1. The applicant provided various statements. In his latest statement the applicant stated that he has ongoing neck and shoulder pain, consumed medication and is limited in his daily activities.
2. The applicant stated that he wished to proceed with the right shoulder surgery.

1. On 8 March 2023 Dr Tan noted the claimant was two months post operation with good settling the shoulder pain and loss of spasm. There was ongoing neck pain with some associated spasm.[6]
2. On 10 May 2023 Dr Tan noted significant neck spasm, symptoms attributable to a secondary tennis elbow and numbness down the ulnar border of both hands with a positive Tinel's test on the medial side of the elbow. The shoulder had "quite significant pain" with slow improvement.[7]
3. On 9 August 2023 Dr Tan noted neck pain was getting worse and there was no improvement over the last two months in the range of shoulder movement.[8]
4. On 17 January 2004 Dr Tan stated that the applicant's pain was better, but range of motion was still fairly poor with ongoing tenderness of the AC joint. The doctor stated:[9]

"From a shoulder point of view, the further options are to consider an AC joint excision and biceps tenodesis. I think we are in the realm of limited goals surgery at the moment, and are unlikely to get him a normal shoulder after 10 years. He is symptomatic enough to want to try this and does not want any further injections. I have had a lengthy discussion with him today about the risks and benefits as well as recovery timeframes again."

1. A request for surgery by Dr Tan itemised the surgeon's costs for the proposed surgery at $6,012. The request noted the surgery type was inpatient over two days/one night.[10]

1. The MRI scan dated 23 March 2025 reported by Dr Elisay showed supraspinatus tendinosis and no acute labral tear.[11] The radiologist reported:

"Subscapularis tendinosis as well as 5 x 11 mm low to intermediate grade partial-thickness intrasubstance tear of the superior fibres at the level of the glenoid process, as well as a 19mm axial low to intermediate grade partial-thickness intrasubstance tear of the most superior fibres at the insertion site, associated with mild subluxation of the long head biceps tendon into this tear."

1. Dr Jonathan Herald, orthopaedic surgeon, was qualified by the applicant's solicitors and provided a report dated 16 October 2024.[12] The doctor reported a detailed history of the treatment since the original injury including two right shoulder surgical procedures and disc replacement and fusion in the cervical spine.
2. Dr Herald diagnosed a right shoulder rotator cuff tear and labral tear with subsequent repair and post-operative adhesive capsulitis. In relation to the post surgery, Dr Herald stated:[13]

"He has already had a distal clavicle excision. I can only assume doing a revision of that distal clavicle excision has been required as a result of failure of the initial AC joint excision or distal clavicle excision being adequately decompressed. However, the bicep tenodesis is a recognised way of treating a SLAP lesion or a superior labral tear and will assist with pain management."

1. Dr Herald did not believe the proposed surgery should be undertaken as he could not see how it would assist in the recovery. The doctor opined that the applicant had already undertaken an AC joint debridement or distal clavicle excision and it was unlikely that a second one would benefit the applicant. However, it was possible that the resection had not been completely adequate or there was some instability at the reception which needs debridement.
2. Dr Herald recommended an up-to-date MRI scan to determine whether the pathology is coming from the locations where surgery has been advised.
3. Dr Herald provided a further report dated 20 April 2025 having received the up-to-date MRI scan.[14] The doctor noted that the recent radiological investigation showed features of rotator cuff tear in a long head of biceps tendon which had subluxed. The doctor noted that the subluxed long head of biceps tendon was sawing through the subscapularis tendon and the applicant would benefit from tendinosis of the biceps tendon and repair of the subscapularis before he ends up with a complete tear of the right shoulder rotator cuff tendon.
4. Dr Herald opined that due to the MRI scan, an operation of the right shoulder would be of benefit, particularly a biceps tenodesis and labral repair.
5. Dr Herald provided a supplementary report dated 3 February 2026 in response to the recent report provided by Dr English. Dr Herald noted that Dr English stated that he saw no reference to further surgery planned in 2024 and was otherwise uncertain whether Dr English had access to the MRI scans dated 19 March 2025.
6. Dr Herald stated:

"As mentioned in my previous report having had an MRI scan done on the 20 March 2025 which shows a partial-thickness sub- scapular IRS tear with superior fibres torn and retracted to the level of the glenoid measuring 5 x 11 mm in the most superior fibres retracted to something like 19 mm with an associated site likes loggerhead of biceps tendon it is likely that this tear may progress if not treated. There is good evidence to identify pathology that is restricting his recovery and although he has had previous surgery the previous surgery was not to address this problem."

1. Dr Paul Robinson, orthopaedic surgeon, provided a report dated 11 June 2024 following an examination of 31 May 2024.[15]
2. Dr Robinson noted a history of disc replacement surgery and fusion in the lower cervical spine and previous right shoulder surgeries.
3. The current condition was pain in the lower part of the cervical spine extending down into the right shoulder passing through the right elbow and into the hand associated with numbness in all fingers. There was decreased range of movement of the shoulders of the neck. Current treatment included fortnightly psychological counselling, OxyContin 10mg per day, patch of buprenorphine and sleeping pills.
4. Examination included tenderness throughout cervical spine extending into the thoracic spine, pain in both these areas when one finger was pressed in a light fashion on the top of the skull and definitive Waddell sign indicating abnormal illness behaviour. Range of movement of the right shoulder compared to the left was markedly restricted particularly with respect to flexion, adduction, external rotation and internal rotation.
5. Dr Robinson opined that the variability in movement and multiple Waddell signs indicated abnormal illness behaviour with overriding psychological problems. The shoulder movement was sub-optimal considering the procedures which had been performed. Dr Robinson did not believe that any improvement in shoulder function would be achieved with further operative intervention.
6. Dr Robinson opined that the ongoing problems related to functional and overriding psychological problems and "it would be a brave surgeon who would state that he could be improved by further operative intervention".[16]

1. Dr Hugh English, orthopaedic surgeon, was recently qualified by the respondent. He has provided two reports dated 6 January 2026 and 15 January 2026. The respondent's counsel advised that the second report was largely a repeat of the earlier report with an additional comment. Accordingly, it is only necessary to refer to the later report.
2. It is common ground that Dr English was provided the MRI scan of the right shoulder dated 23 March 2025 and that the doctor has not expressly commented on the scan.
3. Dr English noted Dr Robinson's opinion of variability and movement in multiple Waddell's signs indicating abnormal illness problems in the referrals by Dr Stabler or second, third or fourth opinions and felt there was no further surgery looks likely to improve the situation.
4. Examination findings recorded by Dr English were restricted range of motion of the right shoulder compared to left shoulder, strong verbalisation of pain whilst being asked to perform manoeuvres, no muscle wasting and global tenderness in the region of the shoulder.
5. Dr English opined that the applicant had a very poor functional result of the two surgical interventions and appeared to demonstrate some overstatement. The doctor was asked about the surgery proposed by Dr Tan in his report dated 17 January 2024. Dr English replied he did not see a reference for further surgery planned in 2024 and would not imagine any further it further surgery being beneficial. Dr English also opined that further surgery was unlikely to improve function based upon the poor outcome following the first two procedures.[17]
6. In relation to the proposed surgery, Dr Robinson opined there was no reason for it and the surgery otherwise would not improve function.

1. The parties outlined the evidence summarised in these Reasons.
2. The applicant submitted:

(a) Dr English noted the up-to-date MRI scan but did not comment on its significance noting Dr Herald commented on the significance of the scan in his two supplementary reports.

(b) Dr English noted Dr Herald's diagnosis but does not say whether he disagrees with the opinion.

(c) The rectification of the previous surgery noting that there could be further deterioration if surgery was not undertaken (Dr Herald's opinion) meant that the proposed surgery was necessary.

(d) Consistent with the principles of Diab the results of any surgery can't be guaranteed but this did not mean that the surgery was not "reasonably necessary".

(e) Dr Robinson's opinion pre-dated the MRI scan and had limited weight.

(a) It is unclear whether Dr Tan supported the surgery. It is unclear what was Dr Tan's opinion in light of the further MRI scan.

(b) Dr Tan had "real reticence" in recommending the proposed surgery and opined that there was unlikely to be a normal surgery. The doctor does not say that the surgery is appropriate or will be effective or otherwise will Improve the applicant's condition.

(c) Alternative treatment is not relevant in the determination.

(d) The pain syndrome/functional element discussed by Dr Robinson is not addressed by Dr Herald who opined that the proposed surgery was not medically acceptable.

(e) Dr Robinson raised matters that should have been addressed by Dr Tan given Dr Robinson's opinion that it would have been "brave" surgeon who would operate and Dr Tan's comment "that we are in the realm of limited goals surgery".

(f) The absence of an update opinion from Dr Tan was a glaring omission.

(g) Dr Herald refers to assumption in his report which had not been clarified by Dr Tan.

(h) The applicant bears and has not discharged the onus of proof.

1. The applicant bears the onus of proof on the balance of probabilities.[18]
2. Section 60 of the 1987 Act relevantly provides:

"(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)."

1. The parties accepted that the issue of whether the proposed surgery was "reasonably necessary" be determined by reference to the principles discussed in Diab. In Diab Roche DP stated:[19]

"88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:

(a) the appropriateness of the particular 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.

1. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
2. While the above matters are 'useful heads for consideration', the 'essential question remains whether the treatment was reasonably necessary' (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C)."
3. The principality of admissibility and the weight to be given to expert opinion in the Personal Injury Commission (Commission) has been the subject of Court of Appeal decisions.
4. It is instructive to repeat what was discussed by Beazley JA (as her Honour then was) in Hancock v East Coast Timber Products Pty Ltd (Hancock).[20] Her Honour stated:

"82 Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.

1. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162

at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error." 2. As her Honour noted, the issue of admissibility of expert opinion does not arise in the Commission as it is not bound by the rules of evidence: Brambles Industries Ltd v Bell.[21] 3. The requirements of compliance with regards to principles governing expert evidence were discussed by the Commission (as well as numerous other cases) in STA of NSW v El-Achi[22] when Roche DP stated:[23]

"All that is required for satisfactory compliance with the principles governing expert evidence is for the expert's report to set out 'the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x rays and other tests' (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 per Beazley JA (as her Honour then was) at [85] (Giles and Tobias JJA agreeing))."

1. The observations of Allsop P in OneSteel Reinforcing Pty Ltd v Sutton[24] (Sutton) (at [2]) are pertinent. His Honour stated:

"Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material."

1. Dr Robinson's opinion predates the updated MRI scan. The doctor observed that the applicant's functional issues were contra-indicative to pursuing the proposed surgery. Dr English, although not as dogmatic as Dr Robinson, also opined that the applicant's functional issues did not support the conclusion that the proposed surgery would be effective.
2. Dr Herald does not comment on the applicant's psychological/functional issues and the concerns raised by Dr Robinson and confirmed by Dr English.
3. I agree with the respondent's submission that the applicant has a psychological/functional condition, and, because of this, the proposed surgery has doubtful effectiveness. This is consistent with the fact that the applicant has had a less than satisfactory response to the prior surgeries.
4. The updated MRI scan shows pathology that Dr Herald opines is amenable to the proposed surgery. Indeed, it is Dr Herald's opinion that the shoulder tear would deteriorate if the proposed surgery was not undertaken.
5. Dr Robinson does not comment on the MRI scan given the date of his report. Dr Tan's latest report also pre-dates the scan and the applicant was content to run a case based on an outdated treating report which was equivocal as to the prospects of further surgery.
6. Dr English was provided with the MRI scan and Dr Herald's further report commenting on it but doesn't comment on the significance of the scan. The respondent conceded this during submissions.
7. The applicant's submissions and Dr Herald's supporting opinion concentrated on the pathology shown in the updated MRI scan. However, the respondent provided an updated expert opinion which did not address that issue.
8. The respondent submitted that the medical evidence was three against the proposed surgery and one in favour. However, the evidence concerning the applicant's right shoulder pathology, the significance of this pathology and the need for surgery based on the scan is limited to Dr Herald's opinion.
9. In these circumstances I accept Dr Herald's opinion that the updated MRI scan shows relevant pathology, and the surgery is appropriate to address that condition. I also accept that the right shoulder condition is likely to deteriorate to a full tear in the absence of surgery. That conclusion is based on Dr Herald's uncontradicted opinion that the partial thickness intrasubstance tear will develop into a complete tear.[25]
10. The respondent submitted that the medical evidence did not support a finding of the appropriateness of the proposed treatment based on Dr Robinson's opinion that only a brave surgery would operate. However, that opinion is not based on the pathology shown on the updated MRI scan. Accordingly, based on Dr Herald's opinion and the MRI scan findings, I accept that the proposed surgery is appropriate to address the right shoulder pathology.
11. The respondent challenged the assumption made in Dr Herald's first report of the reasons why Dr Tan suggested further surgery. However, that assumption was provided prior to the provision of the updated MRI scan.[26] Dr Herald's further report is made after the provision of the MRI scan and refers to the rotator cuff tear and subluxed long head of biceps tendon.[27] The uncertainty, assumption and equivocation expressed in Dr Herald's first report is replaced by clarity in his supplementary report based on the MRI scan findings.
12. I accept the respondent's concession that the issue of alternative treatments is not relevant to this determination. The applicant did not submit otherwise. The applicant has undergone various right shoulder treatment and there is no suggestion that there is an alternative.
13. The overall costs of the proposed surgery is uncertain. The surgeon's fees in early 2024 were estimated at $6,000. There are other expenses including assistance surgeon, anaesthetist, hospital fees (two days/one night) and costs associated with recovery as sought in the order. I described the overall costs during the hearing and the respondent agreed as "not insignificant". Counsel otherwise were not prepared to agree on an estimate of the overall costs.
14. It is unfortunate that there is no updated treating surgeon's report commenting on the significance of the MRI scan. It is equally unfortunate that the respondent obtained an updated report purportedly to comment on the MRI scan and there is no discussion on the significance of the radiology.
15. However, I am required to determine the issue in accordance with the way the case is presented and defended.
16. The applicant's response to previous surgeries and the degree of exaggeration shown in examinations is a clear contra-indicative of further surgery being effective. I agree with the respondent's submission that the prospects of a successful outcome from the proposed surgery are less than favourable. However, the fact that the treatment may not be effective does not mean that the proposed surgery is not reasonably necessary.[28] The undoubted right shoulder pathology, the prospect of deterioration in the absence of further surgery and clear uncontradicted reasons for surgery provided by Dr Herald based on the updated MRI scan are powerful indicators in favour of the proposed surgery.
17. With some reticence, noting the applicant bears the onus of proof, I conclude that the proposed surgery is reasonably necessary.

1. The finding and order is contained in the Certificate of Determination.

[18] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].

[20] [2011] NSWCA 11 at [82]- [83], Giles and Tobias JJA agreeing.

[21] [2010] NSWCA 162 at [19], [24] and [28].

[22] [2015] NSWWCCPD 71.

[24] [2012] NSWCA 282.