Parmenter v Ian's Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Parmenter v Ian's Transport Pty Ltd [2022] NSWPIC 328
APPLICANT:	Victor Parmenter
RESPONDENT:	Ian’s Transport Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	27 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for future surgery to right shoulder said to arise from consequential condition brought about by overuse following accepted left shoulder injury and surgery; respondent accepts consequential condition took place however it alleges the effects of it have passed and the requirement for the medically necessary right shoulder surgery has been brought about by pre-existing conditions; Held – the effects of the consequential condition are ongoing; all the lay and treating medical evidence in the matter supports a finding of a continuum of symptoms in the right shoulder since the onset of the accepted consequential condition which have not dissipated or reverted to the status of the relevant body system before the consequential condition came about; the respondent’s attack on the applicant’s credit concerning histories of prior shoulder issues before the injury at issue are irrelevant in circumstances where the fact of the consequential condition is not in issue and the only question is whether its effects persist; the overwhelming evidence is the symptoms have persisted to the present time; the respondent’s Independent Medical Examiner (IME) is the only medical expert to assert the consequential condition has passed and his opinion is not supported by the treating medical evidence; as a matter of common sense the right shoulder consequential condition is a material cause of the requirement for the proposed right shoulder surgery; respondent ordered to pay the costs of and incidental to the proposed surgery; claim for weekly compensation discontinued.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his left upper extremity (shoulder) in the course of his employment on 18 September 2020. 2. As a result of the injury referred to in (1) above, the applicant suffered a consequential condition to his right upper extremity (shoulder) owing to overuse of the right upper extremity. 3. The effects of the consequential condition are ongoing. 4. As a result of the consequential condition, the applicant requires right shoulder surgery by way of arthroscopy, rotator cuff repair and biceps tendinosis surgery together with associated costs. 5. The respondent is to pay the costs of and incidental to the right shoulder surgery proposed by Dr Gavin Soo in his estimate dated 20 January 2021. 6. The claim for weekly compensation is discontinued.

STATEMENT OF REASONS

BACKGROUND

Victor Parmenter (the applicant) was employed as a truck driver by Ian’s Transport Ltd (the respondent) as a driver of waste vehicles. On 18 September 2020 he was pumping waste out of his truck when a hose came loose and forcefully struck him directly on his left arm.
The applicant consulted his general practitioner Dr Tan and underwent scans of his left shoulder. The applicant was then referred to see orthopaedic surgeon, Dr Soo. He was diagnosed with a tear in his left shoulder and was recommended surgery by Dr Soo which he underwent on 20 November 2020 by way of left shoulder arthroscopy, rotator cuff repair and biceps tendinosis.
The applicant’s claim in respect of his left shoulder was accepted. He claims that as a result of his left shoulder being in a sling, he began to use his right arm more often and relied upon it to drive and to carry out his day-to-day activities. He states that his right arm began to feel sore and painful during that time. According to the applicant, he discussed the increasing pain in his right shoulder with his treatment providers and underwent an MRI.
The MRI revealed a tear in the applicant's right shoulder, however, it is noteworthy the applicant had significant pathology in that body part before the accident at issue. Dr Soo has recommended right shoulder surgery, however, the respondent has denied liability for the operation and alleged the effects of the consequential condition have passed. There is no issue the consequential condition took place.
The applicant also sought payment of weekly compensation, however, at the hearing that claim was discontinued. The only matter in dispute is therefore whether the applicant's requirement for what is accepted to be medically necessary surgery has been brought about by any consequential condition to his right shoulder.

ISSUES IN DISPUTE

The parties agree that that only matter in dispute is whether the effects of the applicant's consequential condition to his right shoulder have passed, and whether any need for surgery arises from the applicant's pre-existing condition in his right shoulder or as a result of the consequential condition.
Given the way the matter proceeded at hearing, it is important to note that from the time of issuing its section 78 notice on 16 April 2021, the respondent has conceded the presence of a consequential condition in the applicant's right shoulder. The respondent contends, however, consistent with the opinion of its independent medical examiner (IME) Dr Doig that the consequential condition to the applicant's right shoulder has passed, and the ongoing symptoms suffered by the applicant were as a result of the pre-existing pathology. That position was maintained at the telephone conference and at the hearing of this matter on 14 June 2022.
At the hearing, as already noted, the applicant's claim for weekly compensation was discontinued.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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 hearing before me on 14 June 2022. At the hearing, Mr Tanner of counsel instructed by Mr Power appeared for the applicant. Mr Grimes of counsel instructed by Ms Dooley appeared for the respondent.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and taken into account in reaching this decision:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    applicant's Application to Admit Late Documents (AALD) dated 10 June 2022 and attached documents, and
(d)    respondent’s AALD dated 14 June 2022 and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS
Whether the effects of the consequential condition have passed

Mr Tanner noted there was no suggestion the applicant required surgery before the injury to his left shoulder which gave rise to the consequential condition to his right shoulder. He also noted there was no issue the applicant suffered from a pre-existing rotator cuff tear to his right shoulder, however, he had been able to work as a driver up to the point where he overused that limb as a result of the accepted injury to his left shoulder.
Mr Tanner submitted there was no evidence in any of the medical material before the Commission that the symptoms of the applicant’s aggravation have ceased at any point to the present time. He submitted there was a consistent presentation of ongoing worsening symptoms since the applicant underwent surgery to his left shoulder.
Mr Tanner noted that the respondent's case relied upon the opinion of Dr Doig, who at page 33 of the Reply noted the following:
“(a)    As clearly you pointed out, Mr Parmenter was having problems with his dominant right shoulder for many years and medical imaging revealed a pre-existing rotator cuff tear as evidenced in the ultrasound scans of August 2017 and June 2018. Mr Parmenter has also undergone treatment for the right shoulder condition including cortisone injections…
(b)    It would appear that Mr Parmenter is simply suffering from ongoing, symptomatic exacerbations at his right shoulder, which one would expect based on the pre-existing pathology, while performing activities overhead. This would be the situation either at or without work…
(c)    Any ongoing treatment with respect to the right shoulder in my opinion is unrelated to the non-dominant left shoulder injury. Pathology at the right shoulder accounting for Mr Parmenter’s symptoms was pre-existing and completely unrelated to his current position as a truck driver."
The respondent made much of the fact the applicant did not reveal to either Dr Soo or his IME Dr Gehr that he had suffered significant issues with his right shoulder before the injury at issue. If it was the case that the respondent placed in issue the existence of any consequential condition or injury to the right shoulder, this may be of some import. However, in circumstances where the respondent's position has consistently been a concession that a consequential condition was present, whether or not the applicant was suffering ongoing symptoms in his right shoulder up to the date of injury is irrelevant.
Mr Grimes took the Commission to a number of reports and stated that no weight should be placed on the opinions of Dr Soo and Dr Gehr given the incomplete histories they were given. However, the cause of the consequential condition is not a live issue in these proceedings. In any event, as Mr Tanner noted in reply, Dr Soo did refer to the pre‑existing right shoulder issues and provided an opinion as to the requirement for surgery predicated on their existence. Dr Soo stated the requirement for that surgery was brought about by the work-related consequential condition.
Mr Grimes also took the Commission a number of reports from a treating physiotherapist dated early 2020, which he submitted demonstrated significant right shoulder problems requiring the proposed surgical intervention before the injury at issue.
However, I reject that submission concerning those reports, as it is apparent the dates on them are erroneous. I feel comfortable in reaching that conclusion because the reports all refer to the applicant undergoing left shoulder surgery. That surgery took place in November 2020. Plainly, the reports which bear the putative dates of early 2020 would not make reference to surgery undertaken in November 2020 if they we dated correctly. In my view, it is clearly apparent the physiotherapist reports in fact date from 2021.
In any event, as already noted nothing actually turns on this point because the respondent concedes there was a consequential condition in existence. It merely argues its effects have passed.
As Mr Tanner noted, despite Mr Grimes drawing the Commission's attention to an alleged lack of credit on the part of the applicant and nondisclosure of right shoulder problems before the left shoulder injury, the respondent could not draw the Commission’s attention to any evidence in support of the proposition that the effects of the agreed consequential condition have passed. That is, on any view, a significant matter.
The sole issue for determination in these proceedings is whether the condition has passed, and there is no evidence whatsoever before the Commission which points to anything other than a clear continuum of symptoms in the right shoulder from the onset of the consequential condition to the present day.
Regardless of the applicant's history provided to the various doctors, there is no question that he has continued to suffer symptoms in his right shoulder since the onset of the consequential condition. On a common-sense basis, it follows that the effects of the consequential condition have not passed.
As Mr Tanner noted, and I accept, there is no suggestion the applicant was unable to drive to work or attend to his duties before the left shoulder injury and consequential condition to the right shoulder. Those right symptoms arose as a result of the consequential condition and, in my view, the balance of the medical evidence clearly demonstrates that they persist.
In my view, given the parties’ position regarding the existence of the consequential condition, the evidence in this matter overwhelmingly supports the conclusion that the effects of the consequential condition (the existence of which is accepted) are ongoing.
A brief analysis of the medical evidence in this matter reveals the applicant complaining for the first time of right shoulder pain to treating surgeon Dr Soo on 3 December 2020. At that time Dr Soo recorded:
“Consultation report: Victor tells me that after the first few days he has had very little pain to the left shoulder and has not needed to take much analgesia at all. Victor’s main problem that he is having is that because his left arm is in the sling, he is compensating by using his right arm for all his normal activities and the right shoulder has started to get very painful. The pain he experiences is to the anterior aspect of the right shoulder radiating down the front of the arm. He finds that certain activities such as elevating the arm above shoulder height or reaching to the side or behind him makes the pain worse.”
Dr Soo maintained his opinion regarding the cause of the applicant’s right shoulder condition until and including his last report in evidence dated 21 December 2021. At that time, Dr Soo opined:
“His pain has progressively worsened to the right shoulder following the surgery to the left shoulder on the 20^th November 2020. It has been well over a year since the surgery and he has been left requiring the use of a sling to the right arm to help manage the pain. Due to the severity of his symptoms, the findings on MRI of the right shoulder (below) and the lack of improvement with non-surgical measures, I am of the opinion that the surgery requested to the right shoulder (right shoulder arthroscopy, rotator cuff repair and biceps tenodesis) is reasonable and necessary for treatment of the right shoulder.”
It is apparent therefore that as late as December 2021, Dr Soo remained of the view the effects of the consequential condition were ongoing.
General practitioner Dr Tan provided a question-and-answer report to the respondent’s insurer dated 4 February 2021, found in the respondent's late documents at page 253. In that document, Dr Tan diagnosed a full thickness tendon tear and partial tendon tears in the applicant’s right shoulder and noted his symptoms as “He is unable to work due to severe pain in his right shoulder. He cannot drive, travel to work is an issue. Pain is affecting him mentally.”
Mr Tanner submitted the effects of the consequential condition cannot be said to have resolved in circumstances where the applicant did not require surgery before its onset, but now does, and where all the evidence indicates there has been no diminution in shoulder symptoms since the consequential condition began.
Notwithstanding the consistency in symptoms post-onset of the right shoulder condition, Dr Doig had opined as early as 11 April 2021 that the consequential condition had ceased. In his report, Dr Doig stated:
“It would appear that Mr Parmenter is simply suffering from on-going, symptomatic exacerbations at his right shoulder, which one would expect based on the pre-existing pathology, while performing any activities overhead. This would be the situation either at or out-with [sic] work…
Any on-going treatment with respect to the right shoulder in my opinion is unrelated to the non-dominant left-shoulder injury. Pathology at the right shoulder accounting for Mr Parmenter's symptoms was pre-existing and completely unrelated to his current position as a Truck Driver.”
That opinion does not, in my opinion withstand scrutiny when cast against the continuum of symptoms post-onset and the opinion of treating surgeon Dr Soo that the applicant’s consequential condition persists. In my view, Dr Soo’s opinion is broadly consistent with Dr Tan, the general practitioner who has the benefit of treating the applicant both before and after the date of injury. Dr Tan’s question and answer report sets out plainly that which is, with respect, obvious on the face of the entirety of the evidence: the applicant’s right shoulder condition has greatly worsened since and because of the left shoulder injury and surgery, and the effects of that consequential condition persist to this day.
Accordingly, I find on balance the effects of the accepted right shoulder consequential condition are ongoing.

Whether the requirement for surgery results from the consequential condition

It is only necessary for an applicant to show that an injury or consequential condition has been a material factor in causing the requirement for surgery. That much was made clear in Taxis Combined Services(Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18. As Deputy President Roche made clear in that decision, what is required is “concluding that as a matter of common sense, the injury was a material cause of the need for the proposed treatment, even if other factors were also present that may have also contributed to that need".
In this matter, having accepted a continuum of symptoms since the consequential condition to the present day which have led to a worsening of the applicant's right shoulder condition, I am satisfied on a commonsense basis that the requirement for the right shoulder surgery has been brought about by that consequential condition.
It is not the underlying pathology in any relevant body system which gives rise to the need for treatment. Rather, it is the symptomology which brings about that requirement.
In this instance, the applicant’s symptoms have plainly worsened to the point where he is unable to work as a result of the consequential condition, and there is nothing to suggest as asserted by Dr Doig, that the applicant’s symptoms have essentially resolved and that he is now in the same position he would have been in had the consequential condition not arisen.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate for Determination and will order that the respondent pay the costs of and incidental to the proposed right shoulder surgery.

[2022] NSWPIC 328

27 June 2022