Steele v State of New South Wales (South Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Steele v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPIC 604
APPLICANT:	Milly Steele
RESPONDENT:	State of New South Wales
MEMBER:	Jane Peacock
DATE OF DECISION:	10 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Right shoulder injury; injury not disputed; no dispute that surgery was reasonably necessary; applicant had undergone surgery at her own expenses; dispute was whether rotator cuff repair surgery was reasonably necessary as result of the injury; evidence weighed in the balance and on the balance of probabilities it was determined that the surgery undertaken was reasonably necessary as a result of the work injury; Held – award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The late documents filed by the respondent in the form of a further report from Associate Professor Shatwell dated 18 May 2023 not admitted. 2. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the surgery in the form of the form of a rotator cuff repair is reasonably necessary as a result of injury on or about 27 August 2019.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Ms Milly Steele (the applicant) seeks a determination that surgical treatment in the form of a right shoulder rotator cuff repair is reasonably necessary as a result of injury on or about 27 August 2019.
The respondent is the State of New South Wales (South Western Sydney Local Health District) (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim for the proposed surgery.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffered an injury to her right shoulder at work on 27 August 2019.
She was paid weekly compensation and treatment expenses in respect of that injury.
She now seeks a determination that surgery in the form of a rotator cuff repair is reasonably necessary as a result of injury on or about 27 August 2019. This surgery was undertaken on 10 July 2020 by Assoc Prof Haber and paid for by the applicant.
The respondent does not dispute that the proposed surgery is reasonably necessary. However, the respondent does dispute that the proposed surgery is reasonably necessary as a result of the injury on 27 August 2019. The respondent seeks that an award be made in favour of the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter came before the Commission for a preliminary conference and directions were made as follows:
“1.     The matter is listed for a conciliation/arbitration (con/arb) to take place before me by AVL at 2pm on 4 April 2023.
2.     It is noted that the dispute remains as per the dispute notices.
3.     It is noted that neither party sought leave to issue directions for production.
4.     The respondent to file and serve within 21 days a medical report and the question of its admission will be dealt with at the con/arb.”
A conciliation/arbitration was held on 4 April 2023 and the parties resolved the matter on the following basis:
“1.     The proceedings in respect of the claim for lump sum compensation be discontinued.
2.     The matter is remitted for referral to a Medical Assessor (MA) as a general medical dispute in accordance with the attached referral for opinion as to whether the proposed surgery in the form of a rotator cuff repair is reasonably necessary as a result of injury on or about 27 August 2019.
3.     The documents to be forwarded to the MA are as follows:
(a)The Application to Resolve a Dispute and all documents attached.
(b)The Reply and all documents attached with the exception of the document at pages of 34 to 39 of the Reply which is to be excluded from the referral.
4. That the balance of the claim for section 60 expenses be discontinued.
5.     Award for the applicant in respect of the claim for weekly compensation from 11 August 2020 to 15 March 2023 at the rate of $185.19 per week (agreed to be 135 weeks and to total $25,000) and thereafter an award for the respondent in respect of the claim for weekly compensation.
6. The matter be relisted for a conference before me once Medical Assessment certificate issues in respect of the section 60 issue.”
I note that at the conciliation/arbitration the question of the admission of documents was dealt with and the above documents admitted by consent. The respondent did not make any application in respect of the filing of any further evidence. A further report had not been filed and served in accordance with the directions made at the preliminary conference. Counsel for the respondent did not raise the question of the filing of a further report. If it had been raised the applicant would have had the opportunity to respond. The respondent did not raise it and the applicant was denied that opportunity. Indeed, it seems that the respondent had not obtained a further report as they had foreshadowed at the first conference and about which directions had been made. It is for counsel to move on applications to admit late evidence otherwise it can be concluded that they do not seek to rely on any other material because counsel for both sides were specifically asked by me whether they were seeking to rely on any other material and counsel for the respondent did not make any such application. Indeed, it seems that a further report had not even been commissioned by the respondent at that stage of the proceedings.
The parties elected to have the matter referred by way of general medical dispute to a medical assessor for a non-binding opinion. This was a consensual approach of the parties and not of my own motion. Taking into the consideration the parties consensual approach and considering that I may be assisted by an independent opinion from a medical assessor, I remitted the matter to the Commission for referral in line with the agreement of the parties.
The matter was referred to a medical assessor and an appointment with a medical assessor was scheduled for 1 September 2021.
The day before that appointment took place, the matter was listed on 31 August 2021 for a conference before the head of the division, Mr Glenn Capel to deal with the admission of late documents filed by the respondent being a report dated 18 May 2023 and served on the applicant on 24 August 2023.
The head of the division Mr Capel did not deal with the late documents issue but instead vacated the appointment with the medical assessor the day before it was due to take place and directed written submission by the parties on the issue of the late documents as well as the substantive dispute.
The matter, as directed by the Head of the Division Mr Capel, is now being determined without the benefit of an opinion from the Medical Assessor which had been the parties’ application granted by consent.
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 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, admitted by consent, and considered in making this determination:
For the applicant
a. The Application and attached documents.
For the respondent
a. Reply and attached documents with the exception of the document at pages 34 to 39 of the Reply which is to be excluded from the referral.

Late evidence

The respondent seeks the admission of further evidence which is objected to by the applicant.
The respondent seeks the admission of the report of Assoc Prof Shatwell dated 18 May 2023 and served on the applicant on 24 August 2023.
The respondent submitted on this issue as follows: (paragraphs renumbered to start from one on this discrete issue and emphasis is in original)
“
1.     This question has to be approached having regard to the statutory rubric within which the Commission operates.
2. Section 43 of the Personal Injury Commission Act 2020 provides as follows (with emphasis added)
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
The proper consideration of the matter, and the substantial merits of the matter, are, as a matter of both common sense and statutory imperative, more important that scrutinising breaches of timetables.
3.     Whilst it is not submitted for one moment that timetables should be ignored, the reality of legal practice is that lawyers are busy, have to juggle hundreds of cases simultaneously and things get overlooked from time to time. Of this one can take judicial notice. No practitioner in this jurisdiction, or any jurisdiction, has a perfect record of complying with timetables. Absence any scheme to intentionally not comply, and absent any incurable prejudice, the correct approach is one of tolerance.
4.     Where documents are served late, one might also note Practice Direction No 9
-Applications to admit late documents. According to paragraph 12 of that Direction, the Commission should consider:
(a)the interests of justice;
(b)the requirements of the workers compensation legislation and the 2011 Rules;
the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;

(c)any prejudice that would result from granting or refusing leave to admit the documents;
(d)the effect, if any, on the timely resolution of the dispute, and
(e)the objectives of the Commission.

Whilst prejudice cannot be ignored, it is the interests of justice which are the paramount consideration.
5.     AS [8] complains that the report of Dr Shatwell dated 18 May 2023 was served on the applicant on 24 August 2023. However, this could not have come as a surprise because, as is conceded at AS [9], as far back as 27 February 2023, the respondent’s solicitor had indicated at a preliminary conference that such a report was anticipated. Whilst it was not filed within the 21 days allowed by Member Peacock’s direction given at that time, this was simply the result of an administrative error.
6.     The claimed prejudice in AS [15] is nonsensical. The report of Dr Shatwell advances the respondent’s case not the applicant’s case. Its presence in the mind of the applicant at the time of the previous settlement could only have persuaded her to settle for less not more. Therefore, the prejudice in this respect, if there be any, is on the respondent, not the applicant.
7.     The prejudice alleged in AS [16] and [17] is real, but curable. Of course, if evidence is served late it needs to be responded to. However, as long as there is an opportunity for this to occur, then the prejudice ceases to exist. The respondent does not object to an opportunity being given for the applicant to obtain further reports from A/Prof Haber or Dr New. It is reasonable that she have an opportunity to do so, and such an opportunity should be granted. This would be much fairer that shutting the respondent out of running its case.
8.     The content of the report is noted below. It is noteworthy that Dr Shatwell adheres to his opinion, which is a further reason why there is no real surprise, much less incurable prejudice arising.”

The applicant submitted as follows:(paragraphs renumbered to start from paragraph one on this discrete issue)
“1.    The ﬁrst notice the Applicant had of the report of A/P Shatwell dated 18 May 2023 was when it was served on the Applicant on or about 24 August 2023.
2.The matter had been listed for preliminary conference on 27 February 2023 at which time the Respondent’s Solicitor advised that a further report was being obtained from A/P Shatwell and Member Peacock issued a Direction which included the following:-
‘The Respondent to ﬁle and serve within 21 days a medical report and the question of its admission will be dealt with at the con/arb’
3. The conciliation and arbitration of the matter was listed on 4 April 2023 at which time there was no application for the admission of any late evidence from A/P Shatwell.
4.As Member Capel noted, there was no mention in the Certiﬁcate of Determination dated 6 April 2023 of any further evidence to be admitted into evidence for review by the Medical Assessor. Had the parties intended additional evidence to be admitted Member Peacock would have set a timetable for ﬁling of the documents, as Member Peacock did in her direction of 27 February 2023.
5.     From submissions made by the Respondent’s Solicitor at the tele-conference before Member Glenn Capel on 31 August 2023, it would appear that no further report had been requested from A/P Shatwell by the Respondent until 22 March 2023.² This of course was in breach of the Direction of Member Peacock on 27 February 2023, in that any report was required to be served within 21 days of the preliminary conference. In this case, the report was not requested until approximately 23 days after the preliminary conference.
6.     At the conciliation and arbitration on 4 April 2023 there was no mention made of any additional evidence from A/P Shatwell. If mention had been made that the Respondent was awaiting a further report and it would seek to have this admitted into the proceedings and referred to the Medical Assessor, it would likely have altered the Applicant’s view about agreeing to the matter being referred to a Medical Assessor.
7.     Again, according to the submissions made by the Respondent’s Solicitors at the tele-conference before Member Glenn Capel, the report was received in her oﬃce on 18 May 2023³ but due to an ‘administrative error’, it was not served on the Applicant until 24 August 2023. This was more than 3 months after the report had been received by the Respondent and one week before the Medical assessment was to take place.
8.     The Applicant objects to the admission into evidence of the report of A/P Shatwell dated 18 May 2023. The Applicant says that she has been severely prejudiced in that ﬁrstly, she would not have entered into the settlement of her claim in the form that it took on 4 April 2023.
9.     Secondly, the determination of the Applicant’s claim has been delayed signiﬁcantly, initially by the referral of the question of surgery to a Medical Assessor, and then having the appointment with the Medical Assessor cancelled within a day of the appointment.
10.   Thirdly, the Respondent is in breach of the Rules of the PIC, Rules that are in place inter alia to provide procedural fairness to both parties. If the late report of A/P Shatwell is allowed into evidence, the Applicant is denied the ability to obtain further evidence from A/P Haber and/or Dr. New in response.
11.   In the circumstances, it is submitted that the report of A/P Shatwell should not be admitted into evidence.”
The commission has an upfront filing system which is made very clear by its rules and practice directions. The matter is meant to be ready to proceed on the filing of the Application and the Reply. This is a system that is designed to afford procedural fairness to both parties. They know the case they have to meet and are prepared to meet it. There should be no surprises and no ambushes by the filing of further evidence at the eleventh hour. Nonetheless and appropriately there is discretion to admit late material if the interests of justice require it. Again procedural fairness must be accorded both sides. The circumstances of the delay and prejudice to the other side are factors to be taken into account.
Here the procedural history of the matter is such that the respondent has had the most ample of opportunities to seek to rely on further evidence from Assoc Prof Shatwell and to afford the applicant procedural fairness and an opportunity to respond in so doing. The late material could have been filed prior to the first conference, it could have been filed after the first conference and before the conciliation/arbitration and its admission sought at that event. The approach of the respondent has been such that it would be unfair at this stage in the proceeding to admit the late evidence. The respondent has obligation to behave as a model litigant. The interests of justice do not require the admission of the late material in these circumstances. The respondent has an expert report from Assoc Prof Shatwell upon which its dispute notice was founded. It has issued a number of dispute notices. In fact the respondent has no less than six reports from Assoc Prof Shatwell attached to the Reply and admitted into evidence. In view of the extent of the delay and the prejudice that would be occasioned to the applicant in the admission of the late material when the substantive matter has been directed by the Head of the Division to be determined, I decline to admit the late material.

Oral evidence

The applicant did not seek leave to adduce oral evidence. The respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS

There is no dispute that the applicant suffered an injury to her right shoulder at work on 27 August 2019.
The applicant now seeks to a determination that the rotator cuff repair was reasonably necessary as a result of injury on 27 August 2019. The applicant had the surgery at her own expenses on 10 July 2020.
There is no dispute before me that the surgery was reasonably necessary.
There is however a dispute that the surgery was reasonably necessary as a result of the injury on 27 August 2019.
I must determine, on the balance of probabilities, whether the surgery in the form of a rotator cuff repair as recommended and subsequently performed on 10 July 2020 by the treating surgeon is reasonably necessary as a result of injury on 27 August 2019. This determination must be made on the evidence and in accordance with the law.
Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that the rotator cuff repair surgery which was undertaken on 10 July 2020 was reasonably necessary surgery. It is disputed that the surgery results from the undisputed injury to the right shoulder on 27 August 2019.
In summary, the respondent submits that the need for surgery results from the underlying condition of a rotator cuff tear which would have required surgery to repair at some point without the work injury and that the fall on 27 August 2019 caused an aggravation of the underlying condition but the aggravation was only was temporary and it would have resolved such that the need for surgery results from the underlying condition and not the fall. In this regard the respondent relies on the opinion of Assoc Prof Shatwell as expressed in his six reports that are in evidence before me.

This case will be decided on the evidence. Turning then to an examination of the evidence in this case.
On 10 July 2020 the applicant underwent surgery to her right shoulder at the hands of Assoc Prof Haber. At arthroscopy a full thickness tear of the rotator cuﬀ was repaired with the assistance of an allopatch.
She gave evidence that she had no prior problems with her right shoulder.
The applicant submitted: (emphasis in original and footnotes omitted)
“A/P Mark Haber provided a report to the insurer dated 21 January 2020. He was provided with A/P Shatwell’s reports. He did not agree with A/P Shatwell’s statement that this is a ‘minor temporary aggravation of long standing degenerative changes in her shoulder’. A/P Shatwell stated that he was not aware of any pre-injury shoulder pain or previous imaging of the shoulders demonstrating a rotator cuﬀ tear.
A/P Haber noted that the MRI scan demonstrated a rotator cuﬀ tear and rotator cuﬀ tears have no ability to heal without surgical repair. He also discussed the natural history of rotator cuﬀ tears with the risk of tear progression and their unpredictable deterioration.
In his report of 7 May 2020 A/Prof reviewed the further MRI scan of the right shoulder and due to the presence of a large full thickness tear and persistent symptoms, recommended surgical repair of the tear. This was carried out on 10 July 2020.
Dr. Charles New was qualiﬁed by the Applicant’s Solicitor. He provided a report dated 15 October 2020. Dr. New opined that the surgery performed by A/P Haber was reasonably necessary in the circumstances. There was well investigated pathology and no pathology or clinical presentation prior to the accident on 27 August 2019.In his report of 17 September 2020 Dr. New commented on the report of A/P Shatwell dated 13 December 2019. Dr. New noted that prior to the incident of 27 August 2019 the Applicant had been holding down a permanent part time position with Liverpool Hospital with no physical restrictions. He therefore disagreed with A/P Shatwell’s assertion that this was a temporary aggravation and that it would repair in three months.
Dr. New also commented that whilst A/P Shatwell was entitled to his opinion, A/P Haber is a well considered and well trained surgeon and as the treating doctor was in a very good position to opine on the necessity for surgery.
Dr. New provided a further report dated 18 July 2022¹conﬁrming the opinion expressed in his previous reports, ie. that the need for surgery to the Applicant’s right shoulder was reasonably necessary as a result of the injury on 27 August 2019.
It is submitted that the Commission Member would not give any weight to the opinion of A/P Shatwell that ‘any shoulder surgery would have been necessary had the accident occurred or not’. The Applicant had no symptoms in her right shoulder prior to the incident on 27 August 2019. She had engaged in her employment duties with the Respondent without any complaints in respect of her right shoulder.
A/P Shatwell provided many reports following his report of 13 December 2019 – 4 February 2020, 20 August 2020,5 November 2020, 4 December 2020 and 12 October 2022.¹In his report of 20 August 2020¹A/P maintained his view that any shoulder surgery would have been necessary had the injury occurred or not. This opinion was provided after reviewing clinical notes provided to him by the Respondent’s Solicitor and expressed as ‘selected clinical records of Camden Surgery and Associate Professor Mark Haber’s letters’. The documents provided to A/P Shatwell have not otherwise been identiﬁed.
It is not really clear how A/P Shatwell came to his view when the Applicant had no complaints or symptoms in her right shoulder prior to the incident on 27 August 2019 and has subsequently continued to be symptomatic.
On 5 November 2020 A/P Shatwell carried out a ﬁle review. A/P Shatwell commented that the changes seen in the MRI scan of 16 April 2020 were those of chronic rotator cuﬀ tendonosis (degenerative change) with atrophic disintegration of the supraspinatus part of the rotator cuﬀ. He opined that none of these changes were the result of the trauma described which occurred on 27 August 2019. A/P Shatwell did not however go on to consider whether these degenerative changes had been aggravated or accelerated by the trauma of the incident of 27 August 2019.
A/P Shatwell was of the view that the fall of 27 August 2019 did not cause any major soft tissue disruption of the rotator cuﬀs as she fell with her arms in front of her, close to her body, and did not complain of severe pain in her shoulders immediately following the incident.¹⁹
A/P Shatwell provided a further report dated 4 December 2020. He was provided with the MRI scan of the right shoulder dated 16 April 2020 together with reports by A/P Haber dated 21 January 2020, 15 April 2020 (x3), 7 May 2020 and his operation report of 10 July 2020. A/P Shatwell conﬁrmed that none of this additional documentation caused him to alter the opinions in his previous reports. This was based upon the fact that the Applicant had ‘minor pain in the right shoulder following the incident as detailed in my previous reports’.
A/P Shatwell agreed that there was a large tear of the supraspinatus tendon of the right shoulder and a slightly smaller tear on the left. He considered that these tears were pre-existing in degenerate tendons and that Ms. Steele could not have caused such large supraspinatus tears in a fall with her arms in front of her from a standing height and be able to drive herself home and sleep until the following morning.
After reviewing the additional material A/P Shatwell maintained his view that the need for surgery was not for any acute tearing of the rotator cuﬀs occurring on 27 August 2019.
A/P Shatwell’s description and mechanism of the Applicant’s injury is at odds with the Applicant’s evidence. In her statement the Applicant at paragraph 7 stated that
‘I tripped and fell forward into the lift. I was cradling my bag and cardigan in my arms as I fell forward heavily onto my elbows….’
And at paragraph 8 stated:
‘When I fell onto my elbows, I was still holding my bag and cardigan. I felt signiﬁcant force travel through my arms and into my shoulders’.
She further stated at paragraph 9
‘I felt immediate and signiﬁcant pain in my right shoulder, lower back and right knee.’
It is submitted that the description given by the Applicant is a little diﬀerent to the ‘minor pain’ in the right shoulder recorded by A/P Shatwell. It is further submitted that the Applicant’s evidence ought to be preferred to that of A/P Shatwell.
It is well established in the Commission that in order to succeed in a claim pursuant to Section 60 of the Act, that particular surgery is reasonably necessary as a result of an injury, the criteria referred to by Roche DP (as he then was) in Diab is to be applied. In this case, there is no dispute that the surgery was in fact reasonable, the dispute is with respect to whether the need for surgery resulted from the work-related injury.
In Murphy v. Allity Management Services Pty. Ltd. Roche DP said:
‘The work injury does not have to the only, or even a substantial, cause of the need for relevant treatment before the cost of that treatment is recoverable under s60 of the 1987 Act.
The work injury only needs to have materially contributed to the need for the surgery.
The applicant was asymptomatic with respect to her right shoulder prior to the work-related incident of 27 August 2019 and thereafter remained symptomatic until she had the surgical repair of her rotator cuﬀ on 10 July 2020. It is submitted that the Commission would have no diﬃculty accepting that the work-related incident materially contributed to the need for the surgical repair of the applicant’s right rotator cuﬀ tear and that therefore an award ought to be entered in the applicant’s favour.”
The applicant gave evidence in two statements dated 16 September 2021 and 12 December 2022 respectively.
She gave evidence that she started working for the respondent in about January 1998 as a registered nurse. She moved to Griffith in 2002 but returned to Sydney in 2006 and re-commenced her employment with the respondent. In 2015 she moved into a nurse educator role with the respondent. She worked four days a week and performed this work on a permanent part time basis up until the injury.
She gave evidence about her pre-existing conditions prior to injury on 27 August 2019, namely an injury to her left shoulder at work in 2013 and some occasional back pain.
She had no problems with her right shoulder prior to the fall on 27 August 2019. She gave evidence:
“I had no symptoms in my right shoulder prior to the current accident.”
She has given this consistent history to all of the medical experts who have reviewed her and whose reports are in evidence in these proceedings. I note there is no evidence by way of clinical notes or radiological investigations undertaken prior to injury that traverses the evidence of the applicant that her right shoulder was symptomatic prior to the work injury.
The applicant gave evidence about the injury on 27 August 2019.
She was waiting for a lift. She was carrying her cardigan and her handbag in her arms. When the lift arrived, the applicant did not notice the lift floor was out of alignment and she tripped and fell heavily. She gave evidence:
“At the time, I did not realise that the lift had not aligned completely with the ground floor level. As I went to step into the lift, my foot struck the edge of the floor of the elevator, which was raised from the ground level by approximately six inches, I tripped and fell forward heavily onto my elbows. I landed forward on the elevator floor hyperextending my lower back in the process. I was still holding my handbag when I fell. I also struck my right knee.
When I fell onto my elbows, I was still holding my bag and cardigan. I felt significant force travel through my arms and into my shoulders.
I felt immediate and significant pain in my right shoulder, lower back and right knee”.
The applicant gave evidence that her colleague helped her to her feet and pointed out the raised lift floor.
She reported the incident to security and to her supervisor and filled out a report. By that time her shift was over and she was able to drive herself home, the trip took about 20 minutes and she was in pain including in her right shoulder.
The day after the injury was her rostered day off. The pain was more severe including in her right shoulder. She called her general practitioner (GP) Dr Venkatesan but could not get an appointment that day but could get an appointment the following day 29 August 2019. She was referred for an MRI scan and certified unfit for work to 2 September 2019. The MRI booking was made but could not take place until 18 September 2019. On 23 September 2019 she returned to her GP to get the MRI results. The pain in her right shoulder and back was becoming worse. She was referred to different and appropriate specialities for her back and shoulder. She was referred to Assoc Prof Haber for her shoulder.
She gave evidence that she consulted Assoc Prof Haber on 2 October 2019 and on that day his sonographer did an ultrasound of the right shoulder which revealed a large full thickness tear.
He also noted muscle wasting in left shoulder and she disclosed her prior injury of 2013. An ultrasound of the left shoulder was performed. It showed a medium tear in the left shoulder.
She continued to experience pain in her right shoulder and back and was getting treatment for her back over this time.
She gave evidence that over time her symptoms had some improvement in her shoulders but she experienced flare ups of pain.
On 15 April 2020 she had a follow up consultation with Assoc Prof Haber in respect to her shoulders. An ultrasound was performed and she was advised that there had been severe deterioration in both shoulders since her last consultation with Assoc Prof Haber.
She gave evidence that she was advised she needed a surgical repair as follows:
“I was advised by Associate Professor Haber that rotator cuffs are unable to heal without surgical repair, therefore it was likely that my symptoms would continue to worsen over time if I did not have the surgery. Dr Haber also advised that if I did not have the surgery, the tear become worse, to the point that I may develop an irreparable tear. Dr Haber indicated to me that the tear in my right shoulder in particular was becoming extremely large and was potentially approaching being irreparable.”
Associate Professor Haber referred her for a further MRI which was undertaken on 16 April 2020 and she was reviewed by Assoc Prof Haber on 7 May 2020. She gave evidence that Assoc Prof Haber again cautioned her about continuing with conservative treatment and advocated that surgical repair was necessary to repair the tear before irreparable damage was done. He advised her if she left the repair too long it may result in her needing a shoulder replacement surgery.
The applicant gave evidence that in light of this advice:
“I became increasingly concerned that if I did not undergo surgery soon, I would continue to experience ongoing pain indefinitely or I would have to undergo a more significant surgery.”
The applicant gave evidence that on 7 May 2020 Assoc Prof Haber recommended she undergo a rotator cuff repair:
“…as a result of the large full thickness tear and my persisting symptoms, Dr Haber rerecommended on 7 May 2020 that I undergo rotator cuff repair surgery”.
On 7 May 2020 Assoc Prof Haber wrote to the insurer requesting approval.
On 1 June 2020 this was declined by the insurer on the basis of Assoc Prof Shatwell’s report from November 2019.
The applicant gave evidence about the surgery undertaken on 10 July 2020:
“On 10 July 220 I underwent the arthroscopic rotator cuff repair surgery to my right shoulder under the care of Associate Professor Haber.
Dr Haber advised me after the surgery that my shoulder was in a worse condition than expected. He advised that I required an allograft during the surgery which was like a spacer to cover the area as my muscle had deteriorated and retreated so much that my own tissue was not enough to anchor the repair.”
The applicant went onto give further evidence in a statement dated 16 February 2022. She gave evidence:
“Prior to my injury on 27 August 2019 I was pain free and I had no restrictions in my arm, neck or shoulder.”
This evidence is not traversed in any way. Prior to injury on 27 August 2019, the applicant e was working for the respondent on a permanent part-time basis four days a week and had no time off work because of any right shoulder problems and there is no clinical or treatment records suggesting otherwise.
She gave evidence that since the injury she had symptoms in her right shoulder. These have not been completely relieved by the surgery although it has offered her some relief. She continues to have pain and to undergo physiotherapy.
She gave evidence:
“I have seen Dr Shatwell’s report and unequivocally disagree that my shoulder is now better. I have had ongoing pain and issues since the fall at work and had I not suffered injury in the fall than I strongly believe that I would not currently have the issues from which I continue to suffer.
Immediately prior to the subject fall I had no pain in my shoulder. Since the date of my fall I have had ongoing pain and restriction. Whilst surgery did help with some symptoms, I have had uninterrupted symptomologies since the date of the fall and ongoing.”
There are three reports from the treating surgeon Assoc Prof Haber in evidence – a report dated 21 January 2020 to EML, the surgery request dated 7 May 2020 and the operation report dated 10 July 2020. In addition his clinical notes are in evidence which have further reports.
On 21 January 2020 Assoc Prof Habar provided a report to the insurer at their request as follows:
“Thankyou for your request for a report dated 17 January 2020. I have reviewed the patient’s file for the purpose of this report.
Milly described developing pain in her shoulders following a fall on 27.8.2019.
An MRI and ultrasound demonstrated bilateral rotator cuff tear.
I am not aware of any pre-injury shoulder pain or previous imaging of the shoulders demonstrating a rotator cuff tear; therefore, I cannot agree with Prof. Shatwell’s statement that this is a ‘minor temporary aggravation of long-standing degenerative changes in her shoulder.’
As mentioned previously Milly mentions symptomatically significant improvement since the fall. Unfortunately, rotator cuff tears have no ability to heal without surgical repair, hence her symptoms may fluctuate over time and it is impossible to predict her future outcome.
We also discussed the natural history of rotator cuff tears with the risk of tear progression which is associated with a poor prognosis with the development of an irreparable tear and cuff tear arthropathy.
Deterioration of cuff tears is unpredictable and I have therefore recommended surveillance in the presence of a tear with a check ultrasound at 6 to 12 months if a repair is not performed.
From the history obtained I do believe the patents injury is a substantial contributing factor to her current condition.”
On 7 May 2020 Assoc Prof Haber wrote to the insurer requesting approval for the surgery. He noted the presenting problem was bilateral shoulder pain. He noted the presence of the tear and describes its dimensions. He recommended surgery for the following reason:
“We discussed the nature of this condition and the treatment options available. These include rotator cuff repair surgery, physiotherapy and cortisone injections and a wait and see approach.
We discussed the natural history of rotator cuff tears with the risk of tear progression which is associated with a poor prognosis with the development of an irreparable tear and cuff tear arthropathy.
Due to the presence of a large full thickness tear and persistent symptoms I have recommended a rotator cuff repair.”
Associate Professor Haber went onto state:
“As I have recommended the procedure of arthroscopic rotator cuff repair approval is required. I feel the current diagnosis is consistent with the reported mechanism, I do believe the patient’s employment is a substantial contributing factor to the current condition and need for surgery. I believe current capacity for work is related to the shoulder injury only. It is hoped surgery will alleviate the patient’s symptoms and assist them in returning to preinjury duties, I believe the procedure is reasonable and necessary and is the most appropriate treatment for rotator cuff tears as rotator cuff tears have no ability to heal without surgical repair.”
Dr Charles New, orthopaedic surgeon, was the independent medical expert (IME) qualified by the applicant. He provided two reports which are in evidence.
He saw the applicant on 31 August 2020 and provided a report dated 15 October 2020.
He took a history of the fall that she fell onto her elbows as she was cradling her bag and she felt significant pain in her shoulders upon falling. He noted she saw her GP who confirmed the presence of pathology in her right shoulder referred her for MRI and to Assoc Prof Haber.
He records that she confirms she had no previous problems in her right shoulder prior to the fall but notes her disclose of a prior injury to the left shoulder and occasional back pain.
She was assisted by a colleague reported the incident and went home. The next day she had significant pain in the areas injured (lumbar spine both shoulders, neck and right knee).
Dr New reviewed the special investigations. I note all investigations regarding the right shoulder are post injury. The MRI of 18 September 2019 shows the full thickness tear. There is no evidence before me that she was referred prior to injury for any treatment or radiological investigation of the right shoulder.
Dr New considered that applicant injured her right shoulder in the fall on 27 August 2019 and that she required the rotator cuff repair as a consequence of this injury.

Associate Professor Shatwell was the IME qualified to provide an opinion on behalf of the respondent.
There are a number of reports (six) from Assoc Prof Shatwell in evidence dated 13 December 2019, 4 February 2002, 20 August 2020, 5 November 2020, 4 December 2020 and 7 October 2020.
In his first report dated 13 December 2019, Assoc Prof Shatwell noted he had seen the applicant on 29 November 2019. He took a history of fall onto the elbows and immediate pian in right shoulder. The other history recorded is consistent with the applicant’s evidence. He noted the applicant was a reliable historian who did not embellish. There were some positive findings in the right shoulder on examination.
He considered that she suffered a temporary aggravation of underlying condition in the right shoulder which aggravation would last three months only. He stated:
“…the mechanism of injury to the lumbar facet joints and rotator cuffs would be sufficient to cause temporary aggravation of the underlying long standing changes in these regions.”
He considered her employment as a “substantial contributing factor to her current symptoms”.
He went onto opine:
“…it is evident that there were underlying musculoskeletal abnormalities in the pars which were injured which have been temporarily aggravated by the fall.
I consider the symptoms experienced recently could be related to the incident for a period of three months and thereafter any residual symptoms would be unrelated to the underlying degenerative changes involving the lower lumbar spine and shoulder joints.”
He reviewed Assoc Prof Haber’s report of the MRI scan and stated that the findings of a full thickness tear did not relate to the fall on 27 August 2019.
He goes onto state:
“…she will always have ongoing symptoms relating to the degenerative changes in the lower lumbar spine and both shoulders, even when the soft tissue temporary aggravation of these conditions has settled completely.”
He went onto opine:
“I do not consider that any future arthroscopic rotator cuff repair is necessary for the effects of the injuries sustained on 27 August 2019. The changes seen on the scans are not caused by the injury described.”
He stated:
“I consider that any shoulder surgery would have been necessary had the accident occurred or not.”
Associate Professor Shatwell goes onto provide five further reports which have been admitted into evidence. He maintains his opinion in each of the reports, that the fall did not cause the tear, that any aggravation of the underlying condition in the right shoulder was temporary only and would have persisted for three months only and that the surgery resulted from the underlying condition of the right shoulder and not the aggravation of that condition by reason of the fall.
When I weigh all of the evidence in the balance, I prefer, for the reasons given throughout, the evidence given by the applicant, supported by the clinical records of Dr Venkatesan, her treating GP, the clinical records of Assoc Prof Haber, the opinion of Dr Haber, the opinion of Dr New to the opinions of Assoc Prof Shatwell expressed in his six reports. There is no evidence before me that the applicant was symptomatic in her right shoulder prior to her fall. Whilst of course this is not determinative of the matter, it is to be taken into account. The applicant fell on 27 August 2019 at work and fell onto her elbows experiencing “significant force” through her shoulders. She had immediate pain in her right shoulder. She did not work again that day but reported the injury and made a short 20 minute drive home. The pain was more severe the next day and she made an appointment to see her GP the day after being the first available. On the GPs physical examination and the history taken she was referred for MRI investigations and then to Assoc Prof Haber. Her evidence is that her symptoms persisted but with some improvements and then flare ups over time. Associate Professor Shatwell said the mechanism of injury was consistent with her symptoms and that he considered it a temporary aggravation that would resolve within three months. However, there is no evidence of such a resolution of symptoms. The applicant says her symptoms continued since the fall. This is consistent with the clinical records before me. She experienced some improvement but on her evidence this did not mean complete resolution and she had flare-ups. Surgical repair was recommended. Associate Professor Shatwell said this would have been necessary at some point regardless of the fall. The fact is she did fall. She aggravated what was a previously asymptomatic condition. The underlying condition and the aggravation of that condition has resulted in surgery. The contribution of the fall is material to the need for surgery because it rendered her symptomatic and she continued to be symptomatic to various degrees ultimately resulting in surgery being undertaken which has offered her relief but not a complete resolution of symptoms. When I weigh all of the evidence in the balance Assoc Prof Shatwell had not taken adequate account of the pre-existing asymptotic condition of the shoulder and his prognosis that it was a temporary aggravation that would resolve is not borne out by the evidence which reveals a persistence of symptoms post the fall when on the evidence no symptoms were present before.
For surgery to be considered reasonably necessary as a result of any injury it has to be found, on the evidence, to result from the injury. The surgery does not need to result solely from the injury. The injury does not need to be the main contributing factor to the need for surgery although it needs to be materially contributing factor and for the reasons set out above I have found that it to be so.
I am satisfied when I have regard to the totality of the evidence that I have weighed in the balance that the surgery was reasonably necessary as a result of the injury on 27 August 2019 and accordingly an award will be entered in the applicant’s favour in this regard.

[2023] NSWPIC 604

10 November 2023