Xu v Australian Nursing Home Foundation Ltd
[2022] NSWPIC 449
•9 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Xu v Australian Nursing Home Foundation Ltd [2022] NSWPIC 449 |
| APPLICANT: | Zili Xu |
| RESPONDENT: | Australian Nursing Home Foundation Limited |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 9 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for proposed surgery; injury to claimed body parts in issue; whether applicant suffered injury as alleged to cervical spine, lumbar spine and left shoulder; Held — the applicant suffered cervical and lumbar spine injuries by way of aggravation to pre-existing degenerative changes; the applicant suffered a frank injury to his left shoulder; the requirement for the proposed surgery to the left shoulder is as a result of the applicant’s injury; the respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in relation to the injuries to the cervical spine, lumbar spine and left shoulder; the proposed surgery is reasonably necessary; the respondent is to pay the costs of and incidental to the proposed surgery to the left shoulder. |
| DETERMINATIONS MADE: | The Commission determines: 1. Leave is granted to amend the Application to Resolve a Dispute to add to the injury description after the word “walker” the following: “In the alternative, the applicant suffered an injury by way of aggravation to the claimed body parts pursuant to section 4(b)(ii)”. 2. The claim for weekly benefits is discontinued. 3. The claim for injury to the left arm, left leg and left hip are discontinued. 4. The applicant suffered injury to his cervical spine and lumbar spine in the course of his employment with the respondent on 25 February 2021, to which his employment was the main contributing factor to aggravations of underlying pathology in the applicant’s cervical and lumbar spines. 5. The applicant suffered injury to his left upper extremity (shoulder) in the course of his employment with the respondent on 25 February 2021, to which his employment was a substantial contributing factor. 6. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in relation to the above injuries. 7. The proposed left rotator cuff repair and arthroscopy as set out in the quote of Professor Murrell dated 24 March 2021 is reasonably necessary as a result of the injury to the left shoulder. 8. The respondent is to pay the costs of and incidental to the proposed surgery. |
STATEMENT OF REASONS
BACKGROUND
Mr Zili Xu (the applicant) alleges he suffered an injury to his back, neck and left shoulder in the course of his employment as an aged care worker with Australian Nursing Home Foundation Limited (the respondent) on 25 February 2021 as a result of trying to free a patient's walker from the boot of his car.
The respondent alleges the applicant did not suffer an injury in the circumstances as alleged and says if the Personal Injury Commission (the Commission) is not satisfied as to those circumstances, an award should be entered in its favour.
The applicant seeks payment by the respondent for the costs of and incidental to a proposed left shoulder arthroscopy and rotator cuff repair surgery at the hands of Professor Murrell. In the event the applicant is successful on the question of injury, the respondent also alleges the proposed surgery is not reasonably necessary.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injury to his lumbar spine, cervical spine and left shoulder as alleged, and
(b) whether the proposed left shoulder surgery is reasonably necessary.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing before me on 5 July 2022. 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.
At the hearing, Mr Young of counsel instructed by Mr Chow appeared for the applicant. Mr Hanrahan of counsel instructed by Ms Naidoo appeared for the respondent.
At the hearing, the applicant discontinued the claim for weekly compensation which was pleaded in the Application to Resolve a Dispute (the Application). He also discontinued the claims of injury to the left arm, left hip and left leg.
Without objection, the applicant also amended the Application to claim in the alternative to a frank injury, an aggravation of pre-existing conditions in his neck, lower back and left shoulder as a result of the alleged injurious event on 25 February 2021.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply in attached documents;
(c) respondent’s Application to Admit Late Documents (AALD) and attachments dated 13 January 2022;
(d) respondent's AALD and attachments dated 29 June 2022, and
(e) Medical Assessment Certificate of Medical Assessor Dr Kuru dated 14 April 2022, and worker visit list for the applicant for the period 22 February 2021 to 28 February 2021, admitted without objection and marked Exhibit 1.
Oral evidence
The applicant was cross-examined at some length by Mr Hanrahan, with the assistance of an interpreter. He was asked about the circumstances of the alleged injury. During cross-examination, it became apparent the applicant had drafted the statement found at page 1 of the annexures to the Application by himself using a translating app on his mobile phone to translate the document from Mandarin to English.
Given the language difficulties and the manner in which the applicant had drafted his statement, it is, in my view, understandable there was some confusion regarding the history of the alleged injury.
Nevertheless, I find the applicant did his best to assist while giving evidence. He maintained that the injury he suffered occurred while he was assisting a client located in the Waterloo area on 25 February 2021.
Mr Hanrahan suggested the applicant was misleading the Commission as to which clients he visited, suggesting the applicant was in fact working with a co-worker on the alleged date of injury and the co-worker was responsible for removing and replacing the client’s walker which the applicant alleged he was manoeuvring when he suffered his injury.
However, a Worker Visit Sheet for the applicant which was produced by the respondent for the date in issue (25 February 2021) revealed the co-worker was only with the applicant in the morning on the alleged date of injury, not in the afternoon at Waterloo which was where the applicant insisted his injury had taken place.
The applicant was cross-examined as to what he told his general practitioner when he presented to him on the alleged date of injury. Mr Hanrahan suggested the applicant told his general practitioner Dr Huang he had only injured his left side of his back. The applicant denied this was the case, and said he told Dr Huang he had injured the whole left side of his body including his shoulder.
In any event, Mr Hanrahan noted, and the applicant accepted that when he again consulted Dr Huang on 6 March 2021, there was a record of complaint of left shoulder and back pain.
Mr Hanrahan suggested the applicant told another general practitioner, Dr Tan, on 20 May 2021 he had hurt his left shoulder after lifting a patient, which the applicant denied. The applicant maintained in his evidence the left shoulder issues arose after lifting and manoeuvring the patient’s walker on 25 February 2021, as did his neck and back injuries.
FINDINGS AND REASONS
Whether the applicant sustained injuries as alleged
The respondent submitted there was no question the applicant is having issues in the body parts claimed (namely, his cervical spine, lumbar spine and left shoulder), however, the respondent's challenge is to the circumstances of the injury deposed to by the applicant.
The respondent noted and the applicant conceded that he had prior issues with his back before commencing work with the respondent. There is no issue, however, that these issues had resolved before the applicant started work with the respondent and as Mr Young pointed out, if the applicant does have pre-existing degenerative changes as alleged by the respondent, in any event the incident at issue had plainly been the main contributing factor to an aggravation of those pre-existing changes, consistent with the amendment made by the applicant to plead a s 4(b)(ii) injury at the hearing.
Mr Hanrahan submitted the Commission would not be satisfied the applicant had discharged his onus of proof in circumstances where he was mistaken as to when he was seeing the client at Waterloo. He submitted the Commission would accept the evidence of the co-worker Ms Zhao who said the applicant did not leave his car between 9.00am and 12.00pm on the alleged date of injury. As to the afternoon of that date, Mr Hanrahan submitted the applicant’s evidence should not be accepted as his version of the circumstances of injury on that day was so confusing.
I do not accept that submission, as regardless of the time of day, in my opinion, the applicant has been consistent in asserting the injurious event complained of occurred at Waterloo. It is apparent from Exhibit 1 that the applicant went to Waterloo to see the client there in the afternoon of 25 February 2021, after Ms Zhao had left. The fact Ms Zhao did not see the applicant leave his vehicle in the morning is, in my opinion, irrelevant given the applicant states his injury took place while assisting the client at Waterloo. When he was doing so, the applicant was working alone.
The applicant's version of events is supported by the clinical entry of general practitioner Dr Huang made on the alleged date of injury. The applicant saw Dr Huang at or about 4.00pm on 25 February 2021, a time consistent with his evidence that he finished his shift on the date of injury. The clinical entry on that date says:
“Putting a wheelchair inside a car at work today.
Sudden onset of pain on his left side of back
A subcutaneous swelling present
Tender superficially
Lumbar spine not tender
No gait change
Soft tissue injury
Cold compression advised.”
I do not place great store in the history of a general practitioner, Dr Tan, found at page 33 of the Application. That entry is dated 20 May 2021, and states:
“He sustained his L shoulder injury after lifting patient.
He was rejected by insurance company.
Requested to have second opinion”
The usual caution must be taken in relying on treating general practitioner histories, particularly when the applicant was steadfast during the course of the hearing in denying he had hurt his left shoulder while lifting a patient and that he had provided Dr Tan with such a history.
Additionally, as a matter of common sense, if the applicant had in fact injured his left shoulder while lifting a patient, such an incident would plainly have happened in the course of his employment and he would, in any event, have been entitled to make a claim for it. I do not, however, accept that the injury to the left shoulder occurred in such a way.
As it was noted by Basten JA in Mason v Demasi & Anor [2009] NSW CA 227 (31 July 2009), where there are conflicts between the evidence of an injured person and what is contained in clinical records, caution should be taken in discounting the injured person’s evidence. His Honour referred to the decision in Container Terminals Australia Ltdv Huseyin [2008] NSWCA 320 and noted that caution should be had where, for example, the health professional who took the history is not being cross-examined about the circumstances of the consultation, the manner in which the history was obtained, the period of time divided by the exercise and the accuracy of the recording. It should also be borne in mind that the medical history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed at the hearing and is likely to be a summary prepared by the health professional, rather than a verbatim recording. Additional factors giving rise to caution in accepting medical histories include fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient's understanding of the purposes of the questioning, which will each affect the content of history.
In any event, the evidence in this matter discloses that the applicant had once again consulted Dr Huang on 6 March 2021. On that occasion, Dr Huang recorded the following:
“He has pain in his lower back and left shoulder
Tender over bilateral paralumbar and lumbar spine
Pain radiating down left leg
Left shoulder pain, when lifting his shoulder
Pain affecting his sleep
Add Panadeine for pain control
MRI lumbar spine done”
The applicant returned to see Dr Huang on 8 March 2021 at which time the general practitioner took the following history:
“Since his accident at work, initially extreme back pain
Mostly left side,
Which he has applied top NSAIDs
Pain gradually improving
Left shoulder pain appear a few days later, with pain when lift his arm above his shoulder
And back down his left buttock and thigh”
In my view, these histories are consistent with the applicant's version of what he told Dr Huang, namely that his whole left side was sore on and from the date of injury and as a result of it.
As Mr Young submitted, even if the applicant had noticed left shoulder pain a few short days post injury, that is in no way inconsistent with the incident at issue being the cause of that pain. The applicant’s evidence in relation to the incident on 25 February 2021 at Waterloo is uncontested and is supported by the contemporary evidence in the general practitioner’s clinical records.
Authorities such as Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 (Baker) also make it clear the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered an injury. The true question is whether the person suffering symptoms, which properly diagnosed, constitute a relevant injury. In other words, precise corroboration in clinical records of treating practitioners is not determinative of whether a worker suffered an injury as alleged.
Independent Medical Examiner (IME) Dr Berry reported on the MRI of the left shoulder taken on 11 March 2021, which showed a full thickness tear of the supraspinatus without retraction or muscle atrophy.
A lumbar MRI taken on 4 March 2021 demonstrated lumbar spine degenerative changes, however, it is apparent that by the date of injury the applicant had been working with the respondent since 2019 without any issues in his lower back. Dr Berry concluded:
“I note the report of Professor George Murrell who indicates that Mr Xu has a painful restriction of his left shoulder with clinical evidence of mechanical impingement, and an MRI scan, which shows a full thickness tear of the supraspinatus. The MRI scan dated 11 March 2021 shows a full-thickness incomplete tear of the supraspinatus tendon with no muscle retraction. There is a normal appearance of the acromioclavicular joint and no evidence of muscle atrophy or capsulitis.
On the basis of Mr Xu’s history, I would be of the opinion that he sustained a twisting injury to his cervical and thoracic lumbar spine and then he has suffered an acute partial rupture of the rotator cuff mechanism in the left shoulder. The acute injury of the shoulder is supported by the fact that there is no evidence of significant degenerative change in the shoulder joint or acromioclavicular joint and no evidence of any muscle atrophy or capsulitis.”
Professor Murrell, treating shoulder surgeon, provided his report to the general practitioner dated 24 March 2021. He stated the following:
“There was an initiating event. At work, he was lifting a wheelchair onto a car and ‘spun’ the left side of his body – shoulder, back and thigh. The pain is persisted. He has been having moderate pain with overhead activities on moderate pain at night.
Examination today shows he has a painful, moderately restricted – due to pain, range of shoulder motion. He has positive impingement signs, mechanical impingement. He is weak on supraspinatus testing. Imaging: left shoulder x-rays show evidence of impingement. There is no glenohumeral arthritis. MRI shows a full thickness tear of supraspinatus. An ultrasound shows: partial thickness – under surface, 60% (14mm x 8mm) rotator cuff (supraspinatus) tear.”
This, in my opinion, is broadly supportive of the applicant’s version of events. The fact Professor Murrell then approached the respondent's insurer to seek approval for the proposed surgery is also, in my opinion, indicative of him believing the requirement for that surgery is consequent upon the workplace injury.
On 7 March 2021, the applicant attended a different general practitioner, Dr Cai, who noted the applicant had limited left shoulder range of motion and rotator cuff tenderness.
In my view, the contemporaneous medical evidence in this matter shows a complaint of injury on the date of alleged to a general practitioner regarding the back and the whole left side of the body, and within two weeks of the alleged date of injury, the applicant was specifically complaining of issues with his neck, back and left shoulder.
The applicant also consulted neurosurgeon Dr Damodaran. On 19 April 2021, he provided a report to Dr Cai in which he listed the applicant as suffering back pain, cervical spine stenosis with severe C6-7 radiculopathy “shoulder issues” as a result of the injury. Dr Damodaran noted the following:
“The MRI of his lumbar spine demonstrates mild L4 – 5 disc prolapse. There is no canal stenosis or any nerve root compression or spondylolisthesis. The cervical spine MRI demonstrates multilevel severe degenerative changes, particularly at C4-5, C5-6 and C6-7. There is left side of C6-7 large disc prolapse with severe spinal cord compression and canal stenosis. However, there is no cord signal change.
Mr Xu has a number of issues. These include back pain, neck pain and left-sided shoulder and arm pain. Part of his left side and arm pain is mainly cervical radiculopathy. I am hoping that with time, cervical radiculopathy will improve. If there is no improvement, he may need to consider a cortisone injection targeting the C6 and C7 nerve roots. This is also complicated by the concurrent shoulder injury which may require surgery.”
The applicant also consulted with the rehabilitation expert, Dr Peck. In his clinical notes of 22 March 2021, Dr Peck noted a thoracolumbar strain, with left C7 radiculopathy. Dr Peck agreed these injuries he noted were consistent with the method of alleged injury provided by the applicant.
For the respondent, IME Dr Allen provided a report. He opined that the tear in the rotator cuff was unlikely to be new, given the alleged mechanism of injury. However, Dr Allen does not seem to have taken into account the applicant worked for a number of years in various jobs without any shoulder issues before those alleged to have taken place on 25 February 2021. Dr Allen is alone in suggesting the tear is not causally linked to the incident on the alleged date of injury, and on balance I did not accept his opinion.
In conclusion, Dr Allen said:
“The relationship to employment is unclear, however, he reports that symptoms were brought on by activity at work on 25 February 2021. This is not independently verified.
I must therefore conclude that Mr Xu had at least an exacerbation of pre-existing shoulder disease on the left side but it is unlikely that the tear itself is a consequence of the work injury as the nature of the work described and the mechanism of injury described is not in keeping with sufficient force to have caused a tear in the rotator cuff.
There is insufficient evidence to assert that his cervical and lumbar spine pathology is anything more than pre-existing, constitutional and degenerative in nature and does not constitute a work-related injury.”
In dealing with the alleged injuries to the cervical and lumbar spines, Dr Allen appears to be focusing on the underlying pathology, not the cause of any aggravation to that pathology. Where, as is alleged in this matter, an injury consists of the aggravation of underlying disease process under s 4(b)(ii), what is relevant is the cause of the aggravation, not the underlying pathology. That match has been made clear in a litany of authorities stemming from the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 (Semlitch). In that matter, Kitto JA said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by increase or intensifying of symptoms. The road is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.” (emphasis added)
Burke CCJ referred to and applied the decision in Semlitch in the matter of Cant v Catholic Schools Office [2000] NSWCC 37, where His Honour said:
“The thrust of this comment is the respective of whether the pathology has been accelerated. There is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from this have increased and become more serious to the injured worker.” (at [17]) (emphasis added).
It can therefore be said that the proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease or underlying pathology to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132. That approach is consistent with that taken by Snell DP in the matter of AV v AW [2020] NSWCCPD 9.
It is apparent from these authorities that the relevant consideration is the cause of any aggravation to the underlying pathology. On balance, I find the incident in the course of his employment on 25 February 2021 was the main contributing factor to the aggravation to the applicant’s cervical and lumbar spines. There is no suggestion the applicant was symptomatic in those body parts before the alleged injury at issue, and for quite some time beforehand. The clinical record bares out complaints of pain and restriction of movement after 25 February 2021 and the radiology makes it clear in my opinion that while the applicant had degenerative changes in his cervical and lumbar spines, it was the injurious event on 25 February 2021 which aggravated these previously asymptomatic changes. That finding is also consistent with those contained in the non-binding opinion of Medical Assessor, Dr Kuru, who concludes the applicant suffered injury by way of aggravation of pre-existing pathology in the body systems claimed.
On balance, the preponderance of the lay and medical evidence supports a finding the applicant has discharged his onus of proof in establishing injury to his cervical spine, lumbar spine and left shoulder.
Those findings are consistent with the overwhelming body of treating and medico-legal evidence in this matter, including but not limited to the findings on radiological investigation and the complaints made to the treating doctors in the immediate aftermath of the injury.
For these reasons, there will be a finding that the applicant suffered injury to his cervical spine, lumbar spine and left upper extremity (shoulder) in the course of his employment with the respondent on 25 February 2021.
Whether the proposed surgery is reasonably necessary
Dr Allen is of the view the proposed surgery is not reasonably necessary. In providing that opinion, Dr Allen says the rotator cuff tear was not caused by work and as such an operation to repair the tear is not reasonably necessary as a result of the injury to it by way of aggravation.
The difficulty with that proposition is even if it be the case that the shoulder injury is an aggravation and not, as I have found, a frank injury; it is symptomatology which inevitably renders a treatment of an injury necessary, rather than any underlying pathology.
It may be that a worker has, for example, degenerative changes in their knee, which were asymptomatic before a work-related injurious event, following which the changes were rendered symptomatic. In such a situation, it is as a result of the injury that the worker requires treatment to that now symptomatic body part, rather than because of the underlying but previously asymptomatic degenerative changes.
As such, even if I accepted Dr Allen's opinion as to the nature of the left shoulder injury, I would reject his rationale for attributing the need for surgery to the underlying condition rather than the work-related aggravation.
Dr Allen also states the shoulder should be treated by steroid injection rather than the proposed surgery. In so finding, Dr Allen’s view is at odds with the treating surgeon Professor Murrell and the applicant's IME, Dr Berry. Dr Murrell’s opinion as a treater, absent some flaw in his reasoning (which has not been alleged by the respondent), should be given considerable weight, consistent as it is with the findings of radiological examination and with the applicant's complaints of pain and restriction of movement post injury.
Dr Murrell notes there is no evidence of shoulder arthritis in the MRI such as would lead him to conclude there was pre-existing pathology in that body part. That opinion is consistent with Dr Berry’s findings of no pre-existing changes in the left shoulder.
Each of Dr Berry and Professor Murrell are of the view the proposed surgery is reasonably necessary. The applicant based the onus of proving that the surgery claimed is reasonably necessary. The relevant test for establishing reasonable necessity is eloquently set out in the decision of Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72. The non-exhaustive list referred to in Diab is as follows:
(a) the appropriateness of the treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
The respondent makes no attack on the potential effectiveness of the proposed surgery, nor does it submit the treatment is inappropriate or likely to be ineffective. Also, no attack is made regarding the cost of the proposed treatment. Rather, the respondent’s attack on the reasonable necessity of the proposed surgery seems to be based upon the availability of a steroid injection into the shoulder as an alternative. It is not necessary that a proposed treatment be the only reasonably necessary one available. What is required is a balancing exercise to determine whether the applicant should have the treatment, rather than it be forborne from him.
There is no issue the proposed surgery is an accepted form of treatment for supraspinatus tear, nor it is said to be prohibitively expensive. Moreover, even if the steroid injection proposed by Dr Allen is also reasonably necessary, that does not preclude a finding that the surgery also falls within that category.
Mr Hanrahan submitted there was no evidence as to why the proposed surgery is reasonably necessary. I reject that submission, noting Professor Murrell in his report noted the evidence of impingement in the left shoulder. Moreover, Professor Murrell is a treating doctor providing a report to a general practitioner. It is not fatal in my opinion to his views or a reflection on the quality of his report that he fails to provide an exhaustive medico-legal explanation to a fellow practitioner. In any event, Dr Berry details the same findings on examination as Professor Murrell and also recommends the surgery as reasonably necessary.
In my opinion, the requirement for surgery is as a result of the left shoulder injury, which I find was a frank injury suffered on 25 February 2021. I find on balance the proposed rotator cuff repair and arthroscopy, as set out in Professor Murrell’s quote of 24 March 2021 is reasonably necessary, and accordingly, there will be an order the respondent paid the costs of an incidental to it.
SUMMARY
For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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