Byrne v Department of Planning Housing and Infrastructure
[2025] NSWPIC 215
•19 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Byrne v Department of Planning Housing and Infrastructure [2025] NSWPIC 215 |
| APPLICANT: | Robert Byrne |
| RESPONDENT: | Department of Planning Housing and Infrastructure |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 19 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for carpal tunnel surgery; whether injury in the course of employment; Held – applicant sustained bilateral carpal tunnel injury in the course of his work; diagnosis of carpal tunnel confirmed by five separate practitioners including the respondent’s qualified specialist; respondent’s qualified specialist subsequently determined condition was constitutional after considering automation in the workplace but failed to provide reasoning (ipse dixit); satisfied applicant has established on the balance of probability that he sustained injury (carpal tunnel); Castro v State Transit Authority discussed; surgery by way of bilateral carpal tunnel release reasonably necessary with reference to causation; Kooragang Cement Pty Ltd v Bates, Rose v Health Commission (NSW), and Diab v NRMA Ltd discussed. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant developed bilateral carpal tunnel syndrome arising from workplace injury on 2. The respondent to pay the applicant’s reasonable medical and related treatment expenses associated with bilateral endoscopic carpal tunnel releases pursuant to s 60 of the Workers Compensation Act 1987 as proposed by Dr Smithers in his report dated 7 May 2025. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Robert Byrne (the applicant) seeks approval for carpal tunnel surgery which he claims is required due to injury that developed in the course of his employment with the Department of Planning, Housing and Infrastructure (the respondent). The respondent’s insurer declined liability. An Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (Commission). The matter underwent the usual case management pathway and following conciliation impasse proceeded to arbitration on 16 May 2025.
The applicant was represented by Mr Stanton of counsel instructed by Mr Rowland. The respondent was represented by Ms Young of counsel instructed by Ms Talevski. Ms Mitrovic was the insurer’s representative.
In the course of decision making I considered the documents consisting of the ARD, Reply an Application to Lodge Additional Documents (ALAD) and the submissions of counsel. No oral evidence was called.
ISSUES FOR DETERMINATION
The issues in dispute requiring determination are:
(a) has the applicant sustained bilateral carpal tunnel injury as a result of his employment, and
(b) whether the proposed bilateral endoscopic carpal tunnel releases are reasonably necessary.
RELEVANT LAW
The law relevant to this assessment is found in the Workers Compensation Act 1987 (the 1987 Act).
Respondent’s case – evidence and submissions
Following a review of liability, the respondent in its s 78 notice informed the applicant that liability was being declined on the grounds of ss 4, 9A, 4(b) and 60 of the 1987 Act primarily relying on the updated supplementary opinion of its qualified specialist, Dr Haig dated
22 July 2024. The position was maintained at arbitration.
Medical evidence
Dr Haig in his report dated 29 May 2024[1] after taking a consistent history of workplace activity recorded:
(a) the applicant presented in a straight forward fashion;
(b) the diagnosis was mild carpal tunnel syndrome bilaterally and overuse syndrome of the wrists and hands;
(c) hand and finger complaints were due to carpal tunnel syndrome;
(d) prognosis was guarded in the absence of surgery for the carpal tunnel syndrome;
(e) the diagnosis of carpal tunnel was supported by the medical literature specifically (unedited):
“Regarding the carpal tunnel syndrome, it is stated in the “AMA Guides to the Evaluation of Disease and Injury Causation” (Second Edition) page 282 under the heading “occupational risk factors for median nerve entrapment at the wrist”: "highly repetitive work or in combination with other factors... strong evidence; but again, the widely varying definitions for repetitive work make association difficult". I think his description of his increased work load is significant in a causative sense for his carpal tunnel syndrome.”
(f) he did not consider this to be a disease injury but a de novo injury of traumatic origin, and
(g) it is appropriate that he undergo surgery.
[1] Folio 38 – 44 of the Reply.
In his supplementary report dated 1 July 2024[2] he stated:
(a) symptoms in the wrists and forearms began around July 2022. Symptoms of carpal tunnel “started one year ago”… I do recommend him undergoing carpal tunnel release for he has carpal tunnel symptoms to a significant extent”.
[2] Folio 61 – Reply.
In a further supplementary report dated 22 July 2024,[3] and following review of emails between the applicant and his employer regarding the use and benefit of software that reduced mouse and keyboard work, Dr Haig concluded (unedited):
“Carpal tunnel is not as a result of the original wrist injury which I believe was an overuse type…
I now believe his left, and right carpal tunnel symptoms are constitutional in origin…
I do not now believe his left and right carpal tunnel syndromes are as a result of his employment in view of the additional information you have provided…
I believe the need for left carpal tunnel release is as a result of constitutional conditions. Carpal tunnel syndrome is multi-factorial in origin…
I do not believe the right carpal tunnel release is as a result of the original workplace injury, but rather is for constitutional reasons…
I do believe that bilateral carpal tunnel surgery is reasonably necessary…
It is generally accepted by medical experts that for carpal tunnel syndrome, where the symptoms continue and the conservative measures have failed, surgical decompression is indicated”
[3] Folio 82 – Reply.
Emails and rehabilitation supervision/employment records
Emails between the applicant and his employer are relied upon by the respondent and were the basis of Dr Haig’s reassessment of diagnosis and causation. These emails[4] commence on 9 November 2022 and express a desire by the applicant to trial Dwell software which promotes less clicks of the mouse and when used with a Nib timer (enforcing regular rest breaks) resulted in some relief of symptoms due to reduced need to manually click the mouse.[5]
[4] Folio’s 63-81 Reply.
[5] Folio 63 Reply.
Hazel Mayo, occupational therapist suggested the use of voice activation software and mouse software and the use of a vertical mouse with the expectation “that these devices will be used ongoing in the long term to prevent injury exacerbation and persistent relapse of pain symptoms in both hands and wrists”.[6]
[6] Folio 74 Reply.
On 9 November 2022, the applicant confirmed that with Dragon activated voice software and Dwell he was able to generate a three paragraph email “without clicking the mouse once”.[7]
[7] Folio 65 Reply.
In an email dated 19 January 2023, the applicant reported to his supervisor that despite the use of the software he was still experiencing symptoms.[8]
[8] Folio 66 Reply.
Counsel on behalf of the respondent submitted;
(a) the original diagnosis was synovitis. The ultimate conclusion by Dr Haig that the condition is constitutional should be accepted as the carpal tunnel syndrome was made only after the applicant had successfully implemented rehabilitation measures and was given software designed to limit keyboard and mouse use. It follows there is no logic to the subsequent claim of carpal tunnel syndrome given the altered work practices;
(b) the bulk of the applicant’s medical evidence fails to engage with the rehabilitation measures of the employer and fails to properly take stock of the chronology that carpal tunnel syndrome only became significant after keyboard/mouse use had reduced;
(c) the rehabilitation interventions and software aids were trialled for a period of almost seven months before a formal diagnosis of carpal tunnel, and there is no explanation in the applicant’s statement as to the reason for the delay in onset of symptoms given the workplace interventions and rehabilitation precautions implemented.
The applicant’s case – evidence and submissions
The tasks undertaken by the applicant and the onset of his symptoms are detailed in his statement dated 30 January 2024[9] which in summary reveal;
[9] Folio 1-10 of the ARD.
(a) he is now 57 years of age, right handed and worked exclusively for the respondent as a senior planning officer for a period of 14 years;
(b) the majority of his tasks were computer based requiring use of the keyboard and mouse which he estimated to be about six hours per day;
(c) symptoms of pain, numbness and paresthesia commenced in 2020 in the hands and fingers but were short lived;
(d) following a significant increase in workload in about July 2022 he started to experience persistent pain in both hands and wrists prompting presentation to his general practitioner. He recalls working on four separate applications simultaneously which required a “greater number of mouse clicks than would normally be required to complete day to day tasks”. He attempted to alleviate pain by swapping “my mousing hand from right hand to left and to my right and so on”;
(e) he noticed the pain, numbness and tingling would somewhat resolve when he took extended breaks away from work for example holidays but were nonetheless constantly present predominantly on the right side;
(f) he was initially diagnosed with bilateral wrist joint synovitis by his general practitioner, Dr Missaghi, who considered it prudent to refer him to a hand surgeon, Dr Smithers;
(g) Dr Smithers diagnosed carpal tunnel and nerve conduction studies performed by Professor Aggarwal confirmed the diagnosis;
(h) surgery was recommended but he sought to avoid this and trialed splints, physiotherapy and medication, which did provide short term relief however symptoms deteriorated due to “constant re-aggravation in the workplace” and whilst physiotherapy did provide progress this would be undone “by excessive mousing or keyboard strokes at work which put me back to square one”;
(i) he has been told that surgery would offer symptom relief and “return to full functionality and capacity”. Trials of Gabapentin and Celebrex did not offer benefit;
(j) in an attempt to remain productive, software assistance by way of Dragon and Dwell were trialed. These assisted with some applications but was largely limited to email and could not be used in all aspects of his work which required the use of a number of software applications to which neither Dwell or Dragon were compatible so he still engaged in excessive keyboard/mouse use;
(k) despite informing his supervisor of difficulties with his hands, “excessive work” continued to be allocated with “tight deadlines for these tasks” and
“I did everything that I could to meet these deadlines and impress my new Director with high quality timely work. Ultimately, I was unable to keep up and Kristy was successful in having me removed from the organization via medical retirement in October 2024”;[10]
(l) symptoms persist despite medical retirement, albeit are less. Sleep remains disturbed due to numbness and tingling and small objects such as buttons, using a pen and shoelaces are difficult to manipulate. Texting is difficult. Brushing teeth and toileting are difficult on account of pain. There has been a “significant uptick in instances of clumsiness”, specifically referring to a lack of strength in the hands and fingers, and
(m) despite declining surgery in the past, he now wishes to proceed in an attempt to get back into his hobbies and some meaningful work as Dr Smithers has indicated successful surgery will result in increased capacity within five days. The proposal is that the right upper limb be treated initially, as this is the most symptomatic, followed later by surgery on the left hand side.
[10] Paragraph 48 folio 7 – ARD.
Medical evidence
Dr Missaghi, general practitioner issued a number of certificates of capacity and diagnosed bilateral wrist joint synovitis/tenosynovitis with the cause being “working long hours with computer”. Various restrictions were implemented including reduction in manual keyboard use, implantation of software aids, regular rest breaks and to not work through pain.[11] He referred the applicant to Dr Smither’s, hand surgeon.
[11] Folio’s 67 – 90 – ARD.
On initial assessment on 1 May 2023,[12] Dr Smithers recorded a history of symptom development consistent with high volume mouse/keyboard use during work tasks. He reviewed radiology which demonstrated mild synovitis and tenosynovitis but considered symptoms were “very much consistent with bilateral right greater than left carpal tunnel syndrome” and referred him for nerve conduction studies. Following a review of these studies on 1 June 2023 which confirmed “mild bilateral median nerve dysfunction very much consistent with carpal tunnel syndrome”[13] he recommended use of nocturnal splints, graduated increase in activity and further review. He forecasted the need for bilateral carpal tunnel release surgery if the significant day time carpal tunnel symptoms did not improve with conservative treatment modalities.
[12] Folio 46 – ARD.
[13] Folio 49 – ARD.
At further review on 28 August 2023,[14] assessment of updated nerve conduction studies confirmed carpal tunnel syndrome which he considered due to work activities. Slight relief was recorded with the use of night/day splints but ongoing symptoms required more regular breaks from his work. Endoscopic carpal tunnel release surgery was recommended.
[14] Folio 52 – ARD.
On further review on 6 June 2024,[15] the diagnosis of carpal tunnel syndrome (bilateral) was again confirmed with causation attributed to work duties. Non operative management failed to alleviate symptoms. Surgery was again recommended.
[15] Folio 58 – ARD.
In his letter to the insurer on 18 June 2024, [16] Dr Smithers confirmed the diagnosis and its work relationship; the failure of non operative management; that all conservative modalities had been exhausted; and that surgery offered a good prognosis for return to work and symptom relief.
[16] Folio 60 – ARD.
Professor Aggarwal, Associate Professor of neurology provided multiple reports all of which confirm his findings of carpal tunnel following nerve conduction studies on 19 May 2023,[17]
15 August 2023[18] and 16 January 2024.[19][17] Folio 47 – ARD.
[18] Folio 51 – ARD.
[19] Folio 57 – ARD.
In his report dated 12 September 2023[20] he relevantly concluded;
(a) the initial diagnosis of tenosynovitis by the general practitioner was presumed with bilateral carpal tunnel syndrome being confirmed following multiple studies demonstrating mild to moderate median nerve dysfunction at the wrists;
(b) symptoms were classical of carpal tunnel and not synovitis;
(c) given the nature of his work, the carpal tunnel was “occupational in origin”;
(d) whilst there were mild degenerative changes of his triangular fibrocartilage and mild osteoarthritis, Dr Smithers excluded these as causes for the carpal tunnel syndrome, and
(e) there were no pre-existing non-work related conditions that have caused or impacted on his carpal tunnel syndrome.
[20] Folio 54 – ARD.
Similar conclusions were offered in subsequent reports. Repeat nerve conduction studies again confirmed the presence of mild bilateral carpal tunnel syndrome for which endoscopic median nerve decompression surgery was required. [21]
[21] Folio 56 – ARD.
Dr Dilley, hand surgeon was qualified by the applicant. His report dated 31 October 2024[22] concluded;
(i) a diagnosis of bilateral carpal tunnel syndrome;
(ii) the nature and conditions of employment were likely to have been the cause of the condition;
(iii) surgical release was reasonably necessary and cost effective, and
(iv) his views on diagnosis, causation and treatment were consistent with that of
Dr Smithers, Professor Aggarwal and Dr Ronald Haig (qualified by the respondent) dated 29 May 2024.[22] Folio 42 to 45.
Counsel for the applicant submitted:
(a) all of the medical evidence (with the exception of Dr Doig’s last supplementary report) support injury and causation;
(b) the nature of the work, the volume of the work and deadlines have not been challenged by the respondent;
(c) there are no other factors demonstrated to be responsible for the applicant’s condition;
(d) to his credit the applicant continued to work seeking out rehabilitation, software assistance, regular rest breaks but symptoms continued to persist. Despite medical retirement he has significant interference in activities of daily living from the persistence of symptoms related to the diagnosis of carpal tunnel;
(e) it is acknowledged synovitis and tenosynovitis were the initial diagnoses but the specialist evidence confirms these were provisional diagnoses ultimately being substituted with a diagnosis of carpal tunnel following review of ultrasounds, nerve conduction studies, orthopedic and neurosurgical assessment which confirmed the disorder;
(f) the respondent’s qualified medical evidence, Dr Haig, supported the applicant’s claim of injury and causation. It was only following his reexamination that his opinion changed without proper or cogent rationale;
(g) Dr Haig’s view on causation changed when he read emails exchanged between the applicant and his employer regarding the success of rehabilitation aids and software in reducing the need to manage his keyboard but this only applied to limited software applications. The applicant’s daily keyboard and mouse activities were applied over a number of applications and the introduction of assistive software such as Dwell and Dragon related predominantly to emails which was but a small part of his work. He was still required to use the mouse and keyboard intensively to manage the other applications that were core to his role, and
(h) the treatment proposed is reasonably necessary. All conservative measures have been exhausted, symptoms persist albeit to a lesser degree but nonetheless significantly interfere with activities of daily living.
APPLICATION OF THE LAW AND REASONS
The definition of injury is found in s 4 of the 1987 Act (relevantly):
“‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’ , which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
In assessing whether injury has occurred as a result of or in the course of employment, authorities demonstrate:
(a) in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW),[23] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[24] “the word ‘injury’ refers to both the event and the pathology arising from it”;
(b) “disease”, – s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[25] (and it is now well established that a relevant aggravation injury which for present purposes shall include aggravation, exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment. Moreover, employment need only be the substantial contributing factor to the aggravation and need not contribute to the causation or progression of the underlying disease itself;[26]
(c) the issue of causation must be determined based on the facts in each case and the application of the common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[27] and
(d) the applicant bears the onus of establishing injury on the balance of probabilities. A decision maker must feel an actual persuasion or comfortable satisfaction of the existence of a fact. The approach to be taken was summarised explored by the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) relevantly:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
(At [55].)[23] [2000] NSWCC 12; 19 NSWCCR 496.
[24] (2003) 25 NSWCCR 422, at [429].
[25] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[26] see, for example, Murray v Shillingsworth [2006] NSWLR 451 and State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71.
[27] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
Section 9A of the 1987 Act requires employment to also be the substantial contributing factor to the injury for compensation to be payable (other than for a disease injury where it must be shown that employment is the main contributing factor – s 4(b) of the 1987 Act).
Issue 1
Has the applicant sustained an injury to the bilateral upper limbs as a result of his employment?
I appreciate that ordinarily carpal tunnel would be considered a ‘disease’ condition, but the medical evidence in this case does not advance such an argument. It is for this reason that I have not assessed the matter as a ‘disease case’ but regardless, for the reasons that follow I have no doubt that employment was the main contributing factor to the aggravation of the disease process if such was pleaded. I find the applicant has developed bilateral carpal tunnel syndrome as a result of his workplace injuries and further find that his employment is the substantial contributing factor in the development of the condition. This is because;
(a) the applicant has at all times remained consistent in his evidence, that is, he was required to undertake excessive and time sensitive work which involved high volume keyboard and mouse work;
(b) the evidence regarding workload is unchallenged;
(c) the applicant first experienced symptoms in 2020 which were short lived but recurrent with activity. It was not until his workload increased in 2022 that his symptoms became persistent requiring medical attention and caused interference with activities of daily living;
(d) the only contributing factor was employment. Whilst the medical evidence did initially suggest some mild degenerative changes of his triangular fibrocartilage and mild osteoarthritis, the orthopaedic assessment of Dr Smithers excluded these as causes for the carpal tunnel syndrome;
(e) repeat nerve conduction studies (x3) and imaging confirm the presence of median nerve symptoms consistent with carpal tunnel syndrome;
(f) whilst I accept the initial diagnosis was synovitis, this was replaced with a diagnosis of carpal tunnel following verification with medical imaging and three separate nerve conduction studies;
(g) the diagnosis and causation has been verified by;
(i)Dr Missaghi, general practitioner;
(ii)Dr Smithers, treating orthopaedic surgeon;
(iii)Associate Professor Aggarwal, treating neurosurgeon;
(iv)Dr Dilley, the applicant’s qualified surgeon;
(v)The initial report of Dr Haig, the respondent’s qualified surgeon;
(h) I do not accept the revised opinion found in the supplementary report of Dr Haig. It is unpersuasive. It is a bare ipsi dixit. This is because;
(i)he has failed to explain why he reversed his original position. It appears that he has taken the view that rehabilitation measures implemented including software which reduced keystrokes and mouse use in certain applications was sufficient enough to invalidate the entire diagnosis of carpal tunnel and its relationship to workplace activity. I find Dr Haig failed to engage in the evidence and appreciate that the implementation of software measures did reduce keystrokes in applications such as email, but that the applicant still was required to use his keyboard and mouse excessively to complete his tasks which were time sensitive and excessive when using other applications. Dr Haig initially accepted that the medical based literature supported the diagnosis and causation of carpal tunnel arising from workplace duties but then does a complete turnaround on what I can only assume is an incorrect assumption that all keyboard and mouse activities were entirely eliminated by the implementation of Dwell and Dragon software, which is clearly inaccurate;
(ii)he has reassessed the condition as being entirely constitutional despite earlier confirming symptoms and injury were due to workplace activity. The report lacks reasoning as to why he has done an about face given his earlier findings;
(iii)whilst nominating a “constitutional condition”, Dr Haig fails to provide a nominate what type of ‘constitutional condition’ was now responsible for the applicant’s symptoms;
(iv)despite his findings of a constitutional process, the opinion then fails to consider whether such symptoms would have become symptomatic with or without the work activity and fails to acknowledge that even since medical retirement, symptoms have continued;
(v)despite his reassessment, he has failed to consider whether such a constitutional condition (‘disease’) would have been aggravated by the high volume keyboard work and is so whether such aggravation would have been transient or permanent, and
(vi)his opinion lacks reasoning and asks the reader to blankly disregard his earlier detailed opinion which was consistent with the assessments of
Dr Dilley, Dr Smithers and Associate Professor Aggarwal along with the three independent nerve conduction studies and various investigations.Whilst trite, the opinion of an expert must be capable of being appraised by a tribunal of fact. The extent to which such appraisal will be required will depend upon the circumstances of the case, including whether there is other expert evidence which contradicts or challenges the opinion under consideration.[28] To engage in such appraisal, a chain of reasoning must be understood. As indicated above the supplementary opinion of Dr Haig is devoid of cogent reasoning.
[28] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
The applicant carries the onus of establishing on the balance of probabilities that he has suffered an injury as defined in the 1987 Act. To meet that onus, the evidence must leave me with a sense actual persuasion and/or affirmative satisfaction that the claim has been made out (Nguyen).[29]
[29] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246
I find with reference to the chronology; the contemporaneous complaints to various treating doctors and specialists; statement evidence; uncontradicted evidence about work tasks and demands; and largely consistent medical opinion on diagnosis and causation, that the applicant has discharged the onus in establishing on the balance of probabilities that he developed carpal tunnel syndrome in the course of his employment and that employment was the substantial contributing factor – ss 4 and 9A of the 1987 Act are satisfied.
Issue 2
Are the proposed bilateral endoscopic carpal tunnel releases reasonably necessary?
Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the workers employer is liable to pay for the cost of that treatment or service.
The authorities on the interpretation ‘reasonably necessary’ are overwhelming although three key principles stand out (but by no means are they exhaustive) relevantly;
(a) firstly, the applicant must establish on the balance of probabilities the treatment claimed, more probably than not is “reasonably necessary” (Nguyen);[30]
[30] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246 and Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51.
(b) secondly, whether treatment is “reasonably necessary”[31] (Rose) is a question of fact depending upon the circumstances and evidence in each case and will often require the weighing up of competing considerations such as:
[31] Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233 at [39].
(i)“is it better that the worker have the treatment or not?” (in the sense that there are reasonable prospects that the worker’s situation will be improved or ameliorated by the treatment (Diab),[32] and
(ii)the appropriateness of the particular treatment, its actual or potential effectiveness, the availability of alternative treatments and their potential effectiveness, the costs of the treatment (in particular relative to the cost of alternative treatments) and the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(c) thirdly, the need for treatment must be “the result of an injury”. The authorities establish assessment requires:
(i)a common sense evaluation of the causal chain the treatment is reasonably necessary “as a result of the injury” (Kooragang);[33]
(ii)the expression “results of”, is a question of fact, and it is unnecessary to establish the work injury was the only, or even a substantial, contributing factor to the need for medical treatment and it is sufficient to establish only that the injury “materially contributed” to that need (Murphy),[34] and
(iii)the worker establish:
“the injury was a material cause of the need for the proposed treatment . . . , even if other factors were also present that may have contributed to that need (the fundamental principle that employers must take their workers as they find them” ,
and that “a condition can have multiple causes”, these concepts making clear that the presence of a pre-existing condition, but for which treatment might otherwise not have been necessary, will not preclude a finding that the need for treatment results from the injury in question (Schokman).[35]
[32] Roche DP in Diab v NRMA Ltd [2014] NSWWCCPD 72.
[33] See Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452.
[34] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
[35] Per Roche DP in Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [54] (Schokman).
All of the medical opinions, including Dr Haig support carpal tunnel release as reasonably necessary to treat the pathology. All have forecasted a positive outcome with minimal risk. I am satisfied the applicant has exhausted all conservative modalities and despite absence from the workplace since October 2024 continues to have symptoms which impact on daily function. The effectiveness of the procedure is supported by all of the specialists who confirm that there are no other readily available treatments given the failure of conservative measures.
Overall, the evidence confirms no alternative to surgery as efficient both in terms of time and cost and there is little disparity between the competing qualified opinions. I further find that in the absence of any alternative treatment or evidence by the respondent to dispute the proposed treatment on medical grounds, that it meets the definition of ‘reasonably necessary’ summarised above.
For the reasons above, I find the applicant has established on the balance of probabilities, (Nguyen) that the injury materially contributed to the need for the treatment with reference to the common sense test of causation (Kooragang) and the treatments claimed are reasonably necessary (Rose) and (Diab).
SUMMARY
Accordingly I make the findings and orders set out on page 1 of the Certificate of Determination.
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