Roqueza v Seventh-day Adventist Aged Care (Greater Sydney) Ltd
[2022] NSWPIC 355
•4 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Roqueza v Seventh-day Adventist Aged Care (Greater Sydney) Ltd [2022] NSWPIC 355 |
| APPLICANT: | Elena Roqueza |
| RESPONDENT: | Seventh-Day Adventist Aged Care (Greater Sydney) Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 4 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the cost of surgery to the right shoulder; relying on injury to that shoulder as a result of the ‘nature and conditions’ of the applicant’s employment as an assistant in nursing in the respondent’s aged care nursing home over many years; and also as a result of a condition in the right shoulder consequent upon undisputed injury to the left shoulder; Held – the applicant did suffer injury to the right shoulder as a result of the ‘nature and conditions’ of her employment by the respondent; and also a condition in the right shoulder consequent upon the left shoulder injury; finding that the right shoulder surgery proposed by the applicant’s treating surgeon is reasonably necessary as a result of both the injury to the right shoulder and consequential condition therein; the respondent ordered to pay for the costs of and incidental to such surgery pursuant to section 60 of the Workers Compensation Act 1987. |
| DETERMINATIONS MADE: | 1. The applicant suffered aggravation of a disease injury in the right shoulder arising out of or in the course of her employment with the respondent. 2. The applicant’s employment with the respondent was the main contributing factor to such injury. 3. The applicant suffered a condition in her right shoulder consequent upon injury to the left shoulder on 3 March 2019. 4. The surgery proposed by Dr Soo, right shoulder arthroscopy, rotator cuff repair +/- biceps tenodesis, is reasonably necessary as a result of injury to the applicant’s right shoulder and also as a result of condition in the right shoulder consequent upon injury to the left shoulder on 3 March 2019. 5. The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Elena Roqueza (the applicant/Ms Roqueza) claims compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on 1 April 2012, on 3 March 2019, and the ‘nature and conditions’ of her employment as an assistant in nursing (AIN) in the employ of Seventh-Day Adventist Aged Care (Greater Sydney) Ltd (the respondent).
The applicant commenced work for the respondent in about April 1994. On 1 April 2012 she suffered an injury to her right shoulder when a patient at the nursing home where she was employed grabbed her right arm, twisted it, caused her to fall back and land on a bed. A claim for workers compensation was lodged and Ms Roqueza was off work until 11 May 2012 when she returned and was placed on light duties for a number of months due to shoulder pain, stiffness and reduced range of movement.
Ms Roqueza underwent treatment for her injury in the form of an ultrasound on 2 May 2012, a cortisone injection on or about 30 July 2012, and physiotherapy. The right shoulder improved following the shoulder injection and the applicant returned to pre-injury duties in about September 2012. She claims that she experienced flare ups of right shoulder pain every so often while carrying out her employment duties, and never made a full recovery. The shoulder continued to feel vulnerable particularly when carrying out normal duties which required the use of the shoulders and arms.
Ms Roqueza cannot recall if she lodged a claim for workers compensation, but did receive medical treatment. In April and June 2018 she claims that she experienced further flare ups for which she obtained medical treatment, including physiotherapy.
On 3 March 2019 the applicant was assaulted by a patient and suffered injury to her left shoulder, and also post-traumatic stress disorder. She claims that as a result of this injury she had to overcompensate and rely heavily on her right shoulder which aggravated the pre-existing injury in that shoulder.
On 27 February 2020 the applicant came under the care of Dr Gavin Soo, orthopaedic surgeon, who has continued to treat her to date. On 22 June 2020 Dr Soo made a formal request for right shoulder surgery[1].
[1] Application to Resolve a Dispute (Application) pp 99-100, noting that the reference to page numbers herein is to those in the electronic records of the Personal Injury Commission (the Commission).
On 5 August 2020 the applicant was independently medically examined by
Dr Stephen Rimmer, orthopaedic surgeon, at the request of the respondent’s insurer, AAI Limited trading as GIO (GIO). Dr Rimmer produced a report dated 13 August 2020[2] in which he requested sighting the MRI scan of the applicant’s right shoulder in order to complete his assessment of the applicant. Dr Rimmer produced a supplementary report dated 3 December 2020[3] after he had been supplied with this scan dated 24 April 2020.[2] Reply p 21.
[3] Reply p 28.
On 18 February 2021 GIO issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) containing a denial of liability for:
(a) right shoulder surgery in the form of arthroscopy, rotator cuff repair +/- biceps tenodesis proposed by the applicant’s treating orthopaedic surgeon, Dr Soo, and
(b) ongoing weekly payments,
as a result of injury on 3 March 2019[4].
[4] Application p 19.
At the telephone conference held on 2 May 2022 it was noted that, in accordance with the Injury Details in the Application, the applicant brought her claim of the basis of:
(a) injury to the right shoulder on 1 April 2012 as a result of being assaulted by a patient in the course of her employment;
(b) injury to the left shoulder on 3 March 2019 as a result of being assaulted by a patient in the course of her employment, and
(c) condition in the right shoulder consequent upon injury to the left shoulder on 3 March 2019 and/or injury to that shoulder as a result of the ‘nature and conditions’ of her employment with the respondent over the period from April 1994 to 3 March 2019, which included regular and repetitive physically demanding duties including transferring patients and making beds.
ISSUES IN DISPUTE
The parties agree that the following issues remain in dispute:
(a) did the applicant sustain a condition in the right shoulder consequent upon injury to the left shoulder on 3 March 2019 and/or injury to that shoulder as a result of the ‘nature and conditions’ of her employment with the respondent over the period from April 1994 to 3 March 2019, and
(b) is the surgery to the right shoulder proposed by Dr Soo reasonably necessary as a result of:
(i)injury to the right shoulder on 1 April 2012;
(ii)condition in the right shoulder consequent upon injury to the left shoulder on 3 March 2019, and/or
(iii)injury to the right shoulder as a result of the ‘nature and conditions’ of her employment with the respondent over the period from April 1994 to 3 March 2019?
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation conference/arbitration hearing on 21 June 2022. Mr Tanner of counsel appeared for the applicant briefed by Ms Ross. The applicant was present with two support persons and an interpreter. Mr Hanrahan of counsel appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Allied health recovery request for physiotherapy of State Insurance Regulatory Authority (SIRA) dated 2 July 2020, admitted at the hearing and marked exhibit “A” in the applicant’s case, and
(d) Allied health recovery request for physiotherapy of SIRA dated 26 September 2020, admitted at the hearing and marked exhibit “B” in the applicant’s case.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary, they are as follows.
Applicant
The applicant refers to the detailed evidence in her statement dated 4 February 2022[5], particularly in respect of the original injury to her right shoulder on 1 April 2012, the significant period of time off work following that injury, her assertion that she never fully recovered from that injury, the injury to the left shoulder 3 March 2019 and the arduous, strenuous and repetitive of the nature of her work as an assistant in nursing over the long period of her employment by the respondent. The applicant submits that this evidence is not disputed by the respondent, and that there is no reason not to accept it. The claim for condition in/injury to the right shoulder should be determined having regard to the increasing use of the right shoulder.
[5] Application p 3.
The applicant further submits that her account of the nature of her duties is accurate, and that the Commission as an expert tribunal is familiar with the sort of duties workers in roles the same as or similar to that of the applicant are called upon to carry out, and the resultant stresses to which they are subject.
The applicant notes that injury to the left shoulder on 3 March 2019 is not in issue, and overuse of the contralateral shoulder because of injury is a concept with which the Commission is familiar, that the applicant’s evidence of such overuse is not disputed, and should be accepted.
The applicant notes that she first consulted Dr Soo on 27 February 2020 and saw him on three subsequent occasions. In his initial report to the general practitioner dated 27 February 2020[6] Dr Soo records a history of almost a year of left shoulder pain following the incident at work in March 2019, the mechanism of that injury and the denial of any previous problems in or injury to the left shoulder. Dr Soo also records commencement of right shoulder pain as a result of overcompensation because she (Ms Roqueza) lives by herself and is required to do all the normal day-today activities such as cooking and cleaning. The second visit to Dr Soo is recorded in his report dated 26 March 2020[7], noting that a cortisone injection two weeks prior to the attendance had improved her pain immensely. That improvement lasted only a few weeks, after which there was gradual increase in pain in the right shoulder. The overcompensation with the right arm for all of her normal daily activities is again mentioned by Dr Soo. The applicant acknowledges that the reference in that report of an injury to the shoulder three years previously at work is probably an inaccurate recording of the history. There is however an accurate history of right shoulder pain recorded, confirmed by the doctor’s examination.
[6] Application p 93.
[7] Application p 94.
The third visit to Dr Soo is recorded in his report dated 4 June 2020[8] which contains a clear record of the pain experienced by the applicant, with the right shoulder the worst. Ultrasound guided injections into the right shoulder did not provide much pain relief in the shoulder. In that report Dr Soo sets out the three options for treatment of the right shoulder which is of most concern, namely:
(a) continuation of non-surgical measures, such as physiotherapy, activity modification and pain management;
(b) arthroscopic surgical debridement, subacromial decompression and release of the long head of the biceps, or
(c) arthroscopy and rotator cuff repair and biceps tendon release of the right shoulder.
Dr Soo noted Ms Roqueza was to consider these three options, and that he did not feel continued non-surgical measures would provide any significant relief of symptoms.
[8] Application p 95.
The applicant refers to the fourth visit to Dr Soo, noted in the report dated 18 June 2020[9], in which the doctor records a very long discussion with her and her son in respect of the proposed surgery. Thereafter there is record of a telephone call to Dr Soo on 22 June 2020, the report of which confirms the applicant’s desire to undergo the surgery, referred to in [7] above.
[9] Application p 97.
The applicant submits that Dr Soo, having seen her on four occasions as her treating surgeon, is in the best position to assess her, the causation of her injury, and the need for treatment, including surgery.
The applicant refers to the independent medical examination carried out by
Dr Endrey-Walder and his report dated 25 February 2021[10]. In particular, the applicant submits that when the doctor refers to a “…work related injury to her right shoulder in or about 2017,…”[11] that is not a separate injury, but a continuation of symptoms in the right shoulder, corroborated by what she says at [21] of her statement dated 4 February 2022. In that clause Ms Roqueza says that she experienced a flare up of right shoulder pain in about October 2017. This submission was acknowledged and accepted by the respondent.[10] Application p 36.
[11] Application p 38.6.
The applicant relies on the opinion of Dr Endrey-Walder that the injury sustained in March 2019 is the main contributing factor to the left shoulder pathology, and the consequential injury to/condition in the right shoulder, and that the recommendation for surgery by Dr Soo was precipitated by the significant aggravation of the already established pathology at the right shoulder[12]. The applicant submits that this account of the causation of the right shoulder condition is not disputed and should be accepted.
[12] Report of Dr Endrey-Walder dated 9 February 2022, Application p 47.
The applicant refers to the pathology in the right shoulder as revealed by the radiological investigations in evidence, including:
(a) X-ray and ultrasound of the right shoulder dated 22 July 2019, describing tendinosis and bursitis on a background of degenerative changes[13];
(b) MRI of the left shoulder dated 23 December 2019[14];
(c) MRI of the right shoulder dated 24 April 2020 describing:
(i)high grade bursal side and articular side partial thickness supraspinatus tears with no muscle belly atrophy;
(ii)subacromial bursitis, and
(iii)high grade partial thickness tear ,subscapularis and infraspinatus tendinosis[15].
[13] Application p 77.
[14] Application p 78.
[15] Reply p 58.
The applicant also refers to the contents of exhibits “A” and “B”, requests for physiotherapy, which both contain a diagnosis of right shoulder pain as a result of left shoulder pain, and over usage of right shoulder due to left shoulder muscular tear and bursitis.
The applicant submits that Dr Rimmer, on whose opinion the respondent relies, does not in his reports dated 13 August 2020 and 3 December 2020[16] record any details of her activities at work or any other physical activities. His diagnosis of injury as a result the assault suffered on 3 March 2019 is of a closed head injury and left shoulder pain. Dr Rimmer does record the cessation of the applicant’s employment in May 2019 due to inability to cope with pain in the left shoulder and gradual onset of right pain in the right shoulder three months post her left shoulder injury. Under “CURRENT SYMPTOMS” pain and decreased range of motion are recorded in respect of both shoulders, and these appear to be accepted by Dr Rimmer. The applicant submits that there is no basis not to accept her evidence of pain in both shoulders, and that when preparing his first report Dr Rimmer did not have a proper understanding of the pathology in the right shoulder and called for the MRI scan of that shoulder.
[16] Reply pp 21 and 28.
The applicant submits that Dr Rimmer does not provide any explanation why it is “highly unlikely” that Ms Roqueza had sustained a right shoulder injury relevant to the (left shoulder) injury of 3 March 2019, nor does he address the activities claimed to give rise to the right shoulder condition. Dr Rimmer repeatedly refers to the need to see the MRI scan of the right shoulder before providing answers to questions posed of him. The applicant submits that no weight should be given to the report of Dr Rimmer dated 13 August 2021.
The applicant submits that Dr Rimmer, having reviewed the MRI scan and provided his further report dated 3 December 2021, simply says that the applicant’s problems with her right shoulder are consistent with a chronic degenerative tear of the supraspinatus tendon/rotator cuff, with widespread tendinosis throughout. This is an acknowledgement of the significant pathology in the right shoulder, but says that the applicant is nevertheless displaying abnormal illness behaviour. These two findings are inconsistent. Again Dr Rimmer does not address the mechanism of injury to the right shoulder, and does not consider that overuse could be causative of the right shoulder condition, or that it would have increased the pathology in the shoulder. The applicant notes that Dr Rimmer’s finding of abnormal illness behaviour contrasts with her genuine presentation to Dr Endrey-Walder.
The applicant submits that in referring to the extensive treatment that she has undergone since the injury on 3 March 2019, and his expectation the effects of such injury should have resolved, the doctor does not consider the issue of overuse of the right shoulder. This contrasts with the findings on examination of Dr Soo, who saw her on four occasions compared with the one occasion when an examination was carried out by Dr Rimmer.
Finally the applicant notes that the recommendation by Dr Rimmer that she could return to restricted duties on full hours with a 2kg weight restriction and no lifting above shoulder level, is inconsistent with a finding of abnormal illness behaviour. Dr Rimmer does not provide a reason as to why he believes that the proposed surgery would not provide her with significant and lasting improvement of her symptoms.
Respondent
The respondent stresses the complex nature of the applicant’s condition and the serious consideration that she gave to the proposal for surgery, as evidenced by the reports of
Dr Soo, before deciding on such proposal. In this circumstance the respondent submits that it “was compelled” to bring the reasonable necessity for surgery before the Commission. The respondent rejects the disparagement of Dr Rimmer’s opinion by the applicant, and emphasises that it has no intention to disparage the applicant in bringing her case before the Commission.The respondent takes issue with the applicant when she suggests that her condition showed no improvement notwithstanding the conservative treatment that she has undergone, and that it is unlikely ever to improve. That language is not compatible with a complete recovery. The applicant’s language suggests that the condition may never go away, and that this is a factor for consideration as to whether surgery is appropriate treatment for her.
The respondent notes the reference by Dr Soo to the complex decision that Ms Roqueza has to make in respect of the proposed surgery, and social implications thereof. The respondent refers to the “bio psycho social model” in which the applicant finds herself, noting that she has been paid compensation for a psychological condition suffered as a result of the assault upon her, and the disturbance she has suffered as a result of such condition.
The respondent notes that the applicant must satisfy the principles for consideration set out by the Commission in at [88] in Diab v NRMA Insurance Ltd[17] in order to demonstrate that the surgery proposed by Dr Soo is reasonably necessary as a result of the injury to/condition in the right shoulder which she claims to have suffered arising out of or in the course of her employment with the respondent.
[17] [2014] NSWWCCPD 72 (Diab).
The respondent emphasises the serious nature of the surgery, and the possibility that it may result in a less than optimum outcome. This submission is made having regard to the opinion of Dr Rimmer that Ms Roqueza suffers from a degenerative condition in her right shoulder only, not as a result of injury to that shoulder suffered in the course of employment, or a condition consequent upon injury to the contra lateral shoulder.
In respect of the condition in the right shoulder claimed to have been caused by overuse, the respondent notes that the applicant used her right shoulder for many years without symptoms, and that the right shoulder problems only became apparent in 2020, 12 months after the March 2019 injury.
The respondent refers to the radiological investigation of the right shoulder, noting that in the X-ray dated 22 July 2019, no tears were evident, and Ms Roqueza ceased work in June 2019. The absence of tears is, according to the respondent, inconsistent with a claim based on the nature and conditions of the applicant’s employment.
The respondent submits that there is no evidence from the applicant as to the effectiveness or otherwise of non-surgical treatment, and questions if the applicant has an insight into her current circumstances and the possible sequelae of surgery. In the final analysis it is a matter for the Commission.
Applicant in response
The applicant submits that there is no evidential basis for the respondent’s submissions that her psychological condition, the “bio psycho social model” in which she apparently finds herself, in some way impacts on the reasonable necessity for the shoulder surgery proposed by Dr Soo. The respondent’s case rests on the opinion of Dr Rimmer, and that opinion is deficient for the reasons previously submitted. The applicant’s case is that as a result of either:
(a) the injury to her right shoulder on 1 April 2012;
(b) the nature and conditions of her employment, and/or
(c) the overuse of her right shoulder consequent upon injury to the left shoulder,
there is a reasonable necessity for the right shoulder surgery. The applicant submits that, at
least, only one of those factors need to be accepted in order to demonstrate the reasonable
necessity for surgery.
The applicant notes Dr Rimmer does not in his reports address the likely effectiveness of the proposed surgery, and records a history of the minimal beneficial effect of both cortisone injections in both shoulders and current attendance at physiotherapy. Thus all treatment, according to the applicant, has been exhausted. In his supplementary report Dr Rimmer expresses the opinion that the applicant has not sustained an injury to the right shoulder. The applicant submits that the cause of the injury to the applicant’s right shoulder is not in dispute. The opinion of Dr Rimmer should not be accepted in preference to that of the treating surgeon, Dr Soo, who has seen the applicant on four occasions.
In respect of the respondent’s submission that no tear is revealed in the X-ray dated 22 July 2019, the applicant submits that different radiological investigations show different things, and draws attention to the MRI scan of the right shoulder dated 24 April 2020 requested by Dr Soo and on which he makes comment in his report dated 4 June 2020 when discussing the applicant’s three options for treatment. Dr Soo is of the opinion that continued non-surgical measures will not provide any significant relief of Ms Roqueza’s symptoms.
FINDINGS AND REASONS
Right shoulder injury/condition
The applicant sustained an injury to her right shoulder on 1 April 2012, and was off work until 11 May 2012 when she returned on light duties. She returned to pre-injury duties in September 2012, but says that she experienced flare ups of her right shoulder pain from time to time when carrying out her employment duties. Such flare ups are not surprising considering the arduous nature of her duties as an AIN in a nursing home catering for elderly patients. Such a flare up occurred in about October 2017 and is mistakenly referred to by
Dr Endrey-Walder in his report as an injury to the right shoulder in October 2017 (see [23] above). The attendance of the applicant on a general practitioner at the Plumpton Medical Centre in November 2017, referred to at [23] of her statement, is corroborated by the clinical note dated 16 November 2017 evidencing an attendance on Dr Simon Ng in which “chronic shoulder pain”, “stiffness” and “reduced ROM” are recorded, and the reason for visit is given as “Shoulder pain”[18].[18] Application p 120.
I accept the applicant’s evidence as to the arduous nature of her duties. Her evidence in this regard was not challenged by the respondent, and Ms Roqueza engaged in this work from about 1994 when she commenced her employment with the respondent.
On 2 March 2019 the applicant saw Dr Cecilia Cuaresma at the Plumpton Medical Centre for, inter alia, a sore right shoulder, radiating to the right clavicle[19]. On 6 March 2019
Ms Roqueza consulted Dr John Lee at the same centre following the assault on her by a patient on 3 March 2019 when she suffered injury to her left shoulder[20]. The applicant says that as a result of this injury she had to “…overcompensate and rely heavily on my right shoulder which aggravated my pre-existing right shoulder injury”. The applicant also says that as she lives alone, she had to do all of the usual household chores herself apart from when the insurer paid for a cleaner to attend her home about once a fortnight for a couple of hours.[19] Application p 127.
[20] Application p 128.
It appears from the foregoing summary of evidence that the applicant was having trouble with her right shoulder up until the time of her left shoulder injury on 3 March 2019. That was a significant injury. I accept that the arduous nature of her work up until the time of the left shoulder injury contributed to the injurious condition in the right shoulder. Dr Endrey-Walder finds that the applicant’s right shoulder symptoms are caused by an aggravation super-imposed on some likely underlying mild tendinotic pathology in the rotator cuff. That is, aggravation of a disease injury.
In the Application, the injury description refers to the applicant having:
“…suffered an aggravation, deterioration, acceleration, and/or exacerbation of a disease of gradual onset in respect of her right shoulder due to the nature and conditions of her employment with your insured from April 1994 to 3 March 2019 which included regular and repetitive physically demanding duties such as transferring patients and making beds.”
The reference to ‘nature and conditions’ of employment would suggest that injury to the right shoulder was caused by a series of micro traumata to the right shoulder, meaning that the applicant’s employment must be shown to have been a substantial contributing factor to injury in accordance with s 9A of the 1987 Act. However, having regard to the description of injury in the Application referred to above and to the opinion of Dr Endrey-Walder, it is apparent that the injury is one of aggravation of a disease injury, meaning that employment must be shown to be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury within the meaning of s 4(b)(ii) of the 1987 Act.
In the s 78 notice dated 18 February 2021 issued by GIO, reference is made to both s 9A and s 4(b) of the 1987 Act as grounds on which liability is denied for the applicant’s claim for injury to the right shoulder. This reliance is repeated in the subsequent notice issued by GIO on 21 February 2022 pursuant to s 287A of the 1998 Act after a request for review made by the applicant on 14 February 2022[21].
[21] Application pp 27 and 29.
The applicant was engaged in heavy and arduous work in the course of her employment over the period from 1994 until she suffered injury to her left shoulder on 3 March 2019. She also suffered the undisputed injury to her right shoulder on 1 April 2012 for which she received treatment. The respondent did not make any specific submissions in respect of causation of injury to the right shoulder occurring over the course of the applicant’s employment. However, having regard to the applicant’s description of her work over this period and the opinion of Dr Endrey-Walder, I find that the applicant’s employment was the main contributing factor to the aggravation of the pre-existing disease in the right shoulder.
I accept that, following the injury to the left shoulder on 3 March 2019, the applicant placed reliance on her right shoulder to compensate for her injured left shoulder.
In respect of causation of the condition in the right shoulder claimed to be consequent upon the left shoulder injury, Dr Endrey-Walder says that:
“… it is not difficult to see how her previous injury to that shoulder in a work incident would have been rekindled and aggravated on account of the overuse necessitated by her very painful left shoulder over a great many months after the injury.”[22]
Dr Endrey-Walder is here referring to the previous injury to the right shoulder. I accept this opinion. The doctor’s comment immediately preceding this excerpt refers to Ms Roqueza apparently first having made mention of increasing pain at her right shoulder “around February 2020”. This is referred to by the applicant at [33] in her statement dated 4 February 2022 and in Dr Soo’s report dated 27 February 2020.
[22] Report dated 25 February 2021, Application p 41.
Dr Rimmer says in his report dated 13 August 2020, in answer to a question as to whether Ms Roqueza sustained a right shoulder injury relevant to the injuries of 3 March 2019, as claimed, that it is “Highly unlikely however I need to see the MRI scan of her right shoulder”. After seeing that scan he concludes that the applicant has not sustained a right shoulder injury. He confirms a diagnosis of abnormal illness behaviour, which I do not accept.
Ms Roqueza did not present in that fashion to Dr Endrey-Walder[23], and Dr Soo who saw her on four occasions, makes no mention of such behaviour.[23] See report of Dr Endrey-Walder dated 10 August 2021, Application p 44.
When commenting on Dr Rimmer’s opinion that it is “highly unlikely” that the ongoing left shoulder injury related functional deficit would impact on the right shoulder by way of overuse, Dr Endrey-Walder says “This is a very common consequence of unilateral shoulder injury to give rise to symptoms on the contra lateral side because of over-reliance on that limb over a period of time”.
I find that as a result of the injury to her left shoulder on 3 March 2019 Ms Roqueza sustained a condition in the right shoulder consequent upon that left shoulder injury on 3 March 2019.
Surgery
At [88] in Diab, Deputy President Roche sets out the relevant matters, according to the criteria of reasonableness in the context of s 60 of the 1987 Act as follows:
(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.
In his supplementary report dated 3 December 2021 Dr Rimmer says that having reviewed the MRI scan, his opinion remains unchanged that the likelihood that the operation would provide Ms Roqueza with significant and lasting improvement of her symptoms and function is extremely low. He said the same thing in his previous report but wanted to see the MRI scan. He does not explain why this is so apart from finding that, having seen the MRI scan, his belief is that the applicant has not suffered a right shoulder injury. He nevertheless does find on review of the MRI images a chronic degenerative tear of the supraspinatus tendon/rotator cuff with widespread tendinosis throughout. This finding alone would in my view cast doubt on his opinion that Ms Roqueza is displaying abnormal illness behaviour.
Dr Rimmer does not propose alternative treatment, saying “All treatment has been exhausted”.Both Dr Soo and Dr Endrey-Walder endorse the surgery. Dr Soo sets out the three options for treatment of the right shoulder which includes non-surgical measures, but says that he does not feel that continued non-surgical measures will provide Ms Roqueza with enough relief of her symptoms to be able to return to her pre-injury duties, and that long term it is likely that she will continue to have problems with the right shoulder. Dr Endrey-Walder says that “…offering surgery is reasonable indeed” The applicant wishes to undergo the surgery.
I do not accept the opinion of Dr Rimmer on the question of surgery. I accept the opinion of both Dr Soo and Dr Endrey-Walder, and find that it is appropriate and has the potential to be effective. There is no issue raised as to the cost of the surgery.
I find that the surgery proposed by Dr Soo, right shoulder arthroscopy, rotator cuff repair +/- biceps tenodesis, is reasonably necessary as a result of injury to the applicant’s right shoulder, and also as a result of condition in the right shoulder consequent upon injury to the left shoulder on 3 March 2019.
The respondent is to pay for the costs of and incidental to such surgery.
SUMMARY
The applicant suffered aggravation of a disease injury in the right shoulder arising out of or in the course of her employment with the respondent.
The applicant’s employment with the respondent was the main contributing factor to such injury.
The applicant suffered a condition in her right shoulder consequent upon injury to the left shoulder on 3 March 2019.
The surgery proposed by Dr Soo, right shoulder arthroscopy, rotator cuff repair +/- biceps tenodesis, is reasonably necessary as a result of injury to the applicant’s right shoulder, and also as a result of condition in the right shoulder consequent upon injury to the left shoulder on 3 March 2019.
The respondent is to pay for the costs of and incidental to such surgery pursuant to s 60 of the 1987 Act.
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