Usher v Coffs Harbour City Council
[2022] NSWPICPD 9
•10 March 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Usher v Coffs Harbour City Council [2022] NSWPICPD 9 |
APPELLANT: | Susan Usher |
RESPONDENT: | Coffs Harbour City Council |
INSURER: | StateCover Mutual Limited |
FILE NUMBER: | A1-W906/21 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 10 March 2022 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 21 June 2021 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – principles applicable to disturbing a primary decision maker’s factual determination – Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, Najdovski v Crnojlovic [2008] NSWCA 175 considered and applied – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 – whether injury materially contributed to the need for surgery – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr C Tanner, counsel | |
| Carroll & O’Dea Lawyers | |
| Respondent: | |
| Mr P Stockley, counsel | |
| BBW Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms C Rimmer |
DATE OF MEMBER’S DECISION: | 21 June 2021 |
INTRODUCTION AND BACKGROUND
Ms Susan Usher was employed by Coffs Harbour City Council (the Council) from about 1997 or 1998 in various roles and from 2008 as an operations supervisor. The Council had the practice of offering all of its staff influenza vaccinations annually. Normally, the vaccinations would take place on the Council premises, however, because of the COVID restrictions in 2020, the vaccinations were administered by Coffs Harbour Medical Centre at a pop-up drive through location.
Ms Usher arranged for an appointment to receive the vaccination at 2.30 pm on 9 April 2020, which was 30 minutes prior to her usual daily finishing time. She received the vaccination in her right shoulder, then went directly home, which was in accordance with the Council’s instructions. At the time the nurse was administering the vaccine, Ms Usher queried the area in which the nurse intended to insert the needle. Within an hour of receiving the vaccination, Ms Usher suffered the onset of severe right shoulder pain. The following day was Good Friday. On Saturday 11 April 2020, Ms Usher consulted her general practitioner, Dr Cathryn Platt. She continued to experience pain over the long weekend and consulted a different general practitioner, Dr Colin Leal, on 14 April 2020. She attended work the following day and reported her complaints. The Council sent her back to the Coffs Harbour Medical Centre, who arranged x-rays and an ultrasound investigation. Ms Usher then underwent an ultrasound guided steroid injection on 28 April 2020 and an MRI scan on 14 May 2020.
Ms Usher continued to experience severe pain in the right shoulder and was referred to Dr Alex Jovanovic, orthopaedic surgeon, who performed a right rotator cuff repair on 16 June 2020. She returned to work on or about 27 July 2020.
Ms Usher made a compensation claim for weekly payments and treatment expenses, including the costs of and incidental to the surgery to the right shoulder. The Council denied liability. In a notice dated 12 June 2020 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the Council declined liability, indicating that it disputed liability on the basis that:
(a) Ms Usher had not suffered a personal injury arising out of or in the course of her employment within the meaning of s 4(a) of the Workers Compensation Act 1987 (the 1987 Act);
(b) Ms Usher’s employment was not the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of any pre-existing disease in her right shoulder, as required by s 4(b)(ii) of the 1987 Act;
(c) Ms Usher’s employment was not a substantial contributing factor to her right shoulder condition (s 9A of the 1987 Act), and
(d) any incapacity suffered by Ms Usher and any need for treatment of the right shoulder did not result from a work related injury.
Ms Usher commenced proceedings in the Personal Injury Commission and the matter came to arbitration on 31 May 2021. The Member issued a Certificate of Determination on 21 June 2021 in which she found in favour of Ms Usher, except for finding that the need for surgery to the right shoulder did not result from the injury. As a consequence of that finding, the Member found that there was, therefore, no entitlement to weekly payments from 16 June 2020 to 27 July 2020 and the costs of and incidental to the surgery were not compensable.
Ms Usher appeals those adverse findings.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined on the basis of the documentary evidence and their written submissions. I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, as well as the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The decision was not interlocutory in nature, so that leave to appeal pursuant to s 352(3A) of the 1998 Act is not required.
THE EVIDENCE
As this appeal is limited to the question of whether the surgery to the right shoulder was reasonably necessary as a result of the injury, it is not necessary to address all of the evidence adduced by the parties.
Ms Usher’s evidence
Ms Usher provided a statement dated 15 September 2020.[1] Relevantly, Ms Usher stated that when she received the vaccine, the nurse indicated that she intended to insert the needle in the top of the shoulder and then inserted the needle between the corner of Ms Usher’s shoulder and her neck. Ms Usher had expected that the needle would be injected into the right bicep, as it had usually been done in the past. She said that within approximately one hour, after she had driven home, she began to experience severe pain in the shoulder, travelling to her wrist. She said that she continued in severe pain for which she sought treatment from various general practitioners, investigations were undertaken, and she was referred to Dr Jovanovic. She said that surgery was performed on 16 June 2020, and she remained off work until 27 July 2020.
[1] Application to Resolve a Dispute (ARD), pp 1–2.
Email evidence
On 15 April 2020, Mr Sean Hone, Ms Usher’s manager, sent an email to the Council, advising the Council that when Ms Usher received her vaccination, it was administered in the back instead of into the front or side of the shoulder.[2]
The medical evidence
[2] ARD, p 3.
The treating general practitioners
Dr Colin Leal of the Toormina Medical Centre noted on 14 April 2020 that Ms Usher was:
“Given flu shot 5 days ago, at council drive through – Susan feels it was given posteriorly, and after 1 hour whole arm started to get sore, and movement decreased. Not problem with prior flu shots. Had self‑treated with Panadeine Ft – no help.”[3]
[3] ARD, p 79.
A WorkCover Certificate of Capacity was issued by Dr Cathryn Platt on 19 May 2020, in which Dr Platt noted:
“Given flu shot in shoulder in drive though flu clinic.
1 hour later aching pain down R arm then unable to move it for 5 days.
pain has continued to this day
injection must have aggravated something
MRI shoulder shows chronic condition but no symptoms previouslyalso some of her symptoms [seem] to be coming from Neck MRI organised.”[4]
[4] ARD, pp 50–52.
This was consistent with a clinical note recorded by Dr Platt that Ms Usher:
“went through drive through flu clinic
flu vaccine given back of shoulder
since then pain down the arm with severe pain”.[5]
[5] ARD, p 72.
Dr Platt also recorded in a response to queries from the Council’s workers compensation insurer dated 25 May 2020 that Ms Usher developed symptoms after an injection was given in the back of the shoulder.[6]
[6] ARD, pp 42–44.
Dr Alex Jovanovic
Dr Adrian Gilliland of the Coffs Harbour Medical Centre referred Ms Usher to Dr Jovanovic, orthopaedic surgeon. Dr Jovanovic reported back to Dr Gilliland on 3 June 2020.[7] Dr Jovanovic recorded the history of the onset of symptoms and the treatment provided up to the consultation, noting that Ms Usher did not have any shoulder symptoms prior to receiving the vaccination injection. He noted that the MRI scan disclosed a full thickness tear of the supraspinatus.
[7] ARD, p 45.
He observed:
“I made it clear to her that I believe that the flu injection is only a coincidence and as the appearance on x-rays and MRI are consistent with a pre-existing condition. It is hard to explain why she suddenly developed classic rotator cuff dysfunction symptoms following the flu injection on 9 April 2020.”
In the post operative report,[8] the procedure was described as an “Arthroscopic SAD & mini open rotator cuff repair.” The findings were listed as a full thickness tear of the supraspinatus, significant impingement of the acromion and chronic subacromial bursitis.
[8] ARD, p 46.
Following post operative review on 2 July 2020, Dr Jovanovic reported that Ms Usher had reported excellent progress,[9] and on 19 August 2020, he reported that Ms Usher was pain free with a good range of movement, which was improving with physiotherapy.[10]
[9] ARD, p 47.
[10] ARD, p 48.
Dr Graeme Doig, general orthopaedics and trauma surgeon
Dr Doig was asked by Ms Usher’s legal representatives to examine Ms Usher and provide a medico-legal opinion. He provided a report dated 27 October 2020.[11] Dr Doig took a consistent history surrounding the vaccination performed on 9 April 2020. He recorded that Ms Usher developed extreme pain, which she endured for about ten weeks following the procedure. He also recorded that Ms Usher denied any previous problems with, or injuries to, her right arm.
[11] ARD, pp 25–32.
Dr Doig discussed the radiological investigations. He noted that Ms Usher’s symptoms failed to improve with physiotherapy and a cortisone injection and so she underwent an arthroscopic sub-acromial decompression and mini-open rotator cuff repair, resulting in some improvement of her condition. Dr Doig considered that the symptoms described by Ms Usher indicated a possible brachial neuritis, which he said had, in the past, been associated with tetanus and Hepatitis B injections. He observed that:
“The anatomical site of the described injection is certainly not advised within the administration procedure recommended in the medical literature. I was unable to clarify the exact site of the needle puncture, nor the length of the needle. There is, however, evidence in the medical literature that rotator-cuff tears can be caused by an influenza injection which is performed too high/proximal in the arm. There is also an association with the development of calcification which was present in the medical imaging. Ms Usher denied any previous problems or injuries to the shoulder. Her MRI scan in May 2020 revealed a florid, intra-articular, gleno-humeral, reactive capsulitis which could be consistent with the penetration of the vaccine into the joint, although there was no inflammation noted at arthroscopy on her treating surgeon’s report.”[12]
[12] ARD, p 29.
Dr Doig concluded that there was a possibility that the injection, which was inappropriately located, may have caused damage to the rotator cuff tendon. He observed that such damage had been noted in medical literature and that the MRI scan showed a florid, reactive capsulitis which was consistent with a reaction to the vaccine. He opined that there was “strong medical evidence” that vaccine injection was a substantial contributing factor to Ms Usher’s right shoulder condition. He conceded that there may have been a pre-existing, asymptomatic rotator cuff tear, but said that the injection caused the shoulder to become symptomatic. He further opined that, if there had been a pre-existing tear (which was a possibility), it may have required surgery in the future, but the injection caused the need for the surgery to be performed sooner, that is, on 16 June 2020.
Dr Doig provided a supplementary report dated 23 March 2021.[13] In that report, he noted that Ms Usher’s right shoulder had been asymptomatic prior to the vaccination and said that there was a possibility that the pre-existing pathology may have become symptomatic in the future. He considered, however, that, on the balance of probabilities, the injection had caused the shoulder to become symptomatic. He said that medical literature supported that a wrongly placed injection needle can result in calcification and tearing of the rotator cuff. He pointed out that Ms Usher experienced immediate prolonged pain and restriction after undergoing the injection which she had described as being given in the top of the shoulder, and he said that it was possible that the needle penetrated the joint.
[13] ARD, pp 33–35.
Dr Doig concluded that, on the basis of there being no prior symptoms and on the basis of no evidence to the contrary, on the balance of probabilities the need for the surgery was a direct result of receiving the injection on 9 April 2020. He was certain that the injury contributed to the need for surgery. He added that he did not agree with Dr Clayton’s views that there was strong evidence that, as females age, asymptomatic rotator cuff tears become more prevalent.
Dr James Clayton, orthopaedic surgeon
Dr Clayton was asked by the Council to provide an opinion in respect of Ms Usher’s claim. He reported to the Council on 15 February 2021.[14] It appears that Dr Clayton prepared the report on the basis of the documentation provided to him and he did not physically assess Ms Usher.
[14] Reply to Application to Resolve a Dispute (reply), pp 12–17.
Dr Clayton reviewed the radiological investigations and advised that:
“The investigations demonstrate chronic constitutional rotator cuff syndrome unrelated to the influenza vaccination. The images demonstrate pathology that could not have arisen in the short time frame between the alleged injury and the imaging. Subclinical rotator cuff syndrome and rotator cuff tears (including complete) occur in great [sic] than 50% of patients aged 60 years or over (Clement et al. Sports Med Anhrosc Rehabil Ther Technol. 2012; 4: 48.) This finding is not consistent with a Shoulder Injury Related to Vaccine Administration (SIRVA) with a posteriorly placed injection.”[15]
[15] Reply, p 15.
Dr Clayton noted that the MRI scan showed reactive glenohumeral capsulitis and said that it was possible that an injection of vaccine which was incorrectly positioned in the posterior location of the shoulder could cause irritation and inflammation of the joint capsule but it would be unrelated to the rotator cuff pathology. He concluded that, on the basis of the radiological findings and other documentation, the probable cause of Ms Usher’s symptoms was shoulder capsulitis, the rotator cuff pathology was constitutional in nature, entirely incidental and not at all related to the vaccination. He opined that the capsulitis would have resolved within 6 to 8 weeks. He added that the constitutional rotator cuff symptoms would have presented at that time, regardless of the vaccination. Dr Clayton remarked that the injection was incorrectly inserted too far posteriorly, and for it to have affected the rotator cuff, it would have to have been placed high in the shoulder.
Dr Clayton concluded that Ms Usher’s employment was a substantial contributing factor to her initial symptoms, which would have resolved within 6 to 8 weeks. He opined that the surgery performed by Dr Jovanovic was not a direct result of the injury and not directly related to her employment. He described the appropriate treatment regime to address the capsulitis and remarked that surgery was not required to address such a condition.
The radiological evidence
The right shoulder x-ray and ultrasound performed on 17 April 2020 showed supraspinatus tendinopathy with subacromial/subdeltoid bursitis and calcification within the infraspinatus tendon.[16]
[16] ARD, p 38.
The MRI scan reported on 15 May 2020 disclosed a near full thickness supraspinatus tendon tear, subacromial bursitis, stenosis and impingement, as well as glenohumeral capsulitis.[17]
[17] ARD, pp 40–41.
THE MEMBER’S REASONS
There is no challenge to the Member’s findings that Ms Usher suffered an injury arising out of and in the course of her employment and that her employment was a substantial contributing factor to the injury. It is not necessary, therefore, to consider her reasons in respect of those findings. The Member also noted that the Council accepted the rates of weekly payment compensation claimed and that, if Ms Usher was successful in her claim, she would be entitled to the weekly compensation claimed.
The Member summarised Ms Usher’s evidence, which included the evidence that Ms Usher could not recall having suffered any prior injuries to her right shoulder and had not experienced any right shoulder pain prior to the injury. The Member quoted from Ms Usher’s evidence, in which Ms Usher stated that:
(a) she had presumed the injection would be into her bicep;
(b) the nurse advised that she intended to insert the needle “in the top of the shoulder,” and
(c) the nurse inserted the needle in the top of Ms Usher’s shoulder “between the corner of her shoulder and neck.
The Member summarised the medical evidence of Dr Doig, Dr Clayton and Ms Usher’s treating general practitioners. In particular, she noted that Dr Leal recorded in the entry on 14 April 2020 that Ms Usher felt that the needle was inserted posteriorly. The Member referred to the notation in the WorkCover Certificate issued by Dr Platt that Ms Usher had not previously suffered from right shoulder symptoms, Ms Usher had been unable to move the right arm for five days and that some of the symptoms appeared to be coming from the neck. The Member also referred to the clinical note recorded by Dr Platt on 25 May 2020, in which Dr Platt noted that the injection was given in the back of the shoulder.
The Member reviewed the evidence of Dr Jovanovic contained in his report dated 3 June 2020 and quoted from the passage in that report in which Dr Jovanovic indicated that it was hard to explain why Ms Usher suddenly developed rotator cuff symptoms and that he believed the injection was a mere coincidence. The Member also noted that Dr Jovanovic recorded at reviews on 2 July 2020 and on 19 August 2020 that Ms Usher was enjoying excellent progress.
The Member discussed the evidence pertaining to injury and whether Ms Usher’s employment was a substantial contributing factor to the injury. Relevantly, the Member observed:
“Mr Hone’s email of 15 April 2020 noted that when the flu shot was injected it was not done in the front or side of the shoulder but was administered ‘in the back’. Ms Green in her email dated 21 May 2020 said that the applicant reported she was wearing a T‑shirt and had lifted that up to allow the nurse to place the vaccination in the side of the shoulder, but the nurse requested she move the T‑shirt further back to inject the back side of the shoulder. Ms Green said that the applicant reportedly questioned this and the nurse confirmed it was the correct location.
Dr Doig was told by the applicant that the injection was administered over the top of the shoulder. He concluded that the anatomical site of the described injection ‘is certainly not advised within the administration procedure recommended in the medical literature’, and later referred to the possibility that the influenza injection was ‘inserted in an inappropriate anatomical location.’ Dr Clayton referred to the vaccination being inserted incorrectly. Dr Platt stated that the applicant developed symptoms after an injection given in the back of the shoulder which was not the usual place.”[18]
[18] Usher v Coffs Harbour City Council [2021] NSWPIC 196 (reasons), [92]–[93].
The Member turned to the issue of whether the treatment expenses claimed, which were essentially the expenses of, and incidental to, the surgery performed by Dr Jovanovic, were reasonably necessary as a result of the injury. The Member noted that it appeared that Coffs Harbour Medical Centre had paid for Ms Usher’s earlier treatment. She observed that she was required to determine the nature of the injury sustained by Ms Usher and whether the treatment was directed to alleviate the symptoms of the injury sustained.
The Member noted that the surgery was undertaken to repair a rotator cuff tear, which was the pre-operative and post-operative diagnosis recorded in the operation report dated 16 June 2020. She further noted that Dr Jovanovic considered that the influenza vaccination was a coincidence and that the appearances on the radiological evidence were consistent with a pre-existing condition. The Member added that Dr Jovanovic did say that it was hard to explain the sudden development of classic rotator cuff symptoms after the injection.
The Member concluded that the purpose of the surgery was to repair the rotator cuff and proceeded to consider whether the injection on 9 April 2020 caused or aggravated the rotator cuff condition. The Member noted Ms Usher’s reliance on Dr Doig, but observed that, while Dr Doig outlined the clinical findings on examination, he did not make a diagnosis of the nature of the condition. The Member noted the Council’s reliance on the opinions of Dr Clayton and Dr Jovanovic and reviewed the evidence of Dr Clayton. She noted the history provided by Dr Gilliland in the letter of referral to Dr Jovanovic dated 18 May 2020 and recorded the comments made by Dr Platt in the WorkCover certificate dated 15 May 2020.
The Member accepted that Ms Usher developed severe right shoulder pain and adhesive capsulitis after receiving the influenza vaccination on 9 April 2020, which, she said, found support in the medical evidence. She determined, however, that she was not persuaded that the weight of the evidence supported a finding that Ms Usher suffered a rotator cuff tear or an aggravation, acceleration, exacerbation or deterioration of the previously asymptomatic rotator cuff tear. The Member pointed to the opinion of Dr Jovanovic, the treating surgeon, who had considered the connection between the pathology and the onset of the symptoms. The Member noted that Dr Jovanovic had concluded that the onset of symptoms was coincidental in the context of the radiological findings, which indicated the condition was pre-existing.
The Member considered it important that Dr Doig was unable to identify the exact site where the needle was inserted, or the length of the needle. She indicated that this caused her to place less weight on Dr Doig’s opinion that the injection caused the asymptomatic right shoulder condition to become symptomatic and that it may have caused the pathology in the rotator cuff. The Member pointed to Dr Clayton’s opinion that the rotator cuff symptoms and pathology were not consistent with an injury from a vaccine injection, but such injury could cause irritation and inflammation of the shoulder joint capsule.
The Member determined that she preferred the opinion of Dr Clayton over that of Dr Doig and observed that Dr Clayton’s opinion was consistent with that of Dr Jovanovic. The Member said:
“It can be accepted that the injection caused a painful condition to develop, and that this painful condition led to the applicant seeking medical investigation, diagnosis and advice in order to determine the cause of the pain and to alleviate the pain. However, the applicant’s claim for medical expenses is confined to the cost of the surgery performed on 16 June 2020 and associated treatment. Prior to the date of this surgery an MRI scan on 14 May 2020 revealed a full thickness tear of the supraspinatus tendon. Dr Jovanovic, treating orthopaedic surgeon, in a report dated 3 June 2020 concluded that the MRI was consistent with a full thickness tear of the supraspinatus, and stated he had discussed treatment options with the applicant who was keen to proceed with the proposed surgery. Rotator cuff tear was both the pre-operative and post-operative diagnosis by Dr Jovanovic, who performed the surgery on 16 June 2020. The need for such surgery was not caused or materially contributed to by the injection injury.”[19]
[19] Reasons, [134].
The Member concluded that she was not satisfied that the surgery performed by Dr Jovanovic was reasonably necessary as a result of the injury and consequently was not persuaded that Ms Usher was entitled to weekly payments in respect of the period 16 June 2020 to 27 July 2020. The Member was satisfied that on 14 April 2020, which was the only other claim for weekly payments, Ms Usher was unable to work and was entitled to compensation for that day.
The Certificate of Determination issued on 21 June 2021 records:
“The Commission determines:
1. Award for the respondent in respect of the claim for medical expenses.
2. Respondent to pay the applicant weekly benefits pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $1,083 per week for 14 April 2020.
3. Award for the respondent in respect of the claim for weekly benefits from 16 June 2020 to 27 July 2020.”
GROUNDS OF APPEAL
Ms Usher’s sole ground of appeal is expressed as follows:
“An error of mixed fact and law in that the Arbitrator failed to find that the evidence
established a commonsense causal connection between the injury received by the
applicant on 9 April 2020 and the need for surgery on 16 June 2020, i.e that the subject injury materially contributed to the need for such surgery.”
LEGISLATION
Section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
…
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).”
SUBMISSIONS
Ms Usher’s submissions
Ms Usher submits that the Member’s findings that:
(a) the surgery performed by Dr Jovanovic was not reasonably necessary as a result of the injury;
(b) Ms Usher was not entitled to weekly payments from 16 June 2020 to 27 July 2020, and
(c) the costs of and incidental to the surgery were not compensable
were erroneous.
Ms Usher points out that she had no symptoms prior to the injury and was in severe pain from the date of injury up to the time of the surgery. Ms Usher refers to the investigations undertaken and submits that the persistent symptoms could, without doubt, be traced to the injurious work-related event on 9 April 2020, so that the causal chain between the injury on 9 April and the surgery on 16 June 2020 is unbroken.
Ms Usher submits that it is a matter of commonsense that the treatment sought by her in April and May 2020 was provided to address the symptoms triggered by the injury. Ms Usher says that it was entirely unlikely that she would have been referred to Dr Jovanovic on 18 May 2020 had she not received the injury. Further, she would not have undergone the surgery if she had not received the injury. Ms Usher asserts that the “injury is unquestionably the event which led to the onset of severe shoulder symptoms which ultimately resulted in the surgery performed on 16 June 2020.”[20]
[20] Ms Usher’s submissions, [16].
Ms Usher contends that the Member fell into error by focussing on the pathology to be addressed by the surgery and considering that the injection did not aggravate that pathology. Ms Usher submits that the rotator cuff surgery was required in order to address her symptoms, which she had been experiencing since the injury. She says that this fact provides the connection between the injury and the treatment and establishes that the injurious event affected the rotator cuff either by aggravating the prior pathology or rendering it symptomatic. Ms Usher asserts that the Member failed to recognise that if the rotator cuff pathology was not aggravated, it nonetheless was made symptomatic by the injection.
Ms Usher points out that the issue to be determined was why she needed the surgery and queries how the injection of the vaccine could be considered irrelevant. Ms Usher asserts that a proper examination shows that it is a matter of commonsense that there is a causal connection between the injury and the need for surgery.
Ms Usher refers to the principles applicable to a determination of whether the need for treatment results from the injury as enunciated in Murphy v Allity Management Services Pty Ltd.[21] Ms Usher submits that, applying those principles, it could not be said that the injury played no role in her persisting symptoms, the requirement to undergo investigations and the need for treatment that led to her having to undergo the surgery.
[21] [2015] NSWWCCPD 49 (Murphy).
The Council’s submissions
The Council submits that Ms Usher’s ground of appeal simply disagrees with the Member’s determination and does not identify any error of fact or law, thus the appeal is incompetent.
The Council says that the Member’s focus on the rotator cuff pathology was not surprising or erroneous, given that a large part of the proceedings was directed to a consideration of the need for the surgical repair of the rotator cuff. The Council points to Ms Usher’s submission that, because the onset of symptoms followed the injury, the necessary causal connection was established. The Council submits that such an approach “confuse[s] correlation with causation.”[22]
[22] The Council’s submissions, [4].
The Council adds that the conclusion Ms Usher seeks was not readily apparent to any of the medical experts who provided opinions in the matter. The Council points to the opinion of Dr Jovanovic, Ms Usher’s treating surgeon, which was contrary to the conclusion Ms Usher seeks to have accepted. The Council says that, in his report dated 3 June 2020, Dr Jovanovic acknowledged the close proximity between the injection and the onset of symptoms and observed that occurrence of rotator cuff symptoms was a coincidence.
The Council submits that Ms Usher’s case at its highest was the evidence of Dr Doig, who did not know the precise location of the injection or the length of the needle. The Council describes as “tentative” the opinion of Dr Doig that it was possible that the injection may have caused rotator cuff tendon damage. The Council refers to Dr Doig’s further report dated 23 March 2021, in which Dr Doig revised his opinion and concluded that, on the balance of probabilities, the need for surgery arose as a consequence of the injury. The Council says that Dr Doig expressed his revised opinion without any explanation for the change and without reference to any additional evidence or a change in circumstances.
The Council asserts that the Member reached her conclusion on the basis of the medical evidence and to conclude otherwise would simply be a matter of “minds might differ.” The Council submits that, on that basis, the Member’s conclusion cannot constitute an error of the kind required by s 352(5) of the 1998 Act. The Council concludes that Ms Usher has failed to articulate appealable error in her ground of appeal and such error is not apparent from her supporting submissions, so that the appeal should be dismissed.
Ms Usher’s submissions in reply
Ms Usher contends that the ground of appeal makes it clear that the Member erred by failing to find that the evidence established a commonsense causal connection between the injury and the need for surgery. That is, that the injury materially contributed to the need for surgery. Ms Usher explains that the matters requiring determination were matters of fact, which warranted findings based on the evidence, and of law, having regard to the “commonsense causal connection” discussed in Kooragang Cement Pty Ltd v Bates,[23] and the concept of a “a material contribution” referred to in Murphy.
[23] (1994) 35 NSWLR 452 (Kooragang).
Ms Usher reiterates that the causal chain between the surgery and the injury is unbroken and obvious. Ms Usher submits that the evidence establishes that the surgery was required to treat Ms Usher’s persisting symptoms which had an onset on the date of injury and followed a treatment path leading to the surgery. Ms Usher contends that there is no basis upon which to assert that the surgery would have been required and undertaken at that time, regardless of the injury.
Ms Usher submits that the commonsense causal connection between the injury and the symptoms to be addressed by the surgery, as well as the material contribution of the injury to the decision to operate, could not be disregarded. Ms Usher points out that there was no supervening event which would explain the treatment regime following the injury which led to the surgery performed on 16 June 2020. Ms Usher maintains that the Member erred and the relief sought in her substantive submissions is appropriate.
THE RELIEF SOUGHT
Ms Usher seeks to have Orders 1 and 3 of the Member’s Certificate of Determination revoked and, in their place, have the following findings and orders made:
“1. The surgery undertaken by Dr Jovanovic on 16 June 2020 was reasonably necessary as a result of the injury on 9 April 2020.
2. The respondent is to pay:
(a) Weekly compensation to the applicant at the rate $1,083 per week, from 16 June 2020 to 27 July 2020, pursuant to s 36 of the Workers Compensation Act 1987 (‘the 1987 Act’), and
(b) The costs of and incidental to the surgery performed by Dr Jovanovic on 16 June 2020, pursuant to s 60 of the 1987 Act.”[24]
[24] Ms Usher’s submissions, [22].
The Council submits that the appeal should be dismissed.
CONSIDERATION
The decision that the Member was required to make was a decision as to causation. That is, a factual decision requiring consideration of the available evidence and the inferences that could be drawn from those facts.
The principles to be applied in relation to an appeal from a primary judge’s findings of fact were observed by Basten JA (with Allsop P agreeing) in Najdovski v Crnojlovic[25] as follows (citations omitted):
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”[26]
[25] [2008] NSWCA 175 (Najdovski).
[26] Najdovski, [22].
Section 352(1) of the 1998 Act allows for an appeal against a decision of a member to a Presidential member. Section 352(5) of the 1998 Act limits that right of appeal to the establishment of error of fact, law or discretion. Consequently, the application of the above principles needs to be considered in the context of the Commission and its statutory power to intervene.
In determining whether a member has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[27] are relevant and have been consistently applied in the Commission. Those principles were summarised by Deputy President Roche in Raulston v Toll Pty Ltd[28] as follows:
[27] (1966) 39 ALJR 505 (Whiteley Muir).
[28] [2011] NSWWCCPD 25, [19]–[20].
“…
(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
Adopting those principles, in order for Ms Usher to succeed in this appeal, she must show that the Member overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Member is so preponderant that it establishes that the Member’s decision is wrong.
Ms Usher’s submissions focus on the assertion that because the onset of symptoms followed the injury and persisted up to the surgical intervention, the necessary causal connection was established. Ms Usher also relied upon the evidence of Dr Doig in respect of causation.
The contemporaneity of complaints is not always determinative of whether a worker suffered injury. As Kirby P (as his Honour then was) observed in Kooragang:
“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 cause by the use of the phrase ‘results from’, is not now accepted ... 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”[29]
[29] Kooragang, 463–464.
Thus, the contemporaneity of complaints is a matter to be taken into account, however it is not always sufficient of itself to prove the causal connection. As Kirby P observed, the causal connection requires a factual determination arrived at on the basis of the evidence, including the evidence of the medical experts.
The Member reviewed the evidence from Ms Usher about her experience with the insertion of the vaccination needle and the onset of symptoms. She also took into account the factual matters recorded in the treating general practitioners’ clinical notes, the certificate of capacity provided by Dr Platt and the referral from Dr Gilliland to Dr Jovanovic. She considered the expert opinions on causation and provided reasons for preferring the opinions of Dr Jovanovic and Dr Clayton over that of Dr Doig. Applying the principles laid down by Barwick CJ in Whiteley Muir, the opinions of Dr Jovanovic and Dr Clayton, together with the evidence contained in the other documentation, was not so outweighed by other probabilities, or so contrary to the facts that the Member’s acceptance of those opinions and her conclusions reached in respect of the available evidence could be said to be wrong.
Ms Usher does not point to any erroneous reasoning in relation to the manner in which the Member assessed that evidence and her acceptance or rejection of the expert opinions. At its highest, Ms Usher’s contention is that, on the basis of the onset of symptoms within an hour of injury, the Member ought to have come to a different view. That, of course, is not sufficient to establish error on the part of the Member in a factual determination in relation to causation. As Allsop J observed in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[30] it is not sufficient to disturb the Member’s finding merely because an appeal court may have a preference of view for some fact or facts contrary to that reached by the trial judge. Or, as the Council submits, “minds might differ.”
[30] [2001] FCA 1833.
Ms Usher relies on the observations of Roche DP in Murphy as to what is required to show that the injury materially contributed to the need for surgery.
In that decision, the Deputy President observed as follows (citations omitted):
“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.
MsMurphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman). That is, she has to establish that the injury materially contributed to the need for the surgery.”[31]
[31] Murphy, [57]–[58].
The Member was satisfied that Ms Usher suffered an injury to her right shoulder on 9 April 2020. She did not accept that it consisted in a rotator cuff injury, or an aggravation of the pathology in the rotator cuff. She made her determination on the basis of the opinion of Dr Jovanovic, which was supported by the opinion of Dr Clayton. Dr Jovanovic took the view that there was no causal connection between the “classic” rotator cuff symptoms and the injury, which he considered to be a mere coincidence. He formed that view by taking into account the mechanism of injury, as did Dr Clayton. There was no error on the part of the Member in respect of that finding. A determination that the treatment was reasonably necessary as a result of the injury, or that the injury materially contributed to the need for treatment requires supportive medical evidence. The Member rejected the opinion of Dr Doig for the reasons set out in her determination. There was no other medical evidence that supported Ms Usher’s case.
Ms Usher asserts that because she had been experiencing symptoms since the injury, it could not be said that the injury played no role in the need for surgery. In the face of the accepted medical evidence, that proposition cannot be accepted. Dr Jovanovic was of the firm view that the injury played no role in the presentation of “classic” symptoms of a rotator cuff tear. The onus was on Ms Usher to establish that the injury materially contributed to the need for surgery, which she failed to achieve.
Ms Usher also contends that the Member fell into error by focussing on the pathology that was to be addressed by the surgery. In the context of the surgery being necessary to address the rotator cuff pathology and that Dr Jovanovic described Ms Usher’s symptoms as “classic” symptoms of a rotator cuff tear, it is not at all surprising that the Member focussed her attention on whether those symptoms sought to be addressed by the surgery were referrable to the injury.
It follows that Ms Usher has failed to establish error on the part of the Member and the Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 21 June 2021 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
10 March 2022
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