Richardson v Ausgrid
[2024] NSWPIC 24
•17 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Richardson v Ausgrid [2024] NSWPIC 24 |
| APPLICANT: | Peter Richardson |
| RESPONDENT: | Ausgrid |
MEMBER: | Karen Garner |
| DATE OF DECISION: | 17 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted injury to applicant’s cervical spine as a result of the nature and conditions of employment; applicant underwent cervical spine surgery; whether applicant sustained an injury to his right shoulder as a result of the nature and conditions of employment; whether applicant sustained a right shoulder consequential condition; whether right shoulder arthroscopy and rotator cuff repair surgery is reasonably necessary to address the applicant’s injury and consequential condition; Held – the applicant sustained an injury to his right shoulder, pursuant to section 4 as a result of the nature and conditions of his employment; the applicant’s employment was a substantial contributing factor to such injury pursuant to 9A; the applicant sustained a right shoulder consequential condition; the right shoulder arthroscopy and rotator cuff repair surgery is reasonably necessary as a result of the injury and consequential condition. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained an injury to his right shoulder, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) as a result of the nature and conditions of his employment. 2. The applicant’s employment was both the main and a substantial contributing factor to such injury pursuant to ss 4(b)(i) and 9A of the 1987 Act. 3. The applicant sustained a right shoulder consequential condition. 4. Right shoulder arthroscopy and rotator cuff repair surgery requested by Dr Hutabarat on 23 September 2022 is reasonably necessary as a result of the injury and consequential condition. The Commission orders: 5. The respondent to pay, in accordance with s 60 of the 1987 Act, the costs of and incidental to right shoulder arthroscopy and rotator cuff repair surgery requested by Dr Hutabarat on 23 September 2022. |
STATEMENT OF REASONS
BACKGROUND
Peter Richardson (the applicant) was employed by Ausgrid (the respondent) as a crane operator.
The respondent accepted a claim that the applicant sustained injury to his cervical spine, being disc protrusions to C3/4, C4/5, C5/6 and C6/7 as a result of the nature and conditions of his employment, with a date of injury of 16 January 2013.
On 17 September 2020, the applicant underwent anterior cervical discectomy and C3-7 lateral mass screws. On 21 September 2020, the applicant underwent stage 2, C3-7 lateral mass fusion on 21 September 2020.
The applicant alleges that he also sustained a bilateral shoulder injury and consequential condition, being tears of the right and left supraspinatus tendons, as a result of the nature and conditions of his employment and as a result of his arms being placed in awkward positions for an extended period when he was undergoing fusion surgery to his cervical spine to treat the disc protrusions.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
By these proceedings, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), the applicant claims expenses of and related to right shoulder arthroscopy and rotator cuff repair surgery requested by Dr Hutabarat on 23 September 2022 (the requested surgery).
At a conciliation and arbitration hearing before me on 13 December 2023, Mr Ty Hickey, counsel, appeared for the applicant, instructed by Ms Dougall of Carroll & O’Dea Lawyers. Mr Dewashish Adhikary, counsel, appeared for the respondent, instructed by Ms Beattie of Sparke Helmore Lawyers.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his right shoulder pursuant to ss 4 and 9A of the 1987 Act as a result of the nature and conditions of his employment;
(b) whether the applicant sustained a right shoulder consequential condition as a consequence of the cervical spine injury or surgery to his cervical spine, and
(c) whether the requested surgery is reasonably necessary as a result of such injury or consequential condition.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) the Application to Resolve a Dispute (Application) and attached documents;
(b) the Reply and attached documents;
(c) Application to Admit Late Documents (AALD) by the applicant dated 6 November 2023 and attached documents;
(d) AALD by the respondent dated 9 November 2023 and attached documents, and
(e) AALD by the applicant dated 8 December 2023 and attached documents.
Oral evidence
There was no application for leave to cross-examine and no oral evidence was given.
EVIDENCE
Lay evidence
Applicant
The applicant gave evidence by way of statements dated 3 December 2017, 14 February 2023 and 30 August 2023.
The applicant stated that he commenced employment with the respondent in 2004 and, from about late 2006, he worked for the respondent as a crane operator assisting with the replacement and installation of power poles. The applicant stated that he was required to spend the majority of his day leaning forwards, tilting his head backwards to look upwards and also twisting side-to-side. The applicant stated that, over time, he experienced neck soreness and stiffness, reduced neck movement, a grinding and clicking sensation in his neck and headaches.
The applicant stated that on 16 January 2013, he provided a Notice of Injury which was accepted by his employer, he was placed on light duties for about six months and then he returned to his previous duties, which he performed in the same manner. The applicant stated that his symptoms subsequently worsened over time. The applicant stated that he was reliant on the respondent’s staff to assist him with the notice of injury and return to work process.
The applicant stated that he has had ongoing symptoms, soreness and pain in his shoulders for many years. The applicant stated that he was employed as a labourer and was required to undertake extremely physical work, which included performing various labouring duties, lifting and carrying various heavy plant and equipment and pulling heavy underground cables from the holes then lifting the cables up the power-poles to the lines.
The applicant stated in a report dated 2 March 2018, Dr Peter Bentivoglio expressed the opinion that the applicant had a frozen shoulder and recommended ultrasound investigation of both shoulders.
The applicant stated that his general practitioner and neurosurgeon, Dr Tait, were of the opinion that a lot of the applicant’s problems were stemming from his neck. The applicant stated that it seems to have been the prevailing view amongst his treating doctors that his shoulder symptoms were probably coming from his neck and that they would settle following appropriate treatment for his neck.
The applicant stated that he underwent a multi-level anterior and posterior cervical fusion, performed by Dr Tait anteriorly on 17 September 2020 and posteriorly on 21 September 2020. The applicant stated that his shoulders were sore and painful prior to that procedure. The applicant stated that, after the procedure, whilst in the intensive-care unit, he experienced excruciating and “mind blowing” pain in his shoulder which did not settle over the course of the few days that he was in hospital and was unable to be relieved by pain medication. The applicant stated that because his shoulder pain did not settle, on 25 September 2020, Dr Boesel performed a C4 and right-sided scapular nerve block which did provide some relief.
The applicant stated that his shoulder symptoms have not settled subsequent to his neck surgery. Orthopaedic surgeon, Dr Hutabarat, has undertaken investigations and recommended shoulder surgeries, which the applicant wishes to undergo.
The applicant stated that his shoulder symptoms cannot be attributed to any cause other than his employment duties and aggravation by the surgery performed by Dr Tait on 21 September 2020.
The applicant stated that there is no doubt that the respondent’s managers were aware, including during the period from 2013 to 2017, of the symptoms in both his neck and his shoulders, however he was unaware of a requirement to provide a separate Notice of Injury for his shoulders. The applicant stated that from fairly early on, the doctors told him that he had a neck injury and that the problem with his shoulder was related to the neck and, on that basis, treatment and investigations focused on his neck.
The applicant stated the shoulder investigations suggested by Dr Bentivoglio in 2018 did not proceed, and it was only some time later after a process of elimination and persisting shoulder symptoms, that doctors more seriously investigated the possibility that he had sustained injuries to his shoulder.
The applicant stated that he cannot attribute his shoulder symptoms to any cause other than employment duties. The applicant stated that shoulder symptoms have been part of his presentation from 2013 and have worsened over time.
Respondent
A pre-employment medical report dated 13 July 2004 recorded that the applicant was fit for employment.
An Incident/Injury Report dated 16 January 2013 stated that the applicant had been experiencing head and neck pain for about three to four months and that his treating doctor believed it was work related. The document identified “Mobile Plant and Equipment” as the agency of the incident.
Various Return to Work Plans dated in January, February and March 2013 noted medical restrictions in relevant Certificates of Capacity. The plans stated that the applicant was to work the applicant was to work eight hours per day, five days per week in temporary suitable duties being:
(a) from mid-January to mid-February 2013, “working in the crew operating machinery at ground level. No operating borer or crane or observing overhead work/EWP work within lifting restriction”;
(b) from mid-February 2013 to mid-March 2013, “Working in the crew operating machinery at ground level. No operating borer or crane or observing overhead work/EWPs. Labours duties within weight restriction”, and
(c) from mid-March 2013 to mid-April 2013, “all duties as a labourer within 15kg lifting restriction however not to operate crane or borer”.
A Worker’s Injury Claim Form dated 6 November 2017 stated that the applicant sustained “neck injury” as a result of “repetitive tilting of my head and looking upwards in the course of my employment”, which was reported on 10 August 2017. It stated that the date of the original claim was 16 January 2013.
Ms Wilson made a statement on behalf of the respondent dated 8 August 2022. Ms Wilson stated that “I recall light duties around ‘overhead’ task requiring looking up”. Ms Wilson estimated that, during the applicant’s normal work routine, he spent 51 to 75% of his time lifting objects of between 9 to 22kg, and up to 25% of his time lifting objects 23kg and over. Ms Wilson also estimated that the applicant spent up to 25% of his time reaching at or above shoulder height, and 26 to 50% of his time reaching below shoulder height. Ms Wilson stated that she was aware that the applicant had lodged a “neck/shoulder workers comp claim”.
In emails dated November 2023, Ms Wendy Brudenell-Woods, manager health and wellbeing, stated that she had no recollection of a reported injury to the applicant’s shoulders. Ms Brudenell-Woods stated that a review of the applicant’s workers compensation file in 2013 showed no report of shoulder injury and that both of the applicant’s claim forms referred only to the neck and did not refer to the shoulder.
Treating medical evidence
Dr Simon Hutabarat, orthopaedic surgeon
The evidence includes Dr Hutabarat’s reports dated 23 September 2022, 28 October 2022, 23 January 2023 and 25 August 2023.
In his report dated 23 September 2022, Dr Hutabarat set out a detailed history of injury as follows:
“The first time I saw Mr Richardson was in my rooms at Brisbane Waters Private Hospital. At the time he was 50 years old and was an ex-Ausgrid employee. He had problems with his cervical spine and shoulders for some time and eventually went on to have a C3 C7 fusion by Matthew Tait about 18-20 months prior to that consultation.
As I understand it, it was deemed that his cervical issues were a priority. Once the cervical spine was dealt with it was understood that any residual issue with regard to his shoulders was to be attended to. I noted that Mr Richardson had had both a posterior and anterior fixation and bone grafting of his cervical spine. I noted also that some of the shoulder pain that he had prior to the cervical spine fusion persisted and, in fact, after the cervical spine surgery he had a period of severe exacerbation of his left shoulder discomfort that required a nerve block by a pain specialist in the peri-operative period.
Of course when patients are positioned for cervical spine surgery the arms of the patient are often extended awkwardly putting them in a position of prolonged impingement and/or additional strain on the rotator cuff. Clearly from the reaction after surgery it is quite possible that the significant tears in the rotator cuff noted at last MRI were a result of this positioning and/or manipulation when placing the patient on the table.
Mr Richardson gave me a history of shoulder pain originally starting back in roughly 2013. He had worked for many years for the same company in a role that involved long periods of overhead work and neck hyperextension. There was a further exacerbation of his symptoms again in 2017 which eventually led to him not working.
Since 2013 he has had difficulty with overhead activity therefore. He wakes at night due to shoulder discomfort and has previously seen a pain specialist for the pain that radiates down the top of his shoulders and into the anterior aspect of his shoulder girdle. I note that he had previously seen Dr Bentivoglio for a WorkCover assessment. Dr Bentivoglio's opinion in the initial stages was that he did have a problem with his shoulder which at the time Dr Bentivoglio put down to frozen shoulder. With the benefit of hindsight, we can see that clearly he had a rotator cuff issue that was causing a considerable amount of his shoulder symptoms and timely investigations may have revealed this probably back then.
It sounded like at the time he had been given a glenohumeral joint injection for frozen shoulder. I made arrangements to check on the nature of his glenohumeral joint and possibly any other subacromial joint injections.
On examination, when I first saw this gentleman, he demonstrated considerable loss of range of motion in his shoulders. The right shoulder was held considerably lower than the left with wasting and protraction in both shoulders. There was active protraction but significant weakness of retraction of both shoulders. His humeral head in both shoulders sat quite anteriorly in his coracoacromial arch lending itself to some of the anterior shoulder discomfort which is usually due to anterior impingement. With the benefit of his MRI scans it was clear however that the tear in his supraspinatus would allow the shoulder to slide forwards due to imbalance of his rotator cuff tone and cause the same appearance.
At the time his range of motion was forward flexion of 90°, abduction 90°, external rotation 80° and internal rotation of 80°.This was similar on both sides with both supraspinatus and infraspinatus being weak with positive Jobe's tests bilaterally. At the time when I first saw him his right shoulder was somewhat worse than his left. Ultrasounds back then demonstrated a left sided rotator cuff tear which was partial thickness but having said that it was quite a long partial thickness tear. He had a full thickness tear of the supraspinatus on his right hand side.
We took some time with subsequent consultations and injections sorting out how much of Peter's symptoms were due to his cuff tears, impingement, possible frozen shoulder and residual cervical spine issues. Given his pain issues I felt it was important to tread relatively carefully and to give Peter a clear indication of what could be improved and what he might have to accept.
The next time I saw Peter was after he had the MRI scans of both shoulders done. The date of this consultation was 14/07/22. Peter's MRl's demonstrated full thickness tears of both left and right supraspinatus tendons. There was no significant osteoarthritis and no significant wasting to suggest that this had been an injury that had been much more longstanding. This would therefore make the incident at the time of his cervical spine surgery more relevant.
We tried a guided corticosteroid injection into his right subacromial space. The aim of this was to determine how much of his pain may be improved with a shoulder procedure. He did get good relief from his injection for about 4 weeks and was able to do a little bit more with the right shoulder.
It was noted that the previous cervical spine fusion for the same work injury had relieved the paraesthesia and numbness going down his hands but not the neck pain and obviously not the shoulder pain. It was therefore clear to me that the injection into his subacromial space demonstrated that he will get some benefit from a right shoulder arthroscopy and rotator cuff repair. There was nothing in his MRI scan images to suggest that his pathology was inoperable. We therefore prepared a submission to the WorkCover insurer requesting approval for the above
In summary, this gentleman's shoulder symptoms are consistent with his role at work and furthermore quite likely exacerbated during his cervical fusion surgery. Evidence for that is the marked increase in his shoulder pain in the aftermath of his cervical fusion surgery. As noted above, his rotator cuff tears are operable and furthermore the surgery is reasonable and necessary, as evidenced by the previous injections giving some reasonable improvement in this gentleman's symptoms and function.”
In a request dated 23 September 2022, Dr Hutabarat requested approval for proposed Right Shoulder Arthroscopy and Rotator Cuff Repair.
In an updated surgery quote dated 17 October 2023, Dr Hutabarat estimated that the requested surgery would cost $3,525.50.
Dr Matthew Tait, neurosurgeon
The evidence includes numerous reports of Dr Tait.
In a report dated 30 June 2020, Dr Tait noted the applicant experiencing ongoing severe neck pain with constant associated headaches. Dr Tait also stated that the applicant “has pain between the shoulder blades. His symptoms are all made worse by movement of the neck”. Dr Tait stated that it was reasonable to consider cervical spine fusion surgery.
In an operation report dated 17 September 2020, Dr Tait reported that the applicant underwent C3/4, C4/5, C5/6 anterior cervical discectomy and C3-7 lateral mass screws.
In a report dated 18 March 2021, Dr Tait stated that the applicant was still experiencing neck pain and headaches notwithstanding undergoing cervical spine fusion surgery.
In a report dated 22 June 2022, Dr Tait stated that the applicant’s was still experiencing severe neck pain which radiates superiorly to cause headaches, had pain in the right trapezius region and both shoulders, as well as radiating to both scapulae. Dr Tait stated that the applicant had undergone an extensive course of conservative management, which included physiotherapy, exercise physiology, deep tissue massage and chiropracty, two sets of radiofrequency ablation. Dr Tait recommended obtaining a final opinion as to whether surgery would be beneficial before the applicant embarked on a pain management program.
In a report dated 4 August 2022, Dr Tait supported the applicant undergoing the requested surgery.
Professor Tillman Boesel, pain medicine physician
The evidence includes numerous reports of Dr Boesel.
In a report dated 13 March 2021, Dr Boesel noted that the applicant reported persistent neck pain radiating to the shoulders. Dr Boesel expressed the opinion that the applicant’s pain was posture related.
In a report dated 16 April 2021, Dr Boesel stated that the applicant continued to suffer from tension myalgia and trapezius muscle spasm and he requested approval for botox injection and occipital nerve blocks. In a report dated 14 May 2021, Dr Boesel noted that the applicant remained highly symptomatic notwithstanding having undergone botox injection and occipital nerve blocks.
In a report dated 24 June 2022, Dr Boesel stated that a shoulder ultrasound showed a complete right supraspinatus tear and a partial left supraspinatus tear, with bilateral subacromial bursitis. Dr Boesel agreed with Dr Hutabarat’s opinion and supported the applicant undergoing the requested surgery. Dr Boesel stated that the applicant’s shoulder conditions were contributing to his forward posture and upper body pain. Dr Boesel noted that the applicant had a three month benefit from botox, which had regressed, and that anti-inflammatory was poorly tolerated (despite pain reduction). Dr Boesel expressed the opinion that the requested surgery was reasonable, necessary and an “associated injury”.
Dr Mihaela Lefter, plastic, reconstructive and aesthetic surgeon
In a report dated 18 May 2021, Dr Lefter stated that there was a need for surgical correction of the scar on the right side anterior neck as it stopped the applicant from achieving full neck extension.
Dr Nathan Taylor, specialist in pain medicine
In a report dated 31 March 2020, Dr Taylor stated that the applicant described quite widespread cervical spinal pain with a tight, stiff pain that radiates down into the shoulders and up to the head and also reduced shoulder movements due to cervical/shoulder pain.
Martin Kwasner, exercise physiologist
In a report dated 3 April 2020, Mr Kwasner stated that:
“Due to bony changes in Peter’s cervical spine as a result of his original work-related injury and subsequent nerve impingement, Peter has adopted a very protective head, neck, shoulder and upper torso posture. This posture has increased unnecessary muscular tension in the neck and head area and increased nerve irritation creating a viscous [sic] cycle of tension and headaches...”.
In a report dated 25 March 2021, Mr Kwasner stated that the applicant had a very entrenched forward stoop and as a consequence, his back shoulders and back of the neck were working much harder to keep his upper torso upright, creating tension and pain due to fatigue and overuse.
In a report dated 28 June 2021, Mr Kwasner stated that due to the applicant’s crane work with the respondent, he had developed poor posture,
“which can be best described as overactive muscles at the front of his neck, chest and shoulders, which are pulling his thoracic and cervical spine into flexion and fatiguing and aggravating the muscles at the back of his neck and thoracic spine leading to significant pain and migraines”.
Dr Randall Harkness, general practitioner
The evidence includes several reports and referrals issued by Dr Harkness.
Patient Discharge Summary
A Patient Discharge Summary dated 29 September 2020 stated that the applicant underwent two stage surgery, being: stage 1, C3/4, C4/5, C5/6 and C6/7 anterior cervical discectomy and C3-7 lateral mass screws on 17 September 2020, performed by Dr Tait; and stage 2, C3-7 lateral mass fusion on 21 September 2020, performed by Dr Matthew Tait.
It also stated that the applicant developed severe post operative scapular pain and underwent a C4 nerve root injection and right suprascapular nerve block, performed by A/Prof Boesel on 25 September 2020.
Clinical records
The evidence includes various clinical records of Dr Tait, Dr Harkness and Dr Hutabarat.
In a report dated 14 July 2022, Dr Hutabarat reported to Dr Harkness that MRI scans of both shoulders demonstrated reasonable sized full thickness tears of both the left and right. Dr Hutabarat stated that there is no osteoarthritis of note affecting the applicant’s shoulders. Dr Hutabarat stated recommended that the applicant undergo right shoulder surgery first because he is right hand dominant. Dr Hutabarat stated that he would seek approval for a guided injection into the applicant’s right subacromial space to give an indication of the contribution of the applicant’s pain from purely the shoulder alone. Dr Hutabarat expressed the opinion that if the applicant got some reasonable pain relief from the injection, he would experience similar relief from a right rotator cuff repair, particularly if he follows the repair with a good period of quality physiotherapy.
In a report dated 23 September 2022, Dr Hutabarat reported to Dr Harkess that a guided injection into the right subacromial space did provide the applicant with good relief for about four weeks, which indicates that the applicant will get some benefit from a right shoulder arthroscopy and rotator cuff repair. Dr Hutabarat stated that the applicant does have a stiff shoulder, so he would precede the requested surgery with a manipulation under anaesthesia.
In a letter to the respondent’s claims manager dated 28 October 2022, Dr Hutabarat set out a detailed history and stated that he had advised the applicant to initially undergo a right rotator cuff repair and manipulation under anaesthesia. Dr Hutabarat stated that the left shoulder would need to be dealt with in the fullness of time, but it was important to deal just with the worst shoulder, which was currently the right shoulder, at this point in time.
In a letter dated 23 January 2023, Dr Hutabarat set out a detailed history and expressed the basis of his opinion as to the applicant’s diagnosis and the need for the requested surgery. Dr Hutabarat stated:
“Opinion:
I was of the opinion that this gentleman had bilateral rotator cuff tears with the right being worse than the left. I believe that his injuries arose out of his prolonged period of employment with Ausgrid culminating in an injury date as noted above on 16/01/13. It was noted that he had no other significant shoulder injuries prior to that date outside of work and had not required any previous surgery or treatment for his shoulders in the past. He had not had a significant sporting injury to either of his shoulders when he was younger.
I was therefore of the opinion that his left and right shoulder injuries as well as his cervical spine injuries arose out of the nature of his employment with Ausgrid. On the balance of the probabilities I regarded the injuries to have developed as a result of events leading to the work injury dated 16/01/13 and they were further exacerbated as a consequence of the treatment of that work injury when he was positioned for the second part of his cervical spine surgery.
When patients are positioned for posterior cervical surgery, often the patient is face down with their arms in an abducted and externally rotated position that often places someone like Mr Richardson’s shoulder at its position of maximum external rotation. It also is a position that would lead to ongoing impingement for the duration of the surgical case.
I therefore regard the heavy and repetitive nature and conditions of the client’s employment with Ausgrid to be the main contributing factor to the development of his left and right shoulder injuries, with an exacerbation contributed to by the treatment of these injuries during the second stage of his cervical spine surgery.
Treatment:
In my opinion, his shoulder surgeries are required as a result of his work injury. I have outlined the reasons for this in the body of this report.
In my opinion, the shoulder surgeries proposed are reasonable and necessary treatment expenses. I think it is unlikely that this gentleman will be able to regain overhead activity with his shoulders without the rotator cuff surgery and will continue to suffer as he currently does with ongoing pain down his arm as a result of the rotator cuff tears. He is only still a relatively young man and I think it is even therefore even more necessary given the roles he will undertake over the next few decades that he has his rotator cuffs repaired.
This treatment is appropriate. Alternative treatments including corticosteroid injections and physiotherapy have already been tried, rotator cuff surgery is an effective surgery but tends to be more effective if done in a timely fashion when wasting of the affected muscles is less apparent. The treatment cost is not unreasonable and it is a procedure that is accepted by medical experts, in particular those who has experience in shoulder pathologies.”
In a letter dated 30 June 2020, Dr Boesel reported to Dr Harkness that the applicant had pain between the shoulder blades, made worse by movement of the neck, in addition to severe neck pain and associated headaches.
Imaging
The evidence includes reports of various imaging.
A Regional Bone Scan Report dated 28 July 2021 reported that the C3-C7 fusion appeared uncomplicated, there was low grade discovertebral disease at C7/T1 and low grade facet arthropathy at right C2/3 and left C7/T1 levels.
A report of an MRI both shoulders on 4 July 2022, noted an earlier MRI on 21 March 2022, and reported a full-thickness supraspinatus tear, infraspinatus tendinosis and AC joint arthrosis.
Certificates of Capacity
The evidence includes numerous Certificates of Capacity.
Various Certificates of Capacity were issued between February and June 2013 in relation to “C3/C4 neck strain, gradually worsening for the past 3-4 months” with a stated date of injury of 16 January 2013. The certificates stated that the applicant’s “posture in operating the crane has caused stresses to his neck”. The applicant was certified:
(a) as having capacity to work eight hours per day, five days per week, subject to restrictions of lifting/carrying and pushing/pulling of 10kg and siting and driving upright, from 18 February 2013 to 18 March 2013;
(b) as having capacity to work eight hours per day, five days per week, subject to restrictions of lifting/carrying and pushing/pulling of 15kg and driving upright, from 19 March 2013 to 30 April 2013;
(c) fit for a trial of pre-injury duties from 10 May 2013 to 10 June 2013, and
(d) fit for pre-injury duties on 19 June 2013.
Independent medical evidence
Dr Peter Bentivoglio, neurosurgeon
Dr Bentivoglio provided an independent medical opinion, qualified by the respondent.
The evidence includes numerous reports of Dr Bentivoglio.
In a report dated 2 March 2018, Dr Bentivoglio diagnosed mild to moderate degenerative changes in the applicant’s cervical spine. Dr Bentivoglio stated that the cause of the applicant’s chronic headaches was unconfirmed. Dr Bentivoglio noted that the applicant reported bilateral tightness and pain in his shoulder blades and Dr Bentivoglio stated that “I also feel he has bilateral partial frozen shoulder which need an ultrasound of both shoulders to see if he has any tendinopathy”.
In a report dated 11 August 2020, Dr Bentivoglio recorded a history that the applicant initially developed neck pain secondary to his job as a crane driver when he had to chronically look up all the time. Dr Bentivoglio stated that the applicant “initially started getting neck pain on 16 January 2013 but managed to work on for another four years before the neck symptoms radiating into both shoulders and into the shoulder blades and up into his head became too much and he had to stop work in September 2017”. Dr Bentivoglio stated that on examination, he found clearly that the applicant had limitation of neck movement and bilateral reduction of shoulder movement, but apart from that he could not find any evidence of a radiculopathy or myelopathy. Dr Bentivoglio attributed the applicant’s work was:
“…the main contributing factor to the applicant’s neck pain, his restriction of neck movement and nis cervicogenic headaches. The constant looking up, driving the crane, has pug a lot of stress and strain on his neck and he has subsequently developed a significant degenerative disease over a 13-year period”.
In a report dated 28 February 2022, Dr Bentivoglio stated a diagnosis that “despite extensive surgical fusion of his neck from C3 to C7 still has severe mechanical neck pain, cervicogenic headaches, severe flexion deformity of his neck and severe bilateral frozen shoulders but no evidence of radiculopathy or myelopathy”. Dr Bentivoglio stated that the applicant has multilevel degenerative disease in his cervical spine as a consequence of his work, specifically, looking up driving a crane with significant cervicogenic headache and now bilaterally frozen shoulder. Dr Bentivoglio stated that the applicant’s injuries were all work related and there are no non-work related factors. Dr Bentivoglio assessed total 31% whole person impairment (WPI).
In a report dated 11 August 2022, Dr Bentivoglio stated that an ultrasound of both shoulders performed on 23 March 2022 shows that the applicant has a full thickness tear of his supraspinatus on the right side and a partial thickness tear of his supraspinatus on the left side as well as subacromial bursitis in both shoulders. Dr Bentivoglio stated that the applicant’s shoulder symptoms were caused by that and were not related to his neck injury. Dr Bentivoglio stated that he believes that the shoulders are a separate injury together and unrelated to a chronic “looking up” of his neck or neck injury. Dr Bentivoglio stated that the applicant needed to be referred to an orthopaedic surgeon for treatment of the injuries to his supraspinatus tendon.
In a report dated 2 August 2023, Dr Bentivoglio reiterated that he believed that the applicant’s shoulder condition was unrelated to his neck injury dated 16 January 2013. He stated that the applicant should be assessed by an orthopaedic surgeon. Dr Bentivoglio stated that the applicant “never complained of significant shoulder pain and that is why he only ever had treatment for his cervical spine both pain clinic and physiotherapy before he had the operative intervention for his cervical spine”.
In a separate report dated 2 August 2023, Dr Bentivoglio seemed to support Dr Hutabarat’s suggestion that the applicant undergo shoulder repair, but stated that he did not attribute it to the applicant’s cervical spine injury and he considered that it was a separate injury altogether.
Dr Renata Abraszko, neurosurgeon & spinal surgeon
Dr Abraszko provided an independent medical opinion, qualified by the applicant.
In a report dated 14 January 2022, Dr Abraszko diagnosed injury to C3-C4, C4-C5 and C5-C6 and C6-C7 discs, as a result of the nature and condition of the applicant’s work, in particular the awkward position of his neck which he had been required to maintain to perform his work. Dr Abraszko assessed total 35% WPI in respect of the cervical spine injury and scarring.
Dr Abraszko did not diagnose a shoulder injury, however she stated that the applicant “may have some impairment in the shoulders, however there was no [sic] enough information of his shoulder problem after the cervical spine surgery he had”.
Relevantly, Dr Abraszko set out a detailed history which noted that the applicant reported his work injury on 16 January 2013 and that the applicant “had neck pain which was radiating occasionally to his both shoulders”. Dr Abraszko also noted that when the applicant was in hospital undergoing cervical fusion surgery in September 2020, “his physiotherapy pulled his shoulder. His shoulder locked and he underwent third procedure in the theatre, some form of steroid injection done by Dr Timman Boesel”.
On examination, Dr Abraszko noted that the applicant complained of “neck pain radiates to his both shoulders. Pain is also [sic] radiates to down to his both shoulder blades”. Dr Abraszko noted that the applicant had somewhat limited range of shoulder movement. Dr Abraszko also noted:
“There is a wasting of the trapezius muscle on the right side. Right arm is lower. There is significant bulging of the left trapezius muscle. His head is in a bent forward position.... There is wasting of supraspinatus muscle on the right side and the right shoulder drop The left shoulder is elevated... The head is in a bent, flexed forward position.”
Dr Stephen Rimmer, orthopaedic surgeon
Dr Rimmer provided an independent medical opinion, qualified by the respondent.
In a report dated 17 January 2023, Dr Rimmer diagnosed chronic full thickness degenerative tears of the right and left rotator cuffs. Dr Rimmer stated that he could not see any relationship, either acutely or consequentially, between the applicant’s right and left shoulders pathology and his employment and the injury on 16 January 2013. Dr Rimmer stated that in his opinion, the applicant’s bilateral shoulder pathology was a disease of gradual onset which was constitutional and not caused nor aggravated by his employment. Dr Rimmer considered that the applicant may be able to return to work as a forklift driver with a no lift policy.
In a further report dated 17 January 2023, Dr Rimmer stated that, having reviewed an MRI scan of the applicant’s right shoulder, he was of the opinion that the chronic full thickness degenerative tear of the rotator cuff is inoperable. Further, Dr Rimmer stated that the need for any surgical intervention on either shoulder has no relationship either acutely or consequentially as a result of the injury sustained on 16 January 2013. Dr Rimmer noted that, at the time of assessment, the applicant had undergone one cortisone treatment to his right shoulder and reported that he had not undergone physiotherapy.
In a report dated 20 July 2023, Dr Rimmer again diagnosed massive chronic degenerative tears of both left and right rotator cuffs, which was inoperable. Dr Rimmer expressed the opinion that the applicant’s pathology in both shoulders was most consistent with a disease of gradual process, which was neither caused nor aggravated by the applicant’s employment.
In a further report dated 20 July 2023, Dr Rimmer expressed the opinion that the requested surgery was not reasonable nor necessary as a result of the injury sustained on 16 January for the reasons: the extremely poor outcome of the applicant’s extensive cervical spine surgery; the rotator cuff remain in the applicant’s right shoulder is inoperable, that is, massive/too large to be repaired; and, he believed that, given the poor outcome of his cervical spine surgery, any further surgical intervention in particular shoulder surgery is doomed to failure.
In a supplementary report dated 8 November 2023, Dr Rimmer stated that the applicant reported that he undergone only one cortisone injection to the right shoulder and had not undergone physiotherapy. Dr Rimmer stated that physiotherapy is standard practice prior to any individual considering surgical intervention. Dr Rimmer stated that the need for physiotherapy is entirely due to severe constitutional degenerative change in both shoulders and is not related to the injury of 16 January 2013, nor a consequential condition, nor injury due to the nature and conditions of the applicant’s employment. Dr Rimmer expressed the opinion that the rotator cuff tears in both shoulders because they are too large/massive/ chronic. Dr Rimmer stated that the only appropriate surgical intervention would be reverse shoulder arthroplasties, which would have no relationship with the applicant’s employment.
Professor Nigel Hope, orthopaedic surgeon
Professor Hope provided an independent medical opinion, qualified by the applicant.
In a report dated 11 January 2023, Professor hope diagnosed right shoulder supraspinatus tear and left shoulder supraspinatus tear.
Professor Hope stated that the bilateral shoulder injuries were caused directly by the repetitive nature and conditions of employment including heavy repetitive above shoulder level lifting.
Professor Hope noted a history that on 16 January 2013, bilateral shoulder (and neck) pain was induced due to occupational overload. Cervical pain was worse than shoulder pain and the cervical condition was focused upon. Cervical fusion in September 2020 was undertaken. Bilateral shoulder pain continued and rotator cuff repairs are now proposed. Professor Hope stated that now, 10 years after the injury, there is bilateral impingement-type shoulder pain, stiffness and weakness causing moderate functional loss. Shoulder examination shows tenderness, stiffness, weakness and impingement. The MRIs of the shoulder showed the supraspinatus (rotator cuff) tear.
Professor Hope stated that stated that the requested surgery is appropriate.
SUBMISSIONS
The submissions of the parties are recorded and I do not propose to recount them in detail in these reasons.
Mr Hickey’s submissions on behalf of the applicant may be summarised as follows:
(a) the respondent accepts that the applicant sustained injury to his cervical spine, being disc protrusions to C3/4, C4/5, C5/6 and C6/7 as a result of the nature and conditions of his employment, with a date of injury of 16 January 2013;
(b) the applicant’s case is twofold, in that the applicant alleges that he also sustained both: a bilateral shoulder injury, being tears of the right and left supraspinatus tendons, as a result of the nature and conditions of his employment; and also a consequential condition as a result of his arms being placed in awkward positions for an extended period when he was undergoing fusion surgery to his cervical spine to treat the disc protrusions;
(c) various evidence supports a finding that the applicant was engaged in physically demanding work;
(d) there is no evidence of any significant causal factor apart from the applicant’s employment;
(e) various evidence supports a finding that the applicant complained of shoulder problems over a number of years, including to Dr Bentivoglio in 2018;
(f) the applicant’s evidence is that, because he was unable to read or write, he relied on the respondent’s staff to complete forms relevant to his injuries;
(g) the evidence shows that, despite the applicant experiencing shoulder symptoms, there was an initial focus on treatment of the applicant’s cervical spine which was deemed the priority;
(h) it is not in dispute that in September 2020 the applicant underwent two-part fusion surgery to treat the cervical spine injury, however immediately following surgery, the applicant had excruciating pain in both shoulders which did not settle and which required a nerve block on 25 September 2020;
(i) various evidence supports a finding that the applicant experienced ongoing shoulder pain and limitations since the original injury, particularly after the spine surgery;
(j) an MRI both shoulders on 21 March 2022 reported full-thickness supraspinatus tears;
(k) various medical evidence supports a finding that the applicant’s bilateral shoulder pathology is a result of both the nature and conditions of the applicant’s employment and also a consequential condition and exacerbated as a result of the cervical spine surgery;
(l) various medical evidence supports a finding that the requested surgery is reasonably necessary as a result of the applicant’s employment;
(m) the diagnostic guided cortiscosteroid injection of the right shoulder was effective for approximately four weeks and supports a finding that the requested surgery would be effective to reduce the applicant’s symptoms and increase function;
(n) the evidence of Dr Hutabarat and the applicant’s independent medical experts should be accepted and preferred. Further, the evidence of the respondent’s independent expert to the effect that the shoulder injury is inoperable should not be accepted, and
(o) accordingly, there should be an award in favour of the applicant.
Mr Adhikary’s submissions on behalf of the respondent may be summarised as follows:
(a) the respondent disputes both: liability for the right shoulder condition; and, that the requested surgery is reasonably necessary as a result of the applicant’s employment;
(b) the respondent accepts that the applicant sustained injury to his cervical spine, as a result of the nature and conditions of his employment, with a date of injury of 16 January 2013;
(c) there is no evidence that the applicant’s work after 16 January 2013 caused the right shoulder condition;
(d) whilst Dr Bentivoglio recorded the applicant’s shoulder symptoms, he never expressed the opinion that it was related to the applicant’s cervical spine injury;
(e) the Commission should prefer and accept the evidence of Dr Rimmer, to the effect that the applicant’s shoulder pathology was entirely constitutional and unrelated to the applicant’s employment and the cervical spine injury;
(f) various evidence indicates that the applicant’s shoulder symptoms were, as a whole, not relevant for a number of years after the accepted cervical spine injury;
(g) various Certificates of Capacity reference only the neck injury and not the shoulders;
(h) there is no corroborative lay evidence which supports a finding that the applicant injured his right shoulder at the time of the accepted cervical spine injury;
(i) there is no evidence contained in the discharge summary that the applicant sustained a supraspinatus tear at the time of the cervical spine surgery;
(j) having regard to the evidence as a whole, the evidence of Dr Hutabarat should not be accepted;
(k) having regard to the evidence as a whole, the Commission should accept and prefer the evidence of the respondent’s independent medical experts;
(l) on that basis, the Commission should not find that the applicant’s right shoulder pathology was a result of the nature and conditions of the applicant’s employment, nor a consequential condition as a result of the cervical spine surgery, and
(m) further, and in the alternative, the Commission should find that the requested surgery is not reasonably necessary as a result of injury.
Mr Hickey’s submissions in reply may be summarised as follows:
(a) having regard to the evidence as a whole, the Commission should accept and prefer the evidence of the applicant’s independent medical experts.
DISCUSSION AND FINDINGS
Injury
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
...”
Section 9A of the 1987 Act states:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(g)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(h)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[1] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[2]
[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[2] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“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 cause 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[3] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[3] [2016] HCA 43, [42].
The Court of Appeal in Nguyen v Cosmopolitan Homes[4] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[4] [2008] NSWC 246.
The respondent accepts that the applicant sustained injury to his cervical spine, being disc protrusions to C3/4, C4/5, C5/6 and C6/7 as a result of the nature and conditions of his employment, with a date of injury of 16 January 2013.
An MRI both shoulders on 21 March 2022 reported full-thickness supraspinatus tears.
There is no evidence that the applicant suffered from any relevant pre-existing condition. A Pre-employment medical report dated 13 July 2004 recorded that the applicant was fit for employment.
The applicant stated that his shoulder symptoms cannot be attributed to any cause other than his employment duties and aggravation by the surgery performed in September 2020. I accept that there is no evidence of any other significant causal factor.
The applicant’s evidence that he was engaged in physically demanding work is consistent with the evidence of Ms Wilson who estimated that, during the applicant’s normal work routine, he spent 51 to 75% of his time lifting objects of between 9 to 22kg, and up to 25% of his time lifting objects 23kg and over. Ms Wilson also estimated that the applicant spent up to 25% of his time reaching at or above shoulder height, and 26 to 50% of his time reaching below shoulder height. The applicant’s evidence that his normal work required him to look up is also supported by the evidence of Ms Wilson who stated that she also recalled “light duties around ‘overhead’ task requiring looking up”. Further, various Return to Work Plans indicated that the applicant’s pre-injury work duties involved duties as a labourer and involved operating machinery.
The applicant’s evidence is that he has had ongoing symptoms, soreness and pain in his shoulders for many years and that shoulder symptoms have been part of his presentation from 2013 and have worsened over time. The applicant’s evidence is that his shoulders were sore and painful prior to the cervical spine surgery in November 2020.
I note that the Incident/Injury Report dated 16 January 2013, which stated that the applicant had been experiencing head and neck pain for about three to four months, did not refer to any shoulder symptoms. Further, I note that the Worker’s Injury Claim Form dated 6 November 2017 only referred to “neck injury” as a result of “repetitive tilting of my head and looking upwards in the course of my employment”. This is consistent with various Certificates of Capacity issued between February and June 2013, which referred only to neck strain and did not refer to shoulder symptoms.
Ms Wendy Brudenell-Woods stated that she had no recollection of a reported injury to the applicant’s shoulders. Further, Ms Brudenell-Woods stated that a review of the applicant’s workers compensation file in 2013 showed no report of shoulder injury and that both of the applicant’s claim forms referred only to the neck and did not refer to the shoulder.
The applicant explained the omission of any reference to shoulder symptoms in the workers compensation file by his evidence that, due to his inability to read and write, he was reliant on the respondent’s staff to assist him with the notice of injury and return to work process.
Notably, Ms Wilson corroborates the applicant’s evidence, to the extent that Ms Wilson stated that she was aware that the applicant had lodged a “neck/shoulder workers comp claim”.
There is some, albeit limited, medical evidence that the applicant experienced bilateral shoulder symptoms prior to the cervical spine surgery in September 2020.
Notably, in March 2018, Dr Bentivoglio reported that the applicant had symptoms in both shoulders, which Dr Bentivoglio attributed to frozen shoulder. Dr Bentivoglio recommended ultrasound investigation of both shoulders at that time, although that was not done.
In March 2020, Dr Taylor reported that the applicant described quite widespread cervical spinal pain with a tight, stiff pain that radiates down into the shoulders and also had reduced shoulder movements due to cervical/shoulder pain.
Further, in April 2020, Mr Kwasner reported that, due to changes in the applicant’s cervical spine as a result of his original work injury and related impingement, the applicant had adopted a protective head, neck and upper torso posture. Dr Kwasner later explained that the applicant had a very entrenched forward stoop and his shoulders and back were working much harder to keep his torso upright, creating tension and pain due to overuse. Dr Kwasner attributed the applicant’s posture to his work with the respondent.
Having regard to that evidence, I accept that the applicant did complain of shoulder problems over a number of years, including to Dr Bentivoglio in 2018.
Having regard to the evidence as a whole, it appears that that, at least prior to the cervical spine surgery in September 2020, the prevailing view amongst the applicant’s treating doctors was that the applicant’s accepted neck injury was the primary focus and the priority for treatment. In the circumstances, I accept the applicant’s submission that it is quite understandable and possible that, to the extent that any shoulder symptoms were identified, the treating doctors may have initially regarded those symptoms as part of the accepted neck injury presentation.
It appears from the medical evidence that it was some time later, after a process of elimination and persisting shoulder symptoms, that doctors more seriously investigated the possibility that the applicant had sustained injuries to his shoulders.
Dr Hutabarat recorded a history that the applicant suffered shoulder pain from around 2013, with a further exacerbation of his symptoms again in 2017. Having regard to Dr Bentivoglio’s comments regarding the applicant’s shoulder symptoms in March 2018, and with the benefit of hindsight, Dr Hutabarat stated that clearly the applicant had a rotator cuff issue that was causing a considerable amount of his shoulder symptoms at that time.
Dr Hutabarat’s opinion is that the applicant’s shoulder injuries arose out of his employment with the respondent, culminating in a date of injury of 16 January 2013. Dr Hutabarat explained the basis for his opinion as being: the heavy and repetitive nature of the applicant’s work with the respondent; the applicant’s shoulder symptoms are consistent with the nature and conditions of the applicant’s work; and there was no evidence of any other prior significant shoulder injuries.
It appears to me that Dr Hutabarat provided a detailed and logical explanation for his opinion.
Dr Bentivoglio’s opinion is that the applicant’s shoulder condition is a separate injury unrelated to his neck injury. In March 2018, Dr Bentivoglio reported that the applicant had bilateral tightness and pain in his shoulder blades, which Dr Bentivoglio felt was bilateral partial frozen shoulder which needed an ultrasound to see if the applicant had any tendinopathy.
However, in August 2020, Dr Bentivoglio recorded that the applicant’s neck symptoms commenced in January 2013 and then progressed and radiated into both shoulders and into the shoulder blades before the applicant had to stop work in September 2017. At that time, Dr Bentivoglio noted that the applicant had bilateral reduction of shoulder movement but he could not find any evidence of a radiculopathy or myelopathy.
Subsequently, in his report dated 28 February 2022, Dr Bentivoglio diagnosed severe bilateral frozen shoulders but no evidence of radiculopathy or myelopathy. Dr Bentivoglio stated that the applicant had degenerative disease in his cervical spine as a consequence of his work, specifically looking up whilst driving a crane. Dr Bentivoglio stated that the applicant’s injuries were all work-related and there were no non-work related factors.
However, in his subsequent reports, after ultrasound of both shoulders showed that the applicant had supraspinatus tears, Dr Bentivoglio stated that the applicant’s shoulder condition was unrelated to his neck injury. Further, Dr Bentivoglio stated that the reason why the applicant had only undergone treatment for his cervical spine was because he had never complained of significant shoulder pain.
I find Dr Bentivoglio’s various reports to be somewhat inconsistent and difficult to reconcile in relation to the applicant’s shoulder condition. Further, I note that Dr Bentivoglio did not provide any significant explanation as to how the applicant likely sustained the shoulder condition, apart from expressing the opinion that it was unrelated to the applicant’s cervical spine injury.
Whilst Dr Abraszko did not diagnose a shoulder injury, in January 2022 she noted that the applicant reported neck pain radiating to both his shoulders and down to both his shoulder blades, had limited range of shoulder movement, wasting of the supraspinatus muscle on the right side, bulging of the left trapezius muscle and his left shoulder was elevated.
In 2023, Dr Rimmer diagnosed chronic full thickness degenerative tears of the left and right rotator cuffs. Dr Rimmer’s opinion was that the applicant’s shoulder condition was entirely a constitutional disease of gradual onset. Dr Rimmer’s opinion was that it was not caused nor aggravated by the nature and conditions of the applicant’s employment, nor was it a consequential condition.
However, in contrast, in 2023, Professor Hope diagnosed right shoulder supraspinatus tear and left shoulder supraspinatus tear. Professor Hope expressed the opinion that the applicant’s bilateral shoulder injuries were caused directly by the repetitive nature and conditions of his employment, including heavy repetitive above shoulder level lifting.
Considering the evidence as a whole, and the matters which I have set out above, I prefer the opinion of the applicant’s treating orthopaedic surgeon, Dr Hutabarat, and the applicant’s independent medical expert, Professor Hope. I consider that their opinions are consistent with the applicant’s evidence, including regarding the nature and conditions of his employment, which is not significantly in dispute. Further, I consider that their evidence provides a logical and likely explanation for the applicant’s shoulder condition in the circumstances. I note that such mechanism of injury is also consistent with the mechanism of the accepted cervical spine injury.
Accordingly, I accept that the applicant sustained an injury to his right shoulder pursuant to s 4 of the 1987 Act, being a tear of the right supraspinatus tendon, as a result of the nature and conditions of his employment, and further that the applicant’s employment was both the main and a substantial contributing factor to such injury pursuant to ss 4(b)(i) and 9A of the 1987 Act.
Consequential condition
It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act nor that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah Pty Ltd,[5] Deputy President Roche stated at [45]-[46]:[6]
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[5] [2009] NSWWCCPD 134.
[6] See also Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, at [61].
In Bouchmouni v Bakhos Matta t/as Western Red Services,[7] Deputy President Roche stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[7] [2013] NSWWCCPD 4.
The applicable legal test of causation is that set out by the Court of Appeal in Kooragang.[8]
[8] (1994) 35 NSWLR 452; 10 NSWCCR 796.
It is not in dispute that the applicant underwent a multi-level anterior and posterior cervical fusion, performed by Dr Tait anteriorly on 17 September 2020 and posteriorly on 21 September 2020 to treat the accepted cervical spine injury.
The applicant’s evidence is that, immediately following the surgery, he experienced excruciating and “mind blowing” pain in his shoulder which did not settle.
It is not in dispute that, on 25 September 2020, Dr Boesel performed a C4 and right-sided scapular nerve root injection and right suprascapular muscle block to treat the applicant’s scapular pain.
The applicant’s evidence is that his shoulder symptoms have not settled since the surgery.
The applicant stated that his shoulder symptoms cannot be attributed to any cause other than his employment duties and aggravation by the surgery performed in September 2020.
Dr Hutabarat’s opinion is that the applicant’s right and left shoulder injuries which developed as a result of the nature and conditions of his employment, were further exacerbated by the applicant’s positioning for the posterior cervical surgery. Dr Hutabarat explained the basis for his opinion, to the effect that: immediately following the surgery, the applicant had a period of severe exacerbation of his left shoulder discomfort that required a nerve block by a pain specialist in the peri-operative period; when he saw the applicant in July 2022 after MRl's demonstrated full thickness tears of both left and right supraspinatus tendons, there was no significant osteoarthritis and no significant wasting to suggest that this had been an injury that had been much more longstanding, which would therefore make the incident at the time of his cervical spine surgery “more relevant”; and further, there was no evidence of any other significant cause of injury.
Dr Hutabarat explained that when patients are positioned for posterior cervical spine surgery, often the patient is face down with the arms of the patient in an abducted and externally rotated position with the shoulder at its position of maximum external rotation. Dr Hutabarat stated that such positioning would lead to prolonged impingement and/or additional strain on the rotator cuff for the duration of the surgical case. Dr Hutabarat’s evidence, based on the reaction after surgery, is that it is quite possible that the significant tears in the rotator cuff were a result of the positioning and/or manipulation of the applicant’s arms during the surgery.
It appears to me that Dr Hutabarat provided a detailed and logical explanation for his opinion.
Dr Boesel expressed the opinion that the applicant’s shoulder pathology was an “associated injury”.
Dr Bentivoglio expressed the opinion that the applicant’s shoulder condition was a separate injury altogether to the accepted cervical spine injury. However, Dr Bentivoglio did not specifically deal with the issue of whether the applicant’s shoulder condition was a consequential condition of the spine surgery.
Dr Rimmer expressed the opinion that the applicant’s shoulder condition was entirely due to severe constitutional degenerative change and was not a consequential condition of the applicant’s employment.
Considering the evidence as a whole, and the matters which I have set out above, I prefer the opinion of the applicant’s treating orthopaedic surgeon, Dr Hutabarat. I consider that his opinion is consistent with the applicant’s evidence and the treating medical evidence, specifically the evidence regarding the applicant’s severe shoulder pain immediately following the spinal surgery performed posteriorly, and the C4 and right-sided scapular nerve root injection and right suprascapular muscle block to treat the applicant’s scapular pain which was performed by Dr Boesel on 25 September 2020. I consider that Dr Hutabarat’s evidence provides a logical and likely explanation for the applicant’s shoulder condition in the circumstances.
Accordingly, I accept that the applicant sustained a right shoulder consequential condition.
Treatment
Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, because 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).”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Roche DP, referring to the decision in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose), set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo):
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
An MRI both shoulders on 21 March 2022 reported full-thickness supraspinatus tears, which is not in dispute.
The applicant seeks compensation for the cost of the requested surgery, being right shoulder arthroscopy and rotator cuff repair surgery requested by Dr Hutabarat.
The requested surgery is clearly “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.
In an updated surgery quote dated 17 October 2023, Dr Hutabarat estimated that the requested surgery would cost $3,525.50.
There is no evidence which is inconsistent with the evidence of Dr Hutabarat in relation to the cost of the treatment and the respondent has not made any submissions in relation to Dr Hutabarat’s cost estimate.
It is apparent from Dr Hutabarat’s evidence that the purpose of the requested surgery is to treat the supraspinatus tears.
Dr Hutabarat’s opinion is that the applicant would benefit from the requested surgery because the applicant got good relief for about four weeks from a guided corticosteroid injection into his right subacromial space. Dr Hutabarat stated that there was nothing in the applicant’s MRI scan images to suggest that his pathology was inoperable. On that basis, Dr Hutabarat expressed the opinion that the requested surgery is reasonable and necessary to treat the applicant’s shoulder injury.
Dr Hutabarat’s evidence in this regard is consistent with his reports to Dr Harkness that the applicant was likely to experience benefit from the requested surgery, particularly if it was followed by a good period of quality physiotherapy.
Dr Tait stated that the applicant had undergone an extensive course of conservative management, which included physiotherapy, exercise physiology, deep tissue massage and chiropracty, two sets of radiofrequency ablation. Dr Tait recommended obtaining a final opinion as to whether the requested surgery would be beneficial before the applicant embarked on a pain management program. However, in a report dated 4 August 2022, Dr Tait supported the applicant undergoing the requested surgery.
Dr Boesel also supported the requested surgery. Dr Boesel noted that the applicant remained highly symptomatic notwithstanding having undergone botox injection and occipital nerve blocks. Dr Boesel stated that the applicant’s shoulder conditions were contributing to his forward posture and upper body pain. Dr Boesel noted that the applicant had a three month benefit from botox, which had regressed, and that anti-inflammatory was poorly tolerated (despite pain reduction). Dr Boesel expressed the opinion that the requested surgery was reasonable, necessary and an “associated injury”.
Dr Bentivoglio seemed to support the requested surgery (even though he thought it was a separate injury unrelated to the applicant’s cervical spine).
Professor Hope also stated that the requested surgery is appropriate.
In November 2023, Dr Rimmer stated that the applicant had undergone only one cortisone injection to the right shoulder and had not undergone physiotherapy. Dr Rimmer stated that physiotherapy is standard practice prior to any individual considering surgical intervention. Dr Rimmer expressed the opinion that the requested surgery was not reasonable nor necessary and was “doomed to failure” because of the extremely poor outcome of the applicant’s cervical spine surgery and because the rotator cuff tears in both shoulders were inoperable because they were too large and chronic.
The medical evidence in relation to the requested surgery is somewhat challenging.
Dr Rimmer opposes the requested surgery on the basis of his concern that it would have a poor outcome.
Nevertheless, considering the evidence as a whole, I find the opinion of Dr Hutabarat to be particularly persuasive. As the applicant’s treating orthopaedic surgeon, I consider that Dr Hutabarat was well placed to have a comprehensive understanding of the applicant’s shoulder condition. Further, I am satisfied that his evidence provides a considered and logical analysis of the applicant’s shoulder condition, appropriate treatment and the likely prospect of success of the requested surgery.
Further, I note that Dr Hutabarat’s opinion is largely supported by other treating doctors and independent medical experts.
Having regard to all the matters set out above, I am satisfied that the requested surgery is reasonably necessary to treat the applicant’s shoulder condition.
On the basis of my findings in relation to injury and consequential condition above, I am satisfied that the requested surgery is reasonably necessary as a result of an injury and consequential condition.
SUMMARY
In summary, the Commission determines:
(a) the applicant sustained an injury to his right shoulder, pursuant to s 4 of the 1987 Act as a result of the nature and conditions of his employment;
(b) the applicant’s employment was both the main and a substantial contributing factor to such injury pursuant to ss 4(b)(i) and 9A of the 1987 Act;
(c) the applicant sustained a right shoulder consequential condition, and
(d) the requested surgery is reasonably necessary as a result of the injury and consequential condition.
On that basis, the Commission orders:
(a) The respondent to pay the costs of and incidental to the requested surgery in accordance with s 60 of the 1987 Act.
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