Taylor v Scotts Refrigerated Logistics
[2022] NSWPIC 13
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Taylor v Scotts Refrigerated Logistics [2022] NSWPIC 13 |
| APPLICANT: | Jeffrey Taylor |
| RESPONDENT: | Scotts Refrigerated Logistics |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for costs payable under section 60 of the Workers Compensation Act 1987 for proposed surgical treatment in the nature of left shoulder arthroscopic rotator cuff repair and long head of biceps tenotomy; left shoulder injury and need for the proposed surgical treatment placed in issue; Held – the applicant has sustained consequential injury to his left shoulder and has also sustained injury in the nature of an aggravation of a disease injury with his employment being the main contributing factor to injury; the proposed surgical treatment is reasonably necessary treatment for the injury the applicant has sustained to his left shoulder. |
| determinations made: | 1. The applicant sustained injury to his left shoulder in the course of his employment with the respondent which is in the nature of a consequential injury, as alleged. The applicant sustained injury to his left shoulder which is in the nature of an aggravation of a disease injury with his employment with the respondent being the main contributing factor to injury, with deemed date of injury of 22 June 2020, as alleged. 2. The surgical treatment proposed by Dr Huang in his letter dated 18 January 2021 is reasonably necessary treatment for the injury the applicant sustained to his left shoulder in the course of his employment with respondent. The respondent is to pay the costs associated with the surgical treatment proposed by Dr Huang in accordance with s 60 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Jeffrey Taylor (Mr Taylor) was employed by the respondent Scotts Refrigeration Logistics (SRL) as a truck driver trainer. Mr Taylor sustained injury to his right shoulder on 19 May 2016 in the course of his employment with SRL. Liability for this injury is accepted by SRL.
In these proceedings Mr Taylor brings a claim under s 60 of the Workers Compensation Act 1987 (1987 Act) for the costs associated with surgical treatment proposed by Dr Huang in his letter dated 18 January 2021. In this letter Dr Huang provided opinion the proposed surgical treatment is reasonably necessary treatment for alleged left shoulder injury sustained by Mr Taylor in the course of employment with SRL.
Mr Taylor’s claim for the costs associated with the proposed surgical treatment was declined. Notices dated 26 February 2021[1] and 22 June 2021[2] were issued to Mr Taylor in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998. Review outcome decision notices dated 28 May 2021[3] and 20 September 2021[4] were also issued to Mr Taylor.
[1] Reply at page 1.
[2] ARD at page 8.
[3] Reply at page 9.
[4] Reply at page 14.
ISSUES FOR DETERMINATION
The parties agree the following issues are in dispute:
(a) injury to Mr Taylor’s left shoulder as a result of his work duties with SRL between 19 May 2016 to date;
(b) injury to Mr Taylor’s left shoulder in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition as a result of his work duties with a deemed date of injury of 22 June 2020, and/or
(c) consequential injury to Mr Taylor’s left shoulder as a result of injury sustained by him to his right shoulder on 19 May 2016.
(d) If it is established Mr Taylor sustained injury to his left shoulder in the course of his employment with SRL, whether the surgical treatment proposed by Dr Huang in his letter dated 18 January 2021 is reasonably necessary treatment for this injury.
(e) If it is established Mr Taylor sustained injury to his left shoulder which is in the nature of a consequential injury as a result of the injury sustained by him to his right shoulder on 19 May 2016 in the course of his employment with SRL, the provisions of s 59A of the 1987 Act have application to his claim made under s 60 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
Mr Taylor’s claim for compensation came before me for teleconference 26 October 2021. Mr McDonnell, solicitor, appeared for Mr Taylor and Ms Fung, solicitor, appeared for SRL. Ms McCormack, Allianz, was present. Mr Taylor was present. By consent, the Application to Resolve a Dispute (ARD) was amended at page 6 to provide description of alleged injury sustained by Mr Taylor to his left shoulder in the following terms:
The applicant sustained injury to his left shoulder as a result of the nature of his work duties with the respondent between 19 May 2016 to date, with such work duties particularised in paragraphs 10 - 11 of the applicant’s statement dated 25 May 2021 (including but not limited to climbing into and out of trucks and using his left arm to take weight), and/or
The applicant sustained injury to his left shoulder in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition as a result of his referred work duties with the respondent, with a deemed date of injury of 22 June 2020 and/or
The applicant sustained consequential injury to his left shoulder resulting from the injury he sustained to his right shoulder on 19 May 2016.
With Mr Taylor’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 18 November 2021. Mr Nicholson of counsel appeared for Mr Taylor, instructed by Mr McDonnell. Mr Brazel of counsel appeared for SRL, instructed by Ms Fung. Ms McCormack was present. Mr Perin, a representative of SRL was present. Mr Taylor was present.
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 Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 26 October 2021 lodged on behalf of Mr Taylor and attached documents, and
(d) Application to Admit Late Documents dated 15 November 2021 lodged on behalf of SRL and attached documents (R AALD).
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief review of evidence follows.
Mr Taylor’s Statement
In his statement dated 25 May 2021[5] Mr Taylor said that after he sustained injury to his right shoulder in 2017 he came to surgical treatment under the care of Dr Huang “approximately three and a half to four years ago”, after which he “eventually returned to work on light duties” and “went to full duties 6 – 8 weeks later”. Mr Taylor said that although he was right handed, over a period of about three years he favoured his right shoulder and right arm and he used his left arm. He explained:
[5] ARD at page 1.
“My duties included climbing into and out of trucks, 6 – 8 times every day. I would use my left arm to take the weight, and my right arm was used in a lighter way. I would have to disconnect trailers using my left arm and hand. Also, I lifted and carried boxes. On a pallet jack, for example, I would pump the hydraulics with my left arm.
Around mid-2020, I began to feel pain and restricted movement to my left shoulder and arm.
I saw my GP, Dr Homsi, who explained that my left shoulder problem was caused by the overuse of my left arm, which was quite a common cause of shoulder injuries.
The workers compensation paid for all my medical treatment.
I returned to Ke Huang about my left shoulder. I had a cortisone injection, which was of little use. Dr Ke Huang requested approval for surgery on 18 January 2021.
….
Since the beginning of my left shoulder problems, I have had to use my right arm and shoulder again to compensate for my left shoulder. The result has been an aggravation of my original right shoulder symptoms”.
Incident report form
Relevant to an aggravation of the injury Mr Taylor sustained to his right shoulder in 2017, in an incident report form[6] Mr Taylor described the circumstances of the aggravating injury in the following terms:
“I had a left shoulder injury in June 2020, as a result of that injury I have aggravated the injury I had to my right shoulder in 2017 from overuse. This has not been an instant injury. It has begetting worse over a long period of time from trying not to use my left arm”.
[6] ARD at page 4.
Relevant to the injury Mr Taylor sustained to his left shoulder, in an incident report form signed by Mr Taylor on 16 July 2020[7] in which he indicated he had reported injury on 23 June 2020, Mr Taylor described the circumstances on injury in the following terms:
“Injured left shoulder after favouring my right shoulder after injury and operation to right. This has caused two new tears to my left shoulder. Certificate of capacity handed in on 25 June 2020”.
[7] R AALD at page 4.
In response to specific questioning regarding “mechanism of injury” Mr Taylor ticked the box relevant to “Lifting/Pulling/Pushing” and also ticked the box relevant to “Other” where he wrote “Climbing”.
Mr Taylor also made the following comment:
“There has been no specific time of incident it has been getting worse over the time favouring right shoulder”.
Treating medical evidence
Dr Homsi
Mr Taylor is under the general medical care of Dr Homsi and his clinical records are before the Commission[8]. Mr Taylor presented on 23 June 2020 with complaint of left shoulder pain and Dr Homsi noted “overuse because or right shoulder injury”. Mr Taylor was issued with a Certificate of Capacity on this occasion and referred for diagnostic imaging. Relevant to his left shoulder complaint, Mr Taylor presented again for review on 2 July 2020, 15 July 2020 and 18 August 2020. On review on 11 September 2020, Dr Homsi noted Mr Taylor was now experiencing pain in his right shoulder and following review of the MRI of his left shoulder, on 7 October 2020 Dr Homsi re-referred Mr Taylor to Dr Huang. Dr Huang was the treating orthopaedic surgeon under whose care Mr Taylor had come for his right shoulder injury. Mr Taylor subsequently continued to consult with Dr Homsi relevant to his left shoulder injury, with Dr Homsi noting on 4 February 2021 “waiting for approval for surgery”. It is apparent from these clinical records that from late 2020 and throughout 2021 Mr Taylor experienced pain in his right shoulder as well as his left shoulder.
[8] ARD commencing at page 41.
There are a number of Certificates of Capacity issued by Dr Homsi relevant to Mr Taylor’s left shoulder injury in which he provided opinion the injury is related to Mr Taylor’s employment with SRL[9]. In Dr Homsi’s view the cause of Mr Taylor’s left shoulder injury is “overuse because of his right shoulder injury”.
Dr Huang
[9] ARD commencing at page 49.
As noted, Mr Taylor initially came under the orthopaedic care of Dr Huang relevant to his right shoulder injury and there are a number of serial reports addressed to Dr Homsi relevant to this injury[10]. Mr Taylor came to surgical treatment of his right shoulder under the care of Dr Huang on 9 March 2018. In his report dated 17 May 2018 Dr Huang described Mr Taylor as “progressing well”. Mr Taylor was reportedly not taking analgesia and was attending physiotherapy “with steady progress”. Dr Huang noted at that time Mr Taylor had been performing the majority of his pre-injury duties “without difficulty” and following clinical examination, provided opinion “he can continue to perform the same level of activities, as he feels comfortable”. While Dr Huang said he planned to review Mr Taylor in two months’ time so as to assess his progress, the only other report before the Commission relevant to Dr Huang’s medical management of Mr Taylor’s right shoulder injury is that dated 15 October 2018[11]. In this report Dr Huang said:
“Jeffrey is progressing quite well. He has returned to most of his pre-injury duties without issues. He has been constantly improving with physiotherapy exercises. There is only occasional discomfort surrounding the right shoulder.
I am happy with his progress. He may resume pre-injury duties gradually as he feels comfortable. I am happy for him to continue with home-based physiotherapy exercises rather than a gym programme from now on. I am happy to see him again as required”.
[10] R AALD commencing at page 15.
[11] ARD at page 88.
Relevant to his left shoulder injury, Dr Huang’s clinical records[12] also include a number of his serial reports addressed to Dr Homsi. In his report dated 9 November 2020 Dr Huang wrote:
“He developed left shoulder pain four months ago. There was no obvious precipitating injury. He works as a truck driver trainer. He uses his arms to pull himself into the truck regularly. He describes increasing pain in his left shoulder causing sleep disturbance and moderating affecting his daily activities. The pain is in the anterior and lateral aspect of the shoulder. He does not take regular analgesia. The right shoulder is functioning well following his previous subacromial decompression surgery although there is still some intermittent pain but much less compared to the left shoulder”.
[12] Reply at page 28.
On this occasion Dr Huang noted an MRI scan of the left shoulder dated 25 September 2020 demonstrated a high grade partial thickness left supraspinatus tear as well as fluid in the long head of biceps sheath. Dr Huang referred Mr Taylor for an intra-articular steroid injection, with reported temporary relief. While Dr Huang accepted Mr Taylor had “made some progress following the injection” he acknowledged that as the injection was recent it may take time before the full effect of the injection was known. Dr Huang recommended Mr Taylor remain on light duties but cautioned “if his symptoms have completely returned, a left shoulder arthroscopic rotator cuff repair and long head of biceps tenotomy may be indicated”.
Following subsequent review, in his report dated 18 January 2021 Dr Huang recorded Mr Taylor’s complaint “the pain has returned to previous level and is interfering with his daily function”. Mr Huang discussed the foreshadowed surgical treatment with Mr Taylor and with Mr Taylor “keen to proceed with surgical treatment”, Dr Huang said he would request approval for the proposed surgical treatment.
In a report dated 13 August 2021[13] following review of Mr Taylor’s statement and the reports of Dr Rimmer available at that time (referred below), Dr Huang said:
“… I do not agree with Dr Rimmer’s conclusion that his left shoulder problems are non-work related. Mr Taylor is a truck driver trainer and needs to constantly pull himself into his truck using both his arms. This involves repetitive stressors on his shoulders. He had the work-related right shoulder injury and this was favouring the left shoulder which has exacerbated his symptoms. Therefore it is my conclusion that his left shoulder injury is in fact work-related due to this.
…Mr Taylor has a SLAP lesion which predominantly involves the long head of biceps anchor. Physiotherapy is unlikely to result in significant improvement of his symptoms. Physiotherapy is a useful adjunct but is not necessary in this situation as it is unlikely to result in long-term improvement in his condition”.
Independent medical evidence
Dr Rimmer
[13] ARD at page 23.
Mr Taylor was orthopaedically assessed by Dr Rimmer in his capacity as independent medical examiner. Dr Rimmer provided a number of reports, which are dated 4 March 2021[14], 11 May 2021[15] and 12 November 2021[16].
[14] ARD at page 14.
[15] Reply at page 25.
[16] R AALD at page 1.
In his initial report Dr Rimmer reported a history of injury sustained by Mr Taylor to his right shoulder in 2017 with his claim for workers compensation resulting from that injury being closed in July 2020. Mr Taylor reported to Dr Rimmer that at that time he was working his pre-injury duties, save for a 5kg weight restriction. Relevant to his left shoulder injury, Mr Taylor told Dr Rimmer he had noticed a gradual onset of symptoms and pain “six months ago. He cannot recall any work-related event”. Dr Rimmer noted Mr Taylor had come under the orthopaedic care of Dr Huang and had undergone a cortisone injection with short lived relief. He noted Mr Taylor had not received physiotherapy treatment. At the time of assessment Mr Taylor was working full time office based duties, and had been working these restricted duties since 2 January 2021.
Following clinical examination and review of the x-ray and MRI scan of the left shoulder, Dr Rimmer provided diagnosis of the injury Mr Taylor sustained to his left shoulder in terms of “[R]esolving aggravation, partial thickness degenerative tear left rotator cuff”. Relevant to the cause of the injury Mr Taylor sustained to his left shoulder, Dr Rimmer reported:
“When I assessed him today and asked as to the cause of his left shoulder symptoms, he stated the following, ‘There was no event. No specific event caused this. It was of gradual onset.’ He denies involvement in his home renovations which was around the time he noticed the onset of symptoms in his left shoulder.
….As stated above, he noticed a six-month history of the gradual onset of pain in his left shoulder with no specific initiating event.
He denied that he thought it was a result of over-compensating from his right shoulder, which essentially, he made a complete recovery from.”
Dr Rimmer provided opinion the injury Mr Taylor sustained to his left shoulder was not a work-related injury, and said that the “pre-existing partial thickness degenerative tear of the rotator cuff”, which the MRI scan demonstrated, “could easily have been aggravated whilst not in the workplace”.
As to whether the surgical treatment proposed by Dr Huang was reasonably necessary treatment for the injury Mr Taylor sustained to his left shoulder, Dr Rimmer said:
“All conservative measures have not been exhausted for reasons I could not understand, that is, it is standard practice for any patient to undergo a six week course of physiotherapy, which I believe should be undertaken. Despite this, clinically today, he had a full pain free range of motion in his left shoulder”.
In a supplementary report Dr Rimmer confirmed his previously expressed opinion relevant to the surgical treatment recommended by Dr Huang. He said:
“At the time of my assessment, he had a full range of motion with minimal discomfort and therefore, in general terms, I do not believe surgical intervention is indicated.
…To clarify my statement, Mr Taylor should undergo a 6 week course of physiotherapy to his left shoulder and then be reassessed.”
In a further supplementary report Dr Rimmer confirmed his previously expressed opinion the injury Mr Taylor sustained to his left shoulder was not a work-related injury. He made specific reference to the history Mr Taylor had provided to him at the time of assessment “where he categorically denied any work injury to his left shoulder” and the fact that “his clinical examination at the time of my assessment of his left shoulder was completely normal”.
Submissions
Mr Nicholson and Mr Brazel made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular matter. A recording of counsels’ submissions is available to the parties.
Determination
Injury
Liability is not disputed for the injury Mr Taylor sustained to his right shoulder on 19 May 2016 in the course of his employment with SRL. However, liability is disputed for the injury Mr Taylor alleges he has sustained to his left shoulder in the course of his employment with SRL.
Mr Taylor has the onus of proving he has sustained injury to his left shoulder in the course of his employment with SRL. This is a question of fact and consideration of Mr Taylor’s evidence and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[17] 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”.
[17] [2008] NSWCA 246.
It is instructive to note that in Malec v JC Hutton Pty Limited[18] Deane, Gaudron and McHugh JJ said at [642]-[643]:
“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”.
[18] [1990] HCA 20; (1990) 169 CLR 638.
Relevant to the cause of the left shoulder injury that Mr Taylor alleges he has sustained, it is also instructive to note that in Kooragang Cement Pty Ltd v Bates[19], 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.”
[19] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang)
An injury can of course have more than one cause[20] and in these proceedings Mr Taylor has in effect alleged he sustained injury to his left shoulder (a) in the nature of an ‘injury simpliciter’ resulting from his duties with SRL between 19 May 2016 to date, (b) in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing disease resulting from his duties with SRL with a deemed date of injury of 22 June 2020 and/or (c) as a result of injury sustained to his right shoulder on 19 May 2019.
[20] ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27] (Cook).
Section 4 of the 1987 Act defines injury to mean “personal injury arising out of or in the course of employment” and includes “the aggravation, acceleration, exacerbation or deterioration of any disease, where employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration”. With allegation by Mr Taylor that the injury he sustained to his left shoulder was injury in the nature of an injury simpliciter and the injury was also in the nature of an aggravation etc of a pre-existing disease, while there is distinction between injury simpliciter and injury in the context of an aggravation of a pre-existing disease, Mr Taylor is able to rely on both allegations[21]. He is also able to rely on the further allegation of injury in the nature of a consequential injury.
[21] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31.
Relevant to Mr Taylor’s allegation of injury simpliciter Roche DP considered the meaning of injury simpliciter (or ‘personal injury’) in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[22] observing:
“The authorities establish that a ‘personal injury’ is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; CLR 286 at [39]). In other words, as stated in [81] it is ‘a sudden identifiable pathological change’.”
[22] [2014] NSWWCCPD 47.
While in the vast majority of cases for there to be an injury simpliciter there is an event that causes pathology, it is accepted there are also cases where there are multiple injuries over a period of time. In Hawkins v The Commonwealth of Australia[23] the High Court accepted repetitive strains operating on a pre-existing defective disc involved multiple injuries by accident rather than phases of the progression of a disease process.
[23] (1966) 116CLR 159.
Also relevant to Mr Taylor’s allegation of injury simpliciter is that s 9A of the 1987 Act has application in the event an injury simpliciter is found. Section 9A(1) of the 1987 Act provides that no compensation is payable under the Act in respect of an injury (other than a disease injury) unless employment was a substantial contributing factor to injury. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree to be decided after a consideration of all of the evidence[24].
[24] Murray v Shillingsworth [2006] NSWCA 367.
Relevant to Mr Taylor’s allegation of injury in the context of an aggravation etc. of a pre-existing disease, in Perry v Tanine Pty Ltd t/as Ermington Hotel[25] (Perry), in the context of injury in the nature of carpal tunnel syndrome, Bourke CCJ said:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease”.
[25] [1998] NSWCC 14; (1998) 16 NSWCCR 253.
Perry was referred to with approval in the Court of Appeal in Fletcher International Exports Pty Ltd v Barrow[26].
[26] [2007] NSWCA 244; (2007) 5 DDCR 247.
Also relevant to Mr Taylor’s allegation of injury in the context of an aggravation etc. of a pre-existing disease is the concept of “main contributing factor”, which was discussed by Snell DP in AV v AW[27]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole”.
[27] [2020] NSWWCCPD 9.
With allegation by Mr Taylor the injury he has sustained to his left shoulder was in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[28] Snell DP relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act”.
[28] [2016] NSWWCCPD23.
Mr Taylor has been under the orthopaedic care of Dr Huang for a number of years, coming to surgical treatment of his right shoulder on 9 March 2018. On 15 October 2018 Dr Huang noted Mr Taylor had “returned to most of his pre-injury duties without issues”, described him as suffering “only occasional discomfort” in his right shoulder and recommended Mr Taylor return to his pre-injury duties “as he feels comfortable”. Dr Huang effectively discharged him from his orthopaedic care at that time. However, in or about mid 2020 Mr Taylor began to experience pain and restricted movement in his left shoulder and made complaint of same to Dr Homsi, with Dr Homsi noting on 23 June 2020 “overuse because of right shoulder injury”, opinion which he continued to reflect in the Certificates of Capacity he issued and which Mr Taylor offered in the incident report form he signed on 16 July 2020. Mr Taylor subsequently returned to consult with Dr Huang relevant to his left shoulder injury and in response to Dr Rimmer’s opinion that Mr Taylor’s employment with SRL was not the cause of Mr Taylor’s left shoulder injury, Dr Huang said he did not agree with such opinion and referred to Mr Taylor’s employment as a truck driver needing to constantly pull himself into his truck using both his arms. About this, he said:
“This involves repetitive stressors on his shoulders. He had the work-related right shoulder injury and this was favouring the left shoulder which has exacerbated his symptoms. Therefore it is my conclusion that his left shoulder injury is in fact work-related due to this”.
Dr Rimmer reported Mr Taylor had told him there was no precipitating injury to his left shoulder, just a gradual onset of symptoms, and while both Dr Homsi and Dr Huang have offered opinion that favouring/overuse by Mr Taylor due to his right shoulder injury caused his left shoulder injury, Dr Rimmer reported Mr Taylor did not believe this to be the case as he had essentially made a complete recovery from his right shoulder injury at the time his left shoulder became symptomatic. However, Dr Rimmer’s reporting about this particular issue is somewhat at odds with the statement Mr Taylor made just a couple of months later on 25 May 2021, in which Mr Taylor said that over a period of about three years he had favoured his right shoulder and used his left arm while undertaking his work duties.
I am of the view Mr Taylor has provided a credible history regarding the onset of his left shoulder symptoms in mid 2020 due to favouring following his right shoulder injury. Having considered the evidence as a whole and consideration of counsel’s submissions I accept Mr Taylor has sustained consequential injury to his left shoulder, as alleged. Mr Taylor has the valuable support of Dr Huang and I prefer his opinion over that of Dr Rimmer, who provided opinion that Mr Taylor’s left shoulder injury was not work related, in that Dr Huang has been involved in Mr Taylor’s specialist care for both his right shoulder and his subsequently symptomatic left shoulder, whereas Dr Rimmer assessed Mr Taylor on one occasion only and that was some considerable time after Mr Taylor’s left shoulder had been become symptomatic.
Of significance in this particular matter however is that an injury can have more than one cause. In Cook the High Court stated as “uncontroversial” the proposition that there can by multiple causes of the damage suffered by a plaintiff. Just because Mr Taylor said he was favouring his right shoulder when he returned to his pre-injury duties with SRL and Dr Huang accepted that such favouring of the right shoulder exacerbated the symptoms Mr Taylor experienced in his left shoulder, does not mean that such favouring was the only cause of Mr Taylor’s left shoulder injury. It is necessary to look at all of the alleged circumstances of injury and to consider the evidence in light of those circumstances.
Mr Taylor has provided evidence of his work duties as a truck driver trainer with SRL, which included climbing in and out of trucks, six to eight times a day, and Dr Huang has reported that Mr Taylor is required “to constantly pull himself into his truck using both arms, which involves repetitive stressors on his shoulders”. At the time Mr Taylor returned to Dr Huang for review of his left shoulder injury, Dr Huang described Mr Taylor’s right shoulder as “functioning well” albeit with some intermittent pain. Dr Rimmer has provided diagnosis of the injury Mr Taylor has sustained to his left shoulder in terms of “[R]esolving aggravation, partial thickness degenerative tear left rotator cuff” which I accept is an injury in the nature of a disease injury. While Dr Rimmer provided opinion that Mr Taylor’s left shoulder injury “could easily have been aggravated whilst not in the workplace”, I am mindful of comment made by Bourke CCJ in Perry and it is evident from the reporting by Mr Taylor and Dr Huang that Mr Taylor’s work duties at SRL, with particular reference to the use of both his arms to pull himself into his truck on a regular basis, have contributed to his left shoulder symptoms. Having considered the evidence as a whole and consideration of counsel’s submissions I accept Mr Taylor has sustained injury to his left shoulder in the nature of an aggravation of a disease injury with his employment with SRL being the main contributing factor to injury, as alleged.
Although Dr Huang has not used the terminology “main contributing factor” to the aggravating injury Mr Taylor has sustained as required by s 4 of the 1987 Act, I do not consider this to be fatal to Mr Taylor’s claim as consideration of the evidence overall demonstrates Mr Taylor’s employment with SRL was the main contributing factor to the aggravation injury he has sustained to his left shoulder, with a deemed date of injury of 22 June 2020. While Dr Rimmer alluded to Mr Taylor being engaged in home renovations, Mr Taylor reportedly told him “I have been using contractors throughout the whole process” and there is no satisfactory evidence to suggest any cause for the onset of symptoms Mr Taylor experienced in his left shoulder in mid-June 2020 other than his employment with SRL
While it may be Mr Taylor has failed to discharge the onus of proof required of him in relation to his allegation of injury sustained to his left shoulder as a result of his work duties between 19 May 2016 to date as alleged, I accept Mr Taylor has discharged the onus of proof required of him in relation to his allegations that the injury he sustained to his left shoulder which was in the nature of a consequential injury and which was in the nature of an aggravation of a disease injury with his employment with SRL being the main contributing factor to injury.
I am comfortably satisfied Mr Taylor has sustained injury to his left shoulder, which is consequential in nature. I am also comfortably satisfied Mr Taylor has sustained injury to his left shoulder, which is in the nature of an aggravation of a disease injury, with his employment with SRL being the main contributing factor of the injury and with a deemed date of injury of 22 June 2020.
Treatment
Is the surgical treatment proposed by Dr Huang reasonably necessary as a result of the injury sustained by Mr Taylor to his left shoulder in the course of his employment with SRL?
As I have determined Mr Taylor sustained to his left shoulder in the course of his employment with SRL it follows that he has an entitlement to compensation for the cost of medical or related treatment payable under s 60 of the 1987 Act for that injury.
However, a critical issue for determination in this matter is whether the surgical treatment proposed by Dr Huang is reasonably necessary treatment as a result of the injury sustained by Mr Taylor to his left shoulder in the course of his employment with SRL.
It is instructive to note an approach taken by Mason JA in his dissenting judgement in Migge v Wormald Brothers Industry Limited[29] at page 44:
[29] 2 NSWLR 20.
“In cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation”.
His Honour continued:
“The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be”.
This approach by Mason JA has the approval of the High Court of Australia and the Court of Appeal, at least, in respect of the meaning of “results from” under the 1987 Act. In Kooragang the court determined that the phrase “results from” requires a common sense evaluation of the causal chain by paying due regard to the question posed by the 1987 Act, with the question posed in this particular matter being whether the disputed need for the surgical treatment proposed by Dr Huang “results from” the injury the applicant sustained to his left shoulder in the course of his employment with SRL. It is also instructive to note comment by Deputy Roche in Murphy v Allity Management Services Pty Ltd[30]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ of the injury’ (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[30] [2015] NSWWCCPD 49.
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)[31]. Burke CCJ said:
[31] (1986) 2 NSWCCR 32 (Rose).
“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.”
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[32], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[32] [2014] NSWWCCPD 72 (Diab).
“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”.
In his report dated 9 November 2020 Dr Huang cautioned that if the intra-articular steroid injection relief he offered to Mr Taylor was limited “a left shoulder arthroscopic rotator cuff repair and long heads of biceps tenotomy may be indicated”. Mr Taylor has subsequently said that the injection was “of little use” and Dr Huang made a request for the foreshadowed surgical treatment, with which Mr Taylor was reportedly keen to proceed.
I am mindful Mr Taylor began experiencing symptoms in his left shoulder in mid 2020 and that limited conservative treatment did not provided lasting relief. Although Dr Rimmer reported at the time of assessment on 26 February 2021 Mr Taylor “had a full range of motion with minimal discomfort” and expressed opinion Mr Taylor should undertake a six week course of physiotherapy with reassessment, in response to specific questioning about Dr Rimmer’s opinion Dr Huang said physiotherapy is unlikely to result in a significant improvement in Mr Taylor’s symptoms and is unlikely to result in long-term improvement of his left shoulder injury.
I am mindful Mr Taylor said that as a result of favouring, his right shoulder has again become problematic and considering the medical support afforded to him by Dr Huang in particular, I am of the view the proposed surgical treatment is appropriate and has the purpose and potential to alleviate the effects of the injury Mr Taylor has sustained to his left shoulder.
62.Following review of the evidence as a whole, consideration of counsels’ submissions and the authorities discussed, I am comfortably satisfied Mr Taylor has discharged the onus of proof required of him. I accept the surgical treatment proposed by Dr Huang, being a left shoulder arthroscopic rotator cuff repair and long head of biceps tenotomy, is reasonably necessary treatment as a result of injury sustained by Mr Taylor to his left shoulder in the course of his employment with SRL.
Do the provisions of s 59A of the 1987 Act have application to his claim made under s 60 of the 1987 Act?
While s 59A of the 1987 Act limits payments of compensation payable under s 60 of the 1987 Act, in circumstances where I have determined in part that Mr Taylor has sustained injury to his left shoulder which is in the nature of an aggravation of a disease injury with his employment with SRL being the main contributing factor of the injury and with a deemed date of injury of 22 June 2020, the provisions of s 59A of the 1987 Act do not limit Mr Taylor’s entitlement to compensation payable under s 60 of the 1987 Act in respect of the costs associated with the surgical treatment proposed by Dr Huang.
SUMMARY
It is not disputed Mr Taylor sustained injury to his right shoulder on 9 May 2016 in the course of his employment with SRL.
I have determined Mr Taylor sustained injury to his left shoulder in the course of his employment with SRL which is in the nature of a consequential injury and which is in the nature of an aggravation of a disease injury with his employment with SRL being the main contributing factor to injury and with a deemed date of injury of 22 June 2020. In such circumstances the provisions of s 59A of the 1987 do not limit Mr Taylor’s entitlement to compensation payable under s 60 of the 1987 Act in respect of the costs associated with the surgical treatment proposed by Dr Huang.
The surgical treatment proposed by Dr Huang in his letter dated 18 January 2021 is reasonably necessary treatment for the injury Mr Taylor sustained to his left shoulder in the course of his employment with SRL. SRL is to pay the costs associated with the surgical treatment proposed by Dr Huang in accordance with s 60 of the 1987 Act.
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