Sun v Beijing Roast Duck Sydney Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sun v Beijing Roast Duck Sydney Pty Ltd [2022] NSWPIC 118
APPLICANT:	Shu Sun
RESPONDENT:	Beijing Roast Duck Sydney Pty Ltd
MEMBER:	Jacqueline Snell
DATE OF DECISION:	22 March 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims the cost of surgical treatment for alleged injury sustained to her left shoulder in the course of her employment with the respondent; the respondent disputed the alleged injury to the applicant’s left shoulder in the course of her employment with the respondent and the respondent disputed the surgical treatment was reasonably necessary treatment for injury; Held– the applicant sustained injury to her left shoulder in the course of her employment with the respondent and her employment with the respondent is a substantial contributing factor to injury; the applicant requires medical and related treatment as a consequence of the injury, and the proposed surgical treatment is reasonably necessary treatment for the injury.
DETERMINATIONS MADE:	1. The applicant sustained injury to her left shoulder 21 May 2019 in the course of her employment with the respondent, and the applicant’s employment with the respondent was a substantial contributing factor to injury. 2. The recommended surgical treatment, being an arthroscopy of the left shoulder and biceps tenodesis is reasonably necessary treatment for the injury the applicant sustained to her left shoulder, and the respondent is to pay the costs associated with the recommended surgical treatment in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

At the time she allegedly sustained injury the subject of these proceedings, the applicant, Shu Sun (Ms Sun), was employed by the respondent Beijing Roast Duck Sydney Pty Ltd (Beijing Roast Duck). In these proceedings the circumstances of injury allegedly sustained by Ms Sun on 21 May 2019 in the course of her employment with Beijing Roast Duck are described in the following terms:
“The worker was attending to her usual duties, carrying a tub of rice which was blocking her view as she was walking and she tripped over a rolled up rug causing her to fall on her left side. As a result, the worker sustained injuries to her left upper side of her chest, left knee and left shoulder.”
Ms Sun has not returned to her pre-injury employment with Beijing Roast Duck following her fall on 21 May 2019.
Ms Sun makes a claim under s 60 of the Workers Compensation Act 1987 (1987 Act) for costs associated with surgical treatment in the nature of arthroscopy of left shoulder and biceps tenodesis. Ms Sun’s claim for compensation payable under s 60 of the 1987 Act is declined. Ms Sun has been issued with notices dated 27 May 2021[1] and 25 August 2021[2] advising of the decision to decline her claim.
[1] Application to Resolve a Dispute (ARD) at p 4.
[2] ARD at p 11.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether Ms Sun sustained injury to her left shoulder on 21 May 2019 in the course of her employment with Beijing Roast Duck, and if so,
(b) whether the recommended surgical treatment is reasonably necessary treatment for the injury Ms Sun sustained to her left shoulder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Ms Sun’s claim for compensation came before me for teleconference on 14 December 2021. Ms Ishac appeared for Ms Sun. Mr Poulos and Ms Rafiqi appeared for Beijing Roast Duck. Ms Lawrence and Mr Amin, representatives of EML, were present. Ms Sun was present and she was assisted by Ms Xu, interpreter in the Mandarin language.
As Ms Sun’s claim for compensation did not resolve at teleconference, it came before me for conciliation/arbitration hearing on 10 February 2022. Mr McManamey of counsel appeared for Ms Sun, instructed by Ms Ishac. Mr McMahon of counsel appeared for Beijing Roast Duck, instructed by Mr Poulos and Ms Rafiqui. Ms Lawrence was present. Ms Sun was present and she was assisted by Ms Yu, interpreter in the Mandarin language.
Following my discussions with counsel 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 Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Application to Admit Late Documents dated 13 December 2021 lodged on behalf of Beijing Roast Duck and attached documents, which included the Reply.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statement of Ms Sun

Ms Sun relies on a statement dated 11 November 2021[3]. Ms Sun explains of her duties with Beijing Roast Duck:
“My role was in the kitchen delivering food from the kitchen to the main counter to be picked up by waitresses and served to customers.”
[3] ARD at p1.
Ms Sun said:
“On 21 May 2019, whilst working for Beijing Roast Duck, the staff were all eating and as they finished, I attempted to clean after them. I proceeded to carry a container of food which had some cooked rice in it. Because the container was bit it blocked my view of the floor and I didn’t see the rolled-up rug on the floor and I tripped over it.
When I fell, I stretched my left hand to break the fall and I landed heavily on the large container and then onto my left side hurting my chest, left knee, mid-back ad left shoulder. When I stretched my arm, I severely jarred my left shoulder.
At the time of the injury I had pain all over my left side. The injury to my shoulder was not visible all I had was pain but the pain was all over my left side including my neck.
I had scratches over my knee and chest area but not my left shoulder so I didn’t think
I had suffered an injury in the left shoulder. After some time, it became evident that the shoulder was hurt too as I had pain there which I could not explain the origin of it as
I had not worked since the date of the injury and I have not done anything to hurt my left shoulder besides the fall which I suffered at work to my left side.”
Ms Sun said she consulted with Dr Dong on the day of her fall, and she was referred for diagnostic imaging and physiotherapy. With her symptoms failing to settle with physiotherapy and medication, she was referred to Dr Ho, pain specialist. Ms Sun said she was subsequently referred to Dr Chan, rehabilitation specialist, who recommended orthopaedic review. Ms Sun said she consulted with Dr Dao, orthopaedic surgeon, on 11 May 2021 with Dr Dao recommending surgical treatment.

Claim form

The claim form dated 27 September 2019[4] which is relevant to Ms Sun’s claim for compensation particularises the incident occurring on 21 May 2019 and injuries sustained on that occasion in the following terms:
“I was performing waitressing duties. I had plates in hand when I tripped on an upturned rug and fell heavily.
Per certificate of capacity dated 21/5/2019
Chest, L leg, L knee, neck back.”

Treating medical evidence
Diagnostic imaging
[4] ARD at p 18.

An ultrasound left shoulder report dated 4 August 2020 demonstrated the presence of subacromial bursitis with impingement of the bursa. The clinical history is described in the following terms:
“Sore left shoulder with restricted range of movement which is longstanding.”
An MRI bilateral shoulder report dated 11 March 2021[5] demonstrated the presence of a glenohumeral labral tear on the left.

Dr Li
[5] ARD at p 23.

Dr Tse, Dr Dong and Dr Li are general medical practitioners who have practised out of MediCentral, and the medical practice’s records relevant to their treatment of Ms Sun[6] are before the Commission.
[6] ARD at p 41.
Ms Sun initially consulted with Dr Dong on 21 May 2019 with Dr Dong recording at that time “fell onto L knee L lateral side of chest at work” with referral for x-ray of her left knee and a prescription for analgesic medication. It is apparent from the clinical records that Ms Sun shortly thereafter returned to China for a period, re-presenting on 4 July 2019 with Dr Li noting:
“Pt has work related L chest wall and L knee injured 6 week ago and has been off work and back to China to treat and still has L chest wall pain and can not up/down stairs and back to review.”
The clinical records demonstrate that between 4 July 2019 and 14 July 2020 Ms Sun made no complaint of left shoulder pain despite numerous consultations with Dr Li in the interim, which included a number of well documented workers compensation case conferences involving Ms Sun and others. It is during a case conference on 14 July 2020 that Dr Li noted Ms Sun’s complaints included complaint of “L side pain from shoulder/chest wall”. In a case conference some time later on 27 October 2020, Ms Sun’s treating chiropractor, Peter, reported Ms Sun was suffering bilateral shoulder pain and requested diagnostic imaging of both shoulders. In a further case conference on 17 November 2020, Ms Sun again complained of bilateral shoulder pain and explained she had had an ultrasound referral “by another GP and showed tendonitis”.
In his letter of referral dated 3 March 2020[7] to Dr Dao, Dr Li made reference of a history of “L shoulder work related injury” and while in his letter dated 28 October 2021 addressed to her solicitors[8] Dr Li recorded Ms Sun stated that she fell onto her left knee and left lateral side of her chest in the fall on 21 May 2021 with ongoing complaint of left chest wall, left knee and left thigh pain since that time, he noted Ms Sun had been orthopaedically reviewed by
Dr Dao who had suggested she have surgical treatment to her left shoulder to relieve her left shoulder pain. Dr Li accepted Ms Sun sustained a left shoulder labral tear as a result of the incident occurring on 21 May 2021 and wrote:
“In my opinion, it is obviously that her employment from the Beijing Roast Duck Sydney Pty Ltd was a main contributing factor to the injury because she had fall during her work which caused all the injuries.
…
The treating specialist (Dr Alan Dao) suggested that she should have L shoulder Arthroscopy to repair her L shoulder labral tear which is reasonable and necessary.”

Dr Ho
[7] ARD at p 67.
[8] ARD at p 40.

Ms Sun came under the care of Dr Ho, pain and rehabilitation specialist. In his undated report[9] Dr Ho noted Ms Sun sustained injury in a fall at work on 21 May 2019 and wrote:
“She reports soft tissue injury to left knee, hip and left flank.
She went on to have persisting pain over the left flank.”
[9] ARD at p 64.
While there is also a report of Dr Ho noted to be dated 2 July 2020[10], the copy of this report before the Commission is illegible.

Dr Chan
[10] AALD at p 27.

Ms Sun was initially reviewed by Dr Chan on 18 February 2021. Dr Chan provided a report dated the same day[11]. Dr Chan took a history of the incident occurring on 21 May 2019 in the following terms:
“She carried a big heavy rice pot and tripped over an even carpet at the corridor of the restaurant. She fell forward and to the left, hitting the left upper limb while the rice pot hitting the left chest/left abdomen…”
[11] AALD at p 1.
Dr Chan described Ms Sun as suffering pain since her fall, which included bilateral shoulder pain. He said:
“The shoulder pain is an aching pain and when she takes clothes off, she occasionally get sharp pain at the left shoulder. Lifting up the left arm will make the shoulder pain worse. The shoulder pain is worse at night.”
He wrote:
“Impression: Fall at work, bilateral shoulder injury, left chest wall/rib injury, left knee patellar tendon injury”.
Dr Chan’s recommendations included an MRI of both shoulders to check tendon injury.
Ms Sun was reviewed by Dr Chan on 18 March 2021. Dr Chan provided a report dated the same day[12]. He noted Ms Sun’s complaints included that of persistent left shoulder pain at rest and on activity. He described Ms Sun as having “been sad, frustrated and depressed due to chronic pain”. He wrote:
“Impression: Fall at work, left shoulder labrum torn and it is likely due to the fall at work, left chest wall/back soft tissue injury, left knee patellar tendon injury.”
[12] ARD at p 25.
Dr Chan recommended Ms Sun be reviewed by an orthopaedic surgeon regarding the left shoulder labral tear.

Dr Dao

Ms Sun was reviewed by Dr Dao, orthopaedic surgeon, and he provided a surgical fee estimate relevant to the surgical treatment he has recommended, being an arthroscopy of the left shoulder and biceps tenodesis[13].
[13] ARD at p 26.
In his initial report dated 11 May 2021[14] Dr Dao took a history of the incident occurring on 21 May 2019:
“… she slipped and fell on the floor in the kitchen at her place of work and landed onto her left chest wall, left knee and left shoulder. She had immediate pain to the left chest wall but developed left shoulder pain subsequently.”
[14] AALD at p 19.
While Dr Dao evidently had the opportunity to review the MRI scan referred, he made no mention of the ultrasound referred. Following clinical examination Dr Dao provided opinion “the labral tear involving the biceps anchor as well as the anterior aspect of the labrum” appeared unstable and was the likely cause of the symptoms Ms Sun suffered in her left shoulder. He recommended surgical treatment in the nature of arthroscopic debridement of the should and long head of biceps tenodesis “pending work cover approval”. Tentative arrangement was made for 31 May 2021 for recommended surgical treatment.
In his later report dated 11 September 2021 addressed to Ms Sun’s solicitors[15], in response to specific questioning Dr Dao wrote:
[15] ARD at p 36.
“Mrs Sun reports that on 21/05/2019 she slipped and fell on the floor in the kitchen of her workplace directly on her left chest, left shoulder and left knee. She was initially managed with activity modification, analgesia and cortisone injections. She was first referred to see me this year and my first consultation was on 11/05/2021. Due to the persistent nature of her symptoms without improvement or healing of her shoulder pathology, I have recommended arthroscopic surgery for her shoulder and biceps tenodesis.
…
Mrs Sun has a SLAP tear of her left shoulder involving the superior and anterior labrum. I have recommended arthroscopic debridement and biceps tenodesis with the goal of addressing her symptoms and restoring function and return to normal work duties.
…
Considering that Mrs Sun reports no prior symptoms from her left shoulder and imaging confirms a tear of her labrum, it is most likely that the employment was a major contributing factor to her injury.
…
I believe that the recommended left arthroscopic shoulder surgery is reasonable and necessary to assist with Mrs Sun’ symptoms and allow her to return to her normal duties at work.”

Independent medical evidence
Dr Kafaris

Ms Sun consulted on 7 April 2020 with Dr Kafaris, occupational and musculoskeletal medicine consultant, in his capacity as injury management consultant. Dr Kafaris provided a report dated the same day[16]. A reason for the referral was to “confirm work injury diagnosis”.
[16] AALD at p 3.
Dr Kafaris took a history of the incident occurring on 21 May 2019:
“She fell onto her outstretched left hand and then onto her left side of body. She noticed injury to her left lower anteriolateral chest wall, left thigh, and left anterolateral knee. There was bruising and swelling. Her left thigh traumatic injury has resolved. There is persistent chest wall pain, left knee pain, and left sided trunk pain.”
Symptoms and examination are relevantly noted to include “[L]ifting with arm outstretched causes pain … lifting heavier pots causes pain”. While it is not apparent Dr Kafaris examined either of Ms Sun’s shoulders during consultation, concentrating rather on her chest wall and her left knee, he concludes:
“On my assessment, there seems to be more pathology than originally thought with her traumatic fall injury”.

Associate Professor Miniter

Ms Sun was orthopaedically assessed on 6 May 2021 by Associate Professor Miniter in his capacity as independent medical examiner. Associate Professor Miniter provided a report dated the same day[17]. Associate Professor Miniter describes the circumstances of injury:
“It is now almost two years since Ms Sun fell over while she was working as a waitress. She was working for a Beijing Duck restaurant and told me that she was carrying some objects when she fell over onto her left side. She had troubles with her left thigh and her left chest wall and has basically never returned to work. She has had extensive physiotherapy and chiropractic treatment without benefit.”
[17] AALD at p 10.
Associate Professor Miniter described Ms Sun as having been seen by Dr Chan who he said “believes that there is no ongoing issue”, a belief with which A/Prof Miniter said he agreed. At the time of assessment, Ms Sun was waiting for approval to orthopaedic consultation with Dr Dao. Associate Professor Miniter noted Ms Sun’s “presentation with relation to the shoulder was somewhat delayed and that the chest wall was the initial significant injury”.
Associate Professor Miniter noted the bilateral shoulder MRI scan dated 11 March 2021 and said:
“[E]ffectively these are normal. There is mention of a tear of the anterosuperior aspect of the glenohumeral labrum on the left-hand side. It is not consistent with her clinical findings”.
Associate Professor Miniter said of the MRI scan that it showed “no evidence of convincing injury” or “serious pathology”.
Associate Professor Miniter reported relevant to his clinical examination of Ms Sun:
“I was extremely careful and the interpreter was present but simply touching the posterior aspect of the scapular, the chest wall and the arms in general terms caused her severe disability. The left shoulder demonstrated a normal range of motion while she was undressing but on direct evaluation there was marked restriction in movement. There was no findings suggestive of bicipital pathology neither was there any evidence of rotator cuff disease.”
In response to specific questioning, Associate Professor Miniter provided opinion there was no evidence of left shoulder injury “despite the certification on the SIRA Certificate of Capacity”.
In his supplementary report dated 18 May 2021[18] Associate Professor Miniter noted that following her fall on 21 May 2019 Ms Sun made no complaint of pain in her left shoulder and again confirmed he did believe the MRI scan finding of an anterosuperior labral tear was associated with Ms Sun’s clinical presentation. Relevant to the recommended surgical treatment, Associate Professor Miniter was strident in opinion:
“I would strongly advise against any consideration of surgical management in this case. I can see no evidence of injury that would justify such surgical management and indeed Ms Sun’s clinical presentation was confusing and as best as I could tell, less than entirely genuine.
… I do not believe that it is wise to consider any shoulder surgery and I am surprised that Dr Dao would consider this matter. Perhaps Dr Dao is not in receipt of the appropriate information relating to her original presentation.
In any event, I do not regard this matter as your responsibility and would strongly advise against any type of surgical management.”

Dr Habib
[18] AALD at p 16.

Ms Sun was orthopaedically assessed on 7 July 2021 by Dr Habib in his capacity as independent medical examiner. Dr Habib provided a report dated 9 July 2021[19]. It is evident that at the time of reporting Dr Habib had available to him the diagnostic imaging referred and also the medical reports prepared by Dr Kafiris and Associate Professor Miniter (discussed above).
[19] ARD at p 27.

Dr Habib took a history of the incident occurring on 21 May 2019:
“…she was carrying a tray full of plates in both hands when she tripped over a rolled up mat on the floor. As she tripped, she dropped the tray and fell to her left. She put out her left outstretched hand to break the fall and landed heavily hitting the side of her chest and left knee against the floor. She severely jarred her left shoulder and thoracic region from the heavy impact.”
At assessment Ms Sun’s complaints included “left shoulder pain with fairly restricted movements” and clinical examination of her left shoulder in part revealed:
“The shoulder was tender anteriorly at the joint line and the bicipital groove. The left shoulder movements were restricted due to pain …”
Dr Habib provided diagnosis in terms of a labral tear of the left shoulder requiring surgery and relevant to the cause of Ms Sun’s left shoulder injury, he wrote:
“Ms Sun fell heavily at work on 21/05/19 when she tripped over a rolled mat on the floor. As she fell she put her outstretched left hand to break the fall, jarring the left shoulder, later found to have caused labral tear.”
Dr Habib confirmed Ms Sun’s employment with Beijing Roast Duck, with specific reference to the incident occurring on 21 May 2019 was the substantial contributing factor to her current condition, which included the injury to her left shoulder.
Dr Habib noted too that Ms Sun’s left shoulder injury had failed to improve with conservative treatment and accepted there was “indication for arthroscopic left shoulder surgical intervention in the form of labral repair and biceps tenodesis followed by rehab therapy”. He considered the surgical treatment recommended by Dr Dao was “necessary and reasonable”.

Submissions

Mr McManamey and Mr McMahon made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.

Determination

Injury

Beijing Roast Duck disputes Ms Sun sustained injury to her left shoulder as a result of the workplace incident occurring on 21 May 2019.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment and s 9A of the 1987 Act relevantly provides no compensation is payable under the Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
Ms Sun has the onus of proving she sustained injury to her left shoulder in the incident referred. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[20] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[20] [2008] NSWCA 246 (Nguyen).
Relevant to this issue of causation of the injury Ms Sun alleges she has sustained to her left shoulder, in Kooragang v Cement Pty Ltd v Bates[21] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[21] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Of significance in this matter is that there is no contemporaneous mention of Ms Sun having sustained injury to her left shoulder in the incident occurring on 21 May 2019 and despite multiple attendances on her general practitioners after the incident there appears to be no mention of Ms Sun experiencing a problem with her left shoulder until a case conference with Dr Li on 14 July 2020, being just over one year after the incident. However, Ms Sun was subsequently referred for an ultrasound of her left shoulder, with the ultrasound report dated 4 August 2020 providing a clinical history of “sore left shoulder with restricted range of movement which is longstanding”.
Just over one and a half years after the incident Dr Chan provided a history of Ms Sun hitting her left upper limb in the incident with bilateral shoulder pain since, and just shy of two years after the incident Dr Dao provided a history of Ms Sun landing on her left shoulder in the incident. In a statement made nearly two and a half years after the incident, Ms Sun has explained she landed on her left shoulder in the incident and also said “[W]hen I stretched my arm, I severely jarred my left shoulder”.
While there can be a delay in reporting injury to a treating practitioner that can be overcome by a patient, I accept I must be cautious of accepting the history of injury provided by Ms Sun in her statement given nearly two and a half years after the incident occurring on 21 May 2019[22] and I accept I must be cautious of accepting the history of injury provided by Ms Sun where contemporaneous evidence is lacking[23].
[22] Watson v Foxman & Ors (1995) 49 NSWLR 315.
[23] Department of Education v Ireland (2008) NSWWCCPD 134.
However, I am mindful that in Malec v JC Hutton Pty Limited[24] Deane, Gaudron and McHugh JJ said:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[24] [1990] HCA 20; (1990) 169 CLR 638.
An absence of identification of injury to Ms Sun’s left shoulder in her claim form dated 27 September 2019 coupled with an absence of documentary evidence to support complaint of a left shoulder injury sustained in the incident which is either contemporaneous to the incident or during the period between the incident and when Ms Sun first complained of left shoulder pain during a case conference on 14 July 2020 is a concerning omission in Ms Sun’s case.
However, it is evident Ms Sun was initially significantly troubled by the injury she sustained to her chest wall and her left knee in the incident. Dr Kafataris provided opinion on assessment “there seems to be more pathology than originally thought with her traumatic fall injury” and Associate Professor Miniter accepted Ms Sun’s “presentation with relation to the shoulder was somewhat delayed and that the chest wall was the initial significant injury”. In circumstances where Ms Sun made complaint of left shoulder pain to Dr Li in case conference on 14 July 2020 and the initial ultrasound left shoulder report dated 4 August 2020 provided clinical history of a left shoulder pain and restricted range of movement “which is longstanding” I accept that with initial medical focus on her chest wall and left knee injury and the treatment of those injuries, there may have been delayed diagnosis of the injury Ms Sun sustained to her left shoulder in the incident.
Following a review of the evidence as a whole and careful consideration of counsels’ submissions I am satisfied Ms Sun has discharged the onus of proof required of her and I am satisfied Ms Sun sustained injury to her left shoulder in the incident occurring on 21 May 2019 and that her employment with Beijing Roast Duck was a substantial contributing factor to injury, being opinion provided by Dr Habib. In reaching my conclusion I draw significant comfort from opinion provided by Ms Sun’s treating orthopaedic surgeon, who accepted
Ms Sun had developed left shoulder pain after the incident occurring on 21 May 2019 and accepted Ms Sun had sustained injury to her left shoulder in the incident, and also Ms Sun’s treating general practitioner, Dr Li, who, despite noting Ms Sun made no early mention of falling on her left shoulder in the incident, accepted she sustained injury to her left shoulder in the incident.
I prefer the opinion provided by Dr Habib to that provided by Associate Professor Miniter as it is evident Dr Habib provided opinion having had the opportunity to consider the opinion provided by Associate Professor Miniter whereas Associate Professor Miniter does not appear to have been afforded the opportunity to consider and provide comment on opinion provided by Dr Habib. Moreover, I do not agree with Associate Professor Miniter’s assertion that Dr Chan, under whose care Ms Sun came for rehabilitation, was of the view “there is no ongoing issue” regarding Ms Sun’s injuries, when on review on 18 March 2021 Dr Chan described Ms Sun as having “been sad, frustrated and depressed due to chronic pain” and recommended review by an orthopaedic surgeon relevant to her left shoulder injury. I also do not agree with Associate Professor Miniter’s opinion that the MRI scan dated 11 March 2021 showed “no evidence of convincing injury” or “serious pathology” in circumstances where the reviewing radiologist has reported a glenohumeral labral tear on the left and Dr Dao has said such tear involved the biceps anchor as well as the anterior aspect of the labrum.

Treatment

As I have determined Ms Sun sustained injury to her left shoulder in the course of her employment with Beijing Roast Duck, with her employment being a substantial contributing factor to injury, it follows Ms Sun has an entitlement to medical and related treatment payable under s 60 of the 1987 Act for the injury.
Section 60 of the 1987 Act provides:
“60 (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).”
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[25]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[25] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“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, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be 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 purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
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 the particular condition.”
In Diab v NRMA Ltd[26], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
[26] [2014] NSWWCCPD 72.
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts in each case as discussed in Kooragang Cement Pty Ltd v Bates[27] and in this particular matter Ms Sun is required to establish the injury I have determined she sustained to her left shoulder in the incident occurring on 21 May 2019 materially contributes to the need for the recommended surgical treatment. This requirement was confirmed in Murphy v Allity Management Services Pty Ltd[28].
[27] (1994) 35 NSWLR 452.
[28] [2015] NSWWCCPD 49.
Ms Sun sustained what has been described by Dr Dao as a SLAP tear of her left shoulder involving the superior and anterior labrum. Dr Dao recommended arthroscopic debridement and biceps tendodesis with the intention of addressing symptoms, restoring function and facilitation a return to “normal duties” at work. Dr Dao provided opinion the recommended surgical treatment as “reasonable and necessary” to assist with symptoms and a return to work.
Although Ms Sun does not appear to have specifically said she would like to proceed with the recommended surgical treatment, it is evident she is considerably troubled by her left shoulder pain and restriction in movement and I note she signed a patient consent form relevant to the recommended surgical treatment on 11 May 2021[29]. Dr Li agreed with Dr Dao that the recommended surgical treatment is “reasonable and necessary” and Dr Habib considered it to be “necessary and reasonable”. Relevant to her left shoulder injury, Ms Sun came under the care of her general practitioner, a rehabilitation specialist and an orthopaedic surgeon and Dr Habib has noted a failure of improvement of Ms Sun’s left shoulder injury with conservative care and the consequent recommendation for surgical treatment.
[29] ARD at p 70.
When considering the authorities referred, review of the evidence as a whole and careful consideration of counsel’s submissions, having regard to the support afforded to Ms Sun by her treating general practitioner, Dr Li, and treating orthopaedic surgeon, Dr Diab, under whose care she remains, I am of the view the recommended surgical treatment in the nature of arthroscopy of left shoulder and biceps tenodesis is reasonably necessary treatment for the injury I have determined Ms Sun sustained to her left shoulder on 21 May 2019. In reaching my view, I draw comfort in opinion provided by Dr Habib who accepted the recommended surgical treatment is “necessary and reasonable” treatment in circumstances where Ms Sun’s left shoulder injury has failed to improve with conservative treatment. While Associate Professor Miniter was stridently opposed to the recommended surgical treatment,
I prefer the opinions provided by Dr Dao, Dr Li and Dr Habib, particularly so in circumstances where Associate Professor Miniter provided comment the MRI scan dated 11 March 2020 demonstrated “no evidence of convincing injury” or “serious pathology” against the reviewing radiologist’s conclusion of a glenohumeral labral tear on the left and the treating orthopaedic surgeon’s opinion such tear involved the biceps anchor as well as the anterior aspect of the labrum.
I am mindful too Dr Li and Dr Diab provided opinion the surgical treatment was “reasonable and necessary” as a result of the injury she sustained to her left shoulder and Dr Habib provided opinion the surgical treatment was “necessary and reasonable”, and note that in Diab the Deputy President provided comment treatment does not have to be “reasonable and necessary” which would be a much higher standard than “reasonably necessary”, being the test prescribed by s 60 of the 1987 Act.
For reasons discussed above I accept the recommended surgical treatment in the nature of arthroscopy of left shoulder and biceps tenodesis is reasonably necessary treatment for the injury I have determined Ms Sun sustained to her left shoulder in the workplace incident occurring on 21 May 2019.

SUMMARY

I have determined Ms Sun sustained injury to her left shoulder as a result of the workplace incident occurring on 21 May 2019 and that her employment with Beijing Roast Duck was a substantial contributing factor to injury.
I have determined the recommended surgical treatment is reasonably necessary treatment for the injury Ms Sun sustained to her left shoulder. Beijing Roast Duck is to pay the costs associated with the recommended surgical treatment in accordance with s 60 of the 1987 Act.

[2022] NSWPIC 118

22 March 2022