Quigg v Woolstar Pty Ltd
[2021] NSWPIC 505
•8 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Quigg v Woolstar Pty Ltd [2021] NSWPIC 505 |
| APPLICANT: | Robert Quigg |
| RESPONDENT: | Woolstar Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 8 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to left reverse total shoulder replacement surgery; injury in the nature of aggravation of pre-existing osteoarthritis accepted; whether effects of aggravation ceased in dispute; Murphy v Allity Management Services Pty Ltd applied; Held - proposed surgery is reasonably necessary as a result of injury; award for the applicant. |
| DETERMINATIONS MADE: | 1. The left reverse total shoulder replacement surgery proposed by Dr Steve Marchalleck is reasonably necessary as a result of the injury on 7 March 2019. |
| ORDERS MADE: | 1. The respondent to pay the costs of and incidental to the left reverse total shoulder replacement surgery in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Mr Robert Quigg (the applicant) was employed as a storeman by Woolstar Pty Ltd (the respondent). The applicant sustained an injury to his left shoulder when he tripped and fell whilst walking up a set of stairs on 7 March 2019.
On 10 February 2020, the applicant’s orthopaedic surgeon, Dr Steve Marchalleck, sought approval for a left reverse total shoulder replacement.
The respondent’s insurer denied liability for the surgery in a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 March 2020.
Liability to pay compensation pursuant to s 60 of the Workers Compensation Act 1987 in respect of the injury remained disputed in a further notice issued on 15 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 23 September 2021. The applicant seeks compensation for the costs of and incidental to the proposed left reverse total shoulder replacement surgery.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the proposed left reverse total shoulder replacement surgery is reasonably necessary as a result of the injury on 7 March 2019.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing by telephone on 30 November 2021. The applicant was represented by Ms Eraine Grotte of counsel, instructed by Mr John Peisley. The respondent was represented by Ms Sarah Warren of counsel, instructed by Mr Robert Passas.
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;
(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 11 November 2021, and
(d) documents attached to an Application to Admit Late Documents lodged by the applicant on 24 November 2021.
Neither party applied to adduce oral evidence or cross examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by him on 21 July 2021.
The applicant described the injury on 7 March 2019. The applicant fell whilst walking upstairs and put out his left arm to break his fall. The applicant filled out claim forms on the same day.
The applicant’s general practitioner, Dr Aaron Yea Yomona, referred the applicant to an orthopaedic surgeon, Dr Steve Marchalleck. Dr Marchalleck recommended surgery to the left shoulder.
Treating medical evidence
Amongst the materials in evidence is a series of SIRA certificates of capacity issued by the applicant’s general practitioner, Dr Yomona. The first certificate was dated 11 October 2019 and indicated that the applicant was first seen at Dr Yomona’s practice in relation to the injury on 2 October 2019. The certificate noted that the applicant had been referred for physiotherapy and an MRI of the left shoulder.
A letter of referral from Dr Yomona to Body Balance Physiotherapy, dated 2 October 2019, stated:
“This is a Work Cover patient. He tripped back in March 2019 at work and his L elbow and shoulder took the blunt of it. Since then has aggravated his shoulder and elbow twice since then. Currently signs of impingement and likely rotator cuff injury.”
The report of an MRI of the left shoulder, dated 11 October 2019, noted marked glenohumeral osteoarthritis with joint effusion and synovitis. There was a lesser degree of osteoarthritis in the AC joint. There was a high-grade partial tear of the supraspinatus tendon involving the articular surface and central tendon fibres. There was also a partial tear noted at the infraspinatus tendon insertion. The clinical history was recorded as, “Work cover, fell early March 2019”.
Dr Marchalleck prepared a report for Dr Yomona on 4 November 2019. Dr Marchalleck took a history of the injury in March 2019, noting that the applicant caught his body weight on his left arm when he tripped and fell. The applicant had pain in a number of body parts which had settled down but there was ongoing restriction in range of motion and pain in the left shoulder.
Dr Marchalleck reviewed the MRI scan and said it showed fairly advanced arthrosis of the glenohumeral joint associated with partial thickness tears of the cuff. The applicant was noted to have been doing some physiotherapy.
Dr Marchalleck expressed concern that if any tear in the cuff was addressed and the applicant got moving again, the arthrosis would cause ongoing pain. In order to avoid surgery, Dr Marchalleck recommended a corticosteroid injection into the glenohumeral joint under CT guidance.
On 10 February 2020, Dr Marchalleck reported that the applicant had the corticosteroid injection but it did not significantly improve his symptoms. The applicant had constant crepitus when he moved his shoulder and related that to the rotator cuff injury in March 2019. Dr Marchalleck gave the opinion that the only option was to do a reverse total shoulder replacement. Approval to perform the procedure was sought.
The report of a CT scan of the left shoulder, dated 26 February 2020, noted advanced osteoarthritic changes in the left glenohumeral joint with a small intra-articular calcified loose body.
On 22 April 2020, Dr Marchalleck reported that the applicant had ongoing symptoms and noted that the claim had been declined because of the applicant’s pre-existing arthritis.
Dr Marchalleck said,“However, as detailed to me in taking Mr Quigg’s history, his left shoulder was not an issue for him prior to this fall in March 2019. He has a rotator cuff tear with subsequent rotator cuff arthropathy which is the cause of his upper arthritis. Therefore his current symptoms can absolutely be linked to his fall in March 2019.
Whether or not he had some pre-existing arthritis, the issue is that his fall has absolutely exacerbated and deteriorated his symptoms and if he had not had this work related injury then he would not be in the clinical stage that he is right now, and that is why he is requiring treatment.
I therefore cannot see why this would not be linked to his work-related injury, as per the Workers Compensation Act.”
Dr Guirgis
The applicant relies on a medicolegal report prepared by consultant orthopaedic surgeon,
Dr Medhat Guirgis, dated 27 April 2021.Dr Guirgis took a history of the injury that was consistent with the other evidence and stated,
“Since then he continued to have considerable problems in his left shoulder which slowly worsened as time passed. He received one CT guided injection in his left shoulder with poor response. He was then advised to have surgery on his shoulder by Dr Marchalleck in the form of a reverse shoulder replacement procedure.”
Dr Guirgis said the applicant’s ongoing current symptoms included painful stiffness, clicking and heaviness of the left shoulder with increased symptoms in cold and wet weather especially in activities requiring lifting the arm side with saw forwards to shoulder level or above.
With regard to diagnosis, Dr Guirgis stated:
“The 9-3-2019 accident resulted in ongoing slowly worsening post-traumatic symptoms in the left shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures including squashing of the subacromial bursa between the articular surfaces of the head of the humerus and the acromion. This had also triggered & aggravated the effects of underlying asymptomatic advanced osteoarthritic changes in the glenohumeral articulation. Such changes would render the shoulder joint more vulnerable to the effect of the traumatic stresses generated by an accident like the one described.”
With regard to the proposed surgery, Dr Guirgis stated:
· “The offered reverse shoulder replacement procedure (convex glenoid (ball) and concave humerus (cup) by Dr Marchalleck is reasonable and probably necessary subject to the acceptance of Mr Quigg, and is conforming with current consensus of opinion in regard to the relevant indications:
oirreparable/large rotator cuff tear
oadvanced osteoarthritis
oage
· Subject to the choice of Mr Quigg whether to contend with the current level of pain and disability or to accept the offered surgery hoping for good pain relief and improved shoulder function and acknowledging the involved risks and complications including but not limited to the common complications of scapular notching, infection, dislocation/instability, nerve injuries, and stress fractures.
· According to current statistical evidence, the 10-year survival of the prosthesis is around 90% and then revision procedure might prove to be necessary.
Dr Guirgis said the fall in the course of the applicant’s employment with the respondent was and remained a substantial contributing factor to the injury and the applicant’s symptoms.
Dr Harrington
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Chris Harrington, dated 19 December 2019, 18 February 2020 and 25 October 2021.
In his first report, Dr Harrington took a history of the injury on 7 March 2019 and noted that the applicant had immediate pain in his left shoulder. The applicant then required time off work following surgery for a separate medical condition. When the applicant returned to work, he noticed that his shoulder was stiff, with pain in the delto-pectoral region. The applicant made an appointment with his general practitioner, who organised some scans and identified gross arthritis of the shoulder joint. The applicant denied any trouble with the shoulder in the past.
Dr Harrington noted that the applicant had been referred to Dr Marchalleck and underwent a CT guided injection which did not afford great relief. Dr Harrington viewed the imaging of the shoulder and gave the opinion,
“He has likely aggravated the underlying arthritis in his shoulder, which is now symptomatic with pain and stiffness.
Interestingly he denies any trouble with his shoulder prior to the injury; usually an arthritic shoulder will lose movement before it becomes painful.
I believe employment is a substantial contracting factor to an aggravation injury. Given the timeframe, any such work related aggravation has now ceased. His current presentation is due to the pre-existing arthritis of the left glenohumeral joint.”
With regard to treatment of the shoulder condition, Dr Harrington stated:
“Unfortunately the cortisone injection didn’t make a difference, which indicates that the arthritis has really set-in so anti-inflammatories may not help – but worth a try. The only other treatment would be a total shoulder replacement for the underlying arthritis that has become symptomatic. I believe the gross changes in his shoulder were likely to become symptomatic, irrespective of the work injury in March.”
In his report of 18 February 2020, Dr Harrington was asked to provide a report pertaining to liability for the surgery proposed by Dr Marchalleck. Dr Harrington gave the opinion that the surgery proposed was entirely appropriate and reasonably necessary for the applicant’s pathology. However, Dr Harrington gave the opinion:
“I have opined that employment is a substantial contracting factor to the aggravation injury however the timeframe for this aggravation has now ceased. In my opinion the current presentation is due to the pre-existing arthritis of the left glenohumeral joint, therefore the insurer would not be liable for Dr Marchalleck’s proposed surgery.”
In his final report, Dr Harrington noted that he had examined the applicant again on 19 July 2021. Dr Harrington noted that the applicant’s main complaint was a stiff shoulder, more than pain. Dr Harrington said this was the natural history of end-stage arthritis. Dr Harrington noted,
“He reported to me that his shoulder was completely asymptomatic until the fall at work in March 2019. Whilst I have no doubt that the arthritis was asymptomatic, the severity of pre-existing pathology can’t be ignored.”
Dr Harrington’s examination indicated that stiffness was the overriding problem.
Dr Harrington gave the opinion:“The clinical diagnosis is a stiff shoulder due to end-stage arthritis. I saw him almost two years ago and the condition has worsened. I would certainly agree that Mr Quigg is a good candidate for a reverse total shoulder replacement for significant arthritis. It is unfortunate that he wasn’t placed on a public waiting list for surgery within the last two years.
Given the timeframe, the aggravation from his work injury has ceased. In my opinion, the ongoing symptomatology (which is genuine and significant) is due to the underlying arthritis.”
In response to specific questions, Dr Harrington confirmed that the applicant’s ongoing symptoms were causally related to the long-standing arthritis in the shoulder. Dr Harrington maintained his view that the work-related aggravation had ceased and the treatment proposed was not required as a result of the work-related injury, stating:
“I believe ample time has passed for the work aggravation to resolve and the symptoms relate to the pre-existing arthritis.”
Applicant’s submissions
The applicant referred to the authority in Murphy v Allity Management Services Pty Ltd[1] and submitted that he only needed to establish that the work injury had made a material contribution to the need for surgery.
[1] [2015] NSWWCCPD 49.
The applicant also referred to the decision of Wood DP in Elsamad v Belmadar[2] and noted that an injury in the nature of an aggravation of pre-existing degenerative disease had been conceded by the respondent’s Independent Medical Examiner, Dr Harrington. The applicant submitted that the injury had materially contributed to the present need for the proposed surgery.
[2] [2019] NSWWCCPD 22.
The applicant relied on the treating reports of Dr Marchalleck referred to above and noted his opinion that the fall at work had caused the current clinical position and need for surgery.
The applicant noted that Dr Harrington took a consistent history of injury. As at the date of
Dr Harrington’s first report, in December 2019, the applicant had ongoing symptoms and continued to be treated by Dr Marchalleck.
The applicant submitted that if the pre-existing arthritis was the cause of the continuing symptoms, the right shoulder might also have issues but that was not the case.
Dr Harrington’s opinion that the work-related aggravation had ceased because of the passage of time was described as a bare ipse dixit. The applicant continued to consult
Dr Marchalleck and receive treatment. Dr Harrington’s opinion was based solely on the passage of time without further explanation. That opinion was based on generalisations rather than the applicant’s particular situation.The applicant submitted that the Commission would have no trouble finding that the work injury materially contributed to the need for surgery. There was no dispute that the surgery was reasonably necessary. The applicant had undergone physiotherapy and injections. The applicant continued to experience ongoing pain and stiffness.
Dr Guirgis took a consistent history, recording that the applicant continued to have considerable problems in his left shoulder which slowly worsened as time passed.
The certificates of capacity in evidence showed the ongoing symptoms in the left shoulder. There was no abatement of the symptoms, leading to the present need for surgery.
Dr Harrington’s last report confirmed that the condition had worsened.The Commission would be satisfied on the balance of probabilities that the work-related aggravation had not ceased. There was no abatement of symptoms, which had in fact gotten worse. The contribution to the need for surgery was material and there could be more than one cause for the need for treatment.
Respondent’s submissions
The respondent noted that following the fall in March 2019, the applicant first attended his general practitioner in relation to the injury on 2 October 2019, according to the certificates of capacity.
The letter of referral from Dr Yomona to physiotherapy indicated that the applicant had aggravated his shoulder and elbow twice since the fall. No explanation had been provided of the two further aggravations referred to in Dr Yomona’s letter, in either the applicant’s statement or the other evidence.
Dr Guirgis gave no explanation of the other aggravations. Dr Marchalleck did not deal with the aggravations in his three reports. Nor were they explained to Dr Harrington.
The respondent noted that Dr Harrington agreed that there had been a work-related aggravation but that it had ceased. The applicant’s current presentation was due to the underlying osteoarthritis. Dr Harrington maintained that opinion in each of his reports.
The respondent noted that no scans were available in relation to the right shoulder. As such, no inference should be drawn in relation to the right shoulder and what that means for the left shoulder.
On the balance of probabilities, the respondent submitted that the Commission would not be satisfied that the proposed treatment was required as a result of the work injury. The respondent relied upon the reports of Dr Harrington in this regard. The opinions of
Dr Marchalleck and Dr Guirgis were not based on a full history accounting for the delayed reporting and investigation of the injury, and the referral describing further aggravations. The respondent submitted that without that explanation, the applicant had not discharged his onus.
Applicant’s submissions in reply
The applicant submitted that Dr Harrington had the same history as the applicant’s doctors.
The referral from Dr Yomona should be approached with caution consistently with Mason v Demasi[3]. It was not known what meaning the doctor ascribed to those words. The referral described the applicant as a “Work Cover” patient. Dr Marchalleck did not appear to consider that history material as no aggravations were described in his reports. Dr Harrington also did not refer to that history. Rather, Dr Harrington relied solely on the passage of time without looking at the particular circumstances of applicant.
[3] [2009] NSWCA 227.
Although Dr Gurigis did not directly address whether the surgery resulted from the work injury in his report, this was not fatal to the applicant’s case. His was just one of the opinions before the Commission.
Dr Marchalleck did deal with causation and the evidence indicated that symptoms had continued unabated from the time of the injury. On all of the evidence, the Commission would be satisfied that the applicant had discharged his onus.
FINDINGS AND REASONS
There is no dispute in this case that the applicant sustained an injury to his left shoulder in the fall at work on 7 March 2019. The medical evidence before me on both sides is consistent with there being an “injury” pursuant to s 4(b)(ii) of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is the applicant who bears the onus of establishing on the balance of probabilities that the left shoulder surgery proposed by Dr Marchalleck is reasonably necessary as a result of the injury on 7 March 2019. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[4] McDougall J stated at [44]:
“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 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246.
There is no dispute in the medical evidence before me that the proposed surgery is reasonably necessary medical treatment for the pathology at the applicant’s shoulder. The respondent’s expert, Dr Harrington has agreed with the treating surgeon, Dr Marchalleck, that the surgery proposed is appropriate and reasonably necessary for the applicant’s pathology. Where the parties differ is on the causal relationship between the need for surgery and the accepted injury.
The respondent relies primarily on the opinion, consistently expressed by Dr Harrington over the course of his three reports, that the effects of the work injury had ceased and the applicant’s current presentation was due to the effects of his significant pre-existing arthritis.
Dr Harrington’s opinion that there was significant pathology at the applicant’s left shoulder prior to the fall in March 2019 is not inconsistent with the opinions of the applicant’s doctors. Dr Marchalleck appears to have accepted this proposition. Dr Guirgis has also given the opinion that the fall triggered and aggravated the effects of underlying asymptomatic advanced osteoarthritic changes in the glenohumeral articulation.
The presence of pre-existing pathology at the left shoulder does not necessarily mean that the surgery now proposed does not “result from” the work injury. In Taxis Combined Services (Victoria) Pty Ltd v Schokman[5] Deputy President Roche found:
“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not “result from” the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5 DDCR 286).
Thus, the fact that Mr Schokman had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, does not mean that the proposed treatment of the peri-implantitis is not as a result of the injury.
…It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary “as a result of” the injury. On the evidence called from Dr Roessler, he easily met that test.”
[5] [2014] NSWWCCPD 18 at [54].
It is well-established that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[6] Deputy President Roche stated:
“[57]…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[6] [2015] NSWWCCPD 49.
The relevant question therefore is whether the injury materially contributed to the current need for surgery.
The respondent submits that the applicant’s evidence fails to establish a material contribution from the injury to the need for surgery, having particular regard to the unexplained reference to two aggravations to the left shoulder and elbow in the period since the fall in March 2019, in Dr Yomona’s letter to Body Balance Physiotherapy, dated 2 October 2019. The respondent also points to the absence of treating medical evidence between the date of injury and the applicant’s first presentation to Dr Yomona’s practice on 2 October 2019.
There is indeed a lack of treating medical evidence in relation to the work injury prior to the letter of referral from Dr Yomona. No clinical records or reports from medical practitioners from the period of approximately seven months between the injury and the applicant’s presentation to Dr Yomona are in evidence. The applicant’s brief written statement does not address what treatment the applicant sought during this period, if any, or explain that delay.
There is, however, no dispute that an injury occurred on 7 March 2019. The occurrence of injury has not been disputed and the applicant has given evidence that the injury was notified to his employer on the same day. It has been accepted by all of the doctors involved in the applicant’s case that an injury did occur.
The respondent is also correct in observing that there is no reference to any aggravations in the period between the fall and the applicant’s presentation to Dr Yomona in any of the lay or medical evidence before me other than the referral letter. Whilst it would have been preferable for this to be addressed by the applicant, I am not satisfied that the absence of explanation is fatal to the applicant’s case.
As noted by the applicant, Dr Yomona described the applicant as a “Work Cover” patient in the letter of referral, suggesting that the applicant’s presentation continued to be related to the work injury in March 2019. Dr Yomona issued a SIRA certificate of capacity on 11 October 2019 and continued to issue certificates at regular intervals thereafter indicating that the applicant had sustained a work injury to the left shoulder which continued to be symptomatic and incapacitating. The clinical history noted in the MRI report ordered by Dr Yomona identified the fall in March 2019 but no other aggravations.
Dr Yomona referred the applicant to Dr Marchalleck. Whilst that letter of referral is not in evidence, there is no suggestion that any subsequent aggravations were identified by
Dr Yomona for Dr Marchalleck’s consideration. If they were, there is no indication in any of the reports from Dr Marchalleck that they were material. Neither Dr Guirgis nor Dr Harrington took a history of subsequent aggravations in conducting their assessments. No other evidence has been adduced from the respondent to elucidate Dr Yomona’s reference to there have been subsequent aggravations.In all the circumstances, I am not satisfied that the single unexplained reference to aggravations in the letter of referral to the physiotherapist is evidence of a material intervening event such as might break the chain of causation.
For this reason, I am also not satisfied that Dr Marchelleck’s and Dr Guirgis’ opinions lack a proper factual foundation. The history recorded by the applicant’s doctors was consistent with the history recorded by the respondent’s expert and the applicant’s own evidence.
All of the medical evidence before me indicates that the applicant’s left shoulder was asymptomatic prior to the fall in March 2019. The medical evidence is also consistent in indicating that the applicant’s left shoulder has remained symptomatic and progressively worsened after the fall in March 2019. Dr Marchelleck’s reports suggest a continuation and worsening of symptoms. Dr Yomona’s certificates of capacity suggest the same. Dr Guirgis took a history of considerable problems following the fall, worsening as time had passed. Whilst Dr Guirgis did not directly address the causal relationship between the injury and the proposed surgery, he did relate the applicant’s ongoing symptoms to the injury.
Although Dr Harrington has given the opinion that the effects of the work injury had ceased, he has not suggested or taken a history of any abatement of symptoms following the fall.
Dr Harrington’s opinion that the effects of the work injury had ceased is not explained on any basis other than the passage of time and the severity of the pre-existing pathology.
The nature of the injury in this case is an aggravation, acceleration, exacerbation or deterioration of a disease. In Federal Broom Co Pty Limited v Semlitch[7], Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[7] [1964] HCA 34.
The undisputed evidence before me is that the workplace injury caused the previously asymptomatic disease at the applicant’s left shoulder to become symptomatic. In other words, the applicant’s experience of that disease was increased or intensified by an increase or intensifying of symptoms. There is no evidence before me to indicate that that experience of the disease has abated or lessened at any time. It is the applicant’s experience of that disease which has made it necessary for him to undergo the surgery proposed now, as opposed to some later date.
As Dr Harrington has suggested, the gross changes in the applicant’s shoulder may have become symptomatic, giving rise to the need for surgery at some point in time, irrespective of the work injury. I am, however, satisfied on the balance of probabilities that the work injury has in this case brought forward, and therefore materially contributed to, the present need for surgery.
I am satisfied that the left reverse total shoulder replacement surgery proposed by
Dr Marchalleck is reasonably necessary as a result of the injury on 7 March 2019.In view of this finding, it is appropriate that there be an order that the respondent pay the costs of and incidental to the left reverse total shoulder replacement surgery in accordance with s 60 of the 1987 Act.
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