Butcher v Action Botany Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Butcher v Action Botany Pty Ltd [2025] NSWPIC 266
APPLICANT:	Ross Butcher
RESPONDENT:	Action Botany Pty Limited
MEMBER:	Kathryn Camp
DATE OF DECISION:	13 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for past and future medical expenses; accepted injury to lumbar spine and right hip; consequential condition to the right Achilles tendon; disputed consequential condition to the bilateral wrists and shoulders from prolonged use of walking aids in recovery of right Achilles injury; consequential loss; evidence of signs and symptoms; principles in Kooragang Cement Pty Ltd v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Murphy v Allity Management Services Pty Ltd, and Diab v NRMA Limited considered and applied; Held – applicant discharged onus of proof that he developed symptoms in the bilateral wrists and shoulders as a consequence of the accepted workplace injury; proposed surgery is reasonably necessary as a result of the accepted injury; respondent to pay the cost proposed surgery; general order for medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition to his bilateral wrists and shoulders as a result of the accepted injury on 30 May 2019. 2. The proposed left trapeziectomy and carpal tunnel release is reasonably necessary treatment as a result of the injury. 3. The applicant is entitled to payment of reasonably necessary medical or related expenses arising from his consequential condition to the bilateral wrists and shoulders. The Commission orders: 4. The Application to Lodge Additional Documents and attachments, lodged on 2 March 2025, is discontinued. 5. The Application to Lodge Additional Documents and attachments, lodged on 1 March 2025, is admitted into the proceedings. 6. The respondent is to pay the applicant the costs of, and incidental to, proposed left trapeziectomy and carpal tunnel release surgery recommended by Dr Meads, pursuant to s 60 of the Workers Compensation Act 1987. 7. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect of the bilateral wrists and shoulders on production of accounts, receipts and/or Medicare Notice of Charge, pursuant to s 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for past and future medical expenses in relation to symptoms in the applicant worker’s bilateral wrists and shoulders said to have resulted from an accepted injury. In particular, it concerns whether the medical treatment and expenses claimed is reasonably necessary as a result of an accepted consequential condition to the right Achilles tendon arising from an accepted lumbar spine and right hip injury, under s 60 of the Workers Compensation Act 1987 (1987 Act)
For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

In 2018, the applicant worker, Ross Butcher, commenced work for the respondent, Action Botany Pty Limited as a labourer. He was tasked to modify self-serve checkout machines, and on 30 May 2019 sustained an injury to his lumbar spine and right hip. In undertaking physiotherapy treatment at home for that injury the applicant sustained a consequential condition in the nature of a right Achilles tendon rupture on 22 January 2021. These injuries and condition were accepted by the respondent.
As a result of the Achilles tendon rupture the applicant was in a cast, then a CAM boot, then used crutches and a walking stick for a period of time. He claims that the use of crutches caused him to suffer bilateral wrists and shoulder symptoms.
The parties have been involved in previous proceedings before the Personal Injury Commission (Commission). On 4 March 2021, proceedings under 590/21 resulted in a voluntary payment of medical expenses. On 23 May 2022, proceedings under W1614/22 resulted in a voluntary payment of weekly payments of compensation from the period 28 May 2021 and ongoing together with medical expenses.
The applicant brought the present proceedings before Commission under an Application to Resolve a Dispute seeking compensation in respect of a claim for medical expenses pursuant to s 60 of the 1987 Act, based on an alleged consequential condition of the bilateral wrists and shoulders. The respondent disputes liability for these consequential conditions, relying on several notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998.

ISSUES FOR DETERMINATION

The issue in dispute is:
(a) whether the past and future medical expenses claimed in respect of the right and left upper extremities is reasonably necessary as a result of the accepted injury on 30 May 2019 (s 60 of the 1987 Act).
The parties confirmed and agreed the scope of the dispute for the medical expenses. The claim for compensation for past medical expenses in the sum of $1,822.92 only relates to the medical and related expenses for the bilateral wrists and shoulders. The claim for proposed medical treatment only relates to the left wrist. The proposed treatment includes a trapeziectomy and suspension of the left thumb and left open carpel tunnel surgery, miscellaneous therapy for the hand, and treatment related expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 8 May 2025, the matter proceeded to a conciliation conference and arbitration hearing. Mr Hammond, of counsel, appeared for the applicant instructed by Milicevic Solicitors. Ms Campbell, of counsel, appeared for the respondent instructed by Hall & Wilcox Lawyers.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the recorded hearing.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute, dated 7 February 2025, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 3 March 2025, and attached documents;
(c)    Direction dated 24 March 2025, and
(d)    Application to Lodge Additional Documents, and attachments, lodged by the respondent on 1 May 2025.
During the conciliation conference the applicant discontinued the Application to Lodge Additional Documents he lodged on 2 May 2025, noting the respondent conceded liability of the right Achilles injury as a consequence of the accepted lumbar spine and right hip injury of 30 May 2019.

Applicant’s statement evidence

The applicant prepared a statement, dated 4 February 2025. The applicant explains that he worked for the respondent as a labourer/technician from September 2018. He was assigned to work modifying Coles self-serve checkout machines. In order to undertake the work he had to kneel on the ground and work hunched over in an awkward position. He states that the machines were difficult to access and he had to twist and bend his body to complete the work.
The applicant states that he felt increasing pain in his lower back and right buttock area while working on 30 May 2019. He reported this to his supervisor and sought medical treatment. While undertaking physiotherapy exercises for his back at home he felt a sharp pain in his right leg on 22 January 2021. He suffered an injury to his Achilles tendon. He attended the hospital and was fitted with a cast, but this increased pain in his back and hip, and he was fitted with a cam boot instead.
After the Achilles injury, the applicant states that he could “not weight bear on that foot and was given crutches to use”. He explains the immune suppression drugs taken for his kidney transplant meant he was not able to take anti-inflammatory drugs, and this extended the recovery time for his Achilles injury. He states that he:
“used crutches for about 3 months. Further I was kept on crutches for a longer time as the doctors wanted to avoid surgery with inherent risk of infection: there was also concern that not using walking aides early might lead to a second rupture. During this time, I began to experience pain in both shoulders, both wrists and my neck.
After I came off the crutches, I utilised a walking stick for about another 2 months. The pain in my wrists became worse, more so the right wrist, and I was having difficulty managing daily activities such as cooking and cleaning. I was having difficulty sleeping on my sides as it exacerbated the pain in my shoulders.”
The applicant states that his shoulders deteriorated and he was referred to a hand specialist, Dr Meads, who recommended trapeziectomy and bilateral carpal tunnel release. He was also referred to a shoulder specialist, Dr East, who said cortisone injections would alleviate the pain in his shoulders but due to adverse effects physiotherapy was only recommended.
The applicant adds that since the injury to his right Achilles tendon he has been “[u]sing crutches and a walking stick for an extended time following that injury caused injury to [his] wrists, shoulders and neck…”.

Medical evidence

Clinical notes

In evidence are a series of notes from the applicant’s treating general practitioners.
On 1 June 2022, Dr Michael Meagher, treating general practitioner, records the applicant’s conditions. In respect of the wrist, he records that there is right wrist pain using crutches for Achilles issue. It is also recorded that the applicant was tender to radial aspect and a referral for an ultrasound of the wrist was made.
On 6 June 2022, Dr Meagher records flexor carpi radialis tendonitis.
On 22 June 2022, Dr Meagher records bursitis and labral tear on right. On 23 June 2022, he records physio for labral tear, trochanteric bursitis and Achilles tear.
On 2 August 2022, Dr Allan Bull, treating general practitioner, records that the applicant saw a new physio and needs a script for cannabinoid. He also records that the applicant was told by the physio that his hands, shoulders and wrists were affected by having to spend six months on crutches due to inability to access physio at the time.
On 11 August 2022, Dr Bull records that Dr Rooney does not deal with hands and shoulders and he recommended Dr Petrelis. He records that when the applicant first saw Dr Rooney in “Jan/Feb 2021 he was told of adverse FX of being on crutches”. He also records that the applicant was referred for an MRI of the cervical spine, wrists and shoulders, noting pain was “severe at times in neck and shoulders pain in both wrists and is very difficult to turn taps on, can’t open jars ? due to 6 months using crutches”.
On 16 August 2022, Dr Bull records that the respondent insurer is in the process of organising an independent medical expert for the applicant’s upper limbs and gave verbal approval for the MRIs of the wrists, shoulders and cervical spine.
On 12 December 2022, Dr Lisa Richardson, treating general practitioner, records results of the ultrasound of right wrist.
The parties did not focus on the later clinical entries, which ceased on the evidence on or about March 2023.

Dr Petrelis

Dr Minas Petrelis, treating orthopaedic surgeon, provides a report dated 5 October 2022 regarding the applicant’s bilateral shoulders. Dr Petrelis records a history of 2019 back and hip injury and latter Achilles injury and treatment that followed. He records that the applicant was on crutches for approximately six months. He adds that the applicant “developed progressive soreness in both shoulders and neck, plus his right wrist”.
Dr Petrelis records his findings on examination in relation to the shoulder and neck. He records that the applicant has normal range of motion in the neck and full range of motion in the shoulders.
Dr Petrelis notes that the applicant had a previous left shoulder injection in his left shoulder following an injury in 2014, but that “apparently resolved”.
Dr Petrelis records:
“Specially, looking at Ross’ shoulders I cannot find a structural problem that is requiring any surgery. I have reviewed both MRIs subsequent to the consultation, which do not show any rotator cuff tears, AC arthropathy or any significant impingement. He has had a period of overload to the shoulders which has now ceased. My feeling is that he has cervicobrachial irritation and this is best managed with a structured physiotherapy program…I would recommend physio do a scapular thoracic stabilising program and generalised cuff strengthening…”

Dr Meads

In evidence is a report from Dr Bryce Meads, orthopaedic hand specialist, dated 12 July 2023. Dr Meads records a history of pain in the applicant’s wrists, the right being worse than the left. He records a history of the 2019 back and hip injury, together with the right Achilles tendon injury. He notes that the applicant was then placed in a moon boot and spent “a considerable length of time on crutches and walking sticks developing pain in both wrists”.
Dr Meads records complaint of pain in the wrists, shoulder and neck. He records his findings on examination of the wrists to include an obvious left AV fistula of the volar radial and bilateral swelling of the volar radial aspects. He provides an assessment that the applicant’s pain is on the volar radial aspect of his bilateral wrists, with the right more severe than the left. He adds that the MRI scan shows increased signal and degenerative change around the scaphotrapeziotrapezoid (STT) joint, which is supported by the pain seen with Kirk Watson’s manoeuvres. He also records tenderness at the carpometacarpal (CMC) joint and some evidence of median nerve compression.
In his report of 18 September 2023, Dr Meads records that the applicant had undertaken nerve conduction studies confirming slight nerve compression and a CT scan confirming STT join arthritis. He notes the applicant’s past history of a kidney transplant and use of Prednisone daily. He recommends hand therapy and splints. He added that the applicant may require bilateral carpal tunnel release and his arthritis may initially be managed conservatively.
In his report of 22 January 2024, Dr Meads records the applicant continues to experience significant numbness and tingling in his fingers with positive Tinel’s and Phalen’s tests bilaterally. He recommends surgery in the form of trapeziectomy and bilateral carpal tunnel release. He explains that this would “deal with” both the STT joint arthritis and pain in the carpometacarpal CMC joint. The applicant wishes to proceed with the left side first, which has more problems associated with it. A request for surgery is made on 31 January 2024.

Dr East

In evidence is a report from Dr Benjamin East, treating orthopaedic surgeon, shoulder and elbow specialist, dated 8 September 2023. Dr East records that the applicant has a complicated history. He opines that the applicant has:
“…no other clear identifiable causes for his scapulo-thoracic and shoulder pain bilaterally. With the history of an Achilles injury and a prolong period of non-weight bearing of around three months whilst using crutches, this is the most likely cause for his ongoing shoulder pain.”
Dr East records that the applicant was prescribed non-operative treatment with a wedge and a CAM boot, following attendance at the hospital for his right Achilles injury. He adds that the applicant spent approximately “three months non-weight bearing on the right leg” which was extended due to use of Prednisone. He then adds that the applicant came out of the CAM boot “around the four month mark” and developed pain in the shoulders whilst on the crutches. He further adds that the pain in the right shoulder was predominantly anterior to the AC joint and the left was inferior border of the scapular.
Dr East notes that the applicant has not had steroid injections in the shoulders as the previous one given for his hips caused a very adverse reaction. He notes that the applicant has undertaken a variety of different pain medications, including Panadeine forte, Lyrica, Neurontin and cannabinoid oil.
Dr East records his findings on examination of the shoulders. He noted amongst other things that the applicant had significant shoulder pain bilaterally on range of movement on elevation and significant pain in the root of the neck on the left side. Reduced range of motion was also noted. On review of the imagining Dr East records:
“There was mild bursitis on the right without any major structural issues. On the left it was reported to be no bursitis, although an argument could be possibly made that there is very mild bursal inflammation. Clinically it looks more as though this is a scapulo-thoracic dyskinesia problem rather than an intrinsic shoulder problem.”
Dr East recommends that the applicant “would benefit from a scapulo-thoracic rehabilitation programme bilaterally”. He adds that injections would be poorly advised given history.

Imaging

In evidence are a series of reports from imagining investigations.
On 3 June 2022, the applicant underwent an ultrasound of the right wrist which found flexor carpi radialis tenosynovitis.
On 5 September 2022, the applicant underwent an MRI of the bilateral shoulders and wrists. The report records bilateral cuff tendinopathy and bursitis with mild AC joint arthrosis. Right sided dorsal wrist sprain with ligamentous sprain and capsular sprain. Left sided central TFCC disc tear and minor dorsal capsular sprain. Possible proximal venous obstruction.
On 9 December 2022, the applicant underwent an ultrasound of both wrists. The report records that the abnormality on the right side appears confined to flexor carpi radialis tendon with evidence of tendinopathy and tenderness. The left side has changes consistent with tendonitis and tenderness.
On 13 July 2023, the applicant underwent a CT of the bilateral hands/wrists. The CT report records there are mild changes of scapho trapexium trapezoidal joint arthritis with loss of normal joint space and a tiny cyst formation, and minor changes on the radio carpal joint.

Dr Guirgis

In evidence is a report from Dr Medhat Guirgis, consultant orthopaedic surgeon qualified by the applicant, dated 28 June 2024. Dr Guirgis provides a history of the applicant’s injury on
30 May 2019 to his lumbar spine and right hip and consequential right Achilles tendon injury on 21 January 2021. Dr Guirgis then provides a history that the applicant used crutches following the Achilles injury, and developed symptoms in his wrists, shoulders and neck.
Dr Guirgis records the applicant’s complaints on presentation. The applicant complained of right lumbosciatic syndrome describing good days and bad ones, painful tightness of the right hip, altered gait, painful tightness of the neck, shoulders, wrists including the base joints of his thumbs, tingling, pins and needles, and a numb feeling affecting the right and left hands and fingers with weakness of the hands.
Dr Guirgis records his clinical findings on examination, to include:
“Cervical spine: unremarkable apart from restriction in the last degrees of active range of movements of the cervical spine with no evidence of guarding or any demonstrable neurological deficits of nerve root origin.
Right & left shoulder: unremarkable with no demonstrable restrictions in the active range of movements.
Right & left wrists: There was clinical evidence of irritability of the median nerve in the carpal tunnel with positive Tingle’s sign and Phalen’s test. There was sensory blunting in the median nerve territory of the hand. There was Grade V minus in the median nerve innervated thenar muscles.
Right & left thumbs 1^st carpometacarpal joints: The pain and tenderness were pointed to be felt in the 1^st carpometacarpal joints. The active range of movements of the thumb ray on both sides were as follows: Adduction 2 cm; Opposition 4 cm; Radial Abduction 25°”

Dr Guirgis records his opinion of the mechanism of injury to the wrists, shoulders and neck as follows:
“When using crutches, a person’s body weight is transferred from the legs to the upper body. Crutches often put a lot of pressure on the wrists because they bear most of the body’s weight. Over time, it could potentially cause conditions like carpal tunnel syndrome, including numbness, tingling, and weakness in the hand grip. Also, the use of crutches can trigger symptoms of and aggravate the effects of the underlying asymptomatic age-appropriate changes in the 1^st carpometacarpal joints. The shoulders also bear a significant amount of stress when using crutches. This can lead to narrowing of the subacromial space and symptoms of subacromial impingement. The use of crutches can also affect the neck. The altered body mechanics and posture when using crutches can lead to neck chronic musculoligamentous strain/sprain.”
In response to a specific question “[w]ere those injuries caused or aggravated by the use of crutches and/or walking sticking [sic] following the right Achilles heel tendon injury on 21 January 2024 [sic, 2021]”, Dr Guirgis said “YES”.
In response to a specific question whether the proposed trapexiectomy and bilateral carpal tunnel release recommended by Dr Meads is “reasonable and necessary”, Dr Guirgis said “Yes, subject to the signing of an informed consent form by [the applicant]”.
Under the heading “OPINION”, Dr Guirgis finds:
“Consequential onset of symptoms and signs of right & left carpal tunnel syndrome and of 1^st carpometacarpal dysfunction that triggered and aggravated the evolving age-appropriate changes in the trapezo-trapezoid-1^st metacarpal joint. They were triggered by the use of crutches after injuring his right Tendo Achilles. One would also opine here that the nature and conditions of his employment prior to the use of the crutches had caused subclinical changes in the median nerves in the carpal tunnels and the contributed to the chondral changes in the trapezo-trapexoid-1^st metacarpal joints.”

Associate Professor Miniter

In evidence are several reports from Associate Professor Paul Miniter, dated 10 February 2021, 14 March 2021, 4 May 2022, 29 September 2022, 14 September 2022 and 28 April 2024.
In his report of 10 February 2021, Associate Professor Paul Miniter records a history of the injury. He records that he fails to see an association between the Achilles rupture and the applicant’s work. He also records no evidence of injury to the hip or evidence of significant pathology. He considered that the applicant had evidence of abnormal illness behaviour and there were no features of serious pathology affecting the lumbar spine or right hip.
In his report of 14 March 2021, Associate Professor Paul Miniter records that there was no evidence of injury nor causative factor which would lead to the disability of which the applicant complains. He considered the rupture of the Achilles tendon was related to use of Prednisone and not work. He states that the pathology identified in the lumbar spine and hip region is “no more than incidental and does not explain his symptoms. It also does not indicate injury”.
In his report of 4 May 2022, Associate Professor Paul Miniter records that he does not believe there is a consequential injury to the Achilles tendon. He finds that the circumstance of the rupture is indicative of low quality local tissue which is either associated with the applicant’s medication or general poor physical condition.
In his report of 29 September 2022, Associate Professor Miniter records a history of the rupture of the Achilles tendon. He notes that the injury had been treated non-operatively and the applicant had been out of the boot since the middle part of last year. He records for the first time that the applicant “mandated that the development of the arm and shoulder symptoms were related to the use of crutches for an extended period”. He adds:
“You will note that whilst he was in the boot for a six to eight week period, as he recalled, he would have been weightbearing by the three to four week mark and that crutches should not have been required for an extended period of time. Even if they were used for an extended period, the effects of this have long since passed as it is, by his recollection, about 15 months since he last used crutches.”
Associate Professor Paul Miniter records that the applicant reports symptoms in both shoulders and wrists. Associate Professor Paul Miniter refers to the radiological investigations and provides an opinion in summary that these investigations are normal “and if not entirely normal, certainly do not explain his presentation”.
Associate Professor Paul Miniter records his findings on examination. In relation to the wrist, there are no features of any local pathology. He has excellent range of motion and grip strength but notes dorsiflexion is within normal limits. He also notes that he has excellent movement of both shoulders. He also notes complaint of the neck.
In response to a specific question on physical diagnosis, Associate Professor Paul Miniter records he “can see no physical diagnosis of either the right hip, both shoulders, wrists and neck. Mr Butcher did have an Achilles [sic, injury] which I regard as pathological and associated with his renal transplant status and/or prednisone administration”.
Associate Professor Paul Miniter found that there was no explanation for the applicant’s presentation and he regarded it as “non-genuine”.
In response to a specific question about the causation, Associate Professor Paul Miniter records that the applicant’s complaints of his “wrists, shoulders and neck are unrelated to the accepted Workers’ Compensation matters”.
In response to another specific question regarding capacity in relation to accepted workplace injuries, Associate Professor Paul Miniter records:
“He has been off crutches for over a year now and even if one were to opine that the crutches have caused issues in these areas, more than sufficient time has passed and the MRI scans are basically such that the pathology is not significant and certainly does not explain his presentation.”
In his report of 14 December 2022, Associate Professor Paul Miniter records that he could not identify any features that would explain the applicant’s presentation. He considered the applicant had a non-genuine presentation or psychological problem.
Associate Professor Paul Miniter records that the applicant is seeking lump sum compensation on the basis of 23% whole person impairment but this cannot be “determined in an objective sense, but one suspects that he is relying upon a report from a plaintiff lawyer’s doctor”.
Associate Professor Paul Miniter records that the Achilles issue is unrelated to his initial presentation and there is no pathology in either wrist. He also states that he could see no evidence that the workplace is contributory to the presentation of the applicant’s lumbar spine and right hip. He states that the applicant does not require any further treatment.
On 28 April 2025, Associate Professor Paul Miniter provides a report in which he notes that the matter has evolved. The applicant had a spontaneous rupture of the Achilles tendon which he regarded as non-work related and then developed problems in his hands, wrists and left forearm.
Associate Professor Paul Miniter records that given the applicant’s history of renal disease, renal transplantation, steroid therapy and chronic pain management, he was surprised that surgical treatment was recommended.
In response to a specific question regarding the use of crutches and the walking sticks and causation of left wrist conditions, Associate Professor Paul Miniter records:
“I note also that the applicant asserts that the use of crutches and a walking stick for a period of time during the management of his Achilles tendon problem has resulted in issues in his upper limbs. There is no evidence to support this.”
In response to a specific question as to whether he agrees with Dr Guirgis, Associate Professor Paul Miniter states that he does not agree. He states that “Dr Guirgis’ opinions are not based on fact; they are accumulative and attempt to associate one matter with another when there is no such association.”
In response to a specific question whether the use of crutches caused the applicant’s carpel tunnel syndrome or aggravated an underlying degenerative change in the left wrist, Associate Professor Paul Miniter records:
“Taking into account the evidence provided, I do not believe that the use of crutches, on the balance probabilities, has led to carpal tunnel syndrome. It could certainly not lead to a lasting aggravation of underlying degenerative change in the left thumb. If there had been any evidence to support this, and it is certainly not evident in the medical literature, then the effect of the use of crutches would have passed within a two or four week period at most. It is unplausible to suggest that his current presentation is in some way related to the use of crutches.”
In response to Dr Guirgis’ assessment of whole person impairment, Associate Professor Paul Miniter states that his report is “remarkable” and there was no evidence to support the accuracy of his opinion.

SUBMISSIONS

Applicant’s submissions

The applicant refers to the history leading to the claim for past treatment in relation to the shoulders and wrists and future treatment of the left wrist, in the form of surgery. The applicant submits he does not need to prove that there has been an injury or establish that there is specific pathology that has been aggravated or affected by injury. The applicant needs to demonstrate that there is a conditional loss, and sometimes symptoms can be enough to establish a resulting condition. The applicant refers to Tiritabua v Bartter Enterprises Pty Ltd[1] and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan.[2]
[1] [2008] NSWWCCPD 145.
[2] [2016] NSWWCCPD 23 (Brennan).
The applicant refers to the statement evidence and expert medical reports. The applicant refers to Dr Meagher’s entry of 1 June 2022, which records right wrist pain since using crutches for Achilles issues. There is a referral for an ultrasound of the right wrist, and an ultrasound report, dated 3 June 2022.
On 16 August 2022, there is an entry that records in the process of organising IME for upper limbs, MRIs, wrists, shoulders and CS (cervical spine). The reference to 11 August 2022 is also relevant. On 12 December 2022, there is an entry referring to the right wrist.
Dr Petrelis says he cannot find a structural problem requiring surgery in relation to the shoulders. However, states there was a period of overload to the shoulders which had ceased and suggested management by structural physiotherapy program. Dr Petrelis seems to suggest the symptoms are coming from the cervical brachial irritation but whether it is neck into the shoulders or shoulders there is a resulting condition in the shoulders requiring treatment. There is reference to use of crutches in his report.
The applicant refers to Dr Meads’ report, where he refers to the applicant spending a considerable length of time on crutches and walking sticks, developing pain. There is an assessment of pain in the wrists. Dr Meads is a treating practitioner and not focused on causation issues but his reports show a condition continuing and developing and the surgeon recommending surgical procedure in respect of the left wrist.
The development of contemporaneous records is pain in both wrists and complaints regarding the shoulders, leading need for surgery and other treatment.
The applicant refers to his statement evidence. He explains he is not able to weight bear and needed to wear crutches for about three months. After crutches he used a walking stick for two months. The evidence is consistent with the contemporaneous clinical notes, regarding pain developing as a result of using crutches. The applicant has consequential symptoms of pain losses affecting the wrists and shoulders.
The applicant submits that the symptoms in the right wrist developed first but there is not really much significance to be placed on symptoms developing at a different time.
The applicant submits that Dr East opines that there is no other identifiable cause for the scapular thoracic pain in the shoulder bilaterally, after noting the history of the injury and long period of weight bearing using crutches.
The applicant contends there is a low legal bar that he needs to meet. The Commission can comfortably be satisfied to place weight on the evidence of Dr Petrelis, Dr Meads, Dr East, contemporaneous evidence, which is consistent with the statement evidence.
The applicant then refers to Dr Guirgis’ report, which provides a detailed history and clinical examination. He notes that the shoulder has no demonstrable restriction but the applicant submits that this is not determinative. He notes restrictions in the wrists. He later explains the mechanism of these conditions. He provides a persuasive opinion as to how the applicant’s condition or symptoms developed and progressed from the use of crutches. He provides a limited opinion that the proposed surgery is reasonably necessary and has not been asked to comment on the past medical expenses.
The past expenses are $1,800, relating to Dr East, Dr Meads and Dr Petrelis. The applicant submits that the expense of that quantum is reasonable in the circumstances.
The applicant submits that Associate Professor Miniter does not accept any work related injury, including the back or hip or consequential Achilles injury nor the shoulders or wrists. The applicant has an accepted back and hip and consequential Achilles injury. The applicant submits that Associate Professor Miniter expresses opinions that are outliers that do not accord with the evidence before the Commission and should not be accepted. His histories are lacking, in respect of the Achilles injury he ignores the mechanism of the injury which has been accepted. His refusal to accept the applicant’s injuries could be described as dogmatic in light of the evidence before the Commission. He also makes comments which are unhelpful and suggest his opinion is not objective. His opinion is not persuasive and cannot be accepted.
The applicant submits that he has “comfortably satisfied that he has established that he has sustained consequential conditions or losses to his wrists and shoulders”. The treatment expenses incurred are reasonable, and while Dr Guirgis does not comment on these expenses they are minimal and are reasonable if a finding of consequential loss is found. As to the future treatment, the treating surgeon and Dr Girgis (although limited) provides an opinion that supports the proposed surgery. The only contrary evidence is that of Associate Professor Miniter which cannot be accepted.

Respondent’s submissions

The respondent submits that the test is not whether the applicant has “comfortably satisfied” he suffered an injury to both shoulders and wrists. The test is on a common sense approach to the evaluation of the evidence that there is a causal link between the event and the alleged injury.
The applicant submitted that symptoms are sufficient, but there still has to be a link to the injury which in this case is the use of the crutches. That link is not established in either of the shoulders or the left wrist.
In respect of the use of crutches, it is very unclear in relation to how long the crutches were actually used so it is difficult to understand how a doctor could find the use of crutches caused symptoms of injury without knowing the period of use:
(a)    Dr East, in his report of September 2023, records that the applicant has had no weight bearing for three months and out of the boot at the four month mark.
(b)    In the applicant’s statement it records crutches for three months and then the stick for another two months. It refers to his transplant which extended his recovery of the tendon injury and he used the crutches for about three months. He later adds that he was kept on crutches for a longer time as the doctors wanted to avoid surgery with the inherent risk of infection. The respondent infers this means crutches were used for three months and it would have been shorter not for the transplant, not three months plus an extra additional time;
(c)    Dr Petrelis refers to the use of crutches for approximately six months, which on all other evidence is clearly incorrect, and
(d)    Associate Professor Miniter in his report of September 2022 records that the applicant was out of the moon boot in six to eight weeks.
There needs to be independent evidence to support the history reported to medical doctors.
The respondent submits that Dr Petrelis’ report of September 2022, if one takes the range of time of using crutches of two to three months, is 16-17 months after the applicant ceased using crutches. Dr Petrelis only refers to the right wrist, and nothing about the left wrist. He undertakes an examination of the applicant noting that there are no structural problems with the shoulders but notes a previous overload on the shoulders had now ceased. He adds that the applicant’s cervical brachial irritation is best managed by physio. This is not the shoulders.
The respondent refers to the ultrasound of the right wrist, dated 3 June 2022, which corresponds with the clinical notes of Dr Meagher on 1 June 2022. There is no mention of the shoulder or left wrist but there is mention of the right wrist. He says that the applicant said his complaint in the right wrist was because of using the crutches. There is no mention of the left wrist, which is consistent with Dr Petrelis’ report.
The respondent submits that not even the applicant connects the left wrist. There needs to be some medical evidence. Associate Professor Miniter confirms that the first complaint of the left wrist is in August 2022, and that is confirmed by the clinical entry.
The evidence of the left wrist in August 2022, is a long time after the applicant ceased using crutches which appears to be for two to three months period. No doctor has addressed how long the applicant was using crutches, how often he used it per day, how long the applicant was walking or confirmation that this caused his problems.
Associate Professor Miniter records in September 2022 that the applicant mandated the development of arm and shoulder symptoms related to the use of crutches. In June 2022, the applicant is only talking about the right wrist being caused by the crutches. As the applicant is having symptoms he is relating them back to his workers compensation claim.
Associate Professor Miniter reviews the investigations and says they are either normal or not entirely normal. He states that the applicant’s behaviour is non-genuine and abnormal illness behaviour. He finds there is an excellent range of motion in the wrist, but latter states the power of the dorsiflexion of both wrists is within normal limits. He also states there is excellent movement in the shoulders and no complaint of the neck. He does not find a diagnosis for the shoulders, neck or wrist. There is no pathology of the wrist.
In July 2023, the applicant attends on Dr Meads for wrist pain. Dr Meads undertakes no analysis as to why crutches are the cause of the complaint in the wrist. This was conceded by the applicant who said Dr Meads was not focused on causation. This appointment is a year after the material which only talks about the right wrist.
Dr East examines the applicant’s shoulders and finds minimal pain, which he attributes to a scapular thoracic issue not a shoulder problem. He does not relate it to the shoulders.
Dr Guirgis undertakes an examination of the applicant and records complaint of tightness of the neck and shoulder. There is no demonstrable restriction in range of movements and no mention of pain during examination. However, he then provides an opinion on injury and the shoulders and neck are not included as an injury. The applicant says there are symptoms but this is not supported by the medical evidence or Dr Guirgis.

The only finding Dr Guirgis made about causation is speculation. He does not relate it to the applicant. Dr Guirgis has found no injury to the shoulders and neck. Dr Guirgis says crutches use could “potentially” cause carpal tunnel. Dr Guirgis then says the use of crutches can trigger symptoms that aggravate the effects of asymptomatic age appropriate changes in the para-metatarsal joints.
Associate Professor Miniter refers to the applicant’s renal transplantation and therapy, and notes that he is surprised surgical treatment is recommended. When you read this against the scant evidence about the surgery by Dr Guirgis and the statement evidence that he did not have surgery on his Achilles tendon because of the risk of infection, there is a question about whether the surgery is reasonable. His conclusion that there is no evidence to support the use of crutches and walking stick resulted in his upper limb issues is supported by the medical evidence.
Associate Professor Miniter’s opinion that the use of crutches has not led to the carpal tunnel syndrome, when taken with Dr Mead’s evidence not saying that it does, Dr Girgis having a bare assertion, it is not sufficient to find a causal connection even though there is a low bar. He does say that the use of cutches could lead to a not lasting aggravation but there is no evidence of aggravation. The first complaint is a long time after the event and there is no causal connection.
The respondent submits that the symptoms developed at different times and they developed so long after use of the crutches. Without a causal link that the arthritis is aggravated by use of crutches and lack of connection with carpal tunnel, symptoms are not sufficient to show a causal link and satisfy the relevant test.
The respondent later added a submission in response to the applicant’s submission that there was no other identifiable cause. The respondent submits that Dr Petrelis refers to a 2014 incident where the left shoulder had an injection, but then concedes that he later recorded in that report that the pain in that area had resolved.

Applicant’s submissions in reply

The applicant was directed to address on particular aspects of the respondent’s submissions. In response to the period of use of crutches and onset of symptoms, the applicant refers to his statement evidence. Whether there was a period of crutches use after that three month period, whichever way the statement is read, is immaterial.
There is a period of five to six months using crutches and the walking stick, from January 2021 to second half of 2021. There is a gap between that period and the report to doctors regarding those body parts, but it is not a gap of great concern. The applicant had other health issues to deal with and the consequential conditions were not causing debilitating pain. They are consequential conditions which need some form of treatment.
On the issue of causation, the applicant refers to Dr Guirgis’ report where he records painful tightness of neck, shoulders and wrists. He reports a history of good days and bad days. The fact that the applicant did not demonstrate a restriction of active movement in the shoulders does not get around a finding of a consequential condition.
In respect of Dr East’s report, he takes a history of pain in the shoulders. Dr East provides a history of the symptoms noting a prolonged period of weight bearing of around three months, states that the applicant has no other clear identifiable cause. Whether it is three or six months on crutches is immaterial, either would be prolonged enough to cause the type of consequential conditions in the present case.
In relation to Dr Meads, the wrist specialist, he takes a history of crutches and walking sticks.

FINDINGS AND REASONS

Consequential condition

The Commission has issued several decisions concerning consequential conditions and the applicable law. These decisions confirm that it is not necessary that an applicant worker establish that an alleged consequential condition is an “injury” within the meaning of s 4 of the 1987 Act.[3] An applicant need only establish that the consequential condition resulted from the accepted injury.
[3] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon); Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni); Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8.
In Moon v Conmah[4] Deputy President Roche said, in relation to a consequential condition, that all that has to be established is that there are “symptoms and restrictions” that have resulted from the accepted injury.”[5]
[4] [2009] NSWWCCPD 134.
[5] Moon, [45]-[46] (per Roche DP).
In Bouchmouni v Bakhos Matta t/as Western Red Services,[6] Roche DP said:
“It is accepted law that if an ‘injury’ is aggravated by medical treatment, or if the treatment adopted to remedy the injury causes a secondary condition, the total condition is attributable to the original incident or event (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321; D & W Livestock Transport v Smith (No 2) [1994] NTSC 31; 4 NTLR at 172).
…
It was no part of Mr Bouchmouni’s duties to have surgery on his knee or to walk with an altered gait. Those things arose because he suffered an injury to his knee in the course of his employment. If a further medical condition has resulted from the treatment of the knee injury (or from an altered gait because of knee symptoms), as has happened in this case, that condition (the back condition) has resulted from the injury but is not itself an ‘injury’.”[7]
[6] Bouchmouni.
[7] Bouchmouni, [70], [73] (per Roche DP).
Further, Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[8] observed, having reviewed the relevant authorities, that:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.”[9]
[8] [2016] NSWWCCPD 23.
[9] Brennan, [169] (per Snell DP).
A common sense consideration of the chain of causation is required in determining a consequential condition.[10] This requires consideration and determination of questions of fact.[11] In Pincham v Crew on Call Australia,[12] relying on Kooragang Cement Pty Ltd v Bates,[13] Principal Member Bamber stated:[14]
“What is important is whether the evidence in the case supports a finding of a causal connection between the agreed work injury to the right knee and the other so-called consequential conditions. At [463G] in Kooragang it was stated ‘each case where causation is an issue in a worker's compensation claim, must be determined on its own facts’. Kirby P said, ‘what is required is a commonsense evaluation of the causal chain’. This does not mean a Member can apply her views of commonsense as to the cause of injury, but that she needs to evaluate the evidence.”[15]
[10] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 464C (Kooragang).
[11] State of New South Wales v Bishop [2014] NSWCA 354.
[12] [2024] NSWPIC 679.
[13] (1994) 35 NSWLR 452.
[14] (1994) 35 NSWLR 452.
[15] Pincham v Crew on Call Australia [2024] NSWPIC 679, [63].
It is well accepted that the applicant bears the onus of proof, to establish his case on the balance of probabilities.[16] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[17] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[18]
[16] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[17] [2008] NSWCA 246.
[18] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Discussion

The submissions of the parties proceeded on two bases. Firstly, whether there was a consequential condition or loss in the bilateral wrists and shoulders. Secondly, whether the medical expenses claimed were reasonably necessary as a result of symptoms in the bilateral wrists and shoulders. This is despite the parties agreeing at the preliminary conference and also the conciliation conference and arbitration hearing that only s 60 of the 1987 Act required determination. In the circumstances, I have dealt with the general question of causation of the consequential condition or loss of the bilateral wrists and shoulders before addressing the application of s 60 of the 1987 Act.
I accept the applicant’s contention that a finding of a consequential condition may be founded on the existence of symptoms or consequential losses.[19] However, as the respondent submits, there must be a causal connection between those symptoms and the accepted workplace injury for compensation claimed to be awarded.[20]
[19] Brennan, [169] (per Snell DP).
[20] Kooragang.
The applicant’s case was founded on the basis that the prolonged use of crutches in the recovery from his accepted consequential workplace Achilles condition caused his symptoms in his bilateral wrists and shoulders. The respondent disputed this was available on the evidence.
There is no dispute that following the Achilles injury, the applicant was initially in a cast, then a CAM Boot, and used crutches and a walking stick. However, the respondent contended that the evidence was unclear on the period of use of crutches or details surrounding use and that the available evidence did not support a finding of the relevant causal connection.
I accept that the evidence is unclear on the precise duration of reliance on crutches. In this regard, the applicant states that he used crutches for three months and then a walking stick for another two months. He also states that he was kept on crutches for a longer period of time to avoid the risk of infection. However, the applicant’s statement evidence and the medical evidence supports a prolonged use of crutches. The medical evidence provides that:
(a)    on 2 and 11 August 2022, the applicant’s treating general practitioner Dr Bull records that the applicant spent six months on crutches;
(b)    on 29 September 2022, Associate Professor Miniter, the respondent’s independent medical expert, records a history that the applicant reported using crutches for an extended period and was out of the Moon Boot by six to eight weeks. He also records that by the applicant’s recollection it had been 15 months since he last used crutches, which I infer suggests that crutches were used until on or about mid-2021;
(c)    on 5 October 2022, Dr Petrelis, the applicant’s treating orthopaedic surgeon, records a history of the applicant being on crutches for approximately six months for treatment of the Achilles injury;
(d)    On 12 July 2023, Dr Meads, the applicant’s treating orthopaedic hand specialist, records that the applicant spent a considerable length of time on crutches and walking sticks following the right Achilles injury;
(e)    on 8 September 2023, Dr East, the applicant’s treating orthopaedic surgeon, records that the applicant was non-weight bearing for around three months while using crutches during recovery for the Achilles injury;
(f)    on 28 June 2024, Dr Guirgis, the applicant’s independent medical expert, records the applicant used crutches following the Achilles injury, and
(g)    on 28 April 2025, Associate Professor Miniter records that the applicant asserted he used crutches and a walking stick for a period of time for the Achilles problem.
There is no contemporaneous evidence of the use of crutches and it is difficult to reconcile the evidence on the duration of use. However, for the following reasons, this is not necessarily fatal to the applicant’s claim for compensation. Firstly, it is accepted that the applicant used crutches following the Achilles injury. Secondly, the applicant cannot be criticised for not connecting his symptoms to the use of crutches until mid-late 2022, a year post the cessation of the use of crutches. The applicant is not a medical expert and, as the applicant submits, he had other health issues and the consequential conditions did not cause debilitating pain. Thirdly, the evidence consistently records a prolonged use of walking aides post the Achilles injury. The respondent submits that the use of crutches would have been for three months on the applicant’s evidence. Having regard to the above, the consistent history is that the applicant was using crutches for a period of at least three months and then a walking stick for two months. Fourthly, on the respondent’s own evidence of Associate Professor Miniter, the applicant ceased using crutches in mid-2021 suggesting use for approximately three-six months (subject to whether crutches were used with or without the CAM Boot which was used for six to eight weeks). Lastly, it is also not disputed that the applicant used a walking stick for a period of up to two months post use of the crutches. It follows that the applicant was using crutches and/or a walking stick until on or about mid-2021 and that the use of crutches was for a period of at least three months.
The evidence indicates that symptoms in the right wrist were first recorded in June 2022 and symptoms in the bilateral wrists and shoulders recorded in August 2022. In this regard, the evidence records by early June 2022 the applicant complains about right wrist pain as a result of the use of crutches and underwent an ultrasound investigation revealing tenosynovitis. Only two months later in early August 2022 the applicant’s treating general practitioner records that the applicant was told by the physio that his hands, shoulders and wrists were affected by use of crutches for six months. While the physiotherapy records are not in evidence, by 11 August 2022 the general practitioner refers the applicant for an MRI scan of his cervical spine, wrists and shoulders noting severe pain due to six months using crutches. That MRI of the bilateral shoulders and wrists was undertaken in early September 2022 showing abnormality in these regions. Following which the applicant was referred to specialists including Dr Petrelis regarding the bilateral shoulders, Dr Meads for the bilateral wrists, and latter Dr East for the bilateral shoulders. The applicant was then later referred for further investigation. The medical evidence does not address the interval of time between the cessation of the use of crutches and onset of present symptoms in each body part, which is at least one year post the cessation of the use of crutches. However, I do not consider that this is significant for the reasons discussed in this decision in respect of the acceptance of medical opinion on causation.
I do not accept the respondent’s submission that the evidence is so imprecise as to the use of crutches that it gives doubt to any medical opinion that the use of crutches caused the applicant’s symptoms. The assumptions underpinning an expert opinion must provide a “fair climate” to ground the opinion.[21] However, a fair climate is not necessarily lost by some imperfections in the history recorded. The medical evidence is fairly consistent on duration of use of crutches and this is reflected in the histories recorded by the medical practitioners and independent medical experts noted above. To the extent that these histories recorded by the experts are incomplete or imprecise, I do not consider this gives me cause to consider their opinions were not made in a fair climate.
[21] OnseSteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
The applicant refers to and relies on the evidence of Dr Petrelis, Dr Meads, Dr East and Dr Guirgis, over Associate Professor Miniter. These opinions were provided over 20 months after the Achilles injury (and over a year post the cessation of the use of crutches). However, they each record a consistent history and relevant clinical investigations in forming the basis of their opinions.
Dr Petrelis in October 2022 records a history of use of crutches for approximately six months and progressive soreness in both shoulders, neck and the right wrist. It is true that he could not find any structural problem with the shoulders requiring any surgery, but this is not necessarily needed for a finding of a consequential loss.[22]
[22] Brennan.
Dr Petrelis noted that there was a period of overload and felt the applicant had a cervicobrachial irritation which was best addressed by structured physiotherapy including a scapular thoracic stabilising program. It is not unusual for such an irritation to cause symptoms of pain referred to the neck and shoulders, and Dr Petrelis recorded a history of such symptoms of pain and that the treatment recommended included physiotherapy of the scapular thoracic region. To this end, I do not accept that Dr Petrelis’ opinion does not involve the shoulders, as the respondent sought to contend.
Dr Petrelis does not comment on the left wrist but this does not indicate that the applicant did not have any symptoms in that region. The applicant complained and underwent investigation in respect of the bilateral wrists as a result of the use of crutches, and this occurred prior to and post Dr Petrelis’ report. Further, the applicant was referred to Dr Petrelis for treatment of the shoulders and understandably the focus was on that region of the body.
Following Dr Petrelis’ report, the applicant underwent further investigations including a CT scan in 2023 and was referred to Dr Meads an orthopaedic hand specialist and latter Dr East an orthopaedic shoulder specialist. Each specialist takes a consistent history of the applicant’s clinical picture, identifying symptoms and recommending treatment within their respective speciality.
Dr Meads records a detailed history of the applicant’s clinical picture noting that he had developed bilateral wrist pain following a considerable length of time on crutches and walking sticks. He confirms the complaint of pain is in the STT joint and CMC joint and notes the corresponding clinical signs in the bilateral wrists. Having regard to the history, the complaint of pain, and recent CT scan, he recommends left trapeziectomy and bilateral carpal tunnel release to deal with the symptoms. I accept that Dr Meads does not provide any real analysis as to why crutches caused symptoms in the wrists. However, his opinion must be considered in the context of a treating specialist report rather than a medico-legal opinion which is responding to a legal letter of instruction, his history recorded of the use of crutches, and against the totality of the evidence.
Dr East records the applicant’s clinical history and finds that the prolonged period of non-weight bearing and three months use of crutches is the most likely cause for the bilateral scapulo-thoracic and shoulder pain. Having noted the clinical history, treatment undertaken in the form of pharmacology, previous adverse reaction to steroid injections, he recommends a rehabilitation program for the applicant’s shoulder symptoms. Contrary to the respondent’s submissions, Dr East clearly identifies shoulder joint pain and recommends physiotherapy to address those symptoms. He further provides a balanced objective opinion on causation stating that there is no other clear identifiable cause for his bilateral pain other than the prolonged period of non-weight bearing and crutches after the Achilles injury.

Dr Guirgis, the applicant’s independent medical expert, provides a history and opinion which is consistent with Dr Meads and Dr East. The history of the use of crutches is not as detailed as the other reports but it provides a sufficient basis on which to found his opinion on causation. I accept that he finds that the use of crutches can potentially cause symptoms such as recorded by the applicant, but that he does not initially relate these findings directly back to the history recorded or findings on examination but does so latter in respect of the bilateral wrists (see [52] above). In this regard, he provides a detailed and reasoned opinion of symptoms and signs of bilateral carpal tunnel syndrome and carpometacarpal dysfunction resulting in changes to the trapezo-trapezoid metacarpal joint which he explains was triggered by the use of crutches after the Achilles injury.
I accept that Dr Guirgis records a history of tightness in the bilateral shoulders with good days and bad ones but finds no demonstrable restrictions in active range of movements or consequential loss to the shoulders. I also accept that this causes an evidentiary issue for the applicant in respect of a consequential loss (or ongoing loss) to the bilateral shoulders. However, that there were no restrictions noted at the time of examination by Dr Guirgis does not negate that fact that the applicant has or had symptoms and restrictions in his bilateral shoulders as a result of the use of crutches, particularly given the findings of Dr East and evidence of Dr Petrelis.
Associate Professor Miniter takes a history consistent with the other medical reports but finds that the applicant’s complaints are not related to work and that he presented as non-genuine. He does not accept any injury to the lumbar spine, right hip or Achilles tendon. He finds that there is no evidence of pathology or injury in the shoulders and wrists, which he considered entirely normal and did not explain the applicant’s presentation. There is significant criticism of Dr Guirgis’ opinion but there is no analysis of the findings and recommendations made by Dr Meads or Dr East. Indeed he does not sufficiently explain how or why the use of crutches could not lead to the symptoms in the bilateral wrists and shoulders, a diagnosis of carpal tunnel syndrome made by Dr Guirgis or aggravation of the left thumb (presumably a reference to the trapezo-trapezoid metacarpal joint issue). I am not persuaded by Associate Professor Miniter’s evidence, which is unsupported by the medical evidence, radiological investigations, and the respondent’s acceptance of liability in respect of the lumbar spine, right hip and consequential right Achilles tendon injury.
Having regard to the above, I prefer the evidence of Dr Meads, Dr East and Dr Guirgis, which is supported by the clinical notes, Dr Petrelis, radiological investigations, and the applicant’s statement evidence. This evidence supports the existence of clinical symptoms and restrictions in the bilateral shoulders and clear persisting symptoms in the bilateral wrists as a consequence of the use of crutches for recovery of the Achilles injury.[23] I prefer this evidence over Associate Professor Miniter.
[23] Moon; Bouchmouni; Brennan; Kooragang.
The respondent submitted that the link between use of crutches and the left wrists and shoulders had not been established, but did not submit this extended to the right wrist. I do not accept the respondent’s general submissions on causation are supported by the medical evidence, for the reasons discussed above. There are no other available causes and even if there were this is not fatal as an injury or consequential condition may have multiple causes and still be compensable.[24] I find that there is an unbroken chain of events from the use of crutches for the Achilles injury and the onset of symptoms in the bilateral shoulders and wrists.[25]
[24] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), [57]-[58] (per Roche DP); Roncevich v Repatriation Commission [2005] HCA 40 (Roncevich), [27].
[25] Kooragang.
I accept the respondent’s submission that the burden of proof is not the standard of being “comfortably satisfied”. There have been several Presidential decisions which deal with the phrase “comfortably satisfied”, noting that the standard of being comfortably satisfied is a higher standard than that of actual persuasion on the balance of probabilities.[26] The latter burden of proof relevant to the question of causation which requires an evaluation of the evidence and finding of fact. To this end, it did not matter that the applicant sought to contend that the higher burden of proof had been established on the evidence.
[26]Fisher v Nonconformist Pty Ltd [2023] NSWPIC PD 12, [164] (per Phillips J); Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.
For the reasons set out above, I am persuaded on the totality of the evidence that the applicant sustained a consequential condition to his bilateral wrists and shoulders as a result of use of walking aides in his recovery of the Achilles injury.

Medical treatment

Section 60 of the 1987 Act requires two questions to be answered in the affirmative. Firstly, whether the proposed surgery “results from” the accepted injury, and, secondly, whether the proposed surgery is “reasonably necessary”. These are questions which involve matters of impression and degree, having regard to the available evidence.[27] The applicant bears the onus of proof, to establish his case on the balance of probabilities.[28]
[27] Kooragang; Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab).
[28] Nguyen, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
A condition can have multiple causes and a consequential condition need not be the only cause for the reasonably necessary treatment, before the cost of that treatment is recoverable under s 60 of the 1987 Act.[29]
[29] Murphy, [57]-[58] (per Roche DP); Roncevich, [27].
Deputy President Roche, in Diab v NRMA Limited (Diab),[30] considered the application of s 60 of the 1987 Act and the phrase “reasonably necessary”. Deputy President Roche stated:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”[31] (footnotes omitted)
[30] [2014] NSWWCPD 72.
[31] Diab, [86] (per Roche DP).
Deputy President Roche then considered the criteria of reasonableness:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[32] (footnotes and citations omitted)
[32] Diab, [88]-[90] (per Roche DP).

Discussion

The applicant seeks past and future medical expenses.
The claim for past medical expenses concerns a modest amount, comprising of (but not limited to) attendance on his treating general practitioner, Dr Petrelis, Dr Meads and Dr East and related expenses. The applicant attended on these practitioners for treatment and investigation in respect of his wrists and shoulders. The respondent did not submit that these expenses were not reasonably necessary as a result of the bilateral wrists or shoulders symptoms, but only that they did not result from the accepted injury.
For the reasons discussed above, I have found in favour of the applicant that his symptoms in his wrists and shoulders are a consequence of the accepted injury on 30 May 2019. It is not disputed that the applicant attended on these practitioners and incurred the claimed expenses for reason of seeking medical advice and treatment for these symptoms at that relevant time. It follows that these expenses should be recoverable under s 60 of the 1987 Act.
Accordingly, the applicant is entitled to the past medical expenses claimed and there will be a general order for the reasonably necessary incurred medical expenses, pursuant to s 60 of the 1987 Act.
The claim for future medical expenses, relates to proposed trapeziectomy and carpal tunnel release together with therapy treatments for the left wrist only.
The parties did not provide detailed submissions on whether the proposed treatment was reasonably necessary as a result of the accepted injury. Nor did the parties specifically address the test of “reasonably necessary”, within the meaning of that phrase discussed in Diab.[33]
[33] Diab, [76]-[90] (per Roche DP).
The independent medical experts do not provide persuasive evidence that the proposed surgery is reasonably necessary as a result of the accepted injury. The applicant properly conceded that Dr Guirgis provides a limited opinion on the proposed surgery. Dr Guirgis says no more than that the proposed surgery is reasonably necessary without any explanation as to why, and this affects the weight to be attached to that opinion. While Associate Professor Miniter is surprised that surgical treatment is recommended given the applicant’s history of renal disease and transplantation management, he does not state it is not reasonably necessary to address his symptoms or that it will not address his symptoms in the left wrist. Although, I accept that Associate Professor Miniter’s opinion is constrained by his view that there is no pathology that requires treatment but for the reasons discussed above I am unable to accept his opinion.
However, the surgery is recommended by the applicant’s treating orthopaedic hand specialist Dr Meads who has examined and treated the applicant over several years. He is aware of and has access to the applicant’s clinical history and investigations, and he notes the applicant’s kidney transplant and daily use of medication. He is well placed to provide an objective opinion as to whether the proposed surgery should be undertaken. Indeed, he recommends the trapeziectomy and carpal tunnel release surgery to address the STT joint arthritis and pain in the CMC joint, which he recorded were causing volar radial wrist pain which developed after considerable length of time on crutches and walking sticks following the rupture of his right Achilles tendon. Dr Meads may not deal specifically with the test under s 60 but his opinion carries weight. This read with Dr Guirgis’ finding on causation (in relation to symptoms of the left wrist (see [52] above), which is accepted) support the necessary causal link between the use of crutches, the development of symptoms in the left wrist and need for treatment to address those symptoms.
I am satisfied that there is a material contribution from the use of crutches to the need for the proposed surgery recommended by Dr Meads. I am also mindful that the symptoms in the left wrist may have multiple causes and the use of the crutches need not be the sole, predominant or principal cause for the need for surgery.[34]
[34] Roncevich, [27].
I am also satisfied that the proposed surgery is reasonably necessary, within the meaning of that phrase as discussed in Diab. It is appropriate to address the symptoms of the left wrist and there is medical support for the likely effectiveness of the proposed treatment, provided by Dr Meads. The cost of the surgery is not prohibitive and there is no compelling available alternative option on the evidence. It follows that there will be an award for the applicant in respect of the proposed surgery in relation to the left wrist.
The applicant did not provide any specific submissions or address the reasonable necessity of the claimed proposed hand therapy, scar management ROM and physiotherapy in respect of the left wrist. In the absence of submissions specifically addressing this type of future treatment, no more than a general s 60 order is appropriate in this regard.

SUMMARY

The applicant suffers symptoms in his bilateral wrists and shoulders as a result of prolonged use of crutches for recovery of an accepted right Achilles tendon rupture in 2021 which was a consequence of an accepted lumbar spine and right hip injury in 2019.
It follows that there will be an award in favour of the applicant in respect of the claimed past and future medical expenses.
Accordingly, I make the orders set out above.

[2025] NSWPIC 266

13 June 2025