29 June 2018, Dr Bond recorded “shoulder has settled quite a lot with NSAIDs and time”. He noted “small SST tear on u/s”.[5] On 13 July 2018 he noted physiotherapy was about to start and “no great improvement since last visit”.[6]
[5] ARD page 97.
[6] ARD page 97.
On 19 July 2018, Dr Ashleigh Bloomfield noted “Going really well”, although this appears to be a reference to a weight loss program rather than to the shoulder injury.[7]
[7] ARD page 97.
On 9 August 2018, Dr Broomfield noted Ms McMillan had only just started physiotherapy in the previous two weeks and was “on restrictions”. Dr Broomfield noted “small tear only” and “no indication currently for MRI or ortho review”. She noted that results of the ultrasound had been given to Ms McMillan.[8]
[8] ARD page 98.
On 11 September 2018, Dr Zong-Yuan Zhou noted that Ms McMillan was having ongoing physiotherapy.[9]
[9] ARD page 98.
On 4 October 2018, Dr Broomfield noted the right shoulder was “still catching”.[10] On
25 October 2018 she noted the results of the ultrasound. She noted the diagnosis as:
“Right Subacromial bursar
Biceps tendinosis.”[11]
[10] ARD page 99.
[11] ARD page 101.
On 21 November 2018, Dr Broomfield noted “nil sing. changes in shoulder”.[12]
[12] ARD page 102.
On 19 December 2018, Dr Broomfield recorded that Ms McMillan “reports good progress” and “thinks over course of next 6wks in new year will be fit for pre-injury”.[13] On
[13] ARD page 102.
[14] ARD page 103.
23 January 2019, Dr Broomfield recorded “see in one month re: fit for pre-injury”.[14]
On 26 February 2019, Dr Broomfield noted a case conference had been held and that
[15] ARD page 104.
Ms McMillan was doing pre-injury duties. She noted that ongoing treatment would be needed for eight weeks “with trial of pre-injury”.[15]
On 15 March 2019, Dr Justin Wong noted “Flare up last week with R shoulder – more painful than usual”. He noted the left shoulder was also painful and the right shoulder was “strapped at present”.[16]
[16] ARD page 105.
Records throughout April 2019 refer to ongoing problems with the left and right shoulders. On 9 May 2019, Dr Broomfield recorded that Ms McMillan reported “on annual leave and NSAIDs” and “no pain, able to move and function and sleep”. She reported she was now back at work and “sore again”.[17]
[17] ARD page 108.
Notes on 22 May 2019 show that Ms McMillan had had an injection on the right side.[18] On
5 June 2019 she reported the right shoulder was “comfortable 80% now post injection” and the left shoulder was “comfortable 40%”. She reported the “NDAIDS have helped”[19]. On
[18] ARD page 109.
[19] ARD page 109.
[20] ARD page 110.
9 July 2019, she reported improved range of movement in the right shoulder, the cortisone injection was wearing off, and “pain 60%”.[20]
On 6 August 2019, Dr Broomfield recorded “Remarkable improvement in symptoms” and “right shoulder – very tiny niggles only. can sleep on it now. aggrevation [sic] only if does too much at home feel 95%”.[21] On 27 August 2019, she recorded “reviewed RTW plan and signed off”.[22] On 4 September 2019, she recorded “right shoulder great – asymptomatic”. The left was “not so good.”[23]
[21] ARD page 111.
[22] ARD page 112.
[23] ARD page 113.
Notes of subsequent visits appear to focus on the left shoulder pain. On 6 November 2019, the right shoulder was noted to be “great – 90-95% niggle every now and again only”.[24] On
[24] ARD page 116.
[25] ARD page 119.
4 December 2019 and 18 December 2019 it was “very minor only”.[25]
On 5 February 2020, Dr Broomfield noted the right shoulder had “flared again 45% constant ache halfway through last week”. The notes show “chronic bilateral shoulder pain, not responsive to conservative therapy”. Ms McMillan was now unable to reach overhead and was waking up with numbness on both sides. Dr Broomfield referred her for an MRI and to Prof Murrell.[26]
[26] ARD page 120.
On 10 March 2020, Dr Broomfield noted a flare up of shoulders and bilateral pain.[27] Notes over subsequent visits refer to continuing bilateral pain. On 25 January 2021, there is a note of proposed left shoulder surgery and steroid injection in the right.[28] On 11 February 2021,
[27] ARD page 124.
[28] ARD page 131.
[29] ARD page 132.
[30] ARD page 133.
[31] ARD page 143.
[32] ARD page 137.
Dr Tan noted Ms McMillan was able to sleep on the right shoulder following the injection.[29] On 27 May 2021, it had “returned to pre-steroid injection state”.[30] On 24 June 2021, Dr Tan noted “right AC joint continued to be sore”.[31] On 18 August 2021, there was “ongoing shoulder pain bilateral” and on 10 September 2021 the shoulders were “the same”.[32]
Notes for consultations in subsequent months, refer at different times to “shoulder”, presumably the left because that was the first that Prof Murrell operated on, but also to bilateral pain.

General practitioner’s report

Dr Bonnie Lam reported to Ms McMillan’s solicitors on 14 December 2023[33] that she had taken over from Dr Tan and first saw Ms McMillan on 4 October 2022. Dr Lam noted the history of the injury by reference to the consulting records and Prof Murrell’s reports.
[33] ARD page 58.
Apparently responding to a question as to diagnosis, Dr Lam stated: “Right sided subacromial subdeltoid bursitis with impingement, supraspinatus and infraspinatus tendinosis”, and the same on the left side. She said Ms McMillan’s current symptoms were the result of her original injury.
Dr Lam said she was not an orthopaedic surgeon and could not comment on whether the proposed treatment was appropriate.

Investigative scans

Ms McMillan had an MRI of her right shoulder on 26 March 2020. Dr Anthony Smith, qualified for the respondent, refers to it in his report dated 5 July 2024. A/Prof Nigel Hope, qualified for the applicant, does not appear to have been provided with a copy. His report of 24 May 2023 refers to an MRI on 12 January 2023 and X-ray and ultrasound dated 30 January 2023. Prof Murrell’s report of 9 February 2023 refers to a “recent MRI”, presumably a reference to the MRI on 12 January 2023. The MRI from January 2023 refers to comparison with one on
[34] ARD page 144.
25 March 2020.[34]
The papers before the Commission do not include a copy of the earlier MRI report. However, Dr Smith describes the findings in some detail (below). I do not understand the applicant to take issue with his description.
The MRI of Ms McMillan’s right shoulder on 13 January 2023 shows:
“1.     Moderate persistent insertional supraspinatus and infraspinatus tendinopathy, possibly slightly progressed from previously. A degree of hypertrophic tendinopathy is noted along the posterior supraspinatus tendon insertion. No macro tear.
2.     Mild persistent subacromial/sub deltoid bursitis.
3.     Mild to moderate AC joint osteoarthritis. Interval improvement of previous active capsulitis.”
The glenohumeral joint was “unremarkable”.
An ultrasound on 30 January 2023 showed “bursitis noted”, supraspinatus tendinopathy and impingement.[35]
[35] ARD page 143.

Professor Murrell’s reports

On 23 May 2022, Prof Murrell reported to Dr Tan.[36] His report mainly concerns Ms McMillan’s left shoulder. He reported that it was 18 months since the arthroscopic acromioplasty on the left shoulder and steroid injection into the right. Ms McMillan reported she was making “steady progress”. Ultrasound of the right shoulder showed some mild impingement, ultrasound of the left showed a 20% bursal side tear of the supraspinatus.
[36] ARD page 50.
On 30 January 2023, Prof Murrell reported to Dr Tan[37] noting that Ms McMillan had “bilateral shoulder problems for quite some time”. He said the problems began “in 2010 when at work she opened her car door very quickly and had severe pain in the right shoulder.” (That date, and some others in his reports, appears to be a typographical error. There is no dispute that the injury he describes occurred in 2018.)
[37] ARD page 13.
Prof Murrell said that, some time later, Ms McMillan’s left shoulder became painful and she had a number of cortisone injections in both. He did an arthroscopic acromioplasty on the left side some two years earlier (that is in 2020) which Ms McMillan felt had “helped her shoulders a lot”. However, in recent times, her right shoulder had become a lot worse. On examination, she had slight restriction of range of movement in both shoulders and positive impingement signs in both. X-rays that day showed evidence of impingement on the right side. An ultrasound showed a small partial-thickness bursal side tear on the left and tendinopathy on the right side. A recent MRI also showed tendinopathy and impingement on the right shoulder.
Prof Murrell said Ms McMillan was “doing well” following acromioplasty of the left shoulder and the same treatment on the right “would be a good way to go”.
On 9 February 2023, Prof Murrell reported to the insurer.[38] He said his diagnosis was “impingement, right shoulder”. He described his findings on examination and the results of the scans. He said Ms McMillan had “significant benefit” from arthroscopic acromioplasty on the left and he recommended the same procedure on the right shoulder. He noted that she had “failed nonoperative treatment”. He confirmed his view that her right shoulder condition was related to her work injury and said he anticipated the outcome would be good, with a 95% chance of returning to full activities including work.
[38] ARD page 53.
On 21 February 2024, Prof Murrell reported to Ms McMillan’s solicitors.[39] He confirmed his diagnosis of impingement on the right shoulder and said her employment was the main contributing factor. He confirmed that the “initial work related injury was the initiating event for her right shoulder”.
[39] ARD page 55.
On 22 April 2024, Prof Murrell provided a further report to Ms McMillan’s solicitors[40] setting out why he disagreed with Dr Smith’s diagnosis of glenohumeral joint arthritis. He said:
“No, she does not have arthritis in her right shoulder. X/rays of 7 February 2023 clearly show no arthritis. Similarly, MRI taken on 30 January 2023 shows no arthritis.”
[40] ARD page 56.
Prof Murrell said Dr Smith provided “no evidence of arthritis in the shoulder”. Prof Murrell said he relied on the imaging findings. He confirmed his assessment of “tendinopathy and impingement, right shoulder, unresponsive to non-operative treatment”.

Associate Professor Hope’s reports

A/Prof Hope saw Ms McMillan for assessment on 16 May 2023 and reported to her solicitors on 24 May 2023.[41] He described the mechanism of injury as “right shoulder pain was induced when opening the door to a hospital vehicle”. On examination, he noted “moderate right and mild left shoulder impingement type pain” and moderate stiffness in both. He found anterior tenderness, moderate stiffness, and “positive impingement signs (Neer’s and Hawkins’)” in both.
[41] ARD page 40.
A/Prof Hope noted that the MRI of the right shoulder on 13 January 2023 showed rotator cuff tendinopathy. He diagnosed rotator cuff tendinopathy in both shoulders and said
Ms McMillan’s work was “a substantial contributing factor to the bilateral shoulder injury”. He said the arthroscopic acromioplasty proposed by Prof Murrell was reasonably necessary as a result of the work-related injury.
On 21 January 2024 A/Prof Hope reported to Ms McMillan’s solicitors[42] confirming his diagnosis which he said was “direct result of the original injury on 22 June 2018”. He noted that her shoulders were “previously symptom free” and confirmed his view that the proposed treatment was reasonably necessary as a result of the injury.
[42] ARD page 46.
On 22 April 2024, A/Prof Hope responded to questions from Ms McMillan’s solicitors.[43] He said he did not agree with Dr Smith’s diagnosis of glenohumeral joint osteoarthritis and confirmed his own diagnosis of rotator cuff tendinopathy in both shoulders which he said was:
“based on the history of movement induced shoulder pain, the symptoms of impingement-type pain, the signs of tenderness, stiffness and positive impingement signs (Neer’s and Hawkins’) and the MRI of the right shoulder showing a rotator cuff tendinopathy.”
[43] ARD page 48.
A/Prof Hope said glenohumeral arthritis is “irrelevant” and arthroscopic acromioplasty is the correct treatment for a diagnosis of rotator cuff tendinopathy. He said Dr Smith did not describe the methodology for making his diagnosis.

Dr Smith’s reports

Dr Smith saw Ms McMillan on 27 October 2023 and provided a report dated
[44] Reply page 5.
9 November 2023.[44] He took a history of the injury on 22 June 2018, noting that Ms McMillan “pushed a car door very quickly with her shoulder and had sudden severe pain in the right shoulder”.
Dr Smith noted an ultrasound in the previous week showed a small supraspinatus tear which had settled well. He noted that Prof Murrell had performed surgery on the left shoulder in 2020 which reduced the symptoms but did not eliminate them all together. He said the right shoulder was “quite severely affected” and there was restricted range of movement.

Dr Smith noted an ultrasound report from 27 June 2018 showed tenderness about the supraspinatus and the suggestion of a small tear but the rotator cuff was otherwise unremarkable. There was no bursal impingement or bunching on the dynamic assessment. He noted a further ultrasound report from 21 August 2018 showed no rotator cuff tear but some acromial bursitis with bursal bunching with abduction and a degree of subacromial bursitis. He noted the MRI examination of both shoulders on 26 March 2020 and of the right on 13 January 2023 (including that the glenohumeral joint was unremarkable).
Dr Smith noted Prof Murrell’s report of 9 February 2023 and his diagnosis of impingement in the right shoulder. He noted A/Prof Hope’s report of 24 May 2023.
Dr Smith concluded that “on the balance of probabilities versus possibilities” that
Ms McMillan had glenohumeral joint osteoarthritis bilaterally. He said:
“The diagnosis is glenohumeral joint osteoarthritis of the right shoulder, reported by the radiologist in 2023. One could be suspicious of that diagnosis in an x-ray of 2020. Aggravating osteoarthritis of the right shoulder would be a good estimation of the symptoms that occurred on 22 June 2018. It is almost impossible for her to develop bursitis or any rotator cuff injury under those circumstances. An aggravation to the cervical spine, where she will have osteoarthritic changes as well, is an alternative diagnosis or an additional diagnosis.”
Dr Smith considered the proposed surgery “a complete waste of time” in someone with glenohumeral joint arthritis as “they will not get a normal shoulder at the end of the day” and are very likely to get worse. He said the diagnosable impingement was a consequence of glenohumeral joint osteoarthritis and not consequent on any rotator cuff problems.
In a report dated 5 July 2024,[45] Dr Smith maintained that the incident on 22 June 2018 could not damage the rotator cuff. He noted that Ms McMillan had complained of waking with “a dead arm” and that overhead activity aggravated her symptoms. He thought she could have sustained an aggravation to her cervical degenerative disease, which would explain the pain in both shoulders. He remained of the opinion that she had symptomatic cervical degenerative disease and likely bilateral glenohumeral joint arthritis.
[45] AALD page 1.
Dr Smith noted that Ms McMillan had some improvement in the left shoulder after the operation and said the outcome for the proposed right shoulder operation was “somewhat unpredictable because of the above-mentioned reasons”.

SUBMISSIONS

The applicant’s submissions

Mr Carney refers to Ms McMillan’s statement of evidence, her description of the circumstances of the injury to her right shoulder on 22 June 2018 and her attendance on her doctors. She describes the worsening pain in her right arm and the treatment she underwent including injections in both shoulders.
Mr Carney submits that Prof Murrell’s reports indicate that he saw Ms McMillan for some time, and after various treatments, before he recommended surgery.
Mr Carney submits that the reference in Ms McMillan’s statement to “flare ups” in her right shoulder on 5 January 2023, and 6 February 2023, are irrelevant to the current dispute. He submitted that the respondent did not rely on them in the last dispute notice and Dr Smith does not mention either in his reports.
Mr Carney submits that the clinical notes from the general practitioners show that the injury to Ms McMillan’s right shoulder occurred on 22 June 2018 and it is significant that, from that time, she had symptoms and treatment for her right shoulder.
Mr Carney acknowledges that the entries in the clinical records indicate that the pain in the right shoulder varied and was sometimes as low as 10%, and at times the left shoulder was more painful. Importantly, however, he submits, the records show that from the time of the injury, Ms McMillan complained of symptoms in her right shoulder.
Mr Carney submits that Dr Smith says that the problem is degeneration in Ms McMillan’s cervical spine or arthritis in the right shoulder. Mr Carney acknowledges that there is no question that Dr Smith took a complete history including noting the MRI on 26 March 2020 and the X-ray on 19 October 2020 but Prof Murrell disagrees and says Dr Smith has not explained his diagnosis. Prof Murrell agrees with A/Prof Hope and disputes the diagnosis of glenohumeral osteoarthritis.
Mr Carney submits that Prof Murrell confirms his view that Ms McMillan’s injury was the result of her employment, that conservative treatments have failed and that, with the proposed treatment, he expects a 95% return to full activities. A/Prof Hope agrees with his diagnosis and agrees that surgery is reasonably necessary as a result of the workplace injury.
Mr Carney submits that Dr Smith seems uncertain of his own diagnosis. He has gone from osteoarthritis of the glenohumeral joint to aggravation of degeneration in the cervical spine. Dr Smith says that surgery would make the right shoulder worse when clearly, and he accepts, Ms McMillan’s left shoulder improved after the same surgery.
Mr Carney submits that I would accept the diagnosis by Prof Murrell and A/Prof Hope and would find that the treatment is reasonably necessary as a result of the workplace injury.

The respondent’s submissions

Mr Grimes submits that there is no dispute that Ms McMillan injured her right shoulder on
[46] ARD page 71.
22 June 2018. He submits that the clinical records show that she had symptoms in her shoulder from 2011 when Dr Patricia Collie noted that an X-ray and ultrasound “shows mild bursitis” and referred her for physiotherapy. On 16 January 2012 Dr Collie noted “Shoulder pain continues” and Ms McMillan was to have an MRI in her right shoulder.[46]
Mr Grimes refers to the clinical records, showing that, in June and July 2019, Ms McMillan’s right shoulder had improved; by 6 August 2019, she had only “very tiny niggles”; by
4 September 2019 the right shoulder was “great - asymptomatic”. Mr Grimes submits that the records support the finding that she had recovered from her injury and Dr Smith’s opinion that any need for treatment was unrelated.
Mr Grimes refers to the MRI on 13 January 2023 which found “mild to moderate AC joint osteoarthritis”. Mr Grimes submits that A/Prof Hope overlooked this in his report of
24 May 2023. A/Prof Hope commented on the finding of rotator cuff tendinopathy but he makes no reference to osteoarthritis and this was an important omission. Mr Grimes submits that the MRI supports Dr Smith’s diagnosis.
Mr Grimes submits that Dr Smith diagnosed glenohumeral osteoarthritis, as reported in the MRI, and he says impingement is the consequence of the osteoarthritis and not rotator cuff tendinopathy. Mr Grimes says there is no dispute that there is impingement in Ms McMillan’s right shoulder, and Dr Smith agrees there is, but the issue is whether it is related to the need for any surgery. Mr Grimes submits that A/Prof Hope fails to acknowledge the osteoarthritis on the radiology, and he does not grapple Dr Smith’s opinion.
Mr Grimes refers to Prof Murrell’s report dated 22 April 2024 in which he states that
Ms McMillan does not have arthritis in her right shoulder and that X-rays of 7 February 2023 clearly showed no arthritis and the MRI on 30 [sic: 13] January 2023 also showed no arthritis. Mr Graham submits that the radiologist clearly found arthritis and Prof Murrell has failed to grapple with this, despite being asked to do so.
Mr Graham submits that Dr Smith is supported by objective findings and I would prefer his opinion to those of the applicant’s doctors who fail to grapple with and comment on the osteoarthritis. Dr Smith acknowledges the tendinopathy, but considers it is not the reason for the proposed surgery.

Reply

In reply, Mr Carney submits Prof Murrell’s opinion is clear; he has seen the scans and reached his conclusion. Mr Carney submits that Dr Smith seems uncertain of his diagnosis. Further, that the commentary by the radiologist is just that.

FINDINGS AND REASONS

Section 60(1) of the Workers Compensation Act 1987 (the 1987 Act) provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that Ms McMillan injured her right shoulder on 22 June 2018. The issue for determination is whether the need for the proposed treatment is as a result of that injury.
Ms McMillan bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish her claim: Department of Education and Training v Ireland[47] and Nguyen v Cosmopolitan Homes.[48]
[47] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[48] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates[49] as follows:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
[49] KooragangCement Pty Ltd v Bates 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy v AllityManagement Services Pty Ltd,[50] Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
[50] Murphy v AllityManagement Services Pty Ltd [2015] NSWWCCPD 49.
Ms McMillan’s statement of evidence is itself uncontroversial. She describes opening her car door fully by pushing on it with her right arm in a bent position. Her account of her treatment is straightforward and broadly consistent with the clinical records.
The medical evidence is not so straightforward. The points of contention are primarily the diagnosis of Ms McMillan’s right shoulder condition and the nature and effect of the injury on 22 June 2018.
Some aspects of the medical evidence do not bear directly on the issue for determination.
Mr Grimes refers to clinical records showing that Ms McMillan saw her doctor in 2011 and 2012 in relation to her right shoulder. The records indicate that its condition was serious enough for her doctor to refer her for an MRI. However, there is no evidence of ongoing problems with her right shoulder and I do not understand Mr Grimes to submit that the earlier records have any bearing on the present issue.
Mr Grimes also refers to the clinical records documenting the improvement in Ms McMillan’s right shoulder in the later part of 2019 and submits that they support the finding that she had recovered from her injury and support Dr Smith’s opinion that any need for treatment was unrelated.
There is no dispute that Ms McMillan’s symptoms fluctuated. On 6 August 2019, there was “remarkable improvement” in her symptoms and she had only “very tiny niggles”. On
4 September 2019, the records show her right shoulder was “great – asymptomatic”. However, her symptoms continued, if at times they were minor. In December 2019 her symptoms were “only very minor”. By February 2020 they had flared again and the records show continuing bilateral shoulder pain. None of the doctors, including Dr Smith, indicate that the condition had resolved.
Although in the earlier dispute notices the respondent relied on “flare ups” in January and February 2023 unrelated to Ms McMillan’s employment as causing any need for the proposed treatment, the respondent did not maintain that position in later dispute notices.
Dr Smith does not suggest they were relevant, and Mr Grimes has not submitted they are relevant.
Dr Smith diagnosed “on the balance of probabilities versus possibilities” that Ms McMillan has glenohumeral joint osteoarthritis bilaterally, reported by the radiologist in 2023. He also said “one could be suspicious of that diagnosis in an xray of 2020.” The X-ray does not appear to be in the documents before the Commission but Dr Smith states that he viewed the photographs. A/Prof Hope does not appear to have been provided with those X-rays, and Prof Murrell does not refer to them.
Dr Smith also thought Ms McMillan likely has some symptoms emanating from cervical degenerative disease, rotator cuff disease, and glenohumeral joint osteoarthritis. He said it was “almost impossible” for Ms McMillan to develop bursitis or any rotator cuff injury under the circumstances she described. He says the bursa and rotator cuff are too well-protected by the deltoid muscle and the humerus[51] but he does not explain the “sudden severe pain in her right shoulder” she experienced when she pushed the car door open with her shoulder other than she “could have aggravated her glenohumeral joint osteoarthritis or aggravated her cervical degenerative disease as an alternative diagnosis”.
[51] Reply page 8.
In his supplementary report, Dr Smith seemed less certain of his diagnosis. He thought
Ms McMillan could have sustained an aggravation to her cervical spine which he thought would explain the pain in both shoulders. He remained of the opinion that she has symptomatic cervical degenerative disease and “likely bilateral glenohumeral joint arthritis”.
The doctors are agreed there is impingement in Ms McMillan’s right shoulder. Dr Smith agrees that she has rotator cuff disease but considers the impingement is a consequence of glenohumeral joint osteoarthritis and not consequent to any rotator cuff problems.
A/Prof Hope disagrees with Dr Smith’s diagnosis and says Dr Smith does not describe the methodology for making it. A/Prof Hope says Ms McMillan’s shoulders were previously symptom-free and a “well described work-related event” caused the right shoulder injury. He maintains that the correct diagnosis is right shoulder rotator cuff tendinopathy for which arthroscopic acromioplasty is the correct treatment. He bases his diagnosis on “the history of movement induced shoulder, pain, the symptoms of impingement-type, pain, the signs of tenderness, stiffness and positive, impingement signs (Neer’s and Hawkins’) and the MRI of the right shoulder showing a rotator cuff tendinopathy”. A/Prof Hope does not dispute there is glenohumeral arthritis but says it is irrelevant.
A/Prof Hope does not specifically deal with Dr Smith’s assertion that it would be almost impossible for Ms McMillan to have damaged the rotator cuff in the circumstances she describes. However, he and Prof Murrell took the same history of how the injury occurred on 22 June 2018 as Dr Smith and they both consider it responsible for the rotator cuff symptoms which they say now require treatment. It is reasonable to infer that, had they thought it “almost impossible” to damage her rotator cuff in that way, they would have said so. I prefer their opinion to Dr Smith’s opinion and accept that the incident was the cause of the rotator cuff symptoms which now require treatment.
Mr Grimes submits that A/Prof Hope’s failure to mention the osteoarthritis seen on the MRI in January 2023 is an important omission. A/Prof Hope may have overlooked it or he may have simply considered it irrelevant.
In his first report, Dr Smith was emphatic that it was “a complete waste of time” doing an arthroscopic acromioplasty in someone with glenohumeral joint osteoarthritis because they would not get a normal shoulder at the end of the day, and it could get worse. He considered that there was no requirement or need for any rotator cuff surgery. In his supplementary report, Dr Smith noted that Ms McMillan said there was symptomatic improvement after the operation on the left shoulder and said the outcome of the proposed right shoulder operation was “somewhat unpredictable”.
A/Prof Hope and Prof Murrell are both of the view that the proposed treatment is reasonably necessary as a result of the injury. Prof Murrell anticipates a good outcome and that
Ms McMillan has a 95% chance of returning to full activities including work. I find A/Prof Hope’s and Prof Murrell’s opinions more persuasive and I prefer them to Dr Smith’s opinion.
I am satisfied that the injury at work on 22 June 2018 materially contributed to the need for the surgery proposed by Prof Murrell. Ms McMillan has discharged the onus of establishing that the proposed treatment is reasonably necessary as a result of the injury to her right shoulder on 22 June 2018.

[2024] NSWPIC 442

15 August 2024