Usher v Coffs Harbour City Council (NSWPICPD 2022)

Link to Decision

Key Takeaways

Deputy President Wood upheld a Member’s decision in finding that a work injury did not materially contribute to the need for surgery. In the Deputy President’s opinion, the Member was correct to focus on pathology when determining the insurer’s liability for surgical treatment.

Brief Facts

The worker received an influenza vaccination arranged by her employer. She alleged the nurse who administered the vaccination did so not in her bicep, but much higher, between the corner of her right shoulder and neck. Within an hour of receiving the vaccination, she experienced severe right shoulder pain which continued.

The worker was referred for investigations and to an orthopedic surgeon. Her surgeon identified classic rotator cuff dysfunction symptoms, and her scan results indicated it was pre-existing. The worker later underwent a right rotator cuff repair.

The worker brought a workers compensation claim, which was declined by the insurer. She commenced proceedings in the PIC. Member Rimmer found the worker had suffered a work injury following the vaccination (adhesive capsulitis) and as a result, developed severe right shoulder pain. The Member did not however, accept that the injury materially contributed to the need for surgery.

The worker appealed Member Rimmer’s decision.

Judgment

The worker contended the Member had erred because her right shoulder pain began immediately following the vaccination, and remained until the surgery. Hence, it was a matter of common sense that a causal connection existed. The worked relied on Murphy v Allity Management Services Pty Ltd (NSWWCCPD 2015) which noted an injury does not have to be the only, or even a substantial, cause of the need for treatment for it to be recoverable.

DP Wood rejected this. She found the Member had not overlooked any material facts, or given undue or too little weight to the evidence. She also had not erred in focusing on the worker’s right shoulder pathology. The surgery was required to address the worker’s rotator cuff pathology, which her treating surgeon had opined was pre-existing. The surgery was not required to address the injury; being adhesive capsulitis.

On that basis DP Wood upheld the Member’s decision.

Implications

The test in Murphy establishes quite a low bar for a worker in establishing an insurer’s liability for treatment. Importantly however, injury to a particular body part does not create a blanket liability for appropriate treatment. In this case there was no issue that the worker required the surgery, the question was whether that need arose (in a material way) as a result of the injury. In answering that question it is important to understand the injury (in a pathological sense) and to investigate the clinical indication and goals of any treatment proposed. If the treatment is directed at some pathology unrelated to the effects of the injury, then liability questions may well arise.