Tran v The Henry Schein Regional Trust ATF The Henry Schein Regional Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tran v The Henry Schein Regional Trust ATF The Henry Schein Regional Trust [2024] NSWPIC 85
APPLICANT:	Peter Tran
RESPONDENT:	The Henry Schein Regional Trust ATF The Henry Schein Regional Trust
MEMBER:	Cameron Burge
DATE OF DECISION:	26 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed right shoulder surgery; whether surgery reasonably necessary as a result of work injury, in light of applicant’s pre-existing issues in effected body system; the applicant had previously suffered a non-work injury to the right shoulder in approximately 2015, for which he was placed on the hospital waiting list for the repair of a SLAP tear; the applicant removed himself from the hospital waiting list and continued working; on 11 October 2022 he suffered a work injury to his right shoulder; after the work injury, the applicant consulted Associate Professor Nabavi who recommended a biceps tenotomy; the respondent argued the requirement for the proposed surgery was brought about by the pre-existing pathology rather than the work injury; Held – the need for the proposed surgery was brought about by the work injury, not the pre-existing pathology; the proposed surgery is different to that for which the applicant was placed on the waiting list for after the earlier, non-work injury; the proposed surgery is reasonably necessary as a result of the work injury; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to his right shoulder in the course of his employment with the respondent on 11 October 2022. 2. The surgery recommended by A/Prof Nabavi in his report dated 27 March 2023 is reasonably necessary as a result of the applicant's injury. 3. The respondent is to pay the costs of and incidental to the proposed surgery at the rates prescribed by SIRA.

STATEMENT OF REASONS

BACKGROUND

On 11 October 2022, Peter Tran (the applicant) suffered an injury to his right shoulder whilst in the course of his employment with the Henry Schein Regional Trust as trustee for the Henry Schein Regional Trust (the respondent).
The fact of the applicant's injury is not in dispute. There is also no issue the applicant had significant pre-existing right shoulder pathology as a result of a fall at home in or around 2015.
The applicant seeks payment by the respondent of the costs of and incidental to a biceps tenotomy as recommended by his treating surgeon A/Prof Nabavi.
The respondent denies liability for the surgery, alleging it is not reasonably necessary as a result of the work-related injury.

ISSUES FOR DETERMINATION

The only issue for determination is whether the surgery proposed by A/Prof Nabavi is reasonably necessary as a result of the workplace injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 1 February 2024. At the hearing, Mr Moffett of counsel appeared for the applicant and Ms Goodman appeared for the respondent.
At the conclusion of the hearing, the matter was listed for the provision of oral reasons on 16 February 2024, however, further submissions were taken from both counsel on that occasion necessitating the provision of these written reasons.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents (AALD) dated
29 January 2024 and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed surgery is reasonably necessary as a result of the work-related injury

There is no issue the applicant suffered significant pre-existing issues with his right shoulder. A significant point of contention in this matter was whether he disclosed those problems to the respondent's Independent Medical Examiner (IME), Dr Breit. Dr Breit provided two reports, in the second of which he specifically noted the applicant did not advise him of his pre-existing problems.
That, however, is not the end of the matter. The question then arises as to what flows from any absence on the part of the applicant in telling Dr Breit about his pre-existing problems.
The applicant did disclose those problems to other doctors whom he saw both before and after seeing Dr Breit and in his statement provided the following history:
“7. Regarding my medical history:
a.I have had some minor problems with my right shoulder.
i.In around 2015, I fell down some stairs whilst at home. I extended my right arm to brace myself. I hurt my right shoulder.
ii.I consulted Dr Thanh Phong Nguyen at Montgomery Medical Practise in Bonnyrigg and Dr Victor Vo at Vos Medical Centre in Cabramatta.
iii.On 20 August 2015, I underwent a CT scan on the right shoulder. On 3 May 2016, I underwent an ultrasound at the right shoulder. On 26 May 2016, I underwent an MRI scan at the right shoulder.
iv.On 24 June 2016, I went to see Dr Arash Nabavi, orthopaedic surgeon. He recommended an injection. I underwent that injection which provided significant relief.
v.I underwent physiotherapy with Thinh Le at TLC physiotherapy in Canley Heights. I did that through a Medicare physiotherapy care plan.
vi.On 1 March 2019, I underwent an X-ray of the right shoulder.
vii.On 8 March 2019, I went to see Dr David Lieu, orthopaedic surgeon. He recommended surgery to prepare the SLAP lesion in the right shoulder. He placed me on the public system waiting list for the operation. Soon after I was put on the wait list, I told the hospital to take me off the list as I was feeling great and I did not want to undergo the operation as I was feeling a lot better.
viii.After that I was not troubled by my right shoulder at all until the work injury at Henry Schein in October 2022.”
In relation to the work-related injury, the applicant's history is as follows:
“11. I sustained an injury to my right shoulder on around 11 October 2022 whilst at work. There is a conveyor belt system at work that moves packages from one area to another. Some boxes fell from the conveyor belt. I then went over to pick the boxes up and put them back on the belt. I would estimate that the boxes were around 10 kgs average and that there were around 8 - 10 boxes that fell but I needed to pick up. It was during this that I felt pain in the right shoulder region, on the backside.”
Following his injury, the applicant underwent a consistent course of treatment and consulted various practitioners including his general practitioner (GP), Dr Le and neurosurgeon
Dr Shiva, who recommended referral to a shoulder surgeon, leading to the applicant’s referral to A/Prof Nabavi. Additionally, the applicant underwent further radiological investigations by way of X-Ray, MRI and ultrasound. He has also had physiotherapy treatment.
For the respondent, much was made of the applicant's failure to disclose his previous issues to Dr Breit, and to the difference in symptoms relied on by the applicant after his injury at work compared with those which the surgery will be said to alleviate.
Additionally, the respondent submitted that there had been little change to the pathology in the applicant's shoulder since the pre-injury scans compared with those taken after the work-related injury.
This may well be the case, however, even if it is so, a fact often overlooked in matters concerning claims for medical treatment is it is symptomology which causes the need for treatment, not underlying pathology. For example, a worker might have significant pathology in their back which is asymptomatic for many years until such time as they suffer an injury at work which renders that pathology symptomatic and requiring treatment.
It is, in my opinion, of great significance that the applicant removed himself from the wait list for SLAP repair surgery in or about 2019 after his fall at home because his symptoms had improved, notwithstanding the significant pathology in his right shoulder. Additionally, there is no issue the applicant was able to carry out his work, at times physically demanding, after his fall at home notwithstanding the ongoing presence of the SLAP lesion in his right shoulder.
The respondent submitted the requirement for surgery was brought about by the pre-existing problems rather than the incident at issue. However, the surgery proposed by Dr Lieu pre-injury in the nature of a repair of the SLAP tear is different to that proposed by A/Prof Nabavi after the injury at issue.
In his report to the applicant's solicitors dated 11 July 2023, A/Prof Nabavi readily noted on examination the applicant had a full range of motion, his impingement signs were negative and he had no pain on the loading of his rotator cuff with no discomfort over his AC joint. A/Prof Nabavi noted the applicant had strongly positive provocation signs for a SLAP tear which was confirmed on MRI. Dr Breit for the respondent did not elicit on testing symptoms consistent with a SLAP tear, however, the preponderance of the medical evidence clearly shows one is present and the respondent itself relies on the presence of the tear as the basis for asserting it is pre-existing pathology which necessitates the proposed surgery.
When asked whether surgery in the nature of a tenotomy of the bicep was reasonably necessary as a result of the injury, A/Prof Nabavi said:
“The pain arising from this injury is due to the biceps tendon pulling on the labral tear and causing localised inflammation, pain and cyst formation which was visible on his MRI scan. The aim of surgery is to remove the forces that the bicep supplied on the labral tear and therefore resolve the pain. Sometimes if the labarum is unstable, it will require stabilisation with an anchor.
In my experience, patients in Peter's age group respond well to a biceps tenotomy and a formal repair of a SLAP is not usually required.”
As was noted by Mr Moffett in his submissions, a requirement for surgery may have multiple causes. It is only necessary for the need for any proposed treatment to have arisen “as a result of” the injury.
The “results from” principle of causation applies to s 60 claims, but confusion is sometimes created by the fact s 60 liability also has a requirement that treatment “be reasonably necessary.” The principles of causation and “reasonably necessary” are different and must be kept distinct in claims of this nature. It is frequently a separation which is lost, or the differing principles misunderstood.
For example, if a worker sustained an injury as defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) which was an aggravation of osteoarthritis in a hip joint associated with a level of pain one week after the injury, that would be an indicator for the need for hip replacement, as the need for hip replacement at that time would result from the injury. However, if the evidence established that all symptoms would resolve completely by their own accord in another week or so, hip replacement at that one-week point would not be “reasonably necessary” as a result of the injury.
The question which is relevant, and which highlights the distinction between a mere “but for” and a test of “common sense” causation, which is used in a workers compensation context, is: did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed?
The basic principles of causation can arise in a variety of ways when it comes to medical treatment. In Taxi Combined Services (Victoria) Pty Ltd v Schokman [2014] NSW WCCPD18, the worker, a taxi driver, was assaulted in the course of his employment. He suffered extensive facial injuries during the assault, which eventually resulted in the loss of four teeth, requiring treatment with a four-unit fixed bridge. At the time of the treatment, it was noted the worker had pre-existing periodontitis unrelated to the assault. In 2012, the worker’s bridge broke. In examining the worker in relation to this issue, a further complication of periimplantitis was identified, requiring treatment. The insurer denied liability for treatment related to the periimplantitis and periodontitis, in part due to the work as pre-existing periodontitis as well as his poor oral hygiene and history of smoking.
Deputy President Roche confirmed the arbitrator's decision in finding the treatment was reasonably necessary as a result of the injury. After referring to the trite law ACQ v Cook (2009) 237 CLR 656 that a condition can have multiple causes, the Deputy President stated on causation:
“It follows that, even if it were accepted that the periimplantitis was ‘caused’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Bowen, that would not prevent a finding that, as a matter of common sense, the need for the proposed treatment has arisen ‘as a result of’ the injury. That is because, as Dr Rossler explained, the peri-implantitis is ‘only there because Mr Schokman has implants.’ This is not a matter of merely saying that ‘but for’ the presence of the implants, Mr Schokman would not have peri-implantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of common sense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants)¸ even if other factors were also present that may have also contributed to that need.”
In this matter, the applicant was carrying out work despite his significant pre-existing right shoulder problems. The surgery proposed by A/Prof Nabavi is not to repair the SLAP tear which was present since the applicant's prior fall at home. Rather, the surgery is to repair the biceps tendon injured in the incident at issue which is impacting upon that SLAP tear and causing it to remain to become symptomatic.
A/Prof Nabavi’s opinion, as a treating surgeon, is entitled to be given significant weight unless it can be shown there was a fundamental error in the history taken by him or he has adopted an erroneous methodology in reaching his opinion. In my view, no such attack is made out in this case, particularly in circumstances where A/Prof Nabavi had previously consulted the applicant in relation to his right shoulder after the fall at home and was, therefore, inherently aware of the pre-existing pathology.
Even if the respondent's attack on the applicant's credit is made out, in the circumstances of a case such as this, it is not necessarily fatal to his claim. The nature and extent of the applicant's pre-existing problems are disclosed in his statement and to numerous doctors. The difference in the symptoms after the injury at work is what necessitates the proposed surgery by A/Prof Nabavi, and those symptoms are explained by the biceps pathology caused in the incident at issue. Thus, even if Dr Breit’s opinion that “the minor bursitis and minor labral tear are not the problem” is correct, the proposed surgery is not to repair that tear.
Although Dr Breit opined the cause of the applicant’s issues may be the thoracic spine itself rather than his shoulder, I do not prefer that view. It contradicts that of treating neurosurgeon Dr Shiva who examined the applicant but saw fit to refer him to a shoulder surgeon as his symptoms were not emanating from the spine. Additionally, Dr Breit did not elicit signs of a SLAP tear on an O’Brien’s test, contrary to the findings of every other practitioner who examined the applicant. It is difficult to accept Dr Breit’s views when he has overlooked a finding so readily identifiable to every other examiner of the applicant.
In my view, the preponderance of the evidence in this matter supports a finding the proposed surgery is reasonably necessary as a result of the injurious event at issue.
As a result, the respondent will be ordered to pay the costs of an incidental to the proposed surgery by A/Prof Nabavi.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of this Certificate of Determination.

[2024] NSWPIC 85

26 February 2024