Pham v State of New South Wales (South Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pham v State of New South Wales (South Western Sydney Local Health District) [2024] NSWPIC 115
APPLICANT:	Trung Pham
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)
MEMBER:	Lea Drake
DATE OF DECISION:	11 March 2024
CATCHWORDS:	WORKERS COMPENSATION - The applicant alleged an injury to his shoulder; injury, incapacity and the need for surgery in issue; Held – finding of injury, incapacity and an order that the respondent pay for the recommended surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant injured his right upper extremity (shoulder) on 29 July 2022 (deemed) whilst in the employ of the respondent. 2. The applicant is totally incapacitated for employment as a result of that injury. 3. The surgery recommended by the applicant’s treating surgeon Dr David Duckworth is reasonably necessary in all the circumstances of this application. The Commission orders: 4. There will be an award for the applicant. 5. The applicant is to provide a draft order to the respondent’s solicitors and the Commission within three days in relation to weekly payments of compensation. 6. The respondent will meet the costs of and incidental to the surgery to the applicants right upper extremity proposed by Dr Duckworth.

STATEMENT OF REASONS

BACKGROUND

Trung Pham (the applicant) was employed as a radiographer by State of New South Wales (South Western Sydney Local Health District) (the respondent) in 2014. He alleges that in his normal duties he performed physical tasks such as patient handling, lifting patients and manipulating and moving patients.
In July 2022, for approximately five weeks, he was given a range of duties which were not within his usual scope of duties. These duties involved disposing of larger size, older style, radiology scan films. The applicant describes these as “quite heavy”. They are stored in very large envelopes with personal identification details. His task was to tear the identification details off the thick cardboard envelopes and dispose of them separately. The balance of the envelope and the films were then disposed of. The applicant alleges that he developed an injury to his right upper extremity as a result of performing this work.
The respondent denies injury and capacity.

MATTERS IN DISPUTE

The respondent disputes injury pursuant to s 4 and s 9A of the Workers Compensation Act 1987 (the 1987 Act) and has consequently denied liability for weekly payments of compensation and the cost of surgery recommended by the applicant’s treating surgeon Dr Duckworth.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Mr Craig Tanner of counsel, instructed by Scott Dougall of Carroll and O’Dea appeared for the applicant. Mr Bill Loukas of counsel, instructed by Mathew Wallace of Gair Legal, appeared for the respondent.
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

There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission).
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 to ARD (Reply) and attached documents;
(c)    Application to Admit Late Documents dated 17 January 2024 and attachments, and
(d)    Application to Admit Late Documents dated 22 January 2024 and attachments, late lodged but admitted at the conciliation/arbitration without opposition.

The applicant’s submissions

The applicant describes the work which he alleges caused his injury, as follows:
“Without any rotation of duties, I was required to perform this task for about five weeks. I note I am right hand dominant. I would hold envelope with my left hand and then with my right unextended I would try to rip, and tear open the cardboard envelope to extract that part of the envelope that included personal information. The envelopes are thicker and harder than you might imagine and there is a fair amount of effort required in doing this. Whilst performing this activity on 29 July 2022 I developed a burning sensation in the front and middle of my shoulder and arm. I provided a Notice of Injury.[1]
…”
[1] ARD page 2.
The applicant was provided with suitable duties which included collecting the milk, performing small amounts of filing, collecting scripts from a pharmacy for the nurses, throwing out old linens and restocking gloves. At times he had minimal work to do.
The applicant was treated by physiotherapy and his general practitioner (GP) organised a steroid injection which gave some relief. He was referred to Dr Duckworth and had two further injections. These did not provide relief.
He has had an MRI which showed an 8mm tear in his right shoulder.
The applicant is using pain medication (Panamax). He uses his left upper extremity for all heavy lifting. He states that his pain has been extreme at times. His understanding of the advice he has received from Dr Duckworth is that rest will decrease his symptoms but not heal the injury, and that surgery is the appropriate treatment.
From 9 November 2000 until November 2022 the applicant was certified as totally unfit by his GP. He was not compensated for this period. The respondent has refused to provide him with light work on the basis that there is no one available to supervise him within the workplace.
In response to the respondent’s denial of injury the applicant states: “I struggle except this and note that I have not had any prior shoulder injuries and cannot attribute the symptoms my right shoulder and arm to any cause other than injury sustained in the course of my employment.”[2]
[2] ARD page 3
The applicant relies on the various reports of Dr David Duckworth as well as the report of the independent medical examiner (IME) Professor Nigel Hope dated 3 May 2023.

Respondent’s submissions

The respondent’s correspondence of 4 July 2023 confirming the decision to decline liability comprehensively sets out the basis of respondent’s refusal of liability and its submissions.
“Reasons and issues in disputing liability
Evidence on file for the workplace injury that occurred on 29 July 2022 supports the
following:
·We do not agree that your injury arose out of employment as required by section 4 of the Workers Compensation Act 1987.
·We do not agree that your injury was received in the course of employment as required by section 4 of the Workers Compensation Act 1987.
·We do not agree that your employment was a substantial contributing factor to your injury as required by section 9A of the Workers Compensation Act 1987.
·We do not agree that employment was the main contributing factor to the contraction of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
·We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
·We do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.
This decision is made in accordance with sections 4, 9A, 33, 59, 60 of the WC Act.
Reasons relevant to the decision include:
·We refer to your workplace injury that allegedly occurred on 29 July 2022 and to our earlier decision issued on 16 January 2023.
·We acknowledge receipt of an application made pursuant to section 287A of the 1998 Act by your solicitors, by email dated 21 June 2023.
·We maintain and rely upon the reasons outlined in our prior notice dated 16 January 2023. This notice should be read in conjunction with that decision.
·You have been employed by South Western Sydney Local Health District as a radiographer since 2013. You claim that when removing envelopes containing older acetate files, you developed right shoulder pain.
·You appear to have been receiving injections in your right shoulder and consulting with orthopaedic surgeon, Dr Duckworth and also undergoing physiotherapy.
·You were examined by independent orthopaedic surgeon, Dr Miniter at our request who provided a report dated 4 January 2023. He noted your MRI scan was effectively normal, with a very small partial thickness supraspinatus lesion, which was highly unlikely to be associated with the nature of his work.
·He noted it was puzzling that when you were moved to working in a desk environment which no longer required you to move the files which you claimed caused the injury, your pain has intensified rather than diminished.
·Dr Miniter considered there was no evidence of a clinical diagnosis to the right shoulder that explained your presentation. He did not consider there was any work-related injury to the right shoulder on 29 July 2022. He considered that your duties cannot explain your right shoulder problems and noted that the MRI scan findings are extremely minor and a likely age-related.
·You have now provided a statement dated 2 February 2023, which outlines the duties you were performing leading up to your injury allegedly sustained on 29 July 2022. It is consistent with the history of injury outlined in the report of Dr Miniter. You have not worked since 23 January 2023.
·You were also examined by A/Prof Nigel hope who provided a report dated 3 May 2023.
·In contrast to the findings of Dr Miniter, A/Prof Nigel Hope opines that you sustained a right shoulder rotator cuff tear as a result of the duties you were performing on 29 July 2022.
·A/Prof Hope notes that almost one year after the injury you are still experiencing impingement type pain, stiffness and weakness in the right shoulder. He does not provide any opinion as to why your symptoms have persisted despite their minor nature.
·You ceased employment on 23 January 2022, and have not reported any improvement in your symptoms. This is consistent with the findings of Dr Miniter and support the view that your right shoulder symptoms cannot be attributable to your employment.
·As such, we prefer the opinion of Dr Miniter and have decided to maintain the dispute of liability any injury sustained to your right shoulder on 29 July 2022. In the alternative, in the event you have sustained a right shoulder injury on that day, we conclude that it has since resolved and we are disputing liability for any weekly benefits or medical expenses arising as a result of that injury.”
At the conciliation/arbitration the respondent put no submissions in relation to injury. The respondent confined its submissions to the issue of the reasonableness of the surgery proposed by Dr Duckworth and the applicant’s capacity for work. Those submissions were based on the report of Dr Miniter with reference to the findings of the treating doctors.
In relation to proposed surgery counsel suggested that the proposition propounded by Dr Miniter i.e. that a further MRI should be conducted and further reviews held, should be preferred to the opinion of the treating surgeon Dr Duckworth. That, given the minor nature of the tear, and the gap since the MRI took place, the surgery was not reasonably necessary.
In relation to their capacity work the respondent’s counsel submitted that there was no material before the Commission on which a decision could be made as to the applicants ongoing incapacity for employment and that the applicant had therefore not discharged its onus.

CONSIDERATION

Despite the respondent not having argued injury at the arbitration of this application I will deal with injury in the absence of a concession.
I accept the unchallenged facts alleged by the applicant regarding the work he performed for the respondent in July 2022 which he alleges brought about the symptoms he experienced in his right shoulder on 29 July 2022.
The applicant sought assistance from a Dr Tran[3] and then a Dr Arslan.[4] The clinical notes provide contemporaneous support for the allegations of the applicant as does the scan conducted on 6 August 2022 which noted “…a partial thickness tear in the anterior aspect of the supraspinatus tendon measuring 5 mm…. Partial tear and tendinitis of the supraspinatus tendon … Subacromial and subdeltoid bursitis …”. [5] Also, an MRI conducted on 26 October 2022 noted under the heading Impression:
“1.     There is 8.8mm sized partial thickness intrasubstance tear of anterior fibers of supraspinatous tendon at the background of tendinosis.
2.      Mild capsular thickening of acromioclavicular joint causing impingement upon underlying subacromial/subdeltoid bursa.
3.      Mild subdeltoid bursitis.”
[3] ARD page 18.
[4] ARD pages 84 to 87.
[5] ARD page 21.
The applicant continued to consult Dr Arslan and, as late as 15 December 2023, it was noted in that doctor’s s clinical notes, that the applicant’s pain was increasing.
The applicant distinguishes the opinion provided by the applicant’s treating surgeon Dr Duckworth, who is a surgeon specialising in shoulders, to that of Dr Miniter whose expertise is ankles, as well as the fact that Dr Duckworth has the care and professional responsibility for the applicant as his patient.
Dr Duckworth expressed the following opinion in his report of 1 May 2023.[6]
[6] ARD page 25.
“Mr Pham originally saw me on 8 December 2022. He was a 49 year old radiographer presenting with a problem affecting his right shoulder. Apparently on 29 July 2022 he was disposing of some film folders and developed pain around the anterior aspect of his shoulder. He has had pain lifting his arm and pain at night ever since. He has had 2 cortisone injections with mild relief.
On examination on 8 December 2022 Mr Pham had a reasonable range of motion of his shoulder but had positive biceps signs.
An MRI scan showed a partial thickness cuff tear.
In his situation I organised a cortisone injection under ultrasound.
I saw him again on 12 January 2023. He had had no significant relief with the cortisone and still had a lot of pain around his biceps. I did discuss with him the option of surgery to his shoulder.
…
Mr Pham did describe a lot of lifting of films and folders in July 2022 which more than likely contributed to his pain along with a lot of repetitive use of his arm at work. I therefore believe that his work is the main contributing factor.
… As he did not describe any other injury and due to the fact that he has had ongoing pain at work I believe his work is the main contributing factor.
…
I believe the proposed surgery required is related to his work injury.
…
It appears that Mr Pham has failed conservative management and this is why I have given him the option of exploration of his biceps. I therefore believe the proposed surgery is reasonable. The aim of the surgery is to decrease his pain and improve his function. The result, however, will depend on what is found at the time of surgery.”
Dr Duckworth determined that the applicant had a limited employment prospect with no repetitive work and a lifting limit of 5 kg.
Associate Professor Nigel Hope provided a report dated 3 May 2023[7] as an IME. Dr Hope described the applicant’s injury as repetitive tearing of thick cardboard X-ray folders for disposal inducing severe right shoulder pain we confirm that nonoperative treatment failed and then a right shoulder arthroscopy is proposed. He found right shoulder impingement pain, stiffness and weakness causing a moderate functional loss. His examination demonstrated tenderness, stiffness, impingement signs and biceps irritation signs. He diagnosed a right shoulder rotator cuff tear and found the requirement for surgery to be work-related.
[7] ARD page 28
He found the applicant to be genuine with a good attitude, no exaggeration, symptom application or functional overlay.
As to fitness for work Dr Hope found that the applicant was unemployable due to his inability to work at above waist level with a lifting limit of 2kg. This lifting limit is one also found to be appropriate by the applicant’s GP. He concluded:
“There is a total incapacity for work because of the shoulder condition. The right shoulder was previously symptom-free. A well described work-related event caused permanent right shoulder symptoms. This resulted in a significant disability.
….
Treatment includes consultation with the GP, analgesia, physiotherapy, right shoulder injections and consultation with the orthopaedic surgeons.
All this was reasonable and necessary.
…
The right shoulder surgery as proposed by Dr Duckworth is required as a result of the work-related injury. It is required because nonoperative treatment has failed and surgery is the correct management. It is a result of the work injury because the right shoulder was previously symptom-free and a well described work-related event caused permanent shoulder symptoms.
…
This treatment is appropriate as it directly addresses the pathology present.
…
There are no alternative treatment.
…
Rotator cuff repair is effective for rotator cuff tear.
…
The cost is reasonable.
…
This is medically accepted treatment.
…
The need for surgery is due to the right shoulder injury.”
Counsel for the applicant submitted that the Commission should reject the proposition of Dr Miniter. He rejects a work-related injury without any explanation, despite there being no other factors such as age or another injury and the context of a contemporaneous search for treatment and consistent attempts to seek successful treatment.
I reject the opinion expressed by Dr Miniter which I find to be a superficial consideration of the issues which rejects the clear history of injury, treatment and increasing symptoms.
I am satisfied that the applicant seeks treatment which may alleviate his symptoms. It is a reasonable treatment and reasonable for him to pursue it.
In relation to the applicant’s earning capacity, applicant’s counsel submitted that the applicant would be unfit for work in the labour market due to the medical restrictions on his being able to lift above waist level with his dominant hand, any object weighing beyond 2kg or even 5kg, combined with the necessity for him to avoid any repetitive work. In the alternative, should there be any such work available applicant’s counsel submitted that such work would be unlikely to be remunerated beyond the minimum wage. Counsel further submitted that the Commission is obliged to consider real work in the marketplace and that the respondent should put before the Commission evidence of the availability of such real work within the applicant’s capacity.
I accept the medical opinions provided by the applicant’s treating general practitioner, Dr Duckworth and the IME Dr Hope. I am satisfied and find that the applicant has no present capacity for work.

SUMMARY

For the reasons set out above I will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 115

11 March 2024