Prpic v Robert Wayne Grimley t/as Manning Auto Salvage
[2021] NSWPIC 115
•11 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Prpic v Robert Wayne Grimley t/as Manning Auto Salvage [2021] NSWPIC 115 |
| APPLICANT: | John Prpic |
| RESPONDENT: | Robert Wayne Grimley t/as Manning Auto Salvage |
| MEMBER: | Ms Jacqueline Snell |
| DATE OF DECISION: | 11 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for costs payable under section 60 of the 1987 Act for proposed surgical treatment in the nature of arthroscopic left shoulder cuff repair as a result of injury sustained to the applicant’s right shoulder with a deemed date of injury of 11 February 2018; consequential left shoulder injury placed in issue; Held– the applicant has sustained consequential injury to his left shoulder and the proposed surgical treatment in the nature of arthroscopic left shoulder cuff repair is reasonably necessary treatment resulting from that injury. |
| DETERMINATIONS MADE: | 1. The applicant has sustained consequential injury to his left shoulder. 2. The applicant requires medical and related treatment as a result of the consequential injury he has sustained to his left shoulder. The arthroscopic left shoulder cuff repair proposed by Associate Professor Haber is reasonably necessary treatment for the consequential injury the applicant has sustained to his left shoulder. The respondent is to pay the cost of the arthroscopic left shoulder cuff repair and associated expenses as recommended by Associate Professor Haber in accordance with s 60 of the Workers compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
John Prpic (the applicant) was employed by Robert Wayne Grimley t/as Manning Auto Salvage (the respondent) as a tow truck driver between September 2013 and 11 February 2018. The applicant is currently 58 years of age.
The applicant sustained a non-work injury to his right arm and shoulder in or about October 2009 and came to right shoulder replacement in August 2010. In or about January 2018 the applicant suffered a septic infection in his right shoulder during the course of his employment with the respondent. Liability is accepted for this injury to the applicant’s right shoulder.
The applicant initially came under the orthopaedic specialist care of Dr White. The applicant came to surgery on 2 March 2018, and with complication resulting from infection the applicant remained in hospital for some three months. He came to further surgery on 3 April 2018.
The applicant subsequently came under the orthopaedic specialist care of Associate Professor Haber (A/P Haber) and came to further surgery on 25 May 2018 which saw removal of his original right shoulder prosthesis. The applicant participated in an “hospital in the home program” which saw him placed on an antibiotic drip medication. The applicant then came to revision right shoulder replacement on 15 August 2018 and remained on antibiotic medication until the end of 2018.
With the applicant’s left shoulder having now become problematic, A/P Haber has recommended arthroscopic rotator cuff repair, liability for which is declined with injury placed in issue. The insurer of the respondent has issued notices dated 22 October 2020 and 26 October 2020 in accordance with s 78 of the Workplace Injury Management Act 1998 (1998 Act).
Also of relevance in these proceedings is that the insurer of the respondent issued the applicant with an adverse Work Capacity Decision dated 14 April 2020 in which the applicant was notified the rate at which he was entitled to weekly compensation was to be reduced to $0 on 23 July 2020.
ISSUES FOR DETERMINATION
The parties agree that the following issue is not in dispute:
(a) The proposed arthroscopic left shoulder cuff repair recommended by A/P Haber is reasonably necessary treatment for the injury the applicant has sustained to his left shoulder.
The parties agree that the following issue remains in dispute:
(a) Alleged consequential injury to the left shoulder.
PROCEDURE BEFORE THE COMMISSION
The parties attended a teleconference on 11 March 2021. Mr Moffett of counsel appeared for the applicant, instructed by Ms Vogel. Ms Tancred appeared for the respondent. Mr Shum from EML also appeared. The applicant amended his Application to Resolve a Dispute (ARD) to delete reference to alleged consequential right hip injury.
The parties attended a conciliation conference and arbitration hearing on 29 April 2021, by telephone. Mr Moffett of counsel appeared for the applicant, instructed by Ms Vogel. Mr Doak of counsel appeared for the respondent, instructed by Ms Tancred. Mr Shum from EML also appeared. The applicant discontinued his claim for weekly benefits.
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) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 23 April 2021 lodged by the respondent and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief summary of evidence follows.
Statement of the applicant
In his statement dated 9 September 2020[1] the applicant explained that as a result of an incident occurring in or about 1992/93 he is 80% deaf in his right ear and as a result of an incident occurring in or about 1994/95 he is blind in his right eye. The applicant explained that while he was placed on a disability pension following his right shoulder replacement in August 2010 as a result of a non-work related incident occurring in October 2009, he returned to the workforce due to financial hardship.
[1] ARD at page 1.
The applicant described the circumstances of the injury he sustained to his right shoulder during the course of his employment with the respondent, which saw him coming under the specialist orthopaedic care of Dr White and A/P Haber and also the specialist infectious disease care of Dr Ghosh.
The applicant confirmed he had been in receipt of weekly benefits since he ceased work with the respondent on 11 February 2018 up until 23 July 2020, and that to date all medical and related treatment relevant to the injury he sustained to his right shoulder and arm has been met.
The applicant said he continues to be significantly affected by the injury he sustained to his right shoulder and arm. He relevantly said:
“I have a severely restricted movement. I have a very weak grip on that side and can barely lift anything on that side. I can’t raise my right arm about chest height. I have great restriction in pushing, pulling and pressing with my right arm/shoulder. It feels as if something is constantly grabbing, holding and putting pressure on it. The pain becomes more unbearable during cold weather. I have trouble sleeping and it is hard to get into a comfortable position. I can’t even lift my right arm enough to eat or scratch my head or move it behind my back enough to wipe after going to the toilet, and this is extremely frustrating. I can no longer drive heavy vehicles/trucks”.
The applicant said relevant to his left shoulder:
“I have also sustained some injuries to my left shoulder. I believe these injuries to be consequential. Because of the significant injuries to my right shoulder, I have had to use my left shoulder and arm for everything such as lifting, carrying, pushing and pulling. I have had to overuse my left arm and shoulder. I use my left arm to
perform my activities of daily living such as showering and toileting. I have recently
(17 August 2020) had to go to Hospital because of the severe pain in the left shoulder. I have trouble getting the left shoulder/arm to shoulder height and can’t get it passed there. It is stiff and painful”.In his supplementary statement dated 2 February 2021[2] the applicant confirmed recovery from the revision right shoulder replacement surgical treatment had been slow, with certification provided by Dr Thangavel in September 2018 that he was totally unfit for use of his right arm. He said that in February 2019 Dr Thangavel certified the applicant fit to lift and carry up to 1 kg with his right hand and that in April 2019 he certified the applicant fit to lift and carry up to 2 kg with his right hand below shoulder level.
[2] ARD at page 8.
The applicant said that in March 2019 he was undertaking exercises with Peak Conditioning. He said:
“…was strenuous and again put more pressure on my left shoulder when doing things like lifting weights with both arms. I was pushing and pulling sizeable weights and using my left arm more than my right. I was getting flare ups of pain when doing the heavy exercise”.
The applicant also said:
“In March 2020 I started experiencing a burning sensation around my right shoulder. The shoulder was generally weak. In connection with these symptoms, I was struggling to use my right shoulder. I continued to need to rely more on my left shoulder and upper limb. There was a continuing burden undertaken by my left shoulder. I began to notice more strain and soreness when I was performing activities like carrying out the rubbish, carrying shopping bags, carrying the dog food, hanging clothes on the line, hanging heavy clothes on coat hangers in the cupboard, lifting bags of potatoes or large bottles of milk or juice to the bench and other activities where, like those I just mentioned, I did not have but without injury would normally have had the luxury of using two arms or swapping from one to the other. I was noticing a feeling of rubbing or crisscrossing of what felt to me like the muscles and tendons on the top of my left shoulder.
In the period that followed March 2020 my left shoulder was becoming sorer albeit that I was continuing to manage.
…
On or around 13 August 2020 I suffered extreme pain in my left shoulder when I was drying myself after getting out of the shower. I was holding each end of my towel with one hand. My right hand was positioned low hear my right hip and left hand above my left shoulder with my elbow high and bent. I was towelling the back of my shoulders, neck and head and drying my hair on the back of my head at the time. As had been the case essentially for 2 ½ years, I was unable to alternate my arms. As I was drying the hair on the back of my head, I had extreme pain in my left shoulder”.
Treating medical evidence
Lakeside Medical Practice
The clinical records of Lakeside Medical Practice[3] demonstrate the applicant attended on 27 April 2018 with a history of having come to recent surgery at the John Hunter Hospital and was due to consult with A/P Haber shortly. When the applicant returned for review on 4 May 2018, Dr Thangavel noted the applicant was due to consult with A/P Haber the following Tuesday and that his “R shoulder very swollen and inflamed”. On 21 June 2018 Dr Michelmore noted a reported deterioration in the applicant’s right shoulder with associated mental distress. The applicant’s original right shoulder prothesis removal is noted by Dr Thangavel on 6 July 2018, with the applicant remaining under the specialist care of A/P Haber and Dr Ghosh. While on 7 September 2018 Dr Thangavel noted the applicant’s right shoulder was improving, on review on 8 January 2019 he noted “R shoulder ROM abduction up to 45 degrees. feels clicking and locks. nil pain”. On review on 6 February 2019 Dr Thangavel noted “R shoulder still the same”. With physiotherapy treatment, on 12 October 2019 Dr Thangavel noted “R shoulder not too bad” and on review on 30 December 2019 he noted “pain in R shoulder improving”. On 29 June 2020 however, the applicant complained to Dr Thangavel he was not able to lift any weight above shoulder level.
[3] ARD at page 255.
It is evident from these clinical records that Star Injury Management were involved in the rehabilitation of the applicant since at least 10 September 2018, with the discussion of suitable employment occurring on 17 September 2018 and the applicant’s apprehension about returning to work documented on 4 December 2018. On 8 January 2019 Dr Thangavel noted the applicant was to commence “work training” and on 6 February 2019 Dr Thangavel noted the applicant was due to start a computer course the following day, which was noted to have been completed when he returned for review on 7 March 2019. It was also noted on this occasion that the applicant would “never get back to his pre injury duties. can’t drive trucks”. While on 4 July 2019 Dr Thangavel noted the applicant was to be “retrained for traffic control”, Dr Thangavel noted on 2 August 2019 he was still waiting to do the course, which was noted to have been completed when he returned for review on 2 October 2019. On 29 November 2019, after noting on 1 November 2019 the applicant had attained “the ticket from the traffic control job”, Dr Thangavel documented “had an interview for job but was not successful as he is blind in R eye”.
Wyong Doctors (also known as Workers Doctors)
The clinical records of Wyong Doctors[4] demonstrate the applicant attended on 22 July 2020 with Dr Lee noting a history of right shoulder injury sustained by the applicant during the course of his employment with the respondent as a result of his wearing a tight seatbelt and coming to “multiple shoulder surgeries following a septic prosthesis”. In noting symptomatology which included neck stiffness, right shoulder pain and weakness, and examination which included reportedly significant findings of right shoulder restricted flexion and extension, Dr Lee provided diagnosis which included “L) shoulder overcompensation”. Relevant to capacity, Dr Lee was of the opinion the applicant should not be using his right shoulder repetitively at all and if he was to use his shoulder “he should limit his lifting to <5kgs on a non repetitive basis with that arm”.
[4] ARD at page 561.
The applicant was reviewed by Dr Calvache-R on 20 August 2020 with Dr Calvache-R noting at that time that the applicant suffered a left shoulder injury due to overcompensation and that due to pain he had attended hospital, with diagnostic imaging. The applicant was reviewed by Dr Calvache-R on 2 September 2020 with complaint about his left shoulder pain, with Dr Calvache-R noting at that time that approval had been provided for an MRI. When the applicant attended on Dr Calvache-R on 9 September 2020 he had undertaken the MRI scanning and requested rereferral to A/P Haber. On subsequent review on 23 September 2020, Dr Calvache-R noted the applicant had consulted with A/Haber and recommended surgical treatment was pending approval. On 7 October 2020 the applicant reported the recommended surgical treatment was still pending approval, and Dr Calvache-R noted ongoing pain, discomfort, hand grip weakness and muscle wasting due to reduced functionality. The applicant attended on Dr Calvache-R again on 28 October 2020, 18 November 2020 and 7 December 2020 with complaint relevant to his shoulder injuries, with Dr Calvache-R noting on the latter occasion that the applicant had been told by his solicitors “workcover not getting back again until next February”.
Shellharbour Hospital
The applicant attended the Emergency Department at Shellharbour Hospital on 17 August 2020 with the Discharge Referral Note[5] confirming presentation with a three day history of left shoulder pain, which the applicant experienced while drying his hair after showering. While the applicant reportedly had a good passive range of motion, his active range of motion was reported as restricted and he could only abduct and flex his arm up to shoulder level. The applicant also had reduced power on abduction, flexion and external rotation. With x-ray demonstrating no obvious fracture or dislocation, the medical officer attending the applicant suspected the applicant had a rotator cuff tear and referred him for ultrasound.
Dr White
[5] Reply at page 113.
As noted, the applicant came under the orthopaedic specialist care of Dr White, with Dr White preparing a number of reports[6]. The applicant came to open debridement and synovectomy of his right shoulder on 2 March 2018 with subsequent two stage revision surgery envisaged at that time[7]. The applicant also came to debridement of a wound of his right shoulder on 3 April 2018 (although erroneously referred to as his left shoulder in the operation report)[8]. Dr White referred the applicant to A/P Haber relevant to the two stage revision surgery.
Associate Professor Haber
[6] ARD at pages 187 to 196 and Reply at pages 1 to 10.
[7] ARD at page 189.
[8] ARD at page 195.
As noted, the applicant came under the orthopaedic care of A/P Haber relevant to the proposed two stage revision surgery, with A/P Haber preparing a number of reports[9]. The applicant came to the first stage of surgical treatment, being the removal of the total shoulder replacement, synovial biopsies and insertion of spacer and antibiotic beads, on 25 May 2018. The applicant is reported as appearing to make an excellent recovery from this first stage of surgical treatment, and came to the second stage of surgical treatment, being the revision right shoulder replacement, on 15 August 2018. The applicant was reviewed by A/P Haber on a number of occasions subsequent to the second stage of surgical treatment and with a small amount of discharge noted from his wound, he had a review consultation with Dr Ghosh. On 11 December 2018 A/P Haber reported the applicant’s wound was well healed and while follow up was arranged for 12 weeks’ time, A/P Haber said he “would be extremely keen to see him earlier should the need arise”.
[9] ARD at pages 197 to 217 and Reply at pages 11,12,22,2445,46,48,50,52,56,58,61,92,93,95 and 123.
In review on 5 March 2020, while A/P Haber noted that subjectively the applicant was making an excellent recovery from surgery, the applicant described a burning sensation around the shoulder during the past two weeks, and following blood serology A/P Haber reported that with the applicant’s pain having resolved, “a wait-and-see approach” had been adopted. Relevant to medical management also was that A/P Haber reported that due to the applicant’s “severe disability” he had recommended a consultation with Dr Tague, occupational physician.
In his report dated 22 September 2020[10] addressed to the insurer A/P Haber takes a history of the applicant developing left shoulder pain over the past month, with the applicant explaining “[H]e was ‘overcompensating with left arm/shoulder due to the right shoulder injury’ and multiple operations”. Following review of the MRI report, which included demonstrated rotator cuff tear, and clinical examination, A/P Haber recommended arthroscopic rotator cuff repair and sought approval of the surgery. In seeking such approval, A/P Haber confirmed that from the history he obtained from the applicant, diagnosis was consistent with the reported mechanism.
Dr Ghosh
[10] Reply at page 123.
As noted, the applicant came under the care of Dr Ghosh, infectious diseases physician, who prepared a report dated 19 June 2018[11] in which he confirmed he had reviewed the applicant that day relevant to infection of his right shoulder. On examination that particular day Dr Ghosh noted the applicant’s right shoulder continued to improve with inflammation and swelling significantly reduced, and his range of movements were “better”. The applicant was however to remain on intravenous antibiotic medication.
[11] ARD at page 222.
In a subsequent report dated 12 December 2018[12] Dr Ghosh confirmed that on review he noted the applicant had ceased antibiotic medication some six weeks’ earlier and there were no signs of infection in his prosthetic right shoulder.
Independent medical evidence
[12] Reply at page 59.
Dr Endrey Walder
There are a number of reports prepared by Dr Endrey-Walder that are before the Commission. They are dated 23 April 2019[13], 7 October 2020[14] and 3 February 2021[15].
[13] ARD at page 60.
[14] ARD at page 67.
[15] ARD at page 75.
In his initial report Dr Endrey-Walder noted a history of the applicant having no particular difficulties with his right shoulder following his total right shoulder replacement in or about August 2010 until early 2018 while working with the respondent. Dr Endrey-Walder noted the applicant came under the specialist care of Dr White and A/P Haber, and also that of the Infectious Disease Department at Wollongong Hospital. Dr Endrey-Walder noted the applicant came to surgical treatments under the care of Dr White on two separate occasions, initially on 2 March 2018 and subsequently on 3 April 2018, and also noted the applicant came to surgical treatments under the care of A/P Haber on two separate occasions, initially on 25 May 2018 and subsequently on 20 August 2018. At the time of initial assessment, while the applicant did not report any problem with his left arm or shoulder, it is evident he had significant ongoing problem with his right shoulder in that he says “I have very restricted range of movement, I can’t even get a glass of water to my mouth, it just locks up … I can’t do much around the house, I can’t reach, lift with my dominant arm”. On examination, Dr Endrey-Walder found marked restriction of movement at the right shoulder and a full range of movement at the left shoulder. Dr Endrey-Walder formed the view the restriction in functionality of the applicant’s right shoulder precluded any activity that required him to handle weights beyond five kilos and precluded any activity that required him to elevate his arm above chest level.
In his subsequent report dated 7 October 2020 Dr Endrey-Walder noted the applicant had come under the general medical care of Dr Lim at Workers Doctors at Parramatta in July 2020 and on 17 August 2020 had attended the Emergency Department at Shellharbour Hospital three days after experiencing acute pain in his left shoulder. He noted an ultrasound of the left shoulder on 19 August 2020 reported full thickness proximal tear of the long head of biceps tendon, chronic full thickness tear of the supraspinatus, partial thickness tear of the sub-scapularis, bursal effusion and acromioclavicular joint arthrosis, and a MRI of the left shoulder on 3 September 2020 reported retracted tendons of the long head of biceps and partial tear of the sub-scapularis, tendinosis with retracted full thickness tear of the supraspinatus. The applicant presented on this occasion with bilateral shoulder complaint:
“Right Shoulder
‘I still have this pressure sensation right on top of the joint’.
‘I still can’t lift anything because of pain and restriction in movement. When I used to do physio, which continued until September last year, I would have to apply ice or a hot pack for a couple of days after each session’.
‘I can’t lie on this shoulder still’.
Left Shoulder
‘I remember that I was having a shower, went to dry my hair and I had this painful click and bad pain. I thought I would give it a few days to settle but it hadn’t, that’s when I went to the hospital’.
‘It continues to be sore, mainly at night, the muscles go into spasm. When I lift my arm I still get a cramp.
‘I can’t lie on this shoulder either’.”
Following clinical examination, Dr Endrey-Walder concluded the applicant’s ongoing difficulties included weakness in his right arm, a difficulty with elevation of right arm at or above right shoulder level, an inability to maintain his right arm elevated away from his body for more than a few seconds at a time, and a symptomatic left shoulder. Of note is that while Dr Endrey-Walder accepted there was no expectation at that point in time for further surgical intervention of the applicant’s right shoulder, he cautioned that if the applicant’s left shoulder was to become more problematic, arthroscopic rotator cuff repair and decompression “will have to be seriously considered”.
In his supplementary report dated 3 February 2021, following review of his previous reports and review of the supplementary statement dated 2 February 2021 prepared by the applicant and the report dated 22 September 2020 prepared by A/P Haber, in response to specific questioning provided opinion in the following terms:
“After many years of significant impairment at your client’s right shoulder, I believe that the overload of his left upper limb, hence the left shoulder, is a consequential injury upon the previous right shoulder injury.
I noted that the Ultrasound of the left shoulder (19.8.2020) reported full thickness tear of the long head of biceps tendon and chronic full thickness tera of the supraspinatus, pathology which would be in line with damage over a number years on account of the overload.
…
I certainly support Dr Haber’s recommendation.
…
In summary then, your client’s work related injury of February 2018 is to be regarded as the main contributing factor to his right shoulder impairment and the injury at the left shoulder is consequential upon his right shoulder injury”.
Associate Professor Douglas
A/P Douglas undertook a file review relevant to the applicant and provided a report dated 15 July 2019[16] in which he confirmed he agreed with Dr Endrey-Walder’s opinion provided in his initial report dated 23 April 2019 that once the applicant’s prosthetic right shoulder joint had become infected, it was necessary for the applicant to undergo two stage revision surgery. Relevantly A/P Douglas accepted:
“Although Mr Prpic had a good functional outcome from his initial surgery, he had significantly reduced function after replacement of his infected shoulder with a second prothesis. This is not uncommon, due to scars from previous surgery and infection, as well as reduced bone quality from infection and repeated surgeries”.
[16] ARD at page 77.
Dr Powell
Dr James Powell has provided a substantive report dated 24 October 2019[17] and a supplementary report dated 20 April 2021[18], which are before the Commission.
[17] Reply at page 76.
[18] R AALD at page 2
In his initial report dated 24 October 2019 Dr Powell noted the applicant coming under the care of Dr White relevant to his primary total right shoulder replacement, with good recovery and other than some stiffness, no difficulties with the shoulder. He noted too the applicant’s return to the care of Dr White following his prosthetic right shoulder joint becoming infected and referral to A/P Haber as the applicant relocated to the Wollongong area “as his mother lived in the area and could help him”. The applicant presented at assessment with complaint of symptoms in his right shoulder which included stiffness, an inability to elevate his right arm above shoulder height, weakness and a lack of strength to push and pull. Clinical examination of the applicant’s right shoulder revealed restriction and all movements undertaken were with a general weakness.
In his supplementary report dated 20 April 2021 Dr Powell confirmed he had reviewed further material, which included the Discharge Summary from the Emergency Department at Shellharbour Hospital relevant to the applicant’s attendance on 17 August 2020 for left shoulder pain, the report of A/P Haber dated 22 September 2020 and the supplementary report of Dr Endrey-Walder dated 3 February 2021. It is not apparent however that the supplementary statement of the applicant dated 2 February 2021 was reviewed by Dr Powell. Dr Powell noted this further material made available to him indicated the applicant had developed difficulties at the left shoulder, and in response to specific questioning, said in essence that the applicant first developed symptoms in his left shoulder while moving his shoulder to dry his hair on or about 13 August 2020 and it was most likely the applicant had suffered an episode of acute impingement and secondary subacromial bursitis on a background of longstanding degenerate disease, which had not been influenced by the development of the infection he had suffered in his right shoulder but was rather part of the applicant’s tendency to musculoskeletal degenerate disease. Dr Powell did however consider Dr Haber’s recommended surgical intervention as reasonable management of the applicant’s left shoulder condition.
Rehabilitation evidence
Star Injury Management
Star Injury Management prepared an initial assessment report dated 22 May 2018[19], which canvassed a number of issues and recommendations to assist the applicant with undertaking his activities of daily living post his proposed two stage revision surgery, including the provision of a showering stool, long handled sponge, technique relevant to dressing and undressing and provision of a sock aid. With the applicant residing with his mother who would undertake all domestic activities, he required no assistance with his domestic activities.
[19] Reply at page 15.
Star Management prepared an activities of daily living evaluation report dated 22 June 2018[20], which again canvassed a number of issues and recommendations to assist the applicant with undertaking his activities of daily living post his proposed surgery, again including the provision of a showering stool, long handled sponge, technique relevant to dressing and undressing and provision of a sock aid. The applicant repeated that as he was residing with his mother who would undertake all domestic activities, he required no assistance with his domestic activities.
[20] ARD at page 27.
Star Management also prepared a vocational assessment report dated 12 July 2018[21] with the applicant being assessed that same day. At the time of assessment the applicant was being treated with antibiotics due to infection and was awaiting his second right shoulder replacement.
[21] Reply at page 34.
In the closure report prepared by Star Management on 8 April 2020[22] which canvassed the reporting period of 25 May 2018 to 8 April 2020, Ms Griffiths, Senior Rehabilitation Counsellor, reported the applicant had completed exercise physiotherapy with the physiotherapist confirming that relevant to his right shoulder, the applicant had capacity to lift/carry 14 kgs and push/pull up to 20 kgs. The applicant was described as “job detached” and had requested a change in rehabilitation provider.
[22] Reply at page 96.
Peak Conditioning
The applicant attended a case conference with Peak Conditioning on 10 April 2019 with a case conference report prepared[23]. It was reported that during the case conference the applicant discussed the fact he was physically still limited, which affected his capacity to complete activities of daily living, and his mother assisted him with tasks he was unable to complete. It was also reported Dr Thangavel issued the applicant with certification that included lifting carrying up to 2 kg bilaterally.
[23] Reply at page 62.
In correspondence dated 21 June 2019[24], Ms Gallagher, Exercise Physiologist, noted the applicant was unable to lift his right arm/shoulder above shoulder height when flexed at the elbow and that shoulder flexion only occurred when his arm was straightened or an applied force was in place against his hand during elevation.
[24] Reply at page 65.
In the final report prepared by Peak Conditioning on 30 September 2019[25], Ms Gallagher reported the applicant had advised that while his right shoulder pain had reduced immensely during the course of rehabilitation treatment, his pain increased with fatigue and cold weather. Pain improved with the use of anti-inflammatories, hot and cold packs and the application of ice and heat. The applicated was described as being unable to move his right arm above shoulder height unassisted but was able to lift 8-10kg above shoulder height bilaterally.
Submissions
[25] Reply at page 72.
Both counsel made oral submissions which I have considered. I am grateful to counsel for the assistance provided to me in this particular matter. A copy of the recording is available to the parties.
Determination
Injury
Liability is not disputed for the septic infection the applicant suffered in his right shoulder injury which brought the applicant under the specialist care of Dr White, A/P Haber and Dr Ghosh, and for which the applicant came to a number of surgeries, including two stage revision surgery. It is not necessary for me to determine the injury the applicant has sustained to his right shoulder during the course of his employment with the respondent.
Liability is disputed for the consequential injury the applicant alleges he has sustained to his left shoulder. The applicant essentially argues that he has sustained a consequential injury to his left shoulder, which requires arthroscopic rotator cuff repair, due to overuse. While the respondent essentially argues that the injury the applicant sustained to his left shoulder resulted from the frank non-work related incident occurring in August 2020 against a background of longstanding degenerate disease, the respondent accepts the proposed arthroscopic rotator cuff repair is reasonably necessary surgery for the injury the applicant has sustained to his left shoulder.
The applicant has the onus of proving that he has sustained consequential injury to his left shoulder. This is a question of fact in this matter and consideration of his statements and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[26] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712”.
[26] [2008] NSWCA 246.
With allegation by the applicant that the injury he has sustained to his left shoulder is in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[27] Deputy President Snell relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act”.
[27] [2016] NSWWCCPD23.
In the circumstances of this matter is important to recognise that the injury the applicant sustained to his right shoulder in the course of his employment with the respondent may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to the left shoulder. In Kooragang Cement Pty Ltd v Bates[28], Kirby J said:
“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 case 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.”
[28] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
It is evident the applicant has been significantly troubled by his right shoulder since it became septic during the course of his employment with the respondent in early 2018. The applicant initially came to surgery under the orthopaedic specialist care of Dr White on 2 March 2018 and returned to surgery under his care on 3 April 2018. His orthopaedic specialist care was subsequently transferred to A/P Haber and the applicant came to surgery under his care on 25 May 2018 and again on 15 August 2018. Over this time the applicant was also under the infectious disease specialist care of Dr Ghosh, with his antibiotic treatment ultimately ceasing in late 2018. While with rehabilitation under the guidance of Star Injury Management and Peak Conditioning the applicant’s right shoulder condition improved, it is evident from the clinical records provided by Lakeside Medical Practice that throughout 2019 the applicant’s shoulder remained problematic. When initially assessed by Dr Endrey-Walder on 23 April 2019, Dr Endrey-Walder found marked restriction of the applicant’s right shoulder, as did Dr Powell when he assessed the applicant on 12 September 2019. When reviewed by A/P Haber on 5 March 2020 the applicant’s shoulder remained symptomatic in that he complained of a burning sensation around his right shoulder area. When reviewed by Dr Lee at the Workers Doctors practice on 22 July 2020, the applicant’s right shoulder was still symptomatic and on this occasion Dr Lee also provided diagnosis (without reasoning) of “L) shoulder overcompensation”.
Subsequent to his consultation with the Dr Lee on 22 July 2020, the applicant presented at the Emergency Department at Shellharbour Hospital on 17 August 2020 with a three day history of left shoulder pain which he experienced while drying after showering at home,
and on review by Dr Calvache-R at the Workers Doctors practice on 20 August 2020, 2 September 2020 and 9 September 2020 the applicant’s left shoulder remained problematic and he was returned to A/P Haber. A/P Haber noted the applicant’s explanation on 22 September 2020 that “[H]e was ‘overcompensating with left arm/shoulder due to the right shoulder injury’ and multiple operations”. A/P Haber did not quibble with the applicant’s explanation in that when seeking approval for the proposed arthroscopic rotator cuff repair surgery, he confirmed that from the history he obtained from the applicant, his diagnosis relevant to the applicant’s left shoulder injury was consistent with the reported mechanism.In his statements the applicant explains he continues to be significantly affected by his right shoulder injury, which has resulted in consequential injury to his left shoulder. He explains he has had to use his left arm and shoulder “for everything” including lifting, carrying, pushing, pulling and basic activities of daily living like showering and toileting. Despite submission by the respondent that such complaint by the applicant of continuing difficulties with his right shoulder and the onset of consequential left shoulder injury is not corroborated by clinical records and rehabilitation material, it must be noted the applicant enjoys the support of A/P Haber, Dr Lim and also that of Dr Endrey-Walder.
While the respondent submits that A/P Haber has failed to mention the frank incident occurring in August 20 and his opinion should be read against a background of the issue of an adverse work capacity decision and subsequent review by Dr Lee who is not a general practitioner local to the applicant, I do not accept such submission in circumstances where A/P Haber has been the applicant’s treating orthopaedic surgeon for a number of years, is acutely aware of the significant difficulties the applicant has experienced with his right shoulder over time (and continues to experience) and accepts the applicant has sustained consequential injury to his left shoulder as a result of overcompensation.
While the respondent is critical of Dr Endrey-Walder’s reporting in that the respondent says Dr Endrey-Walder’s opinion developed over time, with opinion relevant to the cause of the applicant’s left shoulder injury not initially consistent with overcompensation, I accept that following receipt and review of the report of A/P Haber dated 22 September 2020 and the applicant’s supplementary statement dated 2 February 2021 Dr Endrey-Walder provided considered opinion that due to overcompensation the applicant sustained consequential injury to his left shoulder. Dr Endrey-Walder pointed out such opinion was consistent with the ultrasound of the applicant’s left shoulder, which was dated 19 August 2020.
Relevant to the cause of the applicant’s left shoulder injury I prefer the opinion of Dr Endrey-Walder to that of Dr Powell, whose findings on examination of the applicant’s right shoulder on 12 September 2019 were similar to those of Dr Endrey-Walder’s findings on 23 April 2019. Although Dr Powell formed the view the applicant’s left shoulder condition was not associated with the development of the applicant’s right shoulder infection, he did not have the opportunity to review the applicant subsequent to the onset of his left shoulder symptoms in mid 2020 and neither did he have the opportunity to review the applicant’s supplementary statement dated 2 February 2021 prior to offering such opinion in his supplementary report dated 20 April 2021. Dr Endrey-Walder was provided with such valuable opportunities.
I am of the view the applicant has provided a credible history regarding the onset of his left shoulder symptoms in mid 2020 due to overcompensation following his right shoulder infection and multiple surgeries. The applicant has the support of Dr Endrey-Walder, and I prefer his opinion over that of Dr Powell as Dr Endrey-Walder had the opportunity to re-assess the applicant relevant to his left shoulder injury and also had the opportunity to review his supplementary statement dated 2 February 2021, whereas Dr Powell did not. Although the respondent submitted that in his report Dr Endrey-Walder failed to adequately address the issue of causation and should be rejected[29], for the reasons discussed I am of the view Dr Endrey-Walder has adequately explained the cause of the applicant’s left shoulder injury and I accept his ultimate opinion.
[29] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 339; Rolleston v Insurance Australia Ltd [2017] NSWCA 168 at 32.
The applicant also has the support of A/P Haber and the general practitioners at Workers Doctors, and I prefer their opinions over that of Dr Powell in that A/P Haber has been involved in the applicant’s specialist medical care for a many years now and the general practitioners at Workers Doctors have been involved in the applicant’s general medical care during the period his left shoulder became symptomatic in mid 2020, whereas Dr Powell assessed the applicant on one occasion only and that was some time before the applicant’s left shoulder became symptomatic.
I accept the applicant has discharged the onus of proof required of him and I am satisfied the applicant has sustained consequential injury to his left shoulder.
Treatment
The respondent accepts the proposed arthroscopic left shoulder cuff repair and associated expenses as recommended by A/P Haber is reasonably necessary treatment for the injury the applicant has sustained to his left shoulder and as I accept the applicant has sustained consequential injury to his left shoulder, it follows he has an entitlement to compensation for the cost of this proposed surgical treatment, which is payable under ss 59 and 60 of the Workers Compensation Act 1987.
SUMMARY
It is not disputed the applicant sustained injury to his right shoulder during the course of his employment with the respondent and I accept the applicant has sustained consequential injury to his left shoulder.
The applicant requires medical and related treatment as a consequence of the consequential injury he has sustained to his left shoulder. The arthroscopic left shoulder cuff repair and associated expenses as recommended by A/P Haber is reasonably necessary treatment for the consequential injury the applicant has sustained to his left shoulder.
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