Brown v Trinity Retail Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v Trinity Retail Pty Ltd [2025] NSWPIC 41
APPLICANT:	Pamela Brown
RESPONDENT:	Trinity Retail Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	10 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment claim; accepted left shoulder and neck injuries; disputed left carpal tunnel syndrome; Held – applicant sustained consequential carpal tunnel syndrome; matter remitted to President for referral to Medical Assessor for assessment of cervical spine, left upper extremity (shoulder and sensory loss-carpal tunnel syndrome) and scarring (TEMSKI).
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained left carpal tunnel syndrome as a result of injury on 2 March 2020. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 2 March 2020 (b) body systems/parts: (i) cervical spine (ii) left upper extremity (shoulder and sensory loss-carpal tunnel syndrome) (iii) scarring (TEMSKI) (c) method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are; (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents, and (c) the respondent’s Application to Lodge Additional Documents dated 10 January 2025 and attached document. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Pamela Brown (the applicant) was employed by Trinity Retail Pty Ltd trading as FoodWorks Condobolin (the respondent) as a shop assistant from the end of 2019 until her injury on 2 March 2020.
On 2 March 2020 the applicant was raising a roller shutter when she suffered injury to her cervical spine, left upper extremity (shoulder) and she alleges also carpal tunnel syndrome.
A dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 was issued on 24 April 2024 disputing the applicant’s entitlement to permanent impairment lump sum compensation and that the applicant suffers left carpal tunnel syndrome as a result of the injury on 2 March 2020. Liability for the applicant’s cervical spine and left shoulder injuries is accepted.
A further s 78 dispute notice was issued on 26 July 2024 following receipt of the report of Dr John Bosanquet, independent orthopaedic surgeon, disputing entitlement to lump sum compensation and that the applicant suffers left carpal tunnel syndrome as a result of the injury on 2 March 2020.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 17 October 2024 claiming lump compensation for 22% whole person impairment (WPI) for the cervical spine, left upper extremity, nervous system and Table for the Evaluation of Minor Skin Impairment (TEMSKI)/scarring.
The dispute was listed for conciliation conference and arbitration hearing on 16 January 2025 to determine whether the applicant sustained carpal tunnel syndrome as a result of injury on 2 March 2020.

ISSUES FOR DETERMINATION

The parties agree that the issue in dispute is whether the applicant sustained carpal tunnel syndrome as a result of injury on 2 March 2020 pursuant to s 4 of the Workers Compensation Act 1987 (1987 Act) and/or as a consequential injury with deemed date of injury 2 March 2020.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 January 2025 by audio visual link. Mr James McEnaney of counsel appeared for the applicant instructed by Mr Dilan Kasturi, legal practitioner. Mr Paul Stockley of counsel appeared for the respondent instructed by Ms Cherie Tippett, legal practitioner. Ms Brown was also present during the conciliation conference. She requested to be excused from the arbitration hearing which was agreed.
During conciliation the respondent’s application to lodge additional documents dated 10 January 2025 and the attached report was admitted by consent. The parties agree the matter is to be remitted to the President for referral to a Medical Assessor to assess WPI of the cervical spine and left shoulder, and once the issue in dispute is determined the referral may also include carpal tunnel syndrome.
I am satisfied 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    the respondent’s Application to Lodge Additional Documents dated 10 January 2025 and attached document.

Oral evidence

No application was made to call oral evidence or to cross examine the applicant.

Applicant’s evidence

The applicant relies on a statement signed on 27 May 2024.
She commenced employment with the respondent as a shop assistant at the end of 2019. Her duties were varied but included customer service, money handling, stocking shelves, stocking the drink fridge, cleaning and working on the main cash register.
Her usual shifts were between 8.00am and 4.00pm four days a week on Monday, Tuesday, Thursday and Friday. At the start of each shift the applicant’s job was to open the store at 8am.
The store had glass doors and windows covered with roller shutters to prevent crime. The doors on either side of the main doors also had shutters. The applicant had to lift and push the shutters of each door up to the ceiling, which was about three or four meters high, to allow customers into the store.
Due to her height and strength the applicant was not tall enough to physically push the shutters up high enough using her hands so that they would reach the ceiling. Management showed her how to raise the roller shutters using a bar they had for that purpose. This was about 40 centimetres long and had an edge of about 10 centimetres.
The applicant got her hands underneath the shutters and lifted them up to a level where she could support it with one hand while she got the bar under it to use the bar to push the shutter up to the ceiling. This took a significant amount of force.
At 8.00am on 2 March 2020 the applicant was opening the store. The shutter in front of the door on the right of the main door was always stiffer than the rest and did not go up or down smoothly. She got her hands underneath the shutter and lifted it to a height where she could support it with one hand.
The applicant got the bar underneath it however when she was using the bar to push the shutter up it slipped slightly. As the door came back down on to the bar and she was pushing it up again so it would not fall down on her, she felt excruciating pain in her left shoulder and neck.
The door stayed up and the applicant went inside. She was in extreme pain starting from her neck and running down her left arm. She told Lorraine, a co-worker, who suggested she tell the managers who lived next door to the store.
The applicant knocked on their door for a long time. When no one answered she returned to the store where customers were waiting to be served. She was in tears as she served the customers. She initially worked on the registers using her left arm to lift and scan groceries and she later restocked the drink fridge by stepping on to a milk crate due to her height, and by pulling the drinks forward. She filled the cigarette shelves behind the registers which aggravated her neck and left shoulder pain.
The manager’s wife saw the applicant sobbing as she leant over to grab some cigarettes to fill the shelves. The pain was unbearable. She then left work and went to the doctor’s surgery.
She was treated at the Brenshaw Medical Centre in Condobolin where the general practitioner examined her. She was referred for an X-ray and to Dr Samuel Kwa, orthopaedic surgeon, in Orange.
Dr Kwa arranged an MRI but due to her anxiety it could not be carried out. The applicant had ultrasound guided injections to her shoulder which provided no relief.
Dr Kwa recommended she undergo surgery and a left shoulder arthroscopy, acromioplasty, supraspinatus repair and biceps tendinosis were carried out by Dr Kwa. The applicant woke up in a lot of pain with four or five entry wounds and spent six weeks in a sling following the surgery.
COVID-19 happened after the applicant attended one physiotherapy session at Condobolin Hospital. She eventually started consulting Linda Riley, a physiotherapist at Parkes Physiotherapy & Sports Injury Centre, and she saw her once a month for approximately 11 months.
The applicant did not enjoy the physiotherapy sessions. Ms Riley kept telling her she was hypersensitive. She then started seeing Josh Brown, another physiotherapist in Parkes, who gave her home exercises and massages but nothing was working.
She continued to consult Dr Kwa who referred her for ultrasounds, CT and MRI scans of the left shoulder and cervical spine to investigate her symptoms. Dr Kwa referred her to Dr Simon Hawke, neurologist.
Dr Hawke’s opinion was that the applicant was developing a chronic pain syndrome. Nerve conduction studies were carried out on 3 February 2023. These concluded she has left median nerve lesion at the wrist and provided a diagnosis of carpal tunnel syndrome.
The applicant knew immediately on 2 March 2020 that she had suffered injury to her neck and left shoulder. Pain ran down her left arm from the top of the shoulder to her hand and her arm would sometimes go numb. She experienced tingles and numbness in her left hand.
The focus of treatment was on the shoulder and neck injuries and the tingling and numbness in her left arm and hand were a secondary concern. As this became worse Dr Kwa referred the applicant to Dr Hawke and she had the nerve conduction studies.
The applicant did not have any tingling or numbness symptoms in her arm, wrist or hand prior to 2 March 2020 and although carpal tunnel syndrome was not diagnosed until February 2023, she knows the injury and symptoms came on when she had the accident on 2 March 2020.
The applicant also relies on her supplementary statement signed on 26 August 2024.
It was really following the left shoulder surgery on 30 July 2020 that the tingling and numb symptoms started to increase in her left arm. She does not wish to have carpal tunnel release surgery.
There are a few reasons why the clinical records do not include complaints of numbness and tingling until two or three years after the accident. The applicant’s treating doctors told her the focus of her medical treatment should be on her neck and left shoulder which were initially more severe. She trusted their treatment and judgement.
The applicant believes as the neck injury was not included in her clinical records until much later after the accident and that injury has been accepted, the carpal tunnel syndrome should also be accepted as having been caused when she had the accident as that is when all her symptoms began.
The other factor is that due to where she lives she has extremely limited access to medical treatment. The Brenshaw Medical Centre closed down and no one was even given their medical records. She does not believe she has consulted the same general practitioner for more than a few months as they do not stay to work there.
After the Brenshaw Medical Centre closed the applicant needed to drive approximately 100km each way to see a doctor. Consistent treatment was extremely difficult for her to receive. She felt like she never really made a lot of progress as every time she saw a new doctor they went back into her medical history and noted the left shoulder surgery.
The applicant really believes the left carpal tunnel syndrome was caused by the workplace accident on 2 March 2020 and became worse following the left shoulder surgery and rehabilitation.

Dr James Bodel, orthopaedic surgeon

Dr Bodel was qualified by the applicant and reports on 27 October 2023 that the applicant sustained a work injury to the neck and left shoulder and left arm as a consequence of the event on 2 March 2020. He refers to probable carpal tunnel syndrome in the left upper limb.
The frank injury caused the neck and shoulder injury and the subsequent development of carpal tunnel syndrome because of the mechanism of the lift that she did at that time. Employment has been the main substantial contributing factor to the injury.
He accepts that it is probable that there is carpal tunnel syndrome present in the left arm and assesses 10% upper extremity impairment as a result. His total assessment is 22% WPI.
On 2 July 2024 Dr Bodel’s supplementary report includes that there is no defined history as to when the set of symptoms of carpal tunnel syndrome came on but it has been part of her chronic pain for a little while. She is left with chronic pain as a result of the injury to the left shoulder and part of that is the carpal tunnel syndrome confirmed by the nerve conduction studies.
Dr Bodel is satisfied that the carpal tunnel syndrome is a consequential condition and this is certainly evident clinically and is also confirmed. There is no evidence of pre-existing degenerative changes. He is satisfied that there is a causal link as she has had no other accident or injury. He is satisfied to accept that this is a consequential condition following the injury to the left shoulder that occurred at work.
The doctor’s understanding as to why the applicant did not undergo investigations for her left carpal tunnel syndrome until 3 February 2023 was that her main focus was the severe pain in her left shoulder region for which she needed treatment.
She did not do well from the surgery and she was left with chronic pain. When that was investigated the left carpal tunnel syndrome was identified and at that time it became apparent.
On 9 October 2024 Dr Bodel provides a further supplementary report in which he comments on the applicant’s view that her carpal tunnel syndrome came on in association with the injury on 2 March 2020.
While that may well be the case, Dr Bodel continues to hold the view that carpal tunnel syndrome comes on gradually over a period of time as it does not usually occur as a result of a specific incident, although it may have been triggered by the specific event. Becoming worse after surgery is more in keeping with the gradual onset of pain associated with median nerve compression at the wrist, or the carpal tunnel syndrome.

Other medical evidence

Dr Claire Sui, pain medicine specialist, reports on 24 August 2022 to Dr Kwa. The applicant presents with chronic pain in her left arm which she has had for two years. She reports numbness, pins and needles and ache from the left side of her neck to the left shoulder, left arm and now also the right side of her neck.
Prof Hawke, treating consultant neurologist, reports to Dr Kwa on 25 August 2022 that he suspects the applicant is developing chronic pain syndrome and sent her for nerve conduction studies to exclude median neuropathy.
Dr Emma Blackwood reports on nerve conduction studies conducted on 3 February 2023. The conclusion is there is a left median nerve lesion at the wrist, of mild severity, consistent with the clinical diagnosis of carpal tunnel syndrome.
Two medical journal articles are with the ARD that discuss carpal tunnel syndrome developing following surgery.
The Journal of Hand Surgery Global Online article ‘The Incidence of Carpal Tunnel Syndrome Diagnosis Increases after Arthroscopic Shoulder Surgery’ discusses arthroscopic shoulder surgery as a potential risk factor for carpal tunnel syndrome.
The Open Orthopaedics Journal article ‘Complications of the Fingers and Hand After Arthroscopic Rotator Cuff Repair’ discusses 12 patients of 40 experiencing numbness, pain, edema and movement limitations of the fingers and hand following surgery, three of whom were diagnosed with carpal tunnel syndrome.
The clinical records of Dr Kwa, the Brenshaw Medical Centre, Dr David Wu and the Kure Medical Group are attached to the ARD, as are the applicant’s ultrasound and radiology reports.
The out of pocket expenses schedule as at 14 October 2024 is in the amount of $922.95, being the amount of the Medicare Notice of Charge dated 31 May 2024.

Respondent’s evidence

The s 78 notices of 24 April 2024 and 26 July 2024 are attached to the reply.
The Vocational Assessment Report of Acumen Health dated 31 August 2021 is also with the reply. This includes a reference to occasional tingling in the fingertips.

Dr John Bosanquet, independent orthopaedic surgeon

Dr Bosanquet provides four medico-legal reports.
In the first report of 5 March 2024 Dr Bosanquet provides his opinion that the applicant injured her left shoulder and neck on 2 March 2020, aggravating pre-existing degenerative changes. Following the shoulder surgery the applicant has ongoing pain and restricted movement. He assesses four per cent WPI of the left upper extremity after deducting 50% for pre-existing degenerative changes.
On 23 April 2024 Dr Bosanquet provides a supplementary report in which he assesses 0% WPI of the cervical spine.
On 14 August 2024 Dr Bosanquet carries out a file review regarding the applicant’s allegation of carpal tunnel syndrome.
In the doctor’s opinion there is no consequential injury to the left upper extremity (wrist, carpal tunnel syndrome) on 2 March 2020. There are no clinical records of complaints of these symptoms. It is a very localised condition and there is no specific injury to the left wrist.
The applicant’s symptoms may well have subsequently developed but these are due to age-related changes in her wrists. The only link is a temporal one, that is, these are unrelated symptoms that developed after the injury.
Dr Bosanquet undertakes a further file review on 11 December 2024.
The doctor is asked to comment on whether the applicant’s carpal tunnel syndrome is a consequential injury to the left shoulder injury on 2 March 2020.
The doctor’s opinion remains that the carpal tunnel syndrome is totally unrelated and has occurred due to her increasing age since the injury. There is no consequential injury to the left wrist or carpal tunnel as a result of the injury on 2 March 2020 to her left shoulder.

Respondent’s submissions

The respondent provided short written submissions.
The only issue in the matter is causation of the applicant’s carpal tunnel condition.
Dr Bodel varies his case theory. First, on 27 October 2023 he suggested a subsequent development of carpal tunnel syndrome because of the lift that she did at that time. While he does not so state, this suggests a frank injury, a proposition that is confirmed by his opinion of 9 October 2024 when he states his opinion shifted.
In any event, whatever he thought, this opinion gives no insight into how the condition was caused or developed. It is an insufficient evidentiary basis for the applicant to make her case.
His second report of 27 October 2023 is limited to WPI assessment.
Dr Bodel’s supplementary report of 2 July 2024 responds to the applicant’s solicitor’s specific queries regarding causation. His first observation is that he is satisfied that this is a consequential condition as this is certainly evident clinically and is also confirmed. This is of no assistance whatsoever to the lay reader and provides absolutely no insight into what has occurred. The existence of the carpal tunnel condition is not in dispute. However, its mere existence does not establish its cause.

His next commentary is to observe the absence of a specific denial of causal nexus by Dr Bosanquet. This is not a medical analysis, merely a forensic observation. It does not fortify or explain his own opinion.
In the same report Dr Bodel observed that when investigating the chronic pain the left carpal tunnel syndrome was identified and at that time it became apparent. This is undoubtedly correct, but again, sheds no light on causation.
The respondent says that this too is an insufficient evidentiary basis to establish the necessary causal nexus between the event of 2 March 2020 and the left carpal tunnel syndrome.
In his report of 9 October 2024 Dr Bodel observes that carpal tunnel syndrome usually does not occur as a result of a specific event. For that reason his opinion shifted towards the consequential nature of the condition but then he appears to hedge his bet by suggesting that the symptoms were triggered by the specific event on 2 March 2020.
Next, Dr Bodel turned to the medical literature (of which he was previously unaware) which upon examination suggests a correlation between rotator cuff reconstruction and labral repair and the onset of carpal tunnel syndrome. It is trite to observe that correlation does not constitute causation. That is especially so where no distinction is made in the studies between traumatically caused and idiopathic shoulder pathology.
Having acknowledged it the doctor hardly embraces the proposition that causation can be established in this fashion.
His final and mature consideration of the matter is then recorded in the answer to the numbered question 3. While he makes clear he is satisfied he does not tell us why. This is an essential ingredient in expert opinion and completely lacking in this instance.
The respondent also made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
There are no real factual issues in this matter. There is no issue the applicant has been diagnosed with carpal tunnel syndrome as a result of the neurophysiological study that was ordered during the course of her treatment.
The mere existence of a diagnosis of carpal tunnel syndrome does not prove its relationship with the traumatic injury on 2 March 2020.
The left shoulder surgery took place on 30 July 2020 and there was then a protracted period of complicated symptomatology which was diagnosed by some as a chronic pain syndrome.
A number of specialists were engaged to consider what was going on and as there was a shoulder injury there was concern the symptoms reported in the arm might have their genesis in the cervical condition.
Dr Kwa writes to Prof Hawke on 27 June 2022 and says the applicant has chronic pain syndrome and there may be some carpal tunnel symptoms or maybe some neck degenerative symptoms which may need to be excluded.
At the same time Dr Kwa observed that the applicant is hyperalgesic with some significant psychological overlay as well.
Prof Hawke notes on 25 August 2022 that the applicant’s left shoulder always aches but there was also considerable aching in the arm and to the elbow, her fingers tingle and at times her whole arm can go numb. The Tinel’s and Phalen signs were negative, both physical tests for the presence of neuropathy with the Phalen sign directed to the median nerve. The doctors are looking for potential carpal tunnel syndrome.
Prof Hawke ordered nerve conduction studies to exclude median neuropathy. These tests concluded there is a left median nerve lesion at the wrist and carpal tunnel syndrome.
The respondent’s submission is that the clinicians detected the coincidental presence of carpal tunnel pathology.
Dr Bodel does not really tell us why he is satisfied that there is a connection between the injury to the left upper extremity, the shoulder, and the wrist symptoms. That is an essential ingredient and an expert opinion is missing in this case.
The applicant must persuade the Commission that there is a connection on the balance of probabilities.
Dr Bodel changes his opinion, initially finding a frank injury and then changes his opinion, however he does not provide any very useful responses in the respondent’s submission.
Dr Bodel cannot accept that the specific treatment events of the surgery to the shoulder and injection of cortisone is a definite causal feature, and he is more inclined to indicate that the original injury to the left shoulder is the main causation issue in the development of the carpal tunnel syndrome.
Dr Bodel has commented previously that carpal tunnel syndrome is not a condition that is usually caused by any event, it is gradually acquired.
Dr Bodel does not provide a definitive answer in the respondent’s submission.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The respondent has not referred to the full quote from Dr Bodel’s report. Dr Bodel says he cannot accept the specific treatments to the shoulder and injection of cortisone is a definite causal feature, and he is more inclined to indicate that the original injury to the left shoulder on 2 March 2020 is the main causation issue in the development of the carpal tunnel syndrome, further aggravated by other events just listed in this circumstance.
Dr Bodel did not change his opinion as the respondent submits. If anything he has supplemented it, improved it upon the provision of more information.
This is often taken as a criticism of an expert witness, that when they are presented with new evidence they were prepared to change their mind or at least to adjust their opinion. With respect, if the expert is not willing to do that for some reason, then there really is a problem with the expert.
The applicant confirms there is no true factual dispute. What is missing from the respondent’s submissions is what to make of the applicant’s evidence.
Dr Kwa refers the applicant to Prof Hawke on 27 June 2022 after having carried out the surgery some time earlier and notes the applicant had found no relief with continuing pain post-surgery. This report really unlocks the case.
The pain she continues to experience is pain in her neck for a long time, more on the right than the left. She had a post operative ultrasound and MRI scan in April 2021 that reported the repair was intact. She had cortisone injections and in Dr Kwa’s view she had chronic pain syndrome and there may be some carpal tunnel symptoms or maybe some neck degenerative symptoms which need to be excluded.
At this time Dr Kwa had looked after the applicant for nearly two years and he is out of ideas. He did the left shoulder surgery and there is something else going on.
The neck injury was not part of the initial complaint in the same way that the carpal tunnel syndrome was not. The applicant submits the neck was accepted because of a report like this where Dr Kwa said we need to look elsewhere for the applicant’s pain.
The applicant’s pain has not really changed and they scan the neck and do the carpal tunnel investigation and find probable carpal tunnel symptoms which the respondent now concedes there are.
The respondent accepted liability for the neck and paid for treatment. The only thing they have not agreed to pay for is the carpal tunnel treatment which the applicant submits is unreasonable.
The applicant comments in her supplementary statement of 26 August 2024 that unlike the carpal tunnel syndrome the neck injury has been accepted, and it seems to her much the same thing, having been caused by the accident which is when all her symptoms began.
She describes the accident and the excruciating pain in her left shoulder and neck, both of which are accepted injuries, and the pain ran down her arm. This is uncontested evidence.
Dr Cheah, general practitioner, notes on 2 March 2020 “hurt shoulder, has roller door shutters, whilst pushing up hard, shooting pain, cant [sic] lift up,”[1] painful abduction, and to check with ultrasound to exclude supraspinatus tendinitis. Dr Cheah notes she did this at work “for compo” and requested an ultrasound of the left shoulder.
[1] ARD page 162.
There is no mention of the neck however the respondent came to accept the neck injury 18 months on. There is no mention of carpal tunnel syndrome.
The applicant of course is not a doctor. She does not know precisely the cause of any of her injuries. She goes to the doctor and tells them what she can, and they send her off for treatment.
The applicant submits that some regard should be had to the fact that she lives in a remote area where access to medical treaters is difficult. One of the reasons that might explain why she does not talk about these other problems is that she kept getting new doctors every two to three weeks or every month or two.
The fact that her medical records do not faithfully reproduce all of her complaints through the history taken should not support Dr Bosanquet’s opinion that the applicant simply developed carpal tunnel coincidentally two years on as just as coincidence.
There is a very reasonable explanation for why the general practitioner notes are so poor; because the applicant lives in a rural area there are not really any doctors who stay to work there. She does not recall consulting the same doctor for more than a few months as they always come and go. It is extremely difficult to build any rapport or have consistency in her treatment and reporting of symptoms. She finds a new doctor 100km away when Brenshaw Medical Centre was closed and boarded up.
Dr Cheah remained the applicant’s treating general practitioner from March 2020 until about July 2020 when Dr Mutukumarana appears in the notes. As her new doctor he records that the applicant identified herself through her date of birth and correct name.
The applicant’s submission is that the doctor does not know the applicant at all and has to verify that he has the right person. The doctor notes he discussed the Workcover case, the applicant’s constant pain but there is not much else recorded.
This is not to criticise the doctor, but the applicant says every time she sees a new doctor they essentially codify and reinforce the last doctor’s work and they are just taking and carrying the ball forward. At this stage the ball is a shoulder injury that receives treatment including the upcoming surgery.
Dr Kwa’s surgery does not fix the applicant’s problem. Dr John Harrison, general practitioner, becomes involved on 6 August 2020. He is the first doctor she sees after her surgery which would be anticipated as a very important consultation. There is no mention of where her pain is, only that there is post operative pain. The applicant cannot be criticised for the medical records and she is not writing them herself.
Dr Mutukumarana comes back followed by Dr Yaqoob on 6 May 2021. It is now 14 months after the accident and all that the doctors have noted is the left shoulder, the applicant is in ongoing pain, and no one yet has thought to query whether there is a neck problem. There have been no investigations of her neck. She is not to know she has problems with her neck because no one has told her she does and there has been no neck scan carried out.
Dr Kwa’s referral to see a pain specialist is again focussed on shoulder movement and there is nothing said about the neck. Dr Green on 15 December 2021, 18 or 19 months after the injury for which she is still getting Workcover certificates, requests another test on the shoulder.
On 29 April 2022 Dr Green then charts the applicant’s complaints and considers the possibility of the neck and requests a CT scan of the cervical spine, two years after the accident. Dr Green notes “(L sided neck/shoulder pain/arm weakness for lx, ? cervical radiculopathy).” [2]
[2] ARD page 187.
The applicant should not be punished for not being a doctor and being unable to distinguish between what the doctors at first thought was a supraspinatus tear and then considered was possibly a chronic pain syndrome, and then realised there was likely some degree of nerve compression at the cervical spine that Dr Bodel ultimately concludes is likely upon receipt of the injury. The development of median nerve compression or carpal tunnel syndrome became further aggravated when she had her surgery.
The applicant is a reliable witness and she says what her symptoms have been in her first statement. In her second statement she says she developed pain in her neck, left shoulder and running down her left arm and into her hand on 2 March 2020. The focus of treatment for two years was on her shoulder while her neck was a problem from the beginning.
After surgery she woke in a lot of pain especially running down her left arm and again into her hand. She was placed on strong painkillers which masked some of her symptoms. Dr Harrison warned her about taking that strong medication and the risk of addiction and overuse but the applicant felt she needed them.
Following the surgery there was an increase in symptoms of tingling and pins and needles. She tried to get some relief by manipulating and moving her arm while it was in a sling for approximately six weeks. She says she does not remember if she told Dr Kwa about these symptoms at the time but Dr Kwa turned the focus of his treatment to her neck.
The applicant’s submission is that it cannot be accepted the carpal tunnel syndrome was coincidental. There are no symptoms on the right side and the symptoms started on the day of the accident and became worse. Dr Bosanquet accepts she has carpal tunnel syndrome but says it is a coincidence, it is as a result of her age, however in the circumstances there should be no confidence in accepting that opinion.
The applicant has carpal tunnel syndrome which was identified during the course of a complex medical picture. She certainly had carpal tunnel syndrome prior to it being confirmed on nerve conduction studies. The applicant explains why there is no recording of symptoms in the clinical records.
Dr Bodel’s opinion is that the carpal tunnel syndrome came on in association with the injury on 2 March 2020. The applicant’s case is that there has been an injury that caused compromise on the median nerve although Dr Bodel says it usually comes on gradually over a period of time. His view is that although the condition was triggered by the event on 2 March 2020 the symptoms came on gradually over a period of time and became worse after the surgery.
Dr Bodel refers to the documents he was sent, a research paper regarding complications of fingers and hands after arthroscopic rotator cuff repair. His conclusion is that multiple force pathology did occur following the surgery on the shoulder with pain running down into the hand and he is satisfied there does appear to be a causal link between the injury primarily to the shoulder and the subsequent development of carpal tunnel syndrome at some stage immediately after that surgery.
The applicant submits an injury can have multiple causes. The carpal tunnel syndrome was consequential to the injury on 2 March 2020, caused on that date or consequential to the surgery or it could be both. Dr Bodel says it is both because that is what the applicant’s experience is and he has listened to her evidence.
There is tingling for four months between March 2020 and the surgery in July 2020 that appears to be consistent with carpal tunnel syndrome. Dr Bodel applies his medical expertise and qualifies his assumptions taking into account the additional material he is provided with which was the applicant’s statement and medical research reports that show surgery can bring on carpal tunnel syndrome.
The doctor then answers the question put to him and while conceding this is a difficult medical issue he is satisfied there is a causal link between the injury and the carpal tunnel syndrome. Dr Bodel’s opinion if anything became stronger when he considered the applicant’s further statement about when she experienced symptoms.
The applicant should not be punished due to the absence of nerve conduction studies having been carried out closer to the time of the injury. She had symptoms which eventually went on to direct a doctor to do the nerve conduction studies.
Dr Bosanquet accepts there is carpal tunnel syndrome however he does not accept it was caused by the injury or that it is a consequential injury.
The history he takes is a little different although he takes largely the same account of the applicant’s symptoms, noting he examined the applicant some four years after the accident and there is a much more evolved medical case. He refers to symptoms of carpal tunnel syndrome as part of his examination of the left shoulder.
Dr Bosanquet refers to the symptoms not being noted by her general practitioner and specialist which is a classic Mason v Demasi[3] reasoning and why reliance cannot always be placed on clinical records.
[3] [2009] NSWCA 227.
In his further file review Dr Bosanquet confirms his opinion that the carpal tunnel syndrome is age-related. Although he does not accept a causal link to the injury he does not explain why he is of that opinion. He does not grapple with the applicant’s evidence regarding her symptoms. Her account of what happened after the injury and after the surgery is not dealt with. It is not sufficient to simply look at the clinical records and when the condition is diagnosed.
Dr Sui, a pain specialist, refers to allodynia on the left arm and that there are no focal neurological deficits in her right and left arm.
Again the applicant is going to every doctor and no one is getting closer to the truth. It is not until early 2023 that carpal tunnel syndrome is diagnosed.
The applicant’s submission is that her evidence should be accepted, her evidence is not disputed, as should the opinion of Dr Bodel who engages with her evidence and with the literature.
The applicant’s case is very straightforward. There is carpal tunnel syndrome on one side only, being the same hand and arm, that begins tingling after the accident at work. There is no evidence of right carpal tunnel syndrome, noting the reference in the dispute notice to right carpal tunnel release was erroneous. It is not a coincidence or an age-related condition.

FINDINGS AND REASONS

Did the applicant sustain carpal tunnel syndrome as a result of the injury on 2 March 2020

There is no dispute the applicant suffers with left carpal tunnel syndrome. The dispute to be determined is whether that condition is the result of the injury on 2 March 2020.
Dr Bodel is of the view that is the case while Dr Bosanquet is of the view the left carpal tunnel syndrome is unrelated to the injury.

Personal injury

Section 4 of the 1987 Act defines ‘injury’ as a personal injury arising out of or in the course of employment. The nature of a personal injury is of “a sudden identifiable pathological change.”[4]
[4] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51.
The applicant’s evidence is that on 2 March 2020 she experienced immediate pain running down her left arm and tingles and numbness in her hand.
She had never had those symptoms before the workplace accident on 2 March 2020; “[i]t all came on following.”[5] It started getting worse and she was referred to Dr Kwa due to aching in her arm and elbow and tingling in her left hand.
[5] ARD page 4.
Pain running down her left arm into her hand on 2 March 2020 is confirmed in the applicant’s supplementary statement. Initially the pain in her left hand was not severe and she was struggling to move her left arm at all. Her neck and left shoulder were the focus of treatment.
Following the left shoulder surgery on 30 July 2020 the symptoms of her left arm, hand and fingers of tingling, numbness and pins and needles started to increase, and increase in frequency. The applicant’s opinion is that the carpal tunnel syndrome was caused by the accident on 2 March 2020 and became worse following the left shoulder surgery.
There is no medical evidence to support the applicant’s evidence that she felt symptoms referable to carpal tunnel syndrome immediately on 2 March 2020 as she concedes.

The clinical records of the applicant’s general practitioners are of little assistance. The clinical records of Brenshaw Medical Centre include a note of the left shoulder injury on 2 March 2020 with no record made of symptoms of carpal tunnel syndrome.
On 8 May 2020, some two months after the injury, Dr Kwa does report the applicant has pain in the left shoulder that she feels is deep inside and can radiate down her arm.
Dr Bodel comments that carpal tunnel does not usually occur as the result of a specific event but comes on gradually over time, although it may have been triggered by the injury on 2 March 2020.
Dr Bodel says on 27 October 2023 that the applicant sustained a work injury to the neck, left shoulder and left arm on 2 March 2020 with a probable carpal tunnel syndrome in the left upper limb. The mechanism of the lift of the shutter on that day caused the neck and shoulder injuries and the subsequent development of carpal tunnel syndrome.
On 2 July 2024 Dr Bodel provides a report following the denial of liability for carpal tunnel syndrome by the insurer. He notes there is no defined history as to when those symptoms came on. Part of the chronic pain from the left shoulder injury is the carpal tunnel syndrome.
Dr Bosanquet’s opinion is that there was no specific injury to the applicant’s left wrist on 2 March 2020.
If the carpal tunnel syndrome symptoms came on 2 March 2020, in Dr Bosanquet’s view it would have been noted by her general practitioners and other specialists.
In general inconsistencies between medical histories in clinical notes and the applicant’s evidence should be treated with caution as the applicant submits.[6]
[6] Mason v Demasi [2009] NSWCA 227.
The applicant’s evidence supported by the clinical records shows the focus of her treatment was only on her left shoulder for a significant period of time. It was not until her symptoms of pain persisted after the left shoulder surgery on 30 July 2020 that Dr Kwa investigated other causes including her neck and possible carpal tunnel syndrome.
The applicant’s evidence is that her access to medical treatment has been extremely limited. After the Brenshaw Medical Centre closed the applicant travelled to the Kure Medical Group in West Wyalong, a distance of 100km each way.
Consistent treatment was also extremely difficult she submits. The clinical records show a number of general practitioners were consulted by the applicant at both the Brenshaw Medical Centre and later the Kure Medical Group.
The applicant’s evidence regarding Dr Kwa’s report of June 2022 referring to her pain and numbness symptoms is that she does not specifically recall telling him that but accepts it must be true. She does not remember if that is the first time she told him about her numbness issues. This supports the applicant being accepted as a reliable witness.
I accept the applicant’s submission that she should not be punished because she is not a doctor and she is unable to diagnose her condition.
While the applicant is a reliable witness and there is no reason to doubt her evidence, the cause of the applicant’s experience of tingles and numbness in her left hand on 2 March 2020 is in my view unclear on consideration of all of the evidence.

Consequential injury

The medical evidence does support the finding that the applicant suffers with consequential carpal tunnel syndrome.
The applicant is not required to establish that this is an ‘injury’ pursuant to s 4 of the 1987 Act, or that the employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.[7]
[7] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [56].
The question of causation is determined on the facts of each case and requires a “commonsense evaluation of the causal chain” based on the evidence, including expert opinions where applicable.[8] There must be actual persuasion of the occurrence or existence of a fact before it can be found.[9]
[8] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at [464]; 10 NSWCCR 796 (Kooragang).
[9] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
In Kumar v Royal Comfort Bedding Pty Ltd[10] Deputy President Roche confirmed that Kooragang is the test to determine if a consequential condition arises from an injury.
[10] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8.
The applicant must establish on the balance of probabilities that the carpal tunnel syndrome results from her injury on 2 March 2020.[11]
[11] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45]-[46].
Dr Bodel is satisfied it is a consequential condition. There is a causal link with the left shoulder injury and she has had no other accident or injury.
In his report of 9 October 2024 Dr Bodel comments that it may well be the case that the carpal tunnel syndrome came on in association with the injury on 2 March 2020, however it usually does not occur as the result of a specific event but comes on gradually over a period of time.
Although Dr Bodel still tends to hold the view that the carpal tunnel syndrome was triggered by the specific event on 2 March 2020 his opinion shifted towards the consequential nature of the condition as the symptoms came on gradually over a period of time.
The symptoms became worse after the surgery on 30 July 2020 and this is more in keeping with the gradual onset of pain associated with median nerve compression at the wrist or carpal tunnel syndrome in the doctor’s opinion.
Dr Bodel is satisfied there does appear to be a causal link between the injury, which was primarily to the shoulder, and the subsequent development of the carpal tunnel syndrome at some stage immediately after that injury and particularly after the surgery.
While he says it is a very difficult issue medically, Dr Bodel is satisfied there is a causal link between the injury and carpal tunnel syndrome. He is more inclined to indicate that the original injury to the left shoulder on 2 March 2020 is the main causation issue in its development, further aggravated by the surgery on 30 July 2020 and the cortisone injection.
I accept Dr Bodel’s opinion.
I agree with the applicant’s submission that an expert changing or supplementing their opinion having considered further evidence should not be the cause of criticism.
The respondent submits that Dr Bodel does not provide a sufficient evidentiary basis for his opinion that the carpal tunnel syndrome was caused by the accident on 2 March 2020.
I do not agree with that submission. Dr Bodel opines that the carpal tunnel syndrome came on gradually following the injury to the left shoulder on 2 March 2020, and particularly after the surgery. The cause of the carpal tunnel syndrome is the injury to the left shoulder which has left her with chronic pain, part of which is carpal tunnel syndrome.
This is supported by the medical evidence. Dr Kwa on 23 April 2021 wonders if the applicant has developed some chronic pain.
On 8 June 2022 Dr Kwa refers to chronic left shoulder pain and possibly a degree of left carpal tunnel syndrome, or maybe some neck degenerative symptoms. Dr Kwa found Tinel’s sign was negative but she did have a Phalen’s sign on the left side and not the right. The doctor says the applicant has chronic pain syndrome and has had pain for a long time.
Dr Sui refers to allodynia on the left arm on 24 August 2022. Prof Hawke comments on 25 August 2022 that the applicant had considerable aching in the left arm and to the elbow, her fingers tingle and at times her whole arm can go numb. Tinel’s and Phalen’s signs were negative. He referred her for nerve conduction studies to exclude median neuropathy, however this was found on testing on 3 February 2023.
There is evidence that supports Dr Bodel’s opinion that the symptoms of the carpal tunnel syndrome worsened following the surgery on 30 July 2020. This is also the applicant’s statement evidence.
Dr Wu reports on 24 August 2022 that the applicant’s pain is situated across her cervical spine and radiates to her left shoulder and down her left arm to her left hand with associated numbness in her left hand and fingers. He refers to persistent pain after the left shoulder surgery.
I agree with the respondent’s submission that little weight is able to be placed on the medical literature provided to Dr Bodel in establishing causation of the applicant’s carpal tunnel syndrome.
In his report of 14 August 2024 Dr Bosanquet comments that there is no consequential carpal tunnel syndrome.
Dr Bosanquet is of the opinion that the applicant’s symptoms of carpal tunnel syndrome “may well have subsequently developed but these are due to age-related changes in her wrists.”[12]
[12] Reply page 54.
There is no evidence of age-related changes in either of the applicant’s wrists, although there was an erroneous reference to right carpal tunnel release in the respondent’s dispute notice.
The neurophysiology report of Dr Blackwood on 3 February 2023 found upper limb nerve conduction studies of the right and left sides were within normal limits aside from the left median nerve lesion at the wrist.
I do not accept that the only link between the applicant’s left carpal tunnel syndrome and the injury on 2 March 2020 is a temporal one and the symptoms that developed after the injury are unrelated.
The development of left carpal tunnel syndrome occurred following an injury to the left shoulder and neck, left shoulder surgery and resulting chronic pain.
Dr Bosanquet also suggests it can be well argued “that if she claims she had carpal tunnel symptoms at the time of the injury on 2020, that these were due to the previous condition in her left shoulder from 2018.”[13]
[13] Reply page 54.
There is no evidence the applicant had symptoms of carpal tunnel syndrome prior to 2 March 2020 and I am unable to accept that opinion.
The evidence is that the symptoms of carpal tunnel syndrome came on following the injury on 2 March 2020 and the left shoulder surgery on 30 July 2020 which resulted in chronic pain, and carpal tunnel syndrome was eventually diagnosed as part of the applicant’s chronic pain.
I am persuaded on the balance of probabilities that on a commonsense evaluation of the causal chain based on the evidence the applicant’s carpal tunnel syndrome is a consequential condition that results from the injury on 2 March 2020.

SUMMARY

The applicant sustained left carpal tunnel syndrome as a result of injury on 2 March 2020.
I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a)    date of injury: 2 March 2020
(b)    body systems/parts:
(i)cervical spine
(ii)left upper extremity (shoulder and sensory loss-carpal tunnel syndrome)
(iii)scarring (TEMSKI)
(c)    method of assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a)    the Application to Resolve a Dispute and attached documents;
(b)    the Reply and attached documents, and
(c)    the respondent’s Application to Lodge Additional Documents dated 10 January 2025 and attached document.

[2025] NSWPIC 41

10 February 2025