Wragg and Cleanaway Operations Pty Ltd (Compensation)

[2019] AATA 43

Wragg and Cleanaway Operations Pty Ltd (Compensation) [2019] AATA 43 (23 January 2019)

Division:GENERAL DIVISION

File Number(s):      2017/3155

2017/3156

Re:Travis Wragg

APPLICANT

AndCleanaway Operations Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:23 January 2019

Place:Sydney

1. In application 2017/3156, the decision under review is set aside and in substitution for that decision, it is decided that the Respondent is liable under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the cost of the surgery as recommended by Dr Gupta;
2. In application 2017/3155, the decision under review is affirmed; and

3.Failing agreement between the parties, the parties have seven days in which to file short written submissions on the question of costs.

.......................[sgd].............................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – workers compensation – elbow injury – section 16 – claim for medical treatment – surgery – whether reasonable in the circumstances – prospect surgery will increase applicant’s range of motion and reduce pain – decision under review set aside and substituted – section 19 – incapacity for work – whether applicant fit to perform pre-injury duties – no corroborative evidence of incapacity – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19

CASES

Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448

REASONS FOR DECISION

Senior Member A Poljak

23 January 2019

1. Mr Travis Wragg, the applicant, is employed by Cleanaway Operations Pty Ltd (“Cleanaway”) as a garbage truck driver. He has been employed by Cleanaway since 3 December 2007. On 10 August 2015, the applicant lodged a worker’s compensation claim in respect of “broken arm – left arm” claimed to have been sustained on 5 August 2015 as a result of “drinking drink and not watching where I was walking and fell down stairs onto both hands (sic)”. The applicant’s claim was accepted and Cleanaway was found to be liable to pay compensation to the applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of “fracture left radial head” sustained on 5 August 2015 (“the compensable injury”).

2. In these proceedings, the applicant seeks review of two reviewable decisions in respect of the compensable injury. They are as follows:

   Application 2017/3155

   By determination dated 22 March 2017, it was determined that the applicant had an ability to earn his full income and suitable employment at Cleanaway such that he had no entitlement to compensation for incapacity as at 22 March 2017 in respect of the compensable injury under section 19 of the SRC Act. By reviewable decision dated 10 May 2017, the determination dated 22 March 2017 was affirmed.

   Application 2017/3156

   By determination dated 3 August 2016, it was determined that under section 16 of the SRC Act Cleanaway was not liable to pay for proposed further surgery in respect of the compensable injury. By reviewable decision dated 12 September 2016, the determination dated 3 August 2016 was affirmed.

3. The issues for determination in these proceedings are:

   (a)whether, since 23 March 2017, the applicant has been partially or totally incapacitated for work as a result of the compensable injury such that he is entitled to compensation under section 19 of the SRC Act;

   (b)whether, since 23 March 2017, the applicant was at all relevant times capable of earning an amount not less than his normal weekly earnings in suitable employment at Cleanaway such that he had no entitlement to compensation under section 19 of the SRC Act;

   (c)whether the respondent is liable to make weekly payments of compensation to the applicant for incapacity under Part 2, Division 3 of the SRC Act; and

   (d)whether the respondent is liable to pay compensation for the surgery proposed by Dr Gupta pursuant to section 16 of the SRC Act. This requires consideration of whether the proposed surgery is medical treatment required in relation to the compensable injury that is reasonable for the applicant to obtain in the circumstances.

4. The respondent accepts that as at 20 September 2017, the applicant was not able to engage in his pre-injury duties or earn his pre-injury income. Therefore the scope of the consideration of the applicant’s incapacity is confined to the period 23 March 2017 to 19 September 2017 (“the relevant period”).

   Relevant Medical Evidence as to Treatment

5. On 4 March 2016, the applicant underwent an arthroscopic release of scar tissue performed by Dr Manish Gupta, the applicant’s treating orthopaedic surgeon. Following surgery, the applicant undertook intensive physiotherapy. Four months post-operative, the applicant consulted with Dr Gupta who recorded in a report dated 4 July 2016, a diagnosis of “stiff left elbow. Failed arthroscopic release”. He noted that at four months after the surgery, the applicant continued to suffer stiffness which was functionally disabling and opined:

   “I think we have exhausted the current treatment protocol and it would be wise now to proceed to ulnar nerve decompression and open joint release to give the most reliable long-term results”.

6. Dr Raymond Wallace, orthopaedic surgeon, last examined the applicant on 7 July 2016. In a report dated 18 July 2016, Dr Wallace records that the applicant had noted an “overall reduction in the level of pain at his left elbow since my last review in April 2016”. Dr Wallace records that the applicant’s present complaints include “intermittent aching pain globally about the left elbow radiating to the posterior aspect of the left forearm” and “intermittent paraesthesia and numbness globally about his left hand”. In regards to appropriate treatment, Dr Wallace considered that the applicant did not require further operative intervention to his left elbow at that time. He opined:

   “It is highly unlikely that further operative intervention at the left elbow will lead to a durable reduction in the level of symptoms or increase in function at the left elbow”.

7. On 8 July 2016, the applicant underwent a CT of his left elbow. In a report of the same date, the following findings were recorded:

   “There is a remodelled fracture involving the radial head.

   Noted however, is a step deformity seen at the radial head articulating surface with the step deformity of about 2.4mm depth measuring a ML dimension of about 8.6mm and an AP dimension of up to 7.8mm.

   Noted also is subchondral geode formation involving the capitellum of the humerus with changes all suggestive of early OA change involving the radiocapitellar joint…”

8. In response to the findings of the CT scan, Dr Wallace provided an updated report dated 20 July 2016 in which he stated that the findings did not cause him to alter the opinions he has previously expressed and he reiterated that the applicant “would not benefit from further surgery at the left elbow at this time”. Dr Gupta also provided a report in response to the CT scan findings. In the report dated 22 July 2017, he stated that “the CT scans confirm the need for this surgery”.

9. Dr Robert Breit, an orthopaedic surgeon, has provided a report and a supplementary report following a file review of the applicant’s medical evidence. In a report dated 26 July 2016, Dr Breit opined that the surgery recommended by Dr Gupta “will not produce an ultimate resolution of the elbow injury”. He further stated that it was unlikely to alter the applicant’s pain and that he was doubtful that it would increase the applicant’s range of movement. If surgery was contemplated, Dr Breit advised that it would have to be an open procedure as a “second arthroscopic release would be unwise”. In his supplementary report dated 28 July 2016, Dr Breit stated:

   “This man unfortunately is going to have long-term problems and a number of operations to the elbow over the years so that it is important to avoid what may be unnecessary surgery. Each operation reduces the prognosis and increases the risk of complications”.

10. Dr Nicholas Smith, an orthopaedic surgeon specialising in hand and upper limb surgery, reviewed the applicant on a number of occasions. In a report dated 10 August 2016, he advised that given the opinions the applicant had obtained so far, it was “worthwhile waiting another 2 months before considering repeat arthrolysis”. Dr Smith again examined the applicant, some 6 months post arthrolysis of his left elbow, and advised in a report dated 5 October 2016 that before he would recommend any further surgical intervention, the applicant was required to undergo a further CT scan and radiographs, looking for a step in the radial head. The applicant undertook the recommended imaging. In a report dated 24 October 2016, Dr Smith reported that the “CT scan performed demonstrates a step in the radial head of about 2mm with a cyst in the capitellum”. In regards to treatment, Dr Smith recommended ulnar nerve transposition and elbow release with either radial head osteotomy or radial head replacement. He further advised:

    “It would appear that he has degeneration of the radio capitellar joint secondary to the radial head fracture and mal-union. This may account also for the recurrence of elbow stiffness following his arthroscopic arthrolysis.

    He also has ulnar nerve symptoms, which are moderate at this stage, and could easily be exacerbated by any further surgery. Therefore he requires the above combination of surgery, to achieve any improvement in the elbow from his perspective. His expectations are an improvement of the range of motion, and hopefully an end to the interpositional symptoms. This may be achieved with recontouring the radial head surface either through osteotomy or radial head replacement, and release of the elbow joint, with associated ulnar nerve transposition. He understands this is fairly major surgery, and there is a chance that his expectations will not be met, though he has zero chance of meeting them without surgical intervention. He wishes to proceed”. [Emphasis added]

11. The applicant was examined by Dr David Maxwell, an orthopaedic and spinal surgeon and medico-legal consultant, on 27 October 2016 for the purposes of providing a report in this matter. In a report of the same date, Dr Maxwell opined, contrary to Dr Gupta and Dr Smith, that the applicant did not require any further surgery. He stated:

    “To use surgical procedures to try and improve the range of movement in the elbow are usually unsuccessful particularly trying to improve a minimal flexion contracture. The problem with trying to remove scar tissue is that the surgical procedure creates more scar tissue.

    [The applicant] is now functioning at a reasonable level. He is driving the truck. He should cease taking narcotic analgesic because they perpetuate pain. There is no need for him to have any lifting restrictions. His fracture has now united and is just as strong as the other one. I note his left forearm is hypertrophied as one would expect a left-handed person using their left dominant arm normally.

    I consider he has had quite enough treatment and he certainly does not require any further surgery which would only make his elbow function worse”. [Emphasis added]

12. In a report dated 3 November 2016, Dr Gupta provided an opinion about the proposed surgery by Dr Smith. Fundamentally, Dr Gupta said that the surgical procedure proposed by Dr Smith was the same as he had proposed however he did not believe that prosthetic replacement was appropriate. He confirmed that they both agreed on transposition of the ulnar nerve and arthrotomy of the elbow.

13. On 24 April 2017, Dr Ron Muratore, a sport and exercise physician performed an independent medical assessment of the applicant. In a report of the same date Dr Muratore recorded the applicant’s current symptoms and stated, inter alia:

    “Elbow pain radiates into the medial and volar aspect of the forearm as far as the wrist. He has had no pain past the wrist at any time.

    He also reports experiencing pins and needles in the left arm, especially at night, frequently waking with pins and needles and experiencing them first thing in the morning. The pins and needles dissipate over a period of one to two hours. The pins and needles involve the whole of the forearm.

    The elbow pain is aggravated by driving and lifting. He states that he does not bother to try and lift…

    He reports that any “repetitive movement” causes an increase in his elbow pain”.

14. On examination on the left elbow Dr Muratore recorded:

    “There was no tenderness over the elbow joint, medially, laterally or posteriorly.

    All resisted movements in the left upper limb were reduced compared to the right. This is not consistent with organic pathology.

    There is no tenderness of the ulnar nerve in the left cubital tunnel. Tinel’s test at the left cubital tunnel is negative”.  

15. On 21 August 2017, the applicant presented to Dr Charles H New, an orthopaedic and spinal surgeon, for assessment for the specific purpose of providing a report in this matter. In a report dated 23 August 2017, Dr New reported that the applicant’s present condition was the same as described by Dr Gupta and Dr Smith in that he had pain and stiffness in the left elbow which affected his activities of daily living and presented with chronic pain with movement. He noted that the applicant had restriction in range of movement. Dr New reported that the prognosis of the patient’s condition was guarded and said, “Two well credentialed surgeons currently practising high-quality surgery have recommended surgery as being reasonable and necessary, and I concur with that”. He opined:

    “It is my opinion, have reviewed the patient and noted Dr Gupta’s and Dr Smith’s comments, that the surgery requested is reasonable and necessary and provides the best chance for relief of the symptoms that [the applicant] currently has, noting that this could increase his work capacity…

    It should also be noted that the natural history of his condition is that it will progressively worse with activity. The stiffness will increase, as will the pain, and eventually there will be surgery required, also noting the increasing ulnar nerve symptoms which should not be ignored. A chronic injury to the ulnar nerve will be much more difficult to contend with if it is left to the point where this gentleman’s arthritis stops him from been able to work.

    My opinion differs from Dr Wallace who had reviewed the patient, and I do believe that this surgery is reasonable and necessary, and I would support the expert opinion of the treating surgeons”. [Emphasis added]

16. The applicant presented to Dr Frank Harvey, orthopaedic surgeon, for examination on 24 October 2017. In a report of the same date Dr Harvey recorded, inter alia, the results of the examination and the applicant’s present complaints. In regards to treatment Dr Harvey opined:

    “I consider on the clinical evidence his continuing treatment should be conservative I see no indication for operative intervention. I believe it very unlikely that any operative procedure would restore further movement in the elbow and/or produce a completely painless elbow.

    [The applicant] complains of numbness and tingling on the medial side of the hand which is in the distribution of the ulnar nerve. However, I could not find any objective neurological signs of an ulnar nerve lesion.

    There are some inconsistencies also in his complaint in that he doesn’t complain of any tenderness over the ulnar nerve at the elbow and, as indicated above, his responses on testing two-point discrimination are not consistent but it appeared that he had two-point discrimination in the little finger down to 5mm which would be normal. It was also noted that he had obvious wetting of the little finger which would not occur if he had a significant loss of sensation.

    It seems unusual; therefore, that anyone would recommend an ulnar nerve transposition at the left elbow without nerve conduction studies being done...” [Emphasis added]

17. The applicant was again examined by Dr New on 26 April 2018 for the purpose of preparing a supplementary report in these proceedings. In the supplementary report dated 30 April 2018, Dr New responded to the reports of Dr Muratore and Dr Harvey. He stated that he disagreed with Dr Muratore’s opinion that the applicant did not require any active treatment and reiterated that the applicant should “proceed with the surgery as recommended by two treating orthopaedic surgeons”. In regards to Dr Harvey’s report, Dr New stated:

    “As a surgeon who regularly looks after patients with nerve injuries, I would disagree with Dr Harvey that there does not have to be pain over the nerve to produce dysaesthesia or hyperaesthesia distally.

    Obviously Dr Harvey is entitled to his opinion. My opinion differs from that, and as stated I think that the patient should proceed with his surgery as planned”.

18. In the most recent report of Dr Gupta dated 8 May 2018, he opined:

    “I do think the surgery that I have requested and which has been affirmed by Dr Smith is reasonable in the circumstances as I think arthroscopic arthrolysis plus/minus osteotomy of the proximal radius will give him a functional range of motion which should be pain-free.

    …

    When you summarise the overall picture as a relatively young man of only 37 years of age who has significant stiffness and relentless pain in the elbow related to an intra-articular fracture, and where empiric evidence tells you that this constellation of pathologies does benefit positively from surgical treatment being arthroscopic arthrolysis plus/minus proximal radio osteotomy, … Whilst I do not claim to be able to return [the applicant] to a completely normal elbow, that die having been cast at the time of injury, certainly it is very reasonable to summarise his condition as a fracture of the radial head which is an intra-articular fracture of the elbow, which as I have mentioned, generally does heal satisfactorily but can reasonably lead to post-traumatic arthrosis which will manifest as relentless pain and loss of functional movement. This can respond positively to appropriate surgical interventions which can consist of arthroscopy or open debridement arthroplasty plus/minus osteotomy of the radial head and this will lead to an improvement in functional outcome with regards to range of motion as well as the relief from pain.

    … I have no hesitation in suggesting that [the applicant] would benefit positively from the appropriate surgical interventions going forward”. [Emphasis added]

19. In response to Dr Gupta’s report dated 8 May 2018; Dr Harvey provided a further report in these proceedings dated 12 June 2018. He relevantly stated:

    “I consider that this lack of normal progress is related to an abnormal pain response…

    My clinical judgement is based on extensive past experience of the many years that such persons with such an abnormal pain response and dependant on opioids do not respond well to surgical treatment.

    I believe that if nerve conduction studies were done and if they showed any significant ulnar nerve lesion, it would be reasonable to carry out an ulnar nerve transposition or decompression of the ulnar nerve because this is a relatively simple manoeuvre. However, as this is obviously not a straightforward case, I believe it would be unwise to even carry out such ulnar nerve surgery unless there was electrodiagnostic evidence of a significant ulnar nerve compression. I find it a little surprising that the treating surgeons have not insisted on such evidence before recommending such surgery.

    When I examined [the applicant] on 24/10/17 he was not complaining of tenderness either over the ulnar nerve behind the medial epicondyle or over the radial head but rather over the upper olecranon. While replacement of the radial head in a person with established osteoarthritis of the radiocapitellar joint would be a reasonable procedure, there is no evidence that he has an established osteoarthritis in the radiocarpal joint and he is not complaining of pain over the radial side of the joint but rather behind the elbow over the olecranon.

    …”

1. In a supplementary report dated 6 July 2018, Dr Wallace addressed a number of queries raised by the respondent in a letter dated 8 June 2018. From the outset Dr Wallace noted in the report that he last reviewed the applicant on 7 July 2016 some two years prior. He confirmed that his opinion and answers to the questions contained in the report were based on the applicant’s presentation at the time of that review in 2016. Dr Wallace opined:

   “It is highly unlikely that osteotomy at the radial head and/or ulna and replacement of the radial head would lead to a significant increase in range of movement at the left elbow.

   Further, it is likely that open surgical release will lead to further scarring at the joint and again is unlikely to resolve with a significant increase in range of movement at the joint.

   At the time of my review with [the applicant] in July 2016, he had no evidence of ulna neuropathy and therefore the transposition of the ulna nerve was not required”.

2. Dr Wallace did not proffer an opinion about the recent reports of Dr New and Dr Gupta in his supplementary report. As he correctly stated, he last reviewed the applicant in July 2016, and Dr New and Dr Gupta had more recent consultations with the applicant which formed the basis of their opinions expressed in the most recent reports.

3. Dr Maxwell also provided an additional report in these proceedings at the request of the respondent, which is dated 20 July 2018. In the report, Dr Maxwell reviewed a number of further reports provided. He did not re-examine the applicant. Dr Maxwell last examined the applicant on 27 October 2016. In any event, he stated:

   “It should be noted that pain is entirely subjective and I note that [the applicant] has had a great deal of treatment much of which has been ineffective and unnecessary and I stand by this comment.

   I also do not consider the proposed surgery including further release, potential radial head osteotomy and ulnar nerve release would be effective in relieving his symptoms and also increasing the range of motion.

   It has been my experience that when operates on these cases and although there is a small step seen on the investigations, the articular surface is usually smooth and if the articular surface is smooth the radial osteotomy is not indicated. If he does have some post-traumatic arthritis this certainly cannot be cured by any surgical technique at this stage as articular cartilage cannot be replaced.

   When I examined [the applicant] he did not have any ulnar nerve symptoms. These appear to have come on later. The ulnar nerve symptoms appear to be relatively minor and I note in workers compensation cases release of an ulnar nerve is often associated with long symptoms and further releases”.

4. At hearing, Dr New reiterated his opinions as outlined in his reports. In cross-examination, numerous aspects of the clinical notes and medical reports were put to him for comment however; Dr New maintained his opinions and stated that other medical professionals were entitled to their own opinion based upon their own examinations. He did however, take issue with a finding of Dr Muratore, namely, the finding that “there is no tenderness of the ulnar nerve in the left cubital tunnel. Tinel’s test at the left cubital tunnel is negative”. Dr New stated, “it’s a bit of a problem that the ulnar nerve is in the cubital tunnel. I have a little bit of a problem with that anatomically. The ulnar nerve sits behind the lateral - medial left condyle and does not sit in the - an anatomical cubital tunnel per se, other than per Hilton’s law, where a tweak from a small nerve from the ulnar nerve will go to the joint. So, if you are specifically examining the cubital tunnel, you are probably looking at the median nerve, rather than the ulnar nerve per se. So, that assertion, anatomically, is one that I would not favour”.

5. At hearing, Dr Gupta confirmed the opinions he expressed in his reports and reiterated that the applicant should undergo surgery as he has recommended and that without the surgery, the applicant would not improve at all; “any other ancillary treatment is a waste of time”. Dr Gupta said that the surgery provided reasonable prospects of increasing the applicant’s range of motion, as long as it was coupled with appropriate rehabilitation. In regards to the ulnar nerve, Dr Gupta confirmed that the applicant reported symptoms concerning numbness and related to the ulnar nerve. He said that the applicant “gave a very consistent description, a description of symptoms which is very consistent with ulnar nerve compression neuropathy at that location, related to the general swelling and inflammation of the elbow joint and this is confirmed on examination with a positive elbow flexion test and a positive nerve compression test”. Dr Gupta confirmed that he carried out these examinations when he was examining the applicant. In regards to issues raised as to the need for nerve conduction studies to justify proceeding with the surgery in regards to the ulnar nerve, Dr Gupta explained:

   “Two things. One, any investigation is only required if there’s a doubt in the diagnosis. So, I always value my clinical assessment more and if the clinical assessment is consistent with the diagnosis, then yes, sure, a nerve conduction test is not unreasonable in confirming that diagnosis. But I don’t feel it’s necessary. Secondly, the surgery proposed, ipso facto, undertakes a release of that nerve.

   So, I didn’t think it was necessary to confirm whether that nerve needed to be decompressed because an open debridement of an elbow, by its very technical nature, decompresses that nerve. So, it was just as a matter of an aside, I said -well, if he does have symptoms that are consistent with ulnar nerve, that will also be addressed by this surgery.”

6. In cross-examination, Dr Gupta was again questioned about the need for nerve conduction studies before proceeding to surgery. He generally agreed with the proposition however reiterated that in the course of the main surgery proposed, which would be open debridement of the elbow joint, decompression of the ulnar nerve was part of that surgery anyway. He agreed that it would be better to prove, with some sort of objective evidence such as nerve conduction testing, that the applicant was suffering from ulnar nerve compression neuropathy, however he stated that in the context, “this surgery would by its nature decompress the ulnar nerve. So really, doing an objective test to prove it doesn’t change the nature of the main surgery anyway”.

   Relevant Evidence as to Incapacity

7. Dr Maxwell opined in his report dated 27 October 2016, that the applicant was “fully capable of driving a side lift truck”.  He stated that there was no need for the applicant to undertake suitable duties or to restrict the weight he lifted with his left arm. He advised that the applicant was “quite capable of immediately returning to his full-time duties”.

8. As at 8 March 2017, the applicant was certified by his general practitioner, Dr Borland, fit for suitable duties eight to nine hours per day, five days per week. In regards to capacity, he advised the applicant had a lifting capacity of 5kgs for his left arm, pushing/pulling ability was minimal and his driving ability was “as tolerated”. Dr Borland also commented, “Drive truck for 1 load per day, occasional 2^nd load”. Dr Borland provided the same certification again on 7 April 2017 for the period up to 7 May 2017.

9. Dr Muratore advised in his report dated 24 April 2017, that the applicant’s pre-injury duties were “eminently suitable” and that he “could perform them in an unrestricted fashion”. At hearing, Dr Muratore elaborated on the basis for arriving at this conclusion. He said the basis was that the applicant was actually doing those duties for some time and had “actually been able to do those duties for 60 hours a week before I saw him, so I figured that they must be suitable, and he’s able to do it, even though he tells me he has pain”. However in cross examination, Dr Muratore accepted that if the applicant was experiencing an increase in pain, an increase in the symptoms of the numbness and the requirement to increase his pain medication then the continuation of the applicant’s duties needed to be reviewed, as the employer did. He agreed that in that instance, things needed to be changed.

10. On 1 May 2017, the applicant sent an email to Julian Hodder, head of rehabilitation and worker’s compensation at Cleanaway, stating “my arm is killing me I don’t know how much longer I can keep this up for thanks Travis”. In response, the applicant was advised to consult with a medical practitioner in relation to the increased pain.

11. The clinical notes of Dr Borland during the relevant period are scant. The notes show that the applicant attended on Dr Borland on three occasions during the period. Firstly on 7 April 2017. The clinical notes record “no change. Discussion. Cont same restrictions”. Secondly on 19 April 2017, when Dr Borland records “pain L elbow. Unfit for work. Been doing extra loads. Advised”. Significantly on 20 September 2017, Dr Borland records “has been coping with normal duties, but L arm is now too painful to continue” (emphasis added). On 22 September 2017, Dr Borland certified that the applicant was unfit for two days from 20 September 2017.

12. On 29 May 2017, the applicant attended on a Dr Ahmad Al Samail. The clinical notes record that the consultation was in regards to health concerns unrelated to this matter.

13. Mr Golla, a rehab consultant with Pinnacle Rehab, prepared a statement dated 6 August 2018 in these proceedings. In his statement, Mr Golla advised that he liaised with the applicant, his treating doctor and the employer to identify duties suitable for the applicant while having regard to his medical restrictions. Despite not being permitted by the applicant to attend his consultations with his general practitioner since August 2016, Mr Golla accepted at hearing that he was still able to talk to the applicant’s treating practitioners and physiotherapists via telephone. Mr Golla advised that he did not consult with Dr Gupta when assessing the applicant’s work capacity. He confirmed that he consulted with the applicant’s general practitioner, Dr Borland, who advised that the applicant would not have any improvement in his capacity and would continue to have ongoing aggravations to his arm unless he had the proposed surgery. Similarly, Mr Golla confirmed that the applicant’s physiotherapist, Karl Thornton, expressed the same view that the applicant should have the surgery to improve.

14. At hearing the applicant gave evidence that during the relevant period he worked in his pre-injury role. Consistent with Dr Borland’s certification, the applicant was under a weight restriction of 5kgs and had restrictions on pushing and pulling. He said that he was “doing eight hours of truck driving a day” and 54 hours a week however, said that some weeks he worked less if he took days off. The applicant stated that he experienced an increase in pain in his left arm and would take sick days or use annual leave when it got too sore. He also advised that during the period, he experienced an increase in numbness and he increased his use of pain medication.

    Consideration

    Medical Treatment

15. There is no dispute between the parties that the proposed surgery is medical treatment required in relation to the applicant’s accepted injury. The question for determination in these proceedings is whether the surgery as recommended by Dr Gupta, is reasonable in the circumstances. The medical evidence is divided on this question. Dr Gupta’s recommendation for surgery is supported by Dr Smith and Dr New. Dr Gupta is confident that the surgery has reasonable prospects of increasing the applicant’s range of motion and reducing the applicant’s pain whereas Dr Wallace, Dr Maxwell and Dr Harvey are of the view that the surgery is not recommended and it is unlikely to produce a better outcome for the applicant.

16. I prefer the evidence of Dr Gupta, Dr Smith and Dr New. My reasons for this are as follows.

17. Dr Gupta is the applicant’s treating orthopaedic surgeon and specialises in upper-limb surgery. He is an eminent doctor in his field. At hearing Dr Gupta confirmed that his practice was almost exclusively upper limb surgery, with a mix of roughly 75% shoulder and elbow surgery and roughly, 25% wrist and hand surgery. He advised that he currently spends two to three days a week operating and undertakes approximately seven or eight shoulder cases and two or three elbow cases a week. Most significantly, Dr Gupta has been involved in the applicant’s care and treatment since two days post injury to the present. He has advised on treatment and performed the arthroscopic release of scar tissue on the applicant in March 2016. He has examined the applicant on multiple occasions, most recently in early 2018. Dr Gupta is well placed and eminently qualified to hold an opinion about the status of the applicant’s current condition, future treatment and prognosis. Dr Gupta’s opinions are supported by both Dr Smith, a practicing orthopaedic surgeon who specialises in hand and upper limb surgery, and Dr New, a practicing orthopaedic surgeon. I note that Dr New has had the more recent consultation with the applicant. He examined the applicant on a number of occasions; but most recently on 26 April 2018.

18. In comparison, Dr Wallace advised at hearing that he was no longer a practicing orthopaedic surgeon and that he had not performed surgery for the past five years. He advised that when he was performing surgery, his particular sub-specialty was knee surgery. Dr Wallace examined the applicant on four occasions; on 17 November 2015, 2 February 2016; 14 April 2016; and 7 July 2016. The last examination was only four months post-surgery and well over two years prior to the date of hearing in these proceedings. At hearing, Dr Wallace advised that he could not provide an informed opinion as to whether the proposed treatment was reasonable medical treatment because it had been over two years since he last examined the applicant. Likewise, Dr Harvey, a retired orthopaedic surgeon who specialised in hand and upper-limb surgery, examined the applicant on one occasion on 24 October 2017 for the purposes of providing a report in these proceedings. Dr Maxwell, a consultant orthopaedic surgeon, last examined the applicant on 27 October 2016. At hearing he accepted that had he had the opportunity to examine the applicant in 2018, he would be able to express a more informed opinion.

19. I have carefully considered the medical evidence in regards to the potential risks of the proposed surgery, namely, that the further surgery could potentially produce more scar tissue, reducing the applicant’s range of motion. I have also taken into account the medical evidence regarding the applicant’s analgesic use to date and the impact this may have on prognosis. While I accept that the outcome of the proposed surgery is not certain and that there are potential risks, on balance, I am satisfied that the potential risks are outweighed by the potential benefit. I accept the evidence of Dr Gupta that the surgery has reasonable prospects of increasing the applicant’s range of motion and reducing his pain.

20. As to the cost of the medical treatment, both Dr Gupta and Dr Smith have provided a quotation. Dr Gupta’s quotation includes that of his own fees and that of his assistance fees. I note that additional costs not included in the quotation may include hospital costs and post-operative rehabilitation. In comparison, the bulk of the medical evidence shows that if the proposed surgery does not go ahead; no other treatment is likely to benefit the applicant and is therefore not necessary. Dr Gupta concedes that the applicant will never have a full range of motion however, as detailed in the medical evidence above; he is of the opinion that the surgery has reasonable prospects of resulting in functional motion that is relatively pain free. Without the surgery, the applicant’s condition will not improve at all. I accept this evidence and find, on balance, the costs associated with the proposed surgery are reasonable. 

21. In regards to the ulnar nerve, Dr Gupta’s evidence is that the applicant has complained of increasing numbness consistent with ulnar nerve compression neuropathy. I agree that nerve conduction studies would be ideal in confirming this finding however, despite the lack of objective evidence, I am satisfied that ulnar nerve transposition or decompression of the ulnar nerve is reasonable in the circumstances. Dr Gupta’s evidence is that the procedure is a relatively simple manoeuvre and is a reasonable part of the proposed surgery as the surgery would by its nature decompress the ulnar nerve. I accept this evidence.

    Incapacity

22. In regards to incapacity, the question to be determined in these proceedings is, squarely, whether the applicant was fit to do his pre-injury duties during the relevant period. As detailed above, the applicant asserts that during this period, he experienced increased pain, increasing numbness and an increased need for analgesic medication.

23. In Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448, Deputy President Bean considered ‘suitable duties’ for the purposes of section 19 of the SRC Act. She stated:

    [75]…Nevertheless, the Tribunal must assess the suitability of the duties by reference to all of the evidence now available and it must be the case that duties resulting in an aggravation of a pre‑existing condition cannot be regarded as “suitable” within the meaning of the SRC Act. Of course, a work-related aggravation of a pre‑existing condition is potentially compensable under the SRC Act. It would be a very odd result, in my view, if duties which were shown to have caused a potentially compensable aggravation of a pre‑existing condition were nevertheless regarded as “suitable” within the meaning of the SRC Act. Noting that the definition of “suitable employment” in s 4 of the SRC Act allows regard to be had to “any other relevant matter”, I consider that a proven propensity to aggravate a pre‑existing condition constitutes such another “relevant matter”, with the result that the duties Mr Sambastian was given were not suitable for him within the meaning of the SRC Act.

    [76] …It also follows, in my view, that in declining to continue with those duties after 14 September 2012, Mr Sambastian did not fail to continue to engage in suitable employment with the respondent for the purposes of s 19(4)(c) and in the absence of suitable duties being offered to him, he was entitled to continue to receive incapacity payments…

24. The applicant’s evidence is that he suffered an increase in symptoms and pain during the relevant period; this is unsubstantiated by the available medical evidence. As already noted, Dr Borland’s clinical notes during this period are scant. Despite there being a record in the clinical notes on 19 April 2017 of pain as a result of increased work and a note that the applicant was unfit for work, there is no medical certificate at all at any time during the relevant period, which indicates that the applicant was completely unfit for any work. The clinical notes do not record any complaints by the applicant about an increase in numbness during this period and there is no objective evidence to substantiate the applicant’s claim that he increased his use of analgesia during the relevant period.

25. Given the paucity of evidence substantiating the applicant’s evidence, I prefer that of the available medical evidence, which demonstrates that the applicant was fit for pre-injury duties (with restrictions on lifting and pulling/pushing) and that he did undertake his pre-injury duties during the relevant period.

    Decision

26. In application 2017/3156, the decision under review is set aside and in substitution for that decision, it is decided that the Respondent is liable under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the cost of the surgery as recommended by Dr Gupta;

1. In application 2017/3155, the decision under review is affirmed; and

2. Failing agreement between the parties, the parties have seven days in which to file short written submissions on the question of costs.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..........................[sgd]..........................................

Associate

Dated: 23 January 2019

Date(s) of hearing:	3, 4 & 5 September 2018
Counsel for the Applicant:	Mr K Pattenden
Solicitors for the Applicant:	Santone Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Sparke Helmore Lawyers