I put my normal amount of force into opening the door which ripped my left arm forward then back, causing jarring of my shoulder.[1]

1. The injury was sustained to the left shoulder. She has not returned to work since 22 July 2022.
2. Ms Steel referred to herself as being naturally right-handed and, after the injury to the left shoulder, mainly used the right arm whilst undertaking physical tasks. Following arthroscopic surgery to the left shoulder performed on 3 February 2023, the left arm was in a sling for some six weeks, and during that period Ms Steel undertook tasks predominantly with her right arm. On 13 September 2023, Ms Steel underwent further surgery by way of a reverse left shoulder replacement.
3. Both operations were performed by Dr Swapnil Pandit, orthopaedic surgeon. As for the outcome of the second operation, Ms Steel stated in her affidavit:

That procedure relieved the pain that I was experiencing in my left shoulder before the operation. It left me with a reduced range of movement of my left shoulder, however I expected that.[2]

1. She disclosed in her affidavit that she has subsequently experienced left-sided neck pain:

My main problem since the left shoulder replacement has been pain in the left side of my neck. That has since been diagnosed as tension myalgia which is being treated by Dr James Leydon, neurologist. I have commenced botox injections which are improving that condition.

1. DCS accepted that Ms Steel sustained a work injury to her left shoulder as a result of the incident that occurred on 14 July 2022. It accepted that the two surgeries performed by Dr Pandit were to treat the work injury, and that the expenses associated with those operations were reasonably incurred in consequence of having suffered a work injury.
2. On 8 December 2022, Ms Steel completed a claim form seeking loss of wages and medical expenses for injury to the right shoulder. She asserted that the right shoulder injury was caused by overuse of the right arm due to her left shoulder injury. By letter dated 7 June 2023 DCS determined to accept the claims for compensation for right shoulder injury on the basis of the injury being a "sequelae injury" and that the nature of the injury was:

Right shoulder sub-acromial impingement as a sequelae injury to the left shoulder subluxation of long head of biceps plus sub-acromial and sub-deltoid bursal thickening.

1. Ms Steel continued to consult Dr Pandit and, in her affidavit, referred to the treatment she has received to the right shoulder:

I underwent a second right shoulder steroid injection on 16 January 2024. That did not provide me with the same relief as before.

I underwent a right shoulder decompression on 24 April 2024. That did not relieve my right shoulder pain.[3]

1. Ms Steel then made a general reference to the current condition affecting the right shoulder:

The pain I am experiencing in my right shoulder is the same as what I was experiencing in my left shoulder before the left shoulder replacement.[4]

1. Ms Steel provided some further brief oral evidence in chief and was then cross-examined.
2. In her oral evidence in chief, she described the pain that she currently experiences to the right shoulder. She referred to it as being a deep, burning pain, and that it may also ache.[5] She stated that the pain may feel worse if she undertakes any activity where she reaches upwards with her right arm, and when the arm is taken away from the body. She referred to her experience of pain in such circumstances as being extreme and located to the shoulder joint.[6] She added that, over time, the right shoulder pain has become progressively worse.[7]
3. In cross-examination Ms Steel demonstrated the restricted range of motion of the left shoulder following surgery. She explained that it was a mechanical limitation and not because of pain.[8]
4. Ms Steel experienced pain following the left shoulder replacement procedure that had been performed on 13 September 2023 and she was questioned about the location of that pain relative to the left shoulder joint. She initially referred to the front of her shoulder which was identified by counsel for DCS as being in the area of the anterior trapezius muscle.[9] By about November or December of 2023, the location of the pain differed to between the left side of her neck and the top of her left shoulder.[10] She subsequently referred to the pain also affecting an area from the top of the left shoulder to the back of it towards the shoulder blade.[11]
5. Ms Steel initially described the pain post-surgery as being "minimal" in comparison to the level of pain that she had experienced leading to it.[12] That was explored by counsel for DCS. Ms Steel accepted that the pain to the left shoulder post-surgery was ongoing and that she also had a significant restriction in range of motion of the left shoulder. She agreed that Return to Work coordinators had spoken to her during December 2023 about a possible return to work, and she considered herself unfit for work at that time.[13]
6. Ms Steel was taken to the history recorded by her treating orthopaedic surgeon Dr Swapnil Pandit in his letter to her general practitioner Dr Koti dated 5 March 2024. Dr Pandit recorded that Ms Steel's left shoulder was still giving her a lot of discomfort and could only raise her left arm up to 90 degrees. Dr Pandit recorded a similar restriction of motion with respect to the right shoulder with the result that, at that time, Ms Steel unable to wear jumpers. In her oral evidence Ms Steel acknowledged she was still having movement issues on her left side at that time.[14] She also referred to having experienced at that time a shooting pain from the top of her left shoulder down her arm, which she said has since resolved.[15] Ms Steel maintained that the impairment of function of the left shoulder, post-total replacement surgery, was the result of impaired range of motion more than pain.[16] However, she acknowledged the pain between the left side of her neck and the left shoulder as ongoing and treated with injections of botox every ten to twelve weeks. She referred to that treatment as numbing the pain that would otherwise be experienced and permitting a greater level of function.[17] She was questioned about an assessment of her undertaken by Associate Professor Martin (Dr Martin) on 20 June 2024. She qualified Dr Martin's notation of a history of significant loss of function of the left arm and stated it was more likely that she told Dr Martin that she had lost a significant range of motion rather than function.[18] She agreed she saw a pain specialist Dr Wright in August 2024 and that she provided Dr Wright with a pain score of six or seven out of ten related to the pain that she continued to experience between the neck and the top and back of her left shoulder.[19] Ms Steel accepted a proposition that she seeks to protect her left shoulder and arm and to not move it in a way that could cause her pain.[20]
7. Ms Steel was then taken to a consultation she had with Dr Martin in February 2025. She accepted that, in relation to the left shoulder, she reported to Dr Martin a pain level of seven out of ten.[21] She explained that related to the pain she had experienced post-surgery, and was different to the pain she had experienced pre-surgery. Her comparison in relation to the severity of the pain was that her pain level pre-surgery was at eight or nine out of ten.[22] She referred to the pain experienced post-surgery as sometimes causing a migraine.[23]
8. In late August 2024 Ms Steel consulted a neurologist Dr Leydon who prescribed Amitriptyline. Ms Steel understood the drug to have been prescribed to treat a nerve pain. The initial dosage was 37.5mg. Whilst questioned in relation to the left shoulder, Ms Steel referred to her experience of pain as having been in the order of seven to eight out of ten.[24] The dosage of Amitriptyline has since been increased to 75mg and Dr Pandit considered that treatment to have been effective.
9. In relation to the proposed replacement surgical procedure of the right shoulder, Ms Steel was questioned as to her understanding of other treatment options raised by Dr Martin and, especially, local anaesthetic blocks. Ms Steel noted that the advice received from her treating orthopaedic surgeon Dr Pandit was that a reverse total replacement surgical procedure of the right shoulder was the best treatment option. As she put it:

WITNESS: ... Dr Pandit's opinion is that that's the best treatment for my right shoulder, and he's never done anything untoward before or pointed me in the wrong direction, so I take the advice of my surgeon.[25]

1. Ms Steel stated that she is aware of the potential life expectancy of the proposed surgery to be 20 to 25 years.

1. Dr Pandit gave evidence both orally and through medical reports. In relation to the right shoulder he initially diagnosed a right shoulder impingement resulting from significant sub-acromial bursitis.[26] He referred to the initial treatment involving an arthroscopic surgery which involved sub-acromial decompression and an acromioplasty. Dr Pandit noted that the surgery did not resolve the condition and upon subsequent examination he noted reduced range of motion of the right shoulder joint and quite significant pain levels reported. In his report dated 6 January 2025, he recorded his understanding that the left reverse total shoulder replacement surgery had been successful in the sense that Ms Steel had experienced a better range of motion and reduced symptoms in the left shoulder following that procedure. He also observed that the symptoms to the right shoulder had become progressively worse over time, and that all the circumstances he recommended a reverse total shoulder replacement surgical procedure to the right shoulder. He considered that Ms Steel should experience a similar result to that achieved in relation to the left shoulder. He maintained those views in his oral evidence.
2. Dr Pandit addressed why he considered the proposed surgery would result in symptomatic improvement. He explained that pain in a joint is because of synovitis, being inflammation of the tissues around the joint. That occurs as a result of ongoing wear and tear and the associated roughness that results. He stated that a change to a smooth ball and socket resolves inflammation and associated fluid collection and, consequently, the associated pain.[27] Dr Pandit referred to the procedure achieving stability of the joint and a reduction in the risk of dislocation.[28] Dr Pandit also referred to an objective of increased movement and a better ability to undertake activity above shoulder height.[29] Dr Pandit stated that these objectives are more likely to be achieved through the reverse shoulder replacement procedure that the anatomical replacement.[30] Dr Pandit also indicated that the procedure would increase the prospects of Ms Steel being able to return to work as a correctional services officer where he noted that some of the work involves the raising of the arm above shoulder height.[31]
3. In cross-examination Dr Pandit acknowledged that some orthopaedic surgeons would be reluctant to undertake the procedure recommended by him at the relatively young age of Ms Steel. He stated that, nevertheless, the procedure was warranted because of the attempts at conservative treatment and surgical decompression had failed.[32] In addition, Dr Pandit was satisfied that other medical conditions such as rheumatoid arthritis or psoriatic arthritis had been ruled out and that a lesion of the cervical spine on the right side had also been excluded. In all the circumstances he maintained that the procedure recommended by him is to treat Ms Steel's work injury.[33] He was questioned about other possible procedures including a hemiarthroplasty but he explained why he did not recommend that procedure in this case.[34] He also considered but excluded other procedures such as resurfacing in circumstances of the extent of the wear and tear on both surfaces.[35]
4. Dr Pandit acknowledged that the range of lifespan of the proposed prosthesis is between 15 and 25 years.[36] He referred to two types of failures being either aseptic or septic failure.[37] If that occurs, a replacement of the prosthesis may be required and, as I understood it, in the worst case it may be necessary to fuse the shoulder joint.[38]
5. Whilst Dr Pandit is hopeful of a good outcome of the proposed surgery, he acknowledged that, from case to case, the results can be variable. He maintained an expectation that Ms Steel would be able to return to work as a correctional services officer, particularly in relation to desk duties, but accepted that there would be a risk of an adverse outcome if she were to be required to restrain an offender.[39]
6. Dr Pandit was cross-examined in some detail as to his understanding of the outcome of the reverse total replacement surgical procedure that had been performed to the left shoulder. The effect of what was put to Dr Pandit was that the outcome had not been as good as what had been expected, and perhaps noted at times, by him. Dr Pandit appeared to have accepted that some of his notations may have been suggestive of a better outcome at particular points in time than was the effect of the evidence of Ms Steel, but he maintained that the procedure had been appropriate and successful.
7. Dr Pandit acknowledged that the area of the chondral loss demonstrated both radiologically and by inspection at surgery in relation to the left shoulder was greater than that demonstrated in relation to the right shoulder. Nevertheless, he maintained throughout his evidence that the right shoulder condition is serious enough, including in terms of symptoms, areas of severe chondral loss, and level of impairment, to warrant a surgical replacement procedure at Ms Steel's current age and where the range of other treatment options, over years, have failed. A summary of some of the reasoning for his recommendation was expressed in the following evidence:

WITNESS: So, understanding is that the fact that she has opted for ongoing through the right shoulder replacement, itself, means that the left is- and, I think, so we had a conversation and I don't want to go back to all my reports in the past. She said that its definitely better than what it was, the left side, and then I proposed the right. So if a patient has had one side done and if they're not happy with it, they would never go for the other side. They would obviously say - most of them would say no, you know, because this did not work, please don't do that to the other side.

MR AMBROSE: Yeah.

WITNESS: But the fact that, you know, I offered her that and that we have tried everything else, but your pain is not getting better, the only option that we have is a reverse total on the right side, and she was happy with that, to go ahead with that. So that itself means - and I'm sure that I had that conversation, I remember vaguely with her.[40]

1. Dr Pandit addressed the possible cause of chondral loss. He dismissed cuff tear arthropathy. He concluded the cause of the arthritis was either the result of direct trauma or it was attributable to over stress.[41]
2. Dr Pandit was questioned about the involvement of Dr Leydon in Ms Steel's medical management. He was asked about the prescription of Amitriptyline and he referred to the medication as being a neuro-stabiliser which had helped significantly in relation to symptoms that had been experienced by Ms Steel from the side of her neck and, at times, left-sided to the hand. Dr Pandit was firm in his view that the symptoms experienced from the side of her neck, and have been treated with Amitriptyline and have been treated with injections of botox, likely have a basis related to impaired nerve function and are not related to the shoulder.[42]

1. Dr Martin assessed Ms Steel at the request of DCS. He provided four medical reports dated 18 May 2023, 28 June 2024, 25 February 2025 and 25 September 2025. He interviewed and examined Ms Steel on 23 May 2023, 20 June 2024, and 20 February 2025. In his first report, he recorded a history of injury to the left shoulder on 4 July 2022, the subsequent onset of symptoms to the right shoulder, and that at the time of the assessment there was soreness around the scapula of the left shoulder with anterior shooting pain and some pain which was described as being "not too bad" to the right shoulder. He noted a markedly restricted range of motion of the left shoulder and, having considered the radiological investigation results, considered the presentation with respect to the left shoulder to be complex and that the source of the pain experienced was uncertain. He diagnosed in relation to the right shoulder, an overuse injury leading to clinical and radiological subacromial impingement. He noted chondral loss and that the extent observed by Dr Pandit at arthroscopic surgery was not seen on either pre or post-operative MRIs. Dr Martin stated that overuse of the shoulder was unlikely to cause any arthritic change. He understood an inflammatory arthropathy had been excluded. Whilst he accepted a reverse shoulder replacement procedure to the left shoulder as being a viable option, even in younger patients where there is doubt about the integrity of the rotator cuff, it should be viewed as a last result having regard to her age.
2. In the circumstances, he raised other procedures for consideration including arthroplasty, pyrocarbon resurfacing, hemiarthroplasty, and a conventional total shoulder replacement. He also referred to injection into the glenohumeral joint. He strongly recommended review by an occupational physician or pain-management specialist and a second opinion from another shoulder surgeon before proceeding with a reverse total replacement surgical procedure.
3. In his second medical report, he noted that at the time of the second examination he took Ms Steel through his previous report of 23 May 2023 and that Ms Steel had stated that she was happy that the account of events and examination at that time were accurate. He recorded Ms Steel at the time of the second examination as reporting previous pain to the posterior scapulo thoracic area as having resolved post-surgery, but had lost significant function of the left arm. He recorded Ms Steel as having reported that she could only undertake physical activities below waist level. He observed some muscle wasting around the left shoulder. On physical examination he recorded marked impairment in Ms Steel being able to get her hand behind her back on the left side. He accepted that the left reverse total replacement procedure that had been performed on 13 September 2024 had been successful in relieving the prior posterior scapulo thoracic discomfort, but he considered the procedure had not significantly improved left shoulder function. In the circumstances, he considered the overall outcome of the surgery to be fair.
4. In his third report, Dr Martin noted that he took Ms Steel through the content of his two previous reports and that she confirmed the history to that time was accurate. He then recorded Ms Steel as having stated to him that she had gained no benefit whatsoever from the arthroscopic surgery that had been performed to the right shoulder and he noted the recommendation of Dr Pandit to proceed with a reverse total shoulder replacement to treat the ongoing right shoulder condition.
5. Dr Martin noted the contents of medical reports that had been provided by Dr Pandit, and his view that, arthroscopically, he saw extensive chondral loss throughout the right shoulder. Dr Martin noted that such extensive loss was not evident to him upon viewing the radiological films including magnetic resonant imaging (MRI). Dr Martin recorded Ms Steel as reporting a pain level of 8 out of 10 in relation to the right shoulder at the time of the assessment. He noted that she had been taking three different medications to address that pain. By that time, he considered the outcome of the reverse left shoulder replacement procedure to have been fair to poor. He advised against a similar procedure to the right shoulder. As I understand his report, in expressing that view he took into account his assessment of a fair to poor outcome of that procedure to the left shoulder and that the MRI scan of 12 November 2024 had not identified pathology that would warrant such a procedure to the right shoulder. He was not satisfied that there is a clear diagnosis of the cause of the ongoing pain experienced to the right shoulder.
6. Dr Martin was not required for cross-examination.

1. Dr Champion is a consultant physician and rheumatologist. His evidence was received in the form of a medical report dated 4 November 2024. He examined Ms Steel and obtained a history from her that day. He obtained a history of some improvement following the left reverse total shoulder replacement procedure. Upon examination he noted a decreased range of motion of the left shoulder and obtained a history of some pain in the area of the left shoulder, but that it was different to what had been experienced prior to it. At that time, Ms Steel was reporting worse pain to the right shoulder than was being experienced to the left. Dr Champion agreed with Dr Pandit's opinion to have proceeded with a total replacement surgical procedure to the left shoulder. He based that upon his acceptance of evidence of osteoarthritis in the glenohumeral joint. As to whether a similar procedure should now be undertaken to treat the right shoulder condition, Dr Champion stated that he was reliant upon Dr Pandit's expressed arthroscopic findings of the chondral surface of the right shoulder joint being the glenoid and the humeral head.
2. Dr Champion was asked about the most appropriate form of treatment given the conclusion of DCS that there had been slow progress, notwithstanding the surgery that had been performed to the left shoulder. Dr Champion replied:

It would appear that she most likely will undergo a replacement arthroplasty of the right shoulder and following that, she should undergo an Exercise Physiology rehabilitation programme.

1. Dr Champion was also asked by DCS to express an opinion in relation to the reported symptoms from the left side of the neck. He diagnosed severe tension myalgia on the left side of the neck. He noted that Ms Steel had undergone a neurological assessment and that a severe neurological disorder such as multiple sclerosis had been dismissed. As for treatment for the tension myalgia he considered that to be best addressed by a neurologist.
2. Dr Champion was not required for cross-examination.

1. Dr Leydon provided a brief medical report dated 31 January 2025 in response to a request by DCS. He attached a copy of a letter that he had forwarded to general practitioner Dr Altalbey dated 21 November 2024. Dr Leydon referred to a presentation of migraines and tense muscles on the left side of the neck. He noted that the prescription of Amitriptyline appeared to have been effective.

1. The trial book included three brief reports from occupational physician Dr Graham Wright, dated 30 September 2024, 24 October 2024, and 8 November 2024. He refers to himself as also being a pain physician. He noted that Amitriptyline had been helpful in treating headaches and what he described as "tightness" across the top of the left trapezius.
2. Dr Wright expressed some reservation in proceeding at this time with a right shoulder replacement surgical procedure. He referred to chronic secondary pain, and stated:

The question is whether to proceed with right shoulder replacement. On the face of it, the difficulties following the left shoulder replacement argue against early right shoulder replacement. It may be more appropriate to look for right shoulder replacement, if necessary, outside the standard entitlement period.[43]

1. That letter was dated 8 November 2024. Dr Wright did not address, either in that letter or in the other two letters before the Court, what he was referring to in relation to "the difficulties following left shoulder replacement...".

1. DCS referred to the evidence given by Dr Pandit and Dr Martin in relation to the extent of, and the cause of, the chondral loss affecting the right shoulder. It urged the Court to prefer and accept the evidence of Dr Martin. In particular, it submitted Dr Martin correctly identified the amount of chondral loss to the right shoulder as being substantially less than the chondral loss that had been experienced to the left shoulder and not warranting a right reversed total replacement surgical procedure. DCS submitted Dr Martin's evidence did not support a finding that the chondral loss affecting the right shoulder was causally related to overuse of the right shoulder following the left shoulder work injury. However, DCS accepted that the extent of the chondral loss is, as a matter of fact, as observed by Dr Pandit.[44] It was submitted that Dr Pandit did not address the cause of the chondral loss to the right shoulder in a meaningful way.[45]
2. Mr Ambrose, of counsel for DCS, developed in some detail the construction of s 33 of the RTW Act and, in particular, s 33(1), s 33(2), s 33(17) and s 33(19). It was submitted that reasonableness is the touchstone of the construction and application of the provisions and that requires the Tribunal to evaluate the evidence and determine whether the cost of the procedure recommended by Dr Pandit would be reasonably incurred in consequence of a work injury. It was emphasised by Mr Ambrose that the onus will not be discharged merely by presenting an expert opinion that it would be reasonable to proceed with the proposed surgery.[46]
3. Mr Ambrose referred to the significance of Ms Steel seeking pre-approval of the cost of the procedure. In doing so, DCS contended that the Tribunal is being asked to determine whether the cost of the procedure would be reasonably incurred and, in that process, determine whether it should approve the proposed surgery. In determining whether to approve the proposed procedure Mr Ambrose referred to aspects of the opinion expressed by Dr Martin that he urged the Court to take into account. Specific reference was made to the severity of the proposed procedure, that, effectively, there are no salvage opinions available if it is undertaken, and that the result of that procedure, to the left shoulder, has been sub-optimal.
4. Mr Ambrose noted that a number of decisions of this Tribunal that have addressed the construction of s 33 of the RTW Act have referred to the judgment of the Full Court in Metro Meat Ltd v Banjanovic (Banjanovic)[47]. It was submitted that the statements of principle expressed in Banjanovic are to be understood in the context of the Court addressing the cognate provision of the former Worker's Compensation Act 1971 (the WC Act). The cognate provision in the WC Act was s 59. It did not contain an equivalent of the current s 33(17) of the RTW Act. Banjanovic concerned a claim by a worker to be entitled to recover the cost of a medical expense that had already been incurred. Mr Ambrose submitted that whilst the principles from Banjanovic continue to be relevant, the way in which they apply must necessarily be different where the current enquiry involves a consideration of whether this Court should approve the cost of the procedure which is proposed to be conducted in the future.[48]
5. Mr Ambrose advanced submissions as to the relevant facts related to Ms Steel. Firstly, he submitted that there was a discord between the content of medical reports and what was asserted by Ms Steel as having been her symptoms at particular times. Secondly, it was contended that there was scant reasoning in justification for the proposed surgery in this case. The Court was urged to find that the left total replacement surgical procedure failed to solve left shoulder pain and impairment. DCS urged a finding that the combination of less chondral loss of the right shoulder in comparison to the left, the limited life span of the prosthesis proposed to be inserted to the right shoulder, Ms Steel's relatively young age, and the persisting pain and impairment of the left shoulder leads to a conclusion that there should not be pre approval of the cost of the proposed procedure to the right shoulder. In developing his submission Mr Ambrose asked the Court to find that, in giving his evidence, Dr Pandit did not demonstrate an accurate understanding of these relevant circumstances and, especially, the outcome of the left total shoulder replacement procedure.

1. Ms Bosboom, of counsel for Ms Steel, submitted the Court should find that the proposed surgery to the right shoulder would involve an expense to be reasonably incurred in consequence of a work injury. She submitted that Dr Pandit had reasonably proposed the right reverse total replacement shoulder procedure and that Ms Steel had reasonably sought pre-approval. Ms Bosboom referred to Ms Steel's evidence that the main objective of the proposed surgery is to alleviate the ongoing pain that Ms Steel is experiencing and is finding difficult to tolerate. In this context, it was contended that although the same procedure to the left shoulder had resulted in a reduced range of motion, it did address the pain that had been experienced to the left shoulder prior to that procedure. As I understood the submission, the Court was urged to find that the pain that has been experienced following that procedure between the left side of the neck and across the top and back of the left shoulder is a different pain related to tension and not related to the pathology of the left shoulder that was surgically treated.
2. Ms Bosboom noted that there is no evidence of similar muscle tension symptoms on the right side and nor did the Court receive evidence of a likelihood of that developing if the Court were to preapprove the proposed surgery.
3. Ms Bosboom referred to the evidence of Dr Pandit as to the cause of the arthritis affecting the right shoulder. She referred to the evidence of Dr Pandit that all other causes, including a rheumatoid process, had been excluded, and what was left in the circumstances of the history, was a post-traumatic arthritis.[49]
4. The Court was referred to the evidence of Dr Pandit that other modalities of treatment had been tried and had been unsuccessful in effectively treating the symptoms that continue to be experienced by Ms Steel to the right shoulder. The Court was urged to find those symptoms arise from the work injury and the proposed surgery is now reasonably required in consequence of the work injury.
5. Ms Bosboom submitted that the evidence of Dr Pandit and also of Ms Steel, as to the outcome of the left reverse total replacement shoulder procedure, should be accepted. In particular, that it has been successful in treating the high level of pain that had been experienced leading to that procedure.
6. In construing s 33 of the RTW Act, Ms Bosboom referred to s 33(19) and submitted it requires the Tribunal to give the same consideration to an application under s 33(17) as would be given to an application to recover the cost of treatment already incurred under s 33(1).
7. Ms Bosboom submitted that the difference between an application under s 33(1) and an application under s 33(17) is the timing in relation to when the cost is to be incurred and to allow an injured worker, in relation to an application under s 33(17) to make an informed decision as to whether to incur the cost of the medical treatment.[50]

1. Section 33 of the RTW Act addresses the circumstances in which medical expenses related to the treatment of a work injury may be claimed. It provides:

(1) Subject to this section, a worker is entitled to be compensated for costs of services described in subsection (2) that are reasonably incurred by the worker in consequence of having suffered a work injury -

(a) in accordance with a scale published by the Minister under this section; or

(b) if the relevant service is not covered by a scale under this section - to the extent of a reasonable amount for the provision of the service.

(2) The costs referred to in subsection (1) are the necessary costs of:

(a) medical services;

(b) hospitalisation and all associated medical, surgical and nursing services;

(c) approved recovery/return to work services;

(d) travelling, or being transported, to and from any place for the purpose of receiving medical services, hospitalisation or approved recovery/return to work services (but not where the worker travels in a private vehicle);

(e) where it is necessary for the worker to be accommodated away from home for the purpose of receiving medical services or approved recovery/return to work services - such accommodation (but not exceeding limits prescribed by regulation);

(f) attendance by a registered or enrolled nurse, or by some other person approved by the Corporation or of a class approved by the Corporation, where the injury is such that the worker must have nursing or personal attendance;

(g) the provision, maintenance, replacement or repair of therapeutic appliances;

(h) medicines and other material purchased on the prescription or recommendation of a health practitioner;

(i) other services (or classes of services) authorised by the Corporation.

(3) Compensation in respect of costs to which this section applies may be paid -

(a) to the worker; or

(b) directly to the person to whom the worker is liable for those costs.

(4) If a worker has been charged more than the amount that the worker is entitled to claim for the provision of a service in respect of which compensation is payable under this section, the Corporation may reduce the charge by the amount of the excess.

(5) A decision of the Corporation under subsection (4) does not constitute a reviewable decision under Part 6.

(a) services of a kind to which this section applies were provided to a worker in relation to a work injury; and

(b) the Corporation considers that the services were, in the circumstances of the case, unnecessary or unreasonably incurred,

the Corporation may disallow charges for the services.

(7) If the Corporation disallows or reduces a charge under this section -

(a) it must give to the provider of the service a notice setting out -

(i) the basis of the Corporation's decision to disallow or reduce the charge; and

(ii) where the charge has been disallowed under subsection (6) the provider's right to have the decision reviewed under this section; and

(b) the worker is not liable to the provider for the disallowed charge, or for more than the reduced charge, (as the case requires) and, if the worker has in fact paid an amount for which he or she is not liable, the Corporation will reimburse the worker for that amount and may recover it from the provider as a debt.

(8) If a worker travels in a private vehicle to or from any place for the purpose of receiving medical services, hospitalisation or approved recovery/return to work services, and the travel is reasonably necessary in the circumstances of the case, the worker is entitled to a travel allowance at rates fixed by a scale published by the Minister under this section.

(9) A reference in this section to approved recovery/return to work services is a reference to recovery/return to work services provided by a person who has an agreement with the Corporation for the provision of those services.

(10) If a treatment protocol or framework for the provision of services has been published by the Minister under this section, costs for the provision of those services are only compensable where -

(a) the services are provided in accordance with the protocol or framework; or

(b) the provider of the services establishes, to the Corporation's satisfaction, that services outside the terms of the protocol or framework are justified in the circumstances of the particular case.

(11) The amount of compensation for a service covered by a scale of charges published by the Minister under this section must be in accordance with the scale.

(12) The Minister may, by notice in the Gazette, on the recommendation of the Corporation, publish -

(a) scales of charges for the purposes of this section (ensuring as far as practicable that the scales comprehensively cover the various kinds of services to which this section applies);

(b) treatment protocols or frameworks as contemplated by this section.

(13) Subject to subsection (14), a scale of charges published under this section must be based on the average charge to private patients for the relevant service unless the Minister determines that it is not reasonably practicable or feasible to determine such an average charge for a relevant service (but in any event the amount fixed for the service must not exceed the amount recommended by the relevant professional association).

(14) A scale of charges for services provided by a public hospital may be based on government charges for the relevant service.

(15) Before the Corporation makes a recommendation to the Minister about the publishing of a scale of charges, or a treatment protocol or framework, the Corporation must consult with -

(a) professional associations representing the providers of medical services of the relevant kind; and

(b) associations representing self‑insured employers (including Self-Insurers of South Australia Incorporated); and

(c) associations representing employers other than self‑insured employers (including the South Australian Employers Chamber of Commerce and Industry); and

(d) associations representing employees (including the United Trades and Labor Council).

(16) A person who provides a service for an injured worker, knowing the worker to be entitled to compensation for the service under this section, must not charge for the service an amount exceeding the amount allowed under a scale of charges published under this section.

(17) A worker is entitled, in relation to prescribed classes of services, appliances, medicines or materials referred to in subsection (2), to apply to the Corporation for approval to obtain the provision of those services or otherwise to incur costs on the basis that the Corporation will agree in advance to be liable for the relevant costs rather than the worker being required to claim compensation under this section once the costs have been incurred.

(18) An application under subsection (17) must be made in accordance with the regulations and the Corporation must make a decision in relation to the application within the period prescribed by the regulations.

(19) The Corporation must give the same consideration to an application under subsection (17) that would be given to an application if the worker were to incur the relevant costs and then claim compensation under subsection (1).

(20) Subject to subsection (21), an entitlement to compensation under this section (including an entitlement to make an application under subsection (17)) comes to an end if the worker has not had an entitlement to receive weekly payments in relation to the work injury under Division 4 for a continuous period of 12 months (or has not had an entitlement to receive weekly payments under Division 4 and a period of 12 months has expired) (insofar as costs are incurred after the end of that period).

(21) Subsection (20) -

(a) does not apply in relation to a seriously injured worker; and

(i) in relation to any therapeutic appliance required to maintain the worker's capacity; or

(ii) in relation to surgery, any associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation), where the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20), that it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact (or likely impact) of the work injury on the worker's health and capacity (or future health and capacity); or

(iii) in relation to prescribed classes of injury, where the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20), that it is reasonable and appropriate for the services to be provided after the end of that period (and then, in such a case, the services will be compensable to the extent determined by the Corporation); or

(iv) in any other circumstances prescribed by the regulations.

(22) The right of review referred to in subsection (7)(a)(ii) is a right to have the decision of the Corporation to disallow or reduce a charge reviewed by the Tribunal by application to the Tribunal under the South Australian Employment Tribunal Act 2014.

1. From the text of s 33, some preliminary observations may be made. Sub-section 33(1) provides two conditions for the recovery of the costs of medical expenses. The first is that they be reasonably incurred and the second is that it be so incurred in consequence of having suffered a work injury. In some cases they may be separate and in others they may overlap. Sub-section (2) refers to a condition of the cost being "necessary".
2. Sub-section 33(17) empowers the Corporation and, upon review, the Tribunal to provide approval to obtain the provision of the services referred to in ss 33(2), or to otherwise incur costs, in advance of the service being provided. Sub-section 33(19) provides that the Corporation, when considering an application made under s 33(17), must give the same consideration that would be given if the worker incurred the relevant costs and then claimed compensation under s 33(1).
3. Sub-sections 33(17) and (19) were introduced into the RTW Act. The cognate provision in the former Workers' Rehabilitation and Compensation Act 1986 (the WRC Act) did not contain provisions such as s 33(17) and 33(19). Section 32 of the WRC Act had been construed as only allowing a worker to recover the cost of a medical expense that had been reasonably incurred by the worker in consequence of having suffered a compensable disability.[51] Section 59 of the WC Act was similar to s 32 of the WRC Act and referred to an entitlement to recover costs of "reasonable expenses incurred".

Judgments relevant to the construction of relevant sub-sections of s 33 of the RTW Act

1. As both parties made submissions in relation of the application of principles from the judgment of the Full Court in Banjanovic, it is convenient to address it first. The lead judgment was delivered by King CJ (with whom Mohr J and Prior J agreed). The worker sought to recover the cost of charges by a rheumatologist for a diagnostic investigation called thermography. It was also claimed to be an effective means of monitoring guanethidine block treatments. The cost had been disallowed at first instance on the basis of a finding that, on the balance of probability, thermography was considered by right-thinking members of the medical profession of good repute and competence to be neither an acceptable diagnostic tool, nor an appropriate aid to monitoring guanethidine block treatment. The appeal to the Full Industrial Court was allowed. It held that as the parties had agreed the worker had incurred liability for the charges, the issue was not before the trial judge. The Full Industrial Court also held that the expression "reasonable expenses" as it appeared in s 59 of the WC Act_,_ referred only to the amount of the charges made for the services and that an employer is liable notwithstanding that the services provided may not be necessary. Where liability for the services has been incurred, the only question for the Court was the reasonableness of the amount of the charge made for the services.
2. Upon further appeal to the Supreme Court, King CJ noted that the issue at trial was the employer's liability for the charges raised by the rheumatologist. Reference was made to the text of s 59 which made an employer "liable to pay as compensation to the worker such reasonable expenses incurred as a result of his injury...". It was held that it was therefore necessary for a worker to prove that such expenses had been "incurred". King CJ addressed the meaning of the expression "reasonable expenses". He held that the expression includes a requirement of reasonableness not only as to the amount but also as to the incurring of the liability.
3. King CJ observed that the reasonableness attaches to the worker incurring the expense and not to the provider of the service rendering it or fixing the amount of the charge. His Honour also observed that whether a worker had incurred liability for the expense and whether the incurring of the expense is reasonable, may overlap. In evaluating the reasonableness of the actions of the worker, all of the circumstances of the case are to be taken into account. King CJ added:

Although the test of reasonableness is essentially objective, a subjective element is involved. In deciding the reasonableness of his actions, the worker must be accepted as he is. What is to be determined is the reasonableness of the actions of the particular worker having regard to his temperament, personal background, means of knowledge, and professional advice. A worker is not obliged to elect the cheapest available treatment or the most conventional. He must be allowed reasonable freedom of choice.

Generally speaking, a worker who acts upon apparently reputable medical advice will be regarded as acting reasonably even though the advice turns out to be incompetent. But a worker who obstinately insists on undergoing diagnostic tests or unconventional treatment contrary to advice, or who opts for an unnecessarily expensive method of obtaining diagnosis or treatment, is likely to be judged to have acted unreasonably.[52]

1. The inter-relationship between ss 33(1), (2), and (17) of the RTW Act was considered by the Full Court, in the context of the limitation period set out in s 33(20), in Return to Work Corporation of South Australia v Karpathakis; Return to Work Corporation of South Australia v Rudduck (Rudduck)[53] and also in Giameos v Return to Work Corporation of South Australia (Giameos)[54]. In Rudduck two appeals were heard concurrently as they both concerned the proper meaning and effect of s 33 in the context of applications to extend the time to claim costs under the section, set out in s 33(20). In order to construe sub-sections 33(20) and (21), it was necessary for the Full Court to also address sub-sections 33(1), (2), (17), (18) and (19). Nicholson J (with whom Kourakis CJ and Parker J agreed) referred to the essence of ss 33(1) and (2) as providing that once a worker has incurred costs that conform to the requirements of those sub-sections, then the worker is entitled to be compensated for those costs.[55]
2. Nicholson J stated that in order to obtain advance approval under s 33(17) to (19) of the RTW Act, the worker must still satisfy the requirements of sub-sections (1) and (2).[56]
3. The purpose of s 33(17) to (19) was addressed and held to enable an application that would render the Return to Work Corporation of South Australia (the Corporation) liable for the relevant costs rather than the worker claiming such costs after they have been incurred.[57] Nicholson J held that in the case of an application in advance for approval to obtain prescribed medical services or otherwise incur costs with respect thereto, the Corporation is to give the same consideration as would be given to an application had the worker first incurred the relevant costs and claimed compensation under sub-section (1).[58]
4. In Giameos the worker made an application for pre-approval of the cost of surgical treatment and post-surgical rehabilitation to be undertaken and for the cost to be incurred beyond 27 June 2018. That was the date on which the prescribed period of entitlement to claim the cost of medical expenses in accordance with s 33(20) of the RTW Act came to an end. It was accepted by Mr Giameos that, in his circumstances, he could not rely upon s 33(21) to extend the time limit that would otherwise apply pursuant to s 33(20). In those circumstances he contended that the pre-approval pursuant to s 33(17) had the effect of extending the time period.
5. The Full Bench of this Tribunal held that the approval permitted by s 33(17) is to be liable for medical costs incurred in the prescribed period.[59] The subsequent appeal to the Full Court was dismissed.
6. The Full Court observed that sub-sections 33(1) and (2) are clumsily drafted in referring to the costs of services reasonably incurred and then defining the "costs of services" to be only the "necessary" costs of those services. The Court held that the correct test for the purposes of s 33(1) and (2) is that medical expenses are reasonably procured, and that no more than the costs necessary to procure those services are incurred.[60] The Court added:

The effect is to condition a worker's right to compensation and the right of a medical provider to his or her fees on the reasonableness of the treatment provided, and on the necessity of the payment to procure that reasonable treatment. If that condition is not met, the Corporation may, in its discretion, disallow the charges, or not fully compensate the worker for the costs incurred.[61]

1. The Full Court addressed the construction of s 33(17) of the RTW Act. It held that the reference to an "entitlement" to obtain an approval refers to a procedural right, or privilege, to make an application.[62] The Full Court observed that, on its face, s 33(17) provides no more than an alternative procedure to that conferred by s 33(1).[63] The Court stated:

The application is one for approval to obtain agreement "in advance" from the Corporation to be liable, rather than claiming, "under this section". The only claim which can otherwise be made under s 33 of the RTW Act, and the only liability to which the Corporation is exposed, is for the entitlement given by s 33(1) for compensation for incurred costs. Section 33(17) of the RTW Act, on its face, therefore merely allows an opportunity to have that entitlement determined in advance of the incurring of the costs.[64]

1. The Full Court observed that s 33 does not impose a liability on the Corporation directly to a medical provider. It referred to s 33(3) of the RTW Act as providing only that the Corporation may discharge its liability to a worker either by making payment to the worker or to the person "to whom the worker is liable".
2. The Full Court addressed the purpose of s 33(19) and held the effect of the sub-section is for the Corporation to agree in advance if it is liable to compensate the worker after the costs are incurred, if the conditions placed on the payment of compensation by s 33(1) and (2) are met. It was then concluded that the purpose of s 33(17) is to allow a worker an opportunity to make an informed decision about whether to obtain, and incur the costs of, medical treatment.[65]
3. In Banjanovic, the test advanced by King CJ for reasonableness in s 59 of the WC Act requires that all the circumstances be taken into account. That is also the test in the case of s 33(1), (2) and (17) of the RTW Act. The test remains essentially objective, but with the same qualification that a subjective element is involved. In Giameos Nicholson J referred, in determining whether pre-approval should be granted pursuant to s 33(17) of the RTW Act, to the information required to be provided in accordance with s 33(18). It was also observed that, typically, there would also be a file containing medical and other relevant information concerning the work injury in question.[66]
4. The judgments in Rudduck and Giameos do not directly address an aspect of the submissions advanced by DCS. It has contended there is a material difference in the evaluation of all of the circumstances where a compensating authority, and here the Tribunal, is being asked to pre-approve the cost of surgery which has not, as yet, been performed in comparison to determining whether a medical expense for a procedure performed by a treating surgeon has been reasonably incurred by a worker. DCS contended the Tribunal is in effect being asked to approve the surgical procedure. It was contended that in those circumstances a reasonable medical opinion in support of the procedure would be insufficient.
5. The relevant circumstances may vary from case to case and there may be circumstances to be considered in an application pursuant to s 33(17) that may not arise where the treatment has already been undertaken and the liability for the costs of such treatment has already been incurred by the worker. The giving of notice in accordance with s 33(18) may give rise to further investigation as to the reasonableness of the proposed treatment, the costs, and whether that cost would be incurred in consequence of a work injury. The legal principles to be applied are the same whether costs of the services have been incurred or are to be incurred.
6. To the extent DCS submitted that the reasonable opinion of one medical practitioner is insufficient in any case for pre-approval pursuant to s 33(17), that must be rejected. There may be cases where the worker presents evidentiary material, by reference to an opinion by a medical practitioner, which is sufficient for pre-approval. In other cases, the evidentiary material may give rise to a careful consideration of whether the proposed costs of services would be reasonably incurred. Another matter, of whether those costs would be in consequence of the worker having suffered a work injury, will be addressed below. The elements are part of the one inquiry as to whether the requirements of s 33(1) and (2) are satisfied. In some cases, there may be overlapping consideration.
7. The analysis of Banjanovic, Rudduck, and Giameos demonstrates that the recovery of medical expenses either incurred, or to be incurred, is not by reference to a test of what is the correct or preferred decision in relation to the treatment under consideration. The entitlement to compensation is dependent upon the reasonableness of the treatment provided, and on the necessity of the payment to procure that reasonable treatment, in the worker's circumstances. The conditions in s 33(1) and (2), once satisfied, entitles to worker to be compensated for the costs of medical services. By its text, s 33(17) does refer to approval to obtain the provision of services and that is in the context of "otherwise" incurring costs. A lack of merit in the treatment proposed would be relevant to whether the costs of services would be reasonably incurred for the purposes of s 33(17).
8. In construing s 33(1) there is another matter raised by DCS. It contended the proposed surgery is to treat arthritic changes by way of chondral loss which was not caused by the work injury. Sub-section 33(1) requires that the costs of services not only be reasonably incurred but they be reasonably incurred "in consequence of" having suffered a work injury. The meaning of "in consequence of", was not addressed by the Full Court in either Banjanovic, Rudduck, or Giameos. Section 59 of the WC Act required the claimed expenses to be the result of the injury. The meaning of "the result of the injury" was not addressed in Banjanovic. The words "in consequences of having suffered a compensable disability" did appear in s 32(1) of the WRC Act.
9. In Curyer v Department for Child Protection (Curyer)[67] the Full Bench observed that whilst both s 7 and s 33 of the RTW Act address aspects of entitlement to compensation for a work injury, the different texts of the provisions reveal a more stringent test for a worker to establish compensability generally for a work injury under s 7 in comparison to subsequently establishing the requisite causal link to recover a medical expense under s 33.[68] The Full Bench also noted that an earlier Full Bench in Return to Work Corporation of South Australia v Roe[69] had held that the words "in consequence" in sub-section 33(1) involves a less stringent test than the common law test of causation[70]. The Full Bench in Curyer then stated:

The differing tests illustrate that, in law, causation is concerned with ascertaining or apportioning legal responsibility for a given occurrence, and in a statutory scheme, what will be required in order to establish the sufficiency of the connection between the work and the claimed work injury or the work injury and the claimed medical expense is determined by the legislature.[71]

1. Mr Curyer sustained two work injuries to his right knee. The first occurred in October 2013 when, in the course of his employment as a residential care worker, he kicked a soccer ball. The second injury occurred in October 2014 after moving some boxes at work and then running for a bus. A work injury was sustained to the left knee in March 2014, as a result of chasing two absconding children from a residential care unit. The sole issue at trial was whether Mr Curyer had discharged the legal onus upon him to prove the accepted need for bilateral total knee replacement surgeries was in consequence of the work injuries. No issue was raised as to the reasonableness of the costs associated with the procedures. The trial judge noted Mr Curyer as having a genetic pre-disposition to developing arthritis and that the proposed surgery was to treat a bilateral arthritic condition affecting the knees. The trial judge also noted that Mr Curyer advanced his case on the basis that the work injuries had accelerated the need for the proposed surgery. The application for pre-approval of the costs associated with the proposed surgery was dismissed. The Trial Judge was not persuaded that the proposed surgery was in consequence of the work injury. He was not satisfied that the work injury had accelerated the need for the surgery. The appeal to the Full Bench was dismissed.
2. Whether a medical expense, either incurred or to be incurred, is in consequence of a work injury is not by reference to a test of reasonableness. The onus is upon the worker to prove the relevant causal link.

1. Before applying the legal principles, some findings of fact should be made. Ms Steel presented as truthful and, unless I refer to a specific qualification below, her evidence was a sound basis for findings of fact.
2. DCS submitted that Ms Steel's evidence was not a reliable basis for findings as to the ongoing pain to the left shoulder experienced following the left total replacement surgical procedure. On its face, there is a difference between what was recorded, by way of history, in some letters and medical reports of medical practitioners of the severity of pain experienced in the region of the left shoulder following the left reverse total replacement surgical procedure, and some of the evidence given by Ms Steel. I find the difference is predominantly attributable to the histories in medical reports generally identifying symptoms experienced in the region of the left shoulder following surgery and Ms Steel, in her evidence, distinguishing between the severity and the location of the pain to the left shoulder prior to surgery and the location, cause and severity of the pain experienced post-surgery. I accept Ms Steel's evidence in relation to that distinction, as it relates to location and severity of the pain. I accept her evidence as to her understanding of the cause of the pain experienced on her left side since the left total shoulder replacement surgery.
3. The pain that she has experienced post-surgery has been primarily from the left side of the neck across the top of the left shoulder, and to the back of the shoulder. I accept the evidence of Dr Leydon of a presentation of migraines and tense muscles on the left side of the neck. I accept the evidence of Dr Champion of a likely diagnosis of tension myalgia and I accept the opinion of Dr Pandit that the underlying pathology is not related to the shoulder. I accept the evidence of Ms Steel that in relation to the pain she experienced prior to the left reverse total replacement surgery, she has been symptomatically better post-surgery.
4. An substantial factor in the decision to proceed with the left total replacement surgery was the severity of the pain. I accept the evidence of both Ms Steel and Dr Pandit, in that regard, that the surgery was successful in relation to that pain, notwithstanding the pain and impairment that has been experienced and reported subsequently.
5. I accept the evidence of Ms Steel as to the location and severity of the pain experienced to the right shoulder including the evidence as to her current condition. The evidence demonstrates Ms Steel's desire to treat the work injury to the right shoulder and the extent to which she has sought to treat her work injury by less invasive means. That has included both conservative and less invasive surgery.
6. I prefer the evidence of Dr Pandit to that of Dr Martin as to the extent, severity and cause of the chondral loss to the right shoulder. Dr Pandit was in a position of advantage having seen the inside of the right shoulder at arthroscopy. I accept the evidence of Dr Pandit that effusion within the joint likely obscured the extent of the chondral loss upon MRI investigation.[72] Dr Martin's evidence as to the cause of the chondral loss was on the basis of his limited understanding of the extent of it. He did not rule out the possibility of a causal link with over activity of the right shoulder. Both doctors noted there was not a rheumatoid disease process operating. The timing of the onset, continuation and worsening of pain, associated with the predominant use of the right upper limb, together with Dr Pandit's explanation of the association between a roughening of the surface of the joint, inflammation and pain, which I accept, have contributed to a finding that the overuse of the right arm and shoulder has caused a work injury that has included further chondral loss. The work injury is a combination of an aggravation of chondral loss which has been ongoing as to its effects and right shoulder impingement from significant sub acromial bursitis. The work injury has been and continues to be the cause of the pain to the right shoulder.
7. For the reasons given, I do not accept the evidence of Dr Martin as to the outcome of the left reverse total replacement procedure. I do accept the that given Ms Steel's relatively young age, the severity of the proposed procedure, and that, effectively, there are no salvage opinions available if it is undertaken, other surgical procedures should be considered in relation to the right shoulder. Those matters, together with Dr Martin's view that other procedures should be preferred, were put to Dr Pandit, and I am satisfied that Ms Steel is also aware of and has considered other surgical options. I accept the evidence of Dr Pandit that he has considered other options, and his considered position is that the proposed surgery is the most appropriate way to proceed in the best interest of his patient. No issue was raised by DCS as to the cost of the proposed surgery. Dr Champion considered it likely that Ms Steel would proceed with the proposed surgery to the right shoulder and did not express opposition to it. I attach little weight to the opinion of Dr Wright that it may be more appropriate to wait before proceeding with the proposed surgery. The basis of that view appeared to be his understanding of the problems experienced to the left shoulder following the left reverse total replacement surgery. There was a lack of detail of what he understood those problems to be and whether they were casually related to the surgery.
8. Where there are different medical opinions in relation to the type of surgery to be performed, the evidence of the worker as to her response to other treatment modalities and her understanding of the risks associated with the proposed surgery will be relevant. Ms Steel impressed me as someone who has monitored her experience of pain and impairment, and the results of different modalities of treatment. As noted by Dr Pandit, a relevant consideration is that Ms Steel underwent the proposed surgery to the left shoulder and she wishes to proceed with that surgery to her right shoulder. It is unlikely she would wish to do so if the surgery to the left shoulder has been unsuccessful. She repeated to the Court, Dr Pandit and Dr Martin, a current severe level of pain to the right shoulder and that it has been increasing over time. She is aware of the limitations of function of the left shoulder following the left reverse total replacement procedure and has accepted that she may be left with a similar reduction in function of the right shoulder following the proposed further surgery. The prospect of alleviating the pain now being experienced to the right shoulder is an important consideration in determining whether the requirements of s 33(1) and (2) of the RTW Act are met in the context of an application pursuant to s 33(17). I accept the evidence of Dr Pandit as to the possible improvement in Ms Steel's current condition that may be achieved following the proposed surgery. That includes the possibility of a return to some work with DCS. I also have had regard to the risks of the proposed surgery as addressed by Dr Pandit and Dr Martin.
9. In all the circumstances, I find that the proposed surgery would involve costs that would be reasonably incurred by Ms Steel in consequence of her work injury to the right shoulder, and that her application for pre-approval to obtain the provision of those services or otherwise to incur the costs should be granted. The determination of DCS to the contrary should be set aside.
10. DCS properly conceded the artificial components to be utilised in the surgery constitute a therapeutic appliance of the purposes of s 33(21)(b)(i) of the RTW Act.[73] The effect is that the time limit that would otherwise apply under s 33(20) does not apply to the right reverse total replacement surgery.
11. The parties shall be heard as to the form of the final orders that should be made, and any application for costs.

[1] Paragraph 11 of Ms Steel's affidavit of evidence sworn on 31 July 2025.

[3] Affidavit of evidence [23]-[24].

[26] TR 69, medical report dated 5 April 2024.

[43] Letter of Dr Graham Wright to DCS dated 8 November 2024, TB 123.

[47] [1989] SASC 1868: (1989) 52 SASR 102.

[53] [2018] SASCFC 45.

[54] [2019] SASCFC 161.

[55] Rudduck supra, [25]. Nicholson J referred to ss 33(3) to (16) providing a series of qualifications and adjustments to the general approach, but those qualifications and adjustments are not relevant in this case.

[56] Rudduck supra, [27]. Nicholson J also referred to a requirement of satisfying s 33(18) but no issue in that regard was raised in this case.

[59] Giameos v Return to Work Corporation of South Australia, [2019] SAET 55, [25].

[67] [2022] SAET 26.

[69] [2020] SAET 105.

[71] Curyer supra, [43], footnote omitted.

[72] Oral evidence of Dr Pandit, TR 68 L21-L41.

[73] See Ashfield v Return to Work SA (Valspar (WPC) Pty Ltd) [2017] SAET 11, Return to Work Corporation of South Australia v Williams [2021] SAET 194.