Millar v Secretary, Department of Transport
[2021] NSWPIC 336
•7 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Millar v Secretary, Department of Transport [2021] NSWPIC 336 |
| APPLICANT: | Christopher Millar |
| RESPONDENT: | Secretary, Department of Transport |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 7 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of future surgery to left shoulder and left knee; whether admitted workplace injuries materially contributed to the need for the medical necessary surgeries, or whether the need for surgery was brought about as a result of a supervening, non-work-related motor vehicle accident; Held - the applicant must establish, applying the common-sense test of causation as set out in Kooragang Cement Pty Ltd v Bates that the treatment is reasonably necessary as a result of the injury; a work injury need not be the only or even a substantial cause of the need for the relevant treatment before the cost of it is considered reasonable under section 60 of the Workers Compensation Act 1987 (the 1987 Act);Murphy v Allity Management Services Pty Ltd and Calman v Commissioner of Police followed; the shoulder and knee injuries in issue fall broadly within the second category of cases described by Malcolm CJ in The State Government Insurance Commission v Oakley as applied by the NSW Court of Appeal in Secretary, NSW Department of Education v Johnson; as such, the accepted injuries materially contributed to the need for the surgeries; respondent ordered to pay costs of and incidental to the proposed surgeries. |
| DETERMINATIONS MADE: | 1. The applicant suffered injuries to his left shoulder and left knee in the course of his employment with the respondent on 19 March 2019. 2. As a result of the injuries referred to in (1) above, the applicant requires surgery to his left shoulder as proposed by Dr Yalizis and left knee as proposed by Dr Graham. 3. The surgeries referred to (2) above are reasonably necessary as a result of the applicant's work injury. 4. The respondent is to pay the costs of and incidental to the proposed surgeries as recommended by Dr Yalizis and Dr Graham. |
STATEMENT OF REASONS
BACKGROUND
There is no doubt Christopher Millar (the applicant) suffered injuries to his left shoulder and left knee in the course of his employment as a train driver with the Secretary, Department of Transport (the respondent) on 19 March 2019.
On that date, the applicant lost his footing as he was attempting to alight from a train at a stabling yard in wet weather. As the applicant fell out of the train, he scrambled and grabbed the railing, eventually pulling himself back on board. In doing so, he suffered injuries to multiple body parts including, relevantly for the purposes of these proceedings, his left shoulder and left knee.
These proceedings seek orders that the respondent pay for the costs of and incidental to proposed left knee and left shoulder surgery, the medical need for which is not disputed.
The matter is complicated by the applicant having been involved in a subsequent, non-work related motor vehicle accident on 20 October 2019. The respondent has denied liability for the costs of both surgeries and asserts the need for them arises from the supervening motor vehicle accident.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the need for the proposed surgeries has been brought about by the workplace injury or the supervening motor vehicle accident.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 27 July 2021. 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.
At the hearing, Mr L Morgan of counsel instructed by Ms J Pearce, solicitor appeared for the respondent. Mr J Gaitanis of counsel instructed by Ms C Blake, solicitor appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (the Application or [A]) and attached documents;
(b) Reply ([R]) and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) and attached documents dated 27 May 2021;
(d) respondent’s AALD and attached documents dated 21 July 2021; and
(e) letter from Allianz CTP claims to the applicant dated 3 May 2021, admitted without objection and marked exhibit A.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
General principles
The applicant bears the onus of proving the proposed surgeries, which it is agreed are medically warranted, are reasonably necessary as a result of his work injuries, notwithstanding the supervening motor vehicle accident.
Consistent with authorities such as ACQ Pty Ltd v Cook (2009) 237 CLR 656, a condition may have multiple causes, and a work injury need not be the only or even a substantial cause of the need for the relevant treatment before the cost of it is considered reasonable under section 60 of the Workers Compensation Act 1987 (the 1987 Act): see Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy).
The applicant must establish, applying the common-sense test of causation as set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) that the treatment is reasonably necessary as a result of the injury, in the sense that the injury materially contributed to the need for the surgery (see Taxis Combined Services Victoria Pty Ltd v Schokman [2014] NSWWCCPD 18 and Sutherland Shire Council v Baltica General Insurance Company Ltd (1996) 12 NSWCCR 716.
Cases involving multiple injurious events can be broadly placed into three categories, as set out by Malcolm CJ in The State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81 – 003 (Oakley). Those principles were applied by the New South Wales Court of Appeal in Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 (Johnson), where Emmett AJA categorised the cases as follows:
“Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained."
In Calman v Commissioner of Police [1999] HCA 60, Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ said:
“It has long been held that incapacity may result from an injury for the purposes of Workers Compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgement Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.'”
In this matter, the question to be determined is which of the three categories referred to by Emmett AJA in Johnson the applicant's injuries fall within. There can be no question that the authorities clearly allow for the proposition that an incapacity (and, applying the same principles, by inference the requirement for treatment) may be said to have been materially contributed to by a workplace injury, notwithstanding a later non-work-related incident.
The proposed shoulder surgery
For the following reasons, I am of the view that the requirement for the left shoulder surgery arises from the accepted workplace injury to the applicant's left shoulder.
Mr Morgan submitted, and I accept, that the clinical evidence discloses the applicant's left shoulder condition had never resolved after the workplace injury and before the later motor vehicle accident.
That much is borne out by the treating doctor’s medical certificates attached to the Application, including one dated 16 September 2019, just four weeks before the motor vehicle accident. That certificate noted a diagnosis of left shoulder subacromial and subdeltoid bursitis with a 3 millimetre partial thickness tear of the anterior fibres of the supraspinatus tendon as a result of the workplace injury. That certificate noted restrictions on the applicant of carrying less than 1 kilogram with his left upper limb, and no use of the left upper limit for bending, twisting or squatting.
The applicant was referred by the respondent to the Sydney Pain Management Centre, which provided a report dated 17 October 2019, a matter of only 10 days before the motor vehicle accident. The pain management specialist took a history from the applicant of having consulted a doctor three days after the injury because of worsening pain in the applicant's arms and back of his neck. The history then records:
“Over the following months, while the ache in his left shoulder has improved, the ache in his right shoulder he feels has worsened, as he has been using his right arm more in order to compensate for and minimise the use of the left shoulder. Also, while the numbness and tingling in his arms and fingers appear to have subsided somewhat at rest and whilst in the upright position, they become prominent again when he lies down on his back. He is uncomfortable lying on his sides as doing so exacerbates the pains in his shoulders."
It is apparent from this history and the contents of the medical certificates that although there had been some alleviation of the applicant’s symptoms before the motor vehicle accident, they had never fully subsided.
The applicant was also referred by the respondent to Dr Ian Smith, injury management consultant who conducted a file review and assessment on 13 June 2019. In that report, Dr Smith noted:
“Although Mr Millar’s left arm injury is still symptomatic, the main problem in returning to work is the bilateral knee problems. However, both injuries are impacting on return to work."
Dr Smith, in light of the applicant's complaints, recommended supporting ongoing suitable duties for him.
The applicant consulted Matthew Hicks, physiotherapist who reported to his general practitioner Dr Qureshi on 14 May 2019. In that report, Mr Hicks confirmed the subacromial and subdeltoid bursitis with the 3 millimetre intrasubstance tear of the supraspinatus. He recorded “this pain has mostly resolved with only intermittent mild discomfort.”
Dr Panjratan, independent medical examiner (IME) for the respondent, provided a report dated 25 July 2019 (R78). In that report, Dr Panjratan noted “the pain in the arm and shoulder settled with physiotherapy after a month.” That history is at odds with the clinical picture of the treating practitioners and stands alone as a position suggesting the applicant's left shoulder problems had resolved by the middle of 2019.
Dr Panjratan provided a second report dated 20 April 2020. In that report, Dr Panjratan took into account the history of the motor vehicle accident where the applicant’s vehicle was struck by a bus.
Dr Panjratan noted the applicant suffered injuries to both shoulders in the motor vehicle accident, however, he did note that “following the railway accident he had issues with the left shoulder, left elbow and left wrist. Following the MVA the left upper extremity became worse.” Dr Panjratan provided an opinion that his findings on examination were consistent with ongoing problems in the left upper extremity (and left knee), which had become worse following the motor vehicle accident. He diagnosed a “left rotator cuff tear quire which has become worse following the MVA accident and is awaiting surgery.”
He described the cause of the applicant's injury as originally the workplace incident which had been complicated by motor vehicle accident in which his vehicle was rear-ended by a bus and said “employment was a substantial contributing factor.”
For the applicant, IME Dr Poplawski provided a report dated 26 June 2020. He also had a broadly consistent history of both the workplace and motor vehicle accidents. Dr Poplawski at [A34] has summarised the situation as follows:
“Mr Millar sustained injuries to his left wrist, elbow, shoulder and left knee when he slipped on a wet foot plate while getting out of a train at work on 19 March 2019. He developed pain in all of these sites on an increasing basis, particularly affecting his left shoulder and left knee and developed consequential problems in his right knee.”
Dr Poplawski had a history of the applicant suffering increasing symptoms in the left shoulder following the motor vehicle accident, however, he said the applicant's ongoing symptoms in that body part are related to his employment with the respondent.
Professor Cumming provided a report to the motor vehicle insurer dated 19 January 2021 [R93]. After taking a detailed history and setting out the applicant's ongoing issues, Professor Cumming said:
“Finally it is important to note that in shoulder conditions, it is very frequent that it is the initial injury if substantiated which is to be regarded as the commencement of the problem and very frequently the major contributing factor.
This is referred to in which it is stated that he previously injured his left shoulder at work on 19 April 2019…
In summary, the syndrome regarding both his shoulders was well-established before this motor vehicle accident which appeared not to have injured his shoulders.”
At [R100] Professor Cumming provided the following diagnosis and opinion:
“It is my opinion that the rotator cuff problems in the left shoulder… are constitutional, pre-existing and although there may have been symptomatic aggravation with the activities in the two incidents, it is not my opinion that the motor vehicle accident as stated on 29 October 2019 has influenced his left shoulder.
I agree with the opinion of Dr Yalizis that if he has a biceps tear and it is traumatic, then it is more likely that it would have occurred at the time of his injury in March 2019 when attempting to emerge from the train.”
In other words, to the extent there was an injury to the left shoulder (which for the purposes of these proceedings is admitted), Professor Cumming was of the view that injury related to the workplace incident rather than the motor vehicle collision.
Treating shoulder surgeon Dr Yalizis provided a number of reports to the applicant's general practitioner, together with a report dated 20 October 2022 to the applicant’s solicitors [A52]. The history obtained by Dr Yalizis was as follows:
“As you know, Mr Millar has sustained two separate injuries.
One was as a Sydney Trains driver on 19 March 2019 and the second was on 20 October 2019 during a motor vehicle accident.
Christopher was very clear that his left shoulder injury was sustained at the time of the work injury when he was working for Sydney Trains when he slipped on a wet foot plate.
His right shoulder injury was sustained when he had the car accident.”
Dr Yalizis was specifically asked about the relationship between the left shoulder injury and the applicant's current position and replied as follows:
“Mr Millar’s employment with Sydney Trains is a substantial contributing factor to his current condition. This can be obtained simply on discussing his pain profile with him. He felt that the pain in the left shoulder started after he grabbed onto the handrail when he slipped. He felt the pain was very anterior. This coincides with his imaging and his examination findings which are consistent with a long head of biceps tendinitis. It is also consistent with the fact that he had a positive response, albeit for a short time to the left shoulder corticosteroid injection.”
Dr Yalizis specifically ruled out the applicant's left shoulder injury being related to the motor vehicle accident.
I note Dr Yalizis is a treating surgeon, and as such unless it can be shown that his opinion is predicated upon some error regarding history or symptomology, it should be given significant weight.
Mr Gaitanis submitted that the supervening motor vehicle accident was so significant that it overtook the original shoulder injury. On balance, I reject that submission, as the preponderance of the medical evidence clearly establishes the applicant’s symptoms were ongoing in his left shoulder from the time of the injury at issue to the motor vehicle accident.
Whilst it is true that the first recommendation for shoulder surgery arose after the motor vehicle accident, the surgeon who recommended that surgery is clear there is a causal link between the original workplace injury and the left shoulder surgery. That is supported by Professor Cumming, whose report forms part of the respondent's own case. Dr Panjratan also supports that proposition
An important consideration in this matter, in accordance with decisions such as Murphy is that the symptoms remained ongoing from the time of the initial injury and as such, I am comfortably satisfied on the balance of probabilities that the need for the left shoulder surgery is materially contributed to by the workplace injury.
Proposed left knee surgery
If anything, the position with regards to the proposed left knee surgery is even clearer.
Dr Ian Smith’s report of 13 June 2019 [A60] notes the applicant's main problems at that time were his bilateral knee issues.
The applicant initially consulted Dr Laird, orthopaedic surgeon with respect to his knee issues. On 9 July 2019, Dr Laird reported to the applicant's general practitioner the presence of mild to moderate arthritis in the medial compartment in the left knee which had been aggravated by the workplace injury. At that time, Dr Laird considered it was too early to recommend a knee replacement and recommended continued non-operative measures with analgesia and weight loss.
It is worth noting at this point in time that the medical requirement for the left knee surgery is not an issue. As with the proposed left shoulder surgery, the issue is the causal link between the workplace injury and the requirement for the surgery.
The applicant consulted Dr Graham, knee surgeon who provided a report to the general practitioner dated 6 April 2020 [A265]. Dr Graham noted the applicant's long history of knee problems and the workplace incident in 2019. He then said “when recovering from this, he was also hit by a bus in October 2019”. After examining the applicant’s knee and referring to the radiological investigation, Dr Graham recommended total left knee replacement surgery.
Dr Graham noted at [A267] the initial injury to the applicant’s left knee was a result of the incident where he slipped at work in 2019.
As with Dr Yalizis, Dr Graham is a treating surgeon whose opinion carries substantial weight. Although, understandably given his treating doctor, he has not provided a detailed opinion with regards to causation, it is apparent from his report to the general practitioner that he considers there is a causal link between the left knee injury at work and the requirement for surgery.
The opinion of Dr Graham as to causation is supported by IME Dr Poplawski who said:
“In my opinion, the injury Mr Millar sustained on 19 March 2020 while exiting the train he had been driving resulted in an aggravation of pre-existing, but previously asymptomatic minor degenerative changes.”
“Whether or not a total knee replacement is necessary at this stage depends on the progression of Mr Millar's arthritis. At the time of his knee x-ray on 26 June 2019, there were mild degenerative changes present which would not normally warrant the procedure of total knee replacement. In my opinion, Mr Millar should have an updated investigation in the form of an MRI scan of his left knee, to evaluate the current severity of his arthritis before recommending total knee replacement surgery as being appropriate at this stage.”
The applicant subsequently underwent a further MRI of the left knee on 11 February 2021. That study demonstrated a decline in the applicant's condition, by way of a moderate-sized joint effusion and popliteal cyst which contained debris. There was a horizontal tear involving the body of the lateral meniscus which breached the superior surface towards the free edge. There was also a moderate grade and full-thickness chondral wear within the central to posterior weightbearing surface of the lateral femoral condyle. The reporting radiographer described the applicant as suffering:
“advanced patellofemoral joint arthrosis, moderate arthrosis within the medial and lateral compartments of the tibiofemoral joint, a horizontal tear involving the body of the lateral meniscus, attenuation and intrasubstance hyperintensity involving the posterior root ligament of the lateral meniscus and attenuation of the posterior horn and posterior root ligament of the medial meniscus.”
Dr Graham provided a report to the applicant's solicitors dated 28 September 2020, in which he indicated the applicant had ongoing pain in the left knee since the injury on 19 March 2019 and which he described as a contributing factor to the symptoms. He said the pre-existing arthritis in the applicant's left knee had been aggravated by both the workplace injury and the motor vehicle accident on 20 October 2019 and that “his employment at Sydney Trains was a contributing factor to his injury.”
In that report, Dr Graham noted the applicant's treatment to that point in time had been appropriate and included conservative treatment and medication. He said, however, the applicant was now at the stage where he was having significant symptoms that were affecting his quality of life to the extent that surgery was recommended.
Mr Morgan submitted, and I accept, that Dr Graham’s report, combined with the views of Dr Poplawski, satisfy the requirements for the reasonable necessity of surgery as referred to by Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). Nevertheless, as previously noted the medical requirement for surgery is not an issue in this matter and the only issue is the causal link between the requirement for surgery and the accepted workplace injury.
The respondent's IME Dr Panjratan stated in his report that the aggravation to the applicant's left knee had not ceased as at the time of his examination on16 July 2019. In his later report, Dr Panjratan noted the cause of the applicant’s injury was originally the workplace incident which had been complicated by the motor vehicle accident. Nevertheless, he still described employment as a substantial contributing factor. He stated the aggravation was ongoing.
Somewhat curiously, at [R91], having indicated the original cause of injury was the workplace incident and the effect of that aggravation was ongoing, Dr Panjratan then stated in the very next paragraph that the aggravation was not due to work but to the motor vehicle accident.
I reject that opinion, as it flies in the face of the contemporaneous evidence which clearly demonstrates ongoing problems in the applicant's left knee up to and including the time of the motor vehicle accident.
As was noted by Mr Morgan, all that is required is that the workplace injury materially contributed to the requirement for surgery. It does not need to be the main contributing factor or even a substantial contributing factor to that requirement. In my view, the clinical material clearly establishes ongoing complaints of problems in the applicant's left knee from the time of his workplace injury, and as those complaints have worsened, so the need for surgery has arisen.
Mr Gaitanis submitted that Dr Laird had made clear in his report of 9 July 2019 that it was too early for the applicant to undergo a total knee replacement, and recommended nonoperative procedures. I accept that submission, however, it is usurped by the opinion of Dr Graham a year later who noted the applicant had undergone a long period of conservative treatment but his symptoms had worsened, necessitating the requirement for surgery.
Much of the respondent’s submissions went to the fact the applicant's condition had deteriorated following the motor vehicle accident. That is not really in issue, however, neither is it the relevant test. What is required, on a common-sense evaluation of the causal chain, is a consideration of whether the workplace injury materially contributed to the need for the surgery.
I am satisfied, on the balance of probabilities, that the circumstances of the applicant's left knee injury (and indeed his left shoulder injury) satisfy the second limb in Oakley as referred to by Emmett AJA in Johnson, in that there was an earlier injury to the knee which has been exacerbated by the subsequent motor vehicle accident. As such, there is a causal connection between the original injury and the subsequent damage.
This being so and given the medical requirement for surgery is not an issue, it follows for the above reasons that the need for the applicant's proposed left knee surgery has been materially contributed to by the workplace injury. This being so, the respondent will be ordered to pay the costs of and incidental to that surgery.
SUMMARY
For the above reasons, the Commission finds that although the applicant's left shoulder and left knee injuries were exacerbated by the motor vehicle accident, there is a causal connection between the workplace injury and the current damage to those body parts, which in turn gives rise to the requirement for surgery. As such, the workplace injury has materially contributed to the need for both surgeries and the respondent will be ordered to pay the costs of and incidental to both the proposed left shoulder and proposed left knee surgeries.
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