Schryver v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Schryver v Woolworths Group Limited [2022] NSWPIC 178
APPLICANT:	Jacobus Schryver
RESPONDENT:	Woolworths Group Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	27 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses under section 60 of the Workers Compensation Act 1987 for proposed surgery, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis; Held – the applicant requires medical and related treatment resulting from injury sustained on 24 November 2015 in the course of his employment with the respondent and the proposed surgical treatment is reasonably necessary treatment resulting from that injury.
DETERMINATIONS MADE:	1. Respondent to pay the applicant’s section 60 expenses in respect of treatment proposed by Dr Gavin Soo, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis and associated expenses as a result of the injury on 24 November 2015.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jacobus Schryver, (Mr Schryver) was employed by Woolworths Group Limited (the respondent) as a night duty manager. The respondent was self insured at the relevant time.
In the course of his employment on 24 November 2015, Mr Schryver was lifting and stacking cases of baked beans from a pallet onto a flatbed trolley when he sustained an injury to his lumbar spine and right and left hip. Mr Schryver underwent a fusion of the lumbar spine at L4/5 on 17 October 2019 and while recovering from this surgery, his left leg gave way causing him to fall onto his right knee and left shoulder.
Mr Schryver made a claim for medical treatment in relation to a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis proposed by Dr Gavin Soo.
The respondent disputed liability for the proposed surgery to the shoulder in the s 78 notice dated 7 October 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether treatment proposed by Dr Gavin Soo, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis was reasonably necessary as a result of the injury on 24 November 2015.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The parties attended a conciliation conference and arbitration on 21 April 2022. Mr Schryver was represented by Mr Tom Grimes, who was instructed by Mr Christopher Lehmann of Gerard Malouf & Partners. The respondent was represented by Mr Simon McMahon, who was instructed by Mr Sean Patterson of Turks Legal.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Submissions

The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note that the respondent submitted that the issue to be determined was whether the proposed surgery to the left shoulder was reasonably necessary medical treatment. The respondent argued that the treatment was not reasonably necessary as “it is unlikely to have a predictable benefit”.
Mr Schryver submitted that the weight of the medical evidence supported a finding that the proposed surgery was reasonably necessary.

FINDINGS AND REASONS

The injury to the lumbar spine and right and left hips on 24 November 2015 was accepted as a work-related injury. There is no dispute that following that injury, Mr Schryver underwent surgery to the lumbar spine on 17 October 2019 and that while recovering from that surgery, his right leg gave way and he fell injuring his left shoulder. The respondent conceded that Mr Schryver had a consequential condition in the left shoulder as a result of the injury on 24 November 2015.

Evidence of Mr Schryver

In a statement dated 20 October 2021, Mr Schryver described an incident at work on 24 November 2015 when he was bending down and reaching out to place a case of baked beans onto the flatbed trolley and felt a sudden sharp, knife-like pain in the right side of his lower back. Mr Schryver said that he reported the injury to the Night Captain, David Coombes, and continued his shift with difficulty. Mr Schryver then rested for two days but experienced increasing pain in the lower back and went to see his general practitioner, Dr Colin Holliday. Mr Schryver had about four months off work before returning on suitable duties until he was made redundant on 30 September 2019.
Mr Schryver said that he was referred to Dr Peter Khong, neurosurgeon, who performed a L4/5 anterior lumbar interbody fusion surgery on 17 October 2019. Mr Schryver wrote:
“Around a week after my surgery when I was recovering at home, I was walking down the stairs when my right leg weakened and gave way. This caused me to lose balance and fall onto my right knee and left shoulder. I felt immediate pain and discomfort in my left shoulder. I also felt pain and discomfort in my right knee, although this was relatively minor.
Prior to this incident I did not experience pain or discomfit in my left shoulder. After my fall on my left shoulder I experienced constant pain, stiffness, and discomfort in my left shoulder.”
Mr Schryver informed his rehabilitation specialist, Dr Estell, and Dr Khong of his left shoulder injury and was referred to Dr Gavin Soo, orthopaedic specialist.
Mr Schryver stated that Dr Soo recommended initially treating his left shoulder with physiotherapy, rest, and cortisone injections. He said that he underwent a cortisone injection to his left shoulder on or about 22 June 2021 which provided some temporary relief to the left shoulder symptoms, but his left shoulder remained painful, stiff, and sore and he continued to have significant restrictions in terms of his left shoulder in terms of strength and movement.
In a supplementary statement dated 20 October 2021, Mr Schryver said that on 16 September 2021 Dr Soo recommended he undergo left shoulder arthroscopy, rotator cuff repair and biceps tenodesis surgery. Mr Schryver stated that on 7 October 2021 the respondent denied liability for the left shoulder surgery on the basis of a report from Dr Anil Nair dated 21 July 2021.
Mr Schryver wrote:
“In the last 3 months my left shoulder has deteriorated significantly, to the point where it is quite painful doing rotating movements, EG: turning my arm in an outward motion, lifting my arm up, trying to drink with my left arm/hand, which is my dominant hand, trying to tuck in my shirt at the back, steering my car and trying to get up from bed or sitting motion.
I wish to undergo surgery to the left shoulder as recommended by my treating specialist, Dr Soo. My left shoulder continues to get more painful, stiff, and sore. The treatment I have undertaken to date has not provided any lasting benefit. I have already had a cortisone injection which provided temporary relief only. I have tried physiotherapy, rest, and medication. These treatments have provided me with some relief, but my left shoulder remains painful and stiff, and causes considerable discomfort.
I suffer constant pain and ache in my shoulder. I am unable to sleep on my left shoulder and this also disrupts my sleep.
I have spoken to Dr Soo at length about the proposed surgery and am aware of the potential risks and benefits of the surgery. I wish to have the surgery as I cannot continue attempting to cope with the constant pain and discomfit in my left shoulder”.

Medical Reports

In a report dated 27 July 2020, Dr Khong noted that one week after returning home after the L4/5 anterior lumbar interbody fusion surgery, Mr Schryver had a fall down the back steps of his house and landed on his right knee and left shoulder. Mr Schryver had complained of left shoulder pain since then. On examination Mr Schryver was unable to abduct the left shoulder past 90 degrees without pain, and there was mild pain on left shoulder abduction, minimal pain on external rotation and pain on internal rotation of the left shoulder (subscapularis liftoff). Dr Khong noted that the ultrasound of the left shoulder on 27 April 2020 demonstrated a partial thickness intrasubstance supraspinatus tendon tear and mild subacromial bursitis.
In a report of MRI scan of the left shoulder dated 21 May 2021, Dr Philip Herald noted a clinical history of left shoulder injury. He concluded that there was a small partial-thickness mid bursal surface supraspinatus tendon tear chronic in appearance, supraspinatus tendinopathy, severe acromioclavicular joint (ACJ) osteoarthritis (OA) with associated subacromial impingement/bursitis and a superior labral tear from anterior to posterior (SLAP) type 2 (glenohumeral labral tear with a small parameniscal cyst.
In a report dated 16 September 2021, Dr Gavin Soo, treating orthopaedic surgeon, noted that Mr Schryver originally injured his lower back on 24 November 2015 and ultimately went onto have a spinal fusion on 17 October 2019. Dr Soo reported that following his surgery he returned home and was walking downstairs when he lost balance and fell landing on his right knee and onto the left shoulder. Dr Soo noted that since then he has had ongoing pain to the left shoulder and prior to this Mr Schryver denied any previous history of pain or injury to the left shoulder. Dr Soo noted that Mr Schryver was left hand dominant.
Dr Soo noted that Mr Schryver complained of lateral sided pain to the shoulder which was constant but worse with certain movements such as stretching behind his back. Mr Schryver had been having regular physiotherapy to the shoulder which he said was slightly improving his pain. On examination, Dr Soo noted he has mild tenderness to the greater tuberosity, active forward elevation to 110 degrees (passive 130 degrees), ER to 80, IR to T12, positive impingement signs as well as positive Jobe’s test.
Dr Soo noted that an ultrasound of the left shoulder showed a partial thickness intrasubstance tear of the supraspinatus measuring 7mm and subacrominal bursitis. An MRI of the left shoulder of 21 May 2021 confirmed that there was a SLAP tear extending from posterosuperiorly with a 2mm paralabral cyst, a supraspinatus small partial-thickness bursal surface tear measuring 7mm, moderate subacromial bursitis measuring 3mm and ACJ OA.
Dr Soo noted that he had seen Mr Schryver on 19 May 2021, 16 May 2021 and 16 September 2021. In the review on 16 September 2021 Dr Soo noted that Mr Schryver had a cortisone injection into the left shoulder which helped for 24 hours but quickly wore off. He noted that Mr Schryver said that the pain was not exactly what it was prior to the injection, and Mr Schryver felt that the pain may be getting worse.
Dr Soo noted that Mr Schryver told him that that the shoulder continued to give him significant pain and cause ongoing disability, ongoing pain when he lifted his arm out to the side or reached out to the side, and difficulty with any overhead activities such as hanging out the washing. Mr Schryver had been seeing a physiotherapist regularly but he felt that things have not improved.
Dr Soo considered that there were two specific causes of his ongoing disability to the left shoulder, the extensive SLAP tear as well as the partial bursal sided tear of the supraspinatus tendon resulting in ongoing subacromial bursitis.
Dr Soo wrote:
“It is now coming up to 2 years since his injury and he continues to experience pain and dysfunction to the left shoulder which affects his normal day to day activities and preventing him from returning back to his normal occupational duties. I was hopeful that the cortisone injection, the physiotherapy and activity avoidance would provide him with significant improvement in his pain and function to the shoulder. Unfortunately they seem to have had little effect.
I have had a long discussion with him about the options of management today. Firstly we can continue with the nonsurgical measures including physiotherapy and trying a repeat Cortisone injection. However, the first one only had a 24 hour effect. The second option is surgical management. Surgery would be a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis. The aim of surgery is to repair his supraspinatus tendon and treat the SLAP tear”.
In a report dated 21 February 2022, Dr Soo noted that the proposed surgery was a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis. Dr Soo described this as a well accepted treatment option in the medical and surgical world for a long time. He said that there is strong evidence in the medical literature to support this treatment option for rotator cuff tears and biceps ancho pathology.
Dr Soo noted that Mr Schryver had clear pathology to his shoulder on the MRI scan including a SLAP tear with paralabral cyst as well as a partial tear of his supraspinatus. Dr Soo assessed the cause of the ongoing pain and dysfunction as being the stated pathologies and stated that he was therefore confident that the proposed surgery by treating the pathology on the scan would significantly improve his pain and function to the left shoulder.
Dr Soo noted that the non-surgical treatment alternatives to surgery were physiotherapy, pain medication, activity avoidance and cortisone injections. He noted that he first saw Mr Schryver on 19 May 2021 and they had been trying all these measures in order to try to avoid surgery. Mr Schryver had a cortisone injection into the left shoulder which only helped for 24 hours, he had been having physiotherapy to the shoulder regularly which also had not helped. Dr Soo believed that based on the longevity of his symptoms and the lack of improvement with all non-surgical measures to date, the surgery proposed was a reasonably necessary treatment option for his left shoulder and one that he felt would have a significant benefit for Mr Schryver in terms of his pain and function.
Dr Soo did not agree with the conclusion of Dr Nair in his report of 21 July 2021 that the proposed surgery was unlikely to be of benefit. Dr Soo noted that Dr Nair assessed and wrote a report in July 2021 and it was now five months since that assessment and it was clear when he assessed Mr Schryver that day that Mr Schryver was still markedly debilitated by pain to the left shoulder. Dr Soo did not feel that further non-surgical measures would be of benefit to Mr Schryver. Dr Soo concluded that surgery was a definitive treatment option for the left shoulder pathology, and one which aimed to definitively fix his problem and resolve his pain and function. He noted that Mr Schryver had clear pathology on his scans that correlated with his clinical findings, and he was confident that fixing the pathology of the scans would result in a clinical improvement. He wrote: “Thus I very much disagree with Dr Anil Nair’s opinion that the surgery will have no ‘predictable benefit’”.

Reports and clinical notes prior to October 2019

In an entry in his clinical notes dated 27 July 2006, Dr Holiday, treating general practitioner, wrote:
“Pain post left shoulder - 4/52
No pptcause
…
Muscle in spasm post shoulder
Rotator cuff appears ok
…
Rest/Dencorub”.
In an entry dated 2 August 2006, Dr Holiday wrote:
“CT Scan - minor annular bulging C3 & C6 CGH
Still parasthesia in all fingers & hand except little finger left hand
Massage eased pain in left cervico-scapular region
10-pin boweling [sic] does not exacerbate”.
In an entry dated 18 September 2006, Dr Holiday wrote:
“Still pain & parasthesia in left arm
Cervical radiculopathy & mild CT Syndrome”
In an entry dated 2 November 2006, Dr Holiday wrote:
“Left side progressively worse
‘electricity’ running thru left arm & shoulder stronger
Forced to reduce hours at computer to 20 hours/week
Having chiropractic treatment & x-ray cervical spine”.
In an Injury Management Plan dated 27 November 2006 the injury/ diagnosis was noted as “pins and needles left hand, pain in shoulder”.
In a report to Allianz dated 9 November 2006 Dr Holiday wrote:
“Injury caused by position and use of keyboard and mouse. Tried different positions but only reduced hours produce any relief. …radiculopathy exacerbated by work.”
In a WorkCover NSW Medical Certificate dated 2 November 2006, Dr Holiday made a diagnosis of “left radiculopathy and left carpal tunnel syndrome.”

Medico-legal reports

In a report dated 21 July 2021, Dr Anil Nair, noted that Mr Schryver injured his lumbar spine performing work duties on 24 November 2015. Dr Nair reported that Mt Schryver was initially treated with physiotherapy, then referred to pain physician, Dr Yu and came under the care of neurosurgeon, Dr Khong. A spinal fusion was performed in October 2019. Mr Schryver stated that whilst recovering from his spinal fusion he tripped due to weakness in his right lower extremity. He injured his right knee and left shoulder. Current symptoms included pain and stiffness in the left shoulder region. Dr Nair reported that in terms of left shoulder function Mr Schryver had no difficulty with dexterity, no difficulty with self-care but difficulty with overhead lifting.
On examination, Dr Nair found no inconsistences. Grip strength was “right 38 kg, left 29 kg”. Dr Nair observed Mr Schryver unfold a paperclip as a test of dexterity and there was no impediment. Dr Nair noted that there was a restriction in the range of movement in the left shoulder when compared to the right shoulder in forward elevation/abduction (right shoulder 150 degrees, left shoulder 130 degrees), external rotation ((right shoulder 90 degrees, left shoulder 60 degrees), internal rotation (right shoulder 50 degrees, left shoulder 40 degrees) and backward elevation (right shoulder 140 degrees, left shoulder 20 degrees). Mr Schryver had 4/5 rotator cuff power on the left and 5/5 on the right side.
Dr Nair concluded that Mr Schryver had a functional impairment as a consequence of the injuries to his back and left shoulder. He was of the opinion that the fall in October 2019 resulted in Mr Schryver sustaining a permanent aggravation of the left shoulder rotator cuff tendinopathy as well as a Type 2 SLAP labral tear.
Dr Nair noted that current treatment should be analgesics as required. He wrote: “At this stage there is no role for any further surgeries”. He expressed the opinion that there was no “predictable alternative treatment”. Dr Nail then commented on the recommended treatment from Dr Soo and wrote:
“The corticosteroid injection that Dr Soo requested was reasonable. This has been performed last week and helped his symptoms transiently. At this stage, there is no indication for rotator cuff repair or reconstruction of the left shoulder as it is unlikely to be a predictable benefit”.
In a report dated 12 January 2022 Dr Yuk Kai Lee, orthopaedic surgeon, noted that on 17 October 2019, Dr Khong performed anterior L4/5 discectomy and interbody fusion. Mr Schryver was discharged home after about a week and while at home, he lost balance and fell down injuring the right knee and the left shoulder. Dr Lee noted that since then, Mr Schryver has been having pain in the left shoulder. Mr Schryver had been referred him to Dr Soo, who recommended surgery for the left shoulder.
Dr Lee noted that Mr Schryver had a cortisone injection to the shoulder, which helped for about 24 hours. Currrent complaints included pain in the left shoulder when he did anything and he had a problem working with arms above the shoulder. Under “Previous Claims”, Dr Lee noted that Mr Schryver had a previous injury to the right shoulder and had a right supraspinatus tendon repair.

On examination, Dr Lee noted that there was tenderness in the lateral aspect of the left shoulder and over the AC joint. Crossing the arm across the chest was painful. The range of movement in the shoulders was as follows:
Shoulder             Right    Left
Flexion   180°     140°
Extension   50°      30°
Abduction   170°     110°
Adduction   50°      50°
External Rotation            90°      60°
Internal Rotation 80°      80°
Dr Lee noted that Mr Schryver had a good result with surgery to the right shoulder. He considered that Mr Schryver had injured the left shoulder aggravating the AC joint degeneration, had partial tear of the supraspinatus and developed a SLAP tear of the shoulder.
Dr Lee concluded that the proposed surgery was appropriate and was accepted by the medical profession as a reasonable treatment option given the pathology. Dr Lee expressed the view that on the balance of probabilities, the proposed surgery can result in pain relief and better movement of the shoulder. He considered that the alternative treatment would be to leave it alone and let nature take its course and the shoulder would continue to be painful and stiff.
Dr Lee wrote:
“The proposed surgery would address the pain producing elements in Mr Schryver’s shoulder. The acromioplasty would decompress the shoulder. The tenodesis will remove the painful stimulants from the SLAP lesion and repairing the rotator cuff will also eliminate the pain caused by the partial tear of the rotator cuff. I will recommend excising the AC joint, which is also a source of pain”.
Dr Lee concluded that Mr Schryver’s shoulder injury was now bad enough to warrant surgical treatment. He wrote: “I consider the proposed surgery is reasonably necessary as a result of his 24 November 2015 injury”.

Discussion

The matter to be determined is whether the surgery proposed by Dr Soo, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis, was reasonably necessary as a result of the injury on2 4 November 2015.
For medical treatment to qualify as “reasonably necessary” it must be appropriate, including in the context of mitigating the effects of any injury to cure, alleviate, sustain the status quo, or to negate and stem progressive deterioration. It can be a question of degree to which treatments effectively alleviate injury symptoms and address pain management. There is a line of cases consistent with this analysis including Rose v Health Commission (NSW) (Rose) [1986] 2 NSWCCR 32.
Burke CCJ in Rose (at pages 47-49) set out some general principles in relation to the issue of whether a particular regimen was medical treatment and whether it was reasonably necessary:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.     However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If is shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purpose of the Act.
3.     Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of the 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 its place in the usual medical armoury of treatments for this particular condition.”
The matters to be considered in a s 60 claim include the matters noted by Burke CCJ in Rose (supra) namely:
·        the appropriateness of the particular treatment;
·        the availability of alternative treatment, and its potential effectiveness;
·        the cost of the treatment;
·        the actual or potential effectiveness of the treatment, and
·        the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) Roche DP observed at [89] that:
“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…

[105] …on its own, a reduction in pain after the particular treatment does not necessarily ‘meet’ the test of reasonably necessary in section 60, it is a factor that can be considered in determining that issue. More importantly, it should be considered in light of the expert evidence and relevant history of the development of the symptoms…”
There was no dispute that Mr Schryver injured his left shoulder when he fell down steps in his home in about October 2019. He then reported the injury to Dr Estell and to Dr Khong. Dr Khong arranged for an ultrasound of the left shoulder to be carried out on 27 April 2020 which showed a partial-thickness intrasubstance supraspinatus tendon tear and mild subacromial bursitis. Dr Khong then referred Mr Schryver to Dr Soo for treatment for the left shoulder.
Dr Soo noted that the MRI of the left shoulder of 21 May 2021 confirmed that there was a SLAP tear extending from posterosuperiorly with a 2mm paralabral cyst, a supraspinatus small partial-thickness bursal surface tear measuring 7mm, moderate subacromial bursitis measuring 3mm and ACJ OA. Dr Soo reported that Mr Schryver had been having regular physiotherapy. In a review on 16 September 2021 Dr Soo noted that Mr Schryver had a cortisone injection into the left shoulder which helped for 24 hours but quickly wore off. He noted that felt that the pain may be getting worse.
On examination Dr Soo found a restriction of movement in the left shoulder. He noted that Mr Schryver told him that that the shoulder continued to give him significant pain and cause ongoing disability, ongoing pain when he lifted his arm out to the side or reached out to the side, and difficulty with any overhead activities such as hanging out the washing.
By September 2021, nearly two years after the fall in October 2019, Dr Soo recommended that Mr Schryver undergo a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis and stated that the aim of surgery was to repair his supraspinatus tendon and treat the SLAP tear. Dr Soo concluded that the non-surgical treatment, the cortisone injection, the physiotherapy and activity avoidance had not resulted in any significant improvement in the pain and function to the shoulder.
In his recent report dated 21 February 2022, Dr Soo described the proposed surgery, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis as a well accepted treatment option in the medical and surgical world for a long time and said that there was strong evidence in the medical literature to support this treatment option for rotator cuff tears and biceps ancho pathology. Dr Soo was confident that the proposed surgery would significantly improve pain and function in the left shoulder because Mr Schryver had clear pathology to his shoulder on the MRI scan that identified the cause of the ongoing pain and dysfunction.
Dr Soo believed that based on the longevity of his symptoms and the lack of improvement with all non-surgical measures to date, the surgery proposed was a reasonably necessary treatment option for his left shoulder and one that he felt would have a significant benefit for Mr Schryver in terms of his pain and function.
Dr Lee also concluded that the proposed surgery was appropriate and accepted by the medical profession as a reasonable treatment option given the pathology. Dr Lee expressed the view that the proposed surgery could result in pain relief and better movement of the shoulder. He noted that the alternative treatment would be to leave it alone and let nature take its course and the shoulder would continue to be painful and stiff.
Dr Lee considered that the proposed surgery would address the pain producing elements in Mr Schryver’s shoulder. In particular, the acromioplasty would decompress the shoulder, the tenodesis would remove the painful stimulants from the SLAP lesion and repairing the rotator cuff would also eliminate the pain caused by the partial tear of the rotator cuff.
Dr Lee concluded that Mr Schryver’s shoulder injury was now bad enough to warrant surgical treatment. He wrote: “I consider the proposed surgery is reasonably necessary as a result of his 24 November 2015 injury”.
Dr Nair, whose report of 21 July 2021 predated Dr Soo’s recommendation for the surgery and the request to the respondent to pay for the proposed surgery, merely opined that “At this stage, there is no indication for rotator cuff repair or reconstruction of the left shoulder as it is unlikely to be a predictable benefit”. Dr Nair considered that current treatment with analgesics should continue as required but did not propose any other treatment for the left shoulder.
In his supplementary statement dated 20 October 2021, Mr Schryver said that in the last three months his left shoulder has deteriorated significantly, to the point where it was quite painful doing rotating movements, for example, turning his arm in an outward motion, lifting his arm up, trying to drink with his left arm/hand, which was his dominant hand, trying to tuck in his shirt at the back, steering his car and trying to get up from bed or sitting motion. Mr Schryver stated that he wished to undergo surgery to the left shoulder as recommended by Dr Soo. He said that his left shoulder continued to get more painful, stiff, and sore and the treatment he had undergone to date, a cortisone injection, physiotherapy, rest and medication has not provided any lasting benefit. Mr Schryver said that he suffered constant pain and aching in his shoulder and was unable to sleep on his left shoulder which disrupted his sleep. I accept Mr Schryver’s evidence and I am satisfied that he continues to have significant problems with his left shoulder with some deterioration in mid to late 2021.
Dr Soo and Dr Lee both expressed the opinion that the proposed treatment would improve the pain and restriction of movement in the shoulder. Both Dr Soo and Dr Lee stated that the proposed procedure was appropriate and accepted by the medical profession as a reasonable treatment option given the pathology. Both doctors concluded that conservative treatment had not resulted in any real improvement and the condition now warranted surgical intervention.
Dr Nair’s report was written in July 2021, about nine months ago. He merely expressed the opinion that rotator cuff surgery or reconstruction of the left shoulder was unlikely to have a predictable benefit. Firstly, Dr Nair did not, at the time of writing his report, know exactly what surgery would be proposed by Dr Soo in September 2021. Therefore, Dr Nair did not properly address whether the proposed surgical procedure was reasonably necessary and likely to have some benefit. Dr Nair did not address whether the actual proposed surgery would improve the pain that Mr Schryver complained of or whether it would improve the range of motion and function in the left shoulder. Further, Dr Nair did not address whether the proposed surgery was appropriate and accepted by the medical profession as a reasonable treatment option given the pathology.
I prefer the evidence of Dr Soo and Dr Lee to that of Dr Nair. I do not accept Dr Natr’s opinion that the proposed surgery would have no predictable benefit. Dr Soo, who has the benefit of being the treating orthopaedic surgeon has seen Mr Schryver on a number of occasions, considered that the proposed surgery was reasonably necessary and likely to improve the range of motion and function in the left shoulder. Dr Lee also concluded that the proposed treatment was reasonably necessary and could result in pain relief and better movement of the shoulder. I am not persuaded that the alternative treatment proposed by Dr Nair, that is analgesic medication, would be effective in terms of providing Mr Schryver with pain relief and improve his quality of life.
The weight of the medical evidence supports a finding that the proposed surgery to the left shoulder could make a reasonable difference to Mr Schryver’s symptoms, and that there is a reasonable chance of a sufficient benefit if surgery is performed. On balance I am satisfied that the proposed left shoulder arthroscopy, rotator cuff repair and biceps tenodesis is appropriate treatment as extensive conservative treatments has failed in Mr Schryver’s case. I am satisfied that the treating doctor and Dr Lee all considered that this treatment was appropriate and likely to be effective.
There was one further issue that requires addressing. The respondent referred to clinical notes and reports from 2006 which concerned left shoulder pain. The respondent argued that Mr Schryver had not disclosed this left shoulder pain experienced in 2006 to his doctors and that would affect the weight I should place on their opinions.
In his clinical notes dated 27 July 2006, Dr Holiday, noted that Mr Schryver had pain in the left shoulder for four weeks and “muscle in spasm post shoulder”. Dr Holiday did note that the rotator cuff appeared “OK”. Dr Holiday recommended rest and Dencorub. In further entries dated 2 August 2006, 18 September 2006 and 2 November 2006 Dr Holiday noted that Mr Schryver had undergone a CT scan of the cervical spine and made a diagnosis of cervical radiculopathy and mild carpal tunnel syndrome.
In a WorkCover NSW Medical Certificate dated 2 November 2006, Dr Holiday made a diagnosis of “left radiculopathy and left carpal tunnel syndrome.”
In a report dated 9 November 2006 Dr Holiday noted that the injury was caused by position and use of keyboard and mouse. Dr Holiday considered that Mr Schryver had a radiculopathy exacerbated by work.
I am satisfied that the pain experienced in the left shoulder region in 2006 was caused by a left radiculopathy and there was no problem with the rotator cuff. There was no record of any further problem in the left shoulder or complaint concerning the left shoulder after 2006 until the fall onto his left shoulder in about October 2019.
I am not persuaded that the failure by the doctors to refer to the pain in the left shoulder in 2006 was a significant omission or should affect the weight I have placed on the opinions of Dr Soo and Dr Lee.
In summary, I am not persuaded that there are any effective alternative treatments available, and conclude that other forms of treatments have not been effective. I am satisfied that the general consensus of the doctors is that although the outcome is not guaranteed, the left shoulder arthroscopy, rotator cuff repair and biceps tenodesis is an appropriate form of treatment for management of pain and improvement in function. I am also satisfied that the potential effectiveness would be quite significant given Mr Schryver’s current state.
Adopting Burke J’s analysis, the potential effect of the proposed treatment is to alleviate the consequences of the injury. It was the opinion of both Dr Soo and Dr Lee that the treatment was appropriate, and its purpose and potential effect was to alleviate the consequences of the injury. I find that it is reasonably necessary that Mr Schryver undergo the surgery proposed by Dr Soo, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis.
I order that the respondent pay the applicant’s s 60 expenses in respect of treatment proposed by Dr Gavin Soo, namely, a left shoulder arthroscopy, rotator cuff repair and biceps tenodesis and associated expenses as a result of the injury on 24 November 2015.

[2022] NSWPIC 178

27 April 2022