Chester v Workers Compensation Nominal Insurer

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chester v Workers Compensation Nominal Insurer [2022] NSWPIC 219
APPLICANT:	Nikitta Chester
FIRST RESPONDENT:	Kristie Maree Ferris t/as RHONDA’S HAIR BOUTIQUE
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
MEMBER:	Brett Batchelor
DATE OF DECISION:	16 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of two lots of surgery as a result of injury to the right wrist in the form of carpal tunnel syndrome, and the condition of cubital tunnel syndrome consequent upon such wrist injury, and for weekly benefits for two periods of 14 days each following such surgery; the first respondent was uninsured at the time of injury; the second respondent denied liability for the claim on the basis that the accepted injury to the right wrist did not result in the applicant suffering carpal tunnel syndrome and the condition of cubital tunnel syndrome consequent upon such injury; Held- finding that the applicant worker did suffer from carpal tunnel syndrome as a result of the accepted injury to the right wrist and also from the condition of cubital tunnel syndrome consequent upon such injury; finding that the two lots of surgery to the applicant’s right wrist and elbow were reasonably necessary as a result of injury to the right wrist; finding that the applicant was totally incapacitated for work for the two periods of 14 days each following the two lots of surgery; the second respondent ordered to pay the applicant’s section 60 of the Workers Compensation Act 1987 (1987 Act) expenses as a result of injury to the right wrist, including the costs of surgery, and weekly benefits for the two periods of 14 days each following surgery; the first respondent ordered to reimburse the second respondent for the compensation paid pursuant to the awards in favour of the applicant for section 60 of the 1987 Act expenses and weekly benefits.
DETERMINATIONS MADE:	1. The applicant suffered injury to her right wrist on 1 September 2011 in the form if carpal tunnel syndrome arising out of or in the course of her employment with the first respondent. 2. The applicant’s employment with the first respondent was a substantial contributing factor to the injury suffered by the applicant. 3. The applicant suffered the condition of cubital tunnel syndrome consequent upon injury to the right wrist on 1 September 2011. 4. The surgery performed by Dr Meads on 20 December 2018 and 4 August 2020 was reasonably necessary as a result of injury to the right wrist on 1 September 2011. 5. The second respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987 as a result of injury to the right wrist on 1 September 2011 including the costs of and incidental to surgery on 20 December 2018 and 4 August 2020. 6. The second respondent is to pay the applicant $587.67 per week pursuant to s 36 of the Workers Compensation Act 1987 for the periods from 20 December 2018 to 3 January 2019, and from 10 September 2020 to 24 September 2020. 7. The first respondent is to reimburse the second respondent for the compensation paid by the second respondent pursuant to [5]-[6] above.

STATEMENT OF REASONS

BACKGROUND

Nikitta Chester (the applicant/Ms Chester) seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for medical expenses in respect of treatment, including two lots of surgery, for an injury in the form of aggravation of pre-existing carpal tunnel syndrome to the right wrist arising out of or in the course of her employment as a hairdresser with Rhonda’s Hair Boutique (the first respondent) on 1 September 2011. Ms Chester also claims that she suffered a condition of cubital tunnel syndrome in the right elbow consequent upon her right wrist injury. Weekly benefits are also claimed for two periods of 14 days each when Ms Chester was incapacitated following surgery.
The first respondent did not have a policy of insurance for workers compensation as at the claimed date of injury.
The Application to Resolve a Dispute (ARD) commencing the proceedings dated 17 January 2022 was lodged with the Personal Injury Commission (the Commission) on 18 January 2022. The first respondent was named as the only respondent. On 8 February 2022 the second respondent (the Nominal Insurer) lodged a Reply of that date containing a notation that the respondent employer was uninsured at the time of the subject injury, and that the Nominal Insurer was to be joined to the proceedings as the second respondent.
At the telephone conference held in the proceedings on 15 February 2022 the Commission issued the following Direction:
“The Commission directs:
1.     Kristie Maree Ferris t/as Rhonda’s Hair Boutique is named as first respondent and the Workers Compensation Nominal Insurer joined as second respondent.
2.      By 22 February 2022 the second respondent is to:
(a) notify the first respondent of the proceedings;
(b) serve on the first respondent all documents lodged and served to date in the proceedings, and
(c) inform the first respondent of her potential liability under s 145 of the Workers Compensation Act 1987.
3.      The matter is stood over for conciliation/arbitration via telephone conference to 10.00 am on Tuesday 19 April 2022.”
On 22 February 2022 the solicitor for the second respondent wrote by prepaid Express Post to:
(a)    Kristie Maree Ferris
Rhonda’s Hair Boutique
10 Southview Street
West Tamworth NSW 2340, and to
(b)    Rhonda’s Hair Boutique
Robert Street Shopping Village
72 Robert Street
South Tamworth NSW 2340
forwarding copies of the ARD, Reply and the Direction referred to in [4] above.
It appears from the evidence before the Commission[1] that no response was received to the letter referred to in [5(a)] above and that the response to the letter referred to in [5(b)] above was “RTS LEFT ADDRESS”.
[1] Application to Admit Late Documents (AALD) and attachments dated 22 April 2022, lodged with the Commission by the second respondent.
There was no appearance by or on behalf of the first respondent at the conciliation/arbitration on 19 April 2022. The matter proceeded to arbitration hearing on that day. On 20 April 2022 the following Direction was issued by the Commission:
“The Commission directs:
1. The second respondent is to lodge and serve by 26 April 2022:
(a)Application to Admit Late Documents with report of Dr G Doig dated 21 February 2022 attached;
(b)evidence of notification of the applicant’s claim given by WorkCover to the first respondent, and
(c)evidence of attempt(s) of service on the first respondent of notification of the proceedings, service of documents, and supply of information in accordance with Direction [2] issued 15 February 2022.
2. At the conclusion of the time allowed for compliance with [1] above the dispute will be the determined in writing.”
In respect of Direction [1(b)] it appears from evidence before the Commission[2] that:
[2] AALD and attachments dated 22 April 2022.
(a) On 18 July 2012 an officer of WorkCover Authority of New South Wales (WorkCover) wrote a letter by registered mail no 484512874012 headed “CLAIM FOR WORKERS COMPENSATION AGAINST THE NOMINAL INSURER” to:
Kristie Marie Ferris t/as Rhondas Hair Boutique
72B Robert St
SOUTH TAMWORTH NSW 2340
enclosing notice under s 161(1) of the 1987 Act which had attached thereto:
(i)Notice to Suspected Employer pursuant to s 141(2) of the 1987 Act, and
(ii) Schedule A, being questions relating to:
“...the claim made by the claimant Nikita Riordan of 48 Semillon Drive TAMWORTH NSW 2340 that an injury was received while in the employment of Kristie Maree Ferris t/as Rhondas Hair Boutique on 01/09/2011 being an injury described as Right Wrist.”, and
(b) the letter of 18 July 2012 and Schedule A, including a statutory declaration attached thereto signed by “K Ferris” before “Cathy Frost”, “Licencee Tamworth South Post Office” on 23 July 2012, was received by WorkCover on 25 July 2012.
Questions in Schedule A referred to in [8(a)(ii)] above were answered in handwriting. There were no answers provided to questions [1.11] and [1.12] relating to a policy of insurance for workers compensation as at the claimed date of injury.
The second respondent’s compliance with Direction [1(c)] of 20 April 2022 is referred to in [5] above.
The Reply lodged by the second respondent contained a denial of liability for the claimed cubital tunnel and carpal tunnel conditions pursuant to ss 4, 4(b) and 9A of the 1987 Act, for the claimed treatment pursuant to ss 59A and 60 of the 1987 Act, and also for weekly benefits pursuant to s 33 of that Act.

ISSUES IN DISPUTE

The parties agree that the following issues remain in dispute:
(a)    Did the applicant suffer an aggravation of pre-existing carpal tunnel syndrome to the right wrist on 1 September 2011?
(b)    Was the applicant’s employment with the first respondent a substantial contributing factor to any aggravation of pre-existing carpal tunnel syndrome to the right wrist on 1 September 2011?
(c)    Did the applicant suffer a condition of cubital tunnel syndrome in the right elbow consequent upon her right wrist injury of 1 September 2011?
(d) Is the applicant entitled to an award in her favour pursuant to s 60 of the 1987 Act for the cost of treatment, including the cost of surgery, for the claimed injury to the right wrist on 1 September 2011 and the condition of cubital tunnel syndrome in the right elbow consequent upon that injury?
(e)    Is the applicant entitled to an award in her favour for weekly benefits for the two 14 day periods when she claims that she was incapacitated as a result of surgery on her right wrist and right elbow?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the applicant and second respondent 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 these parties to the dispute to a settlement acceptable to all of them. I am satisfied that these parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant and second respondent attended the conciliation/arbitration on 19 April 2022 conducted via video conference. Mr Carney of counsel appeared for the applicant briefed by Mr Counter. The applicant attended on a separate line. Mr Grant of counsel appeared for the second respondent briefed by Ms Turnbull. A representative of the Nominal Insurer also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    AALD dated 11 April 2022 lodged by the second respondent with report of Dr Doig dated 8 April 2022 attached, and
(d) AALD dated 22 April 2022 and attachments lodged by the second respondent (referred to at [6] above).
The parties agree that the applicant’s pre-injury average weekly earnings are $587.67.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

Outline of the applicant’s case

The applicant’s evidence is in her statement dated 13 December 2021[3] in which she describes her employment with the first respondent as a hairdresser commencing in April 2008. On 1 September 2011 Ms Chester was in the course of her normal duties cleaning a basin using a rapid circular motion whilst holding a cloth to clean hair dye from the sink. She felt a sharp pain in her right wrist and heard a cracking sound, and reported it to a colleague. Ms Chester continued to work on through her normal duties for the rest of the day, and reported the incident to her employer at the end of the day when she came in to collect the cash.
[3] ARD p 2, noting the page references in this Statement of Reasons are to those in the electronic records of the Commission.
The applicant was seen by Dr Kim Peters, general practitioner, on 7 September 2011 and was told to take a few days off work. On 11 April 2012 Dr Peters referred Ms Chester for an X-ray on her right wrist, and on 18 April 2012 for a bone scan of the left and right wrists, neither of which according to the applicant revealed any abnormalities. The applicant underwent CT guided injections to the right wrist at Tamworth Hospital in about May 2012 and on 10 May 2012 was referred for nerve conduction studies on the right wrist.
On 5 July 2012 the applicant saw Dr Croker, rheumatologist, and underwent an MRI scan of the right wrist on that day. On 17 July 2012 Dr Croker referred the applicant to see Dr Kemp, orthopaedic surgeon, who she saw on 29 August 2019. Dr Kemp did not recommend surgical intervention, and suggested that Ms Chester might need to do less hours of work. She was referred for a further X-ray of the right wrist.
The applicant says that on the retirement of Dr Peters in about 2013 she was left without a treatment provider, and consulted general practitioners at a medical practice, North West Health Tamworth, who were not of assistance. The applicant says that she was not referred for any substantial treatment on her right wrist until she had consulted with Dr Khanal in September 2018. On 20 September 2018 Dr Khanal referred Ms Chester for a nerve conduction study on her right wrist and elbow, and was then referred to Dr Meads, orthopaedic surgeon, for treatment. Dr Meads saw the applicant on 24 October 2018 who diagnosed right carpal tunnel syndrome and right cubital tunnel syndrome. Surgery was recommended.
On 20 December 2018 Dr Meads performed a right endoscopic carpal tunnel release and a right open cubital tunnel release. The applicant says that this surgery substantially improved her condition, and that she did not actively seek treatment until February 2019 when she noticed a resurgence of her symptoms. She again consulted with Dr Meads in that month who performed an ultrasound guided cortisone injection into the right wrist. In March 2019 Dr Meads suggested that if the applicant’s condition did not improve, further surgery would be required.
The applicant says that from that time in 2019 until June 2020 she was preoccupied with personal problems, the death of her father and a pregnancy with complications which had to be terminated, and did not seek further medical advice until June 2020 when she was again referred to Dr Meads. An MRI of the right wrist was performed, and Dr Meads referred Ms Chester for further surgery. On 10 September 2020 Dr Meads carried out a radial tunnel injection, revision of carpal tunnel release with subcutaneous transposition of ulnar nerve, insertion of Dynavisc and release of intersection syndrome. On review by Dr Meads in September 2020 he recorded significant improvement in the numbness and tingling in the hand after the carpal tunnel and cubital tunnel releases with some pain over the dorsal aspect of the wrist extending up the radial nerve distribution. Some initial improvement with local anaesthetic was also recorded.
In respect of her work history after the incident of 1 September 2011 Ms Chester says that she continued to work without restrictions until her employment was terminated by the first respondent. She was unemployed for about two weeks then recommenced employment with Monogram as a front desk clerk working 38 hours a week. She found that typing involved in the job aggravated her right wrist and she resigned from this employment in February 2013. In May 2013 the applicant returned to work with Goldmark Jewellers as a sales assistant working approximately 25 hours a week, where she stayed until December 2014. Thereafter in April 2015 Ms Chester was employed by Ice Designed Key Holder as a sales assistant where she continued to work until August 2016.
The applicant says that she began to notice symptoms of pain, numbness and tingling in her left [sic, right] elbow around September 2018. She says that she would flex her elbow and elevate her hand to relieve pain in her wrist, often when she had been using a computer for a prolonged period of time or writing something.
The applicant says that from August 2016 until the time of her surgery in December 2018 she was self-employed running her own business as a hairdresser, probably working 15 hours a week. After surgery she was unable to work for about three weeks due to the pain in her right hand and restriction of movement in her right wrist. She then returned to work on normal duties.
After the surgery in September 2020 Ms Chester says that she was away from work for a period of six weeks and then returned to work on normal duties. In May 2021 the applicant ceased her self-employment and commenced employment working as a disability support worker 20 hours a week.
In support of her claim the applicant relies on the opinion of Dr McGlynn, hand and plastic and reconstructive surgeon, who carried out an independent medical examination on 20 September 2020 and reported thereon on 22 September 2020.[4] Dr McGlynn diagnosed the applicant as having sustained a soft tissue injury to her right wrist in the incident at work on 1 September 2011. He said this caused aggravation of a pre-existing tendency to develop carpal tunnel syndrome, as indicated by nerve conduction studies showing presence of asymptomatic left-sided carpal tunnel syndrome. The applicant subsequently developed a consequential injury of cubital tunnel syndrome due to holding the right elbow flexed for long periods of time because of the painful right hand/wrist condition.
[4] ARD p 19.
Dr McGlynn said that the need for surgery on 20 December 2018 and 10 September 2020 substantially arose from the applicant’s work injuries on 1 September 2011, and that this treatment on both occasions was appropriate.

The respondent’s case

Dr Doig, general orthopaedics and trauma surgeon, independently medically examined the applicant on 5 January 2022 and produced a report to the respondent’s insurer, Icare Workers Insurance on 21 January 2021[5]. Dr Doig said that it appeared that the applicant had suffered a soft-tissue injury to the dominant right wrist with on-going pain and restrictions, particularly in the dorsal aspect. Based on the documentation supplied to him he found it impossible to state definitively if the incident pre-disposed towards nerve entrapment in the right arm. The doctor noted that the diagnosis and surgery occurred many years after the alleged incident.
[5] Reply p 4.
In respect of surgery, Dr Doig said it was impossible for him to retrospectively state if the decompressive nerve surgery was necessary as a direct result of the incident of 1 September 2011. Dr Doig said that Ms Chester may have required the surgery regardless of the incident on 1 September 2011, but he was unable to clarify things further due to his previously stated reasons.
In a subsequent file review report dated 21 February 2022[6] Dr Doig said that:
“In the absence of any direct trauma to either nerve in the incident of 1 September 2011, which appears to have resulted in a simple, soft-tissue injury and clicking episode at the wrist, there is no evidence that employment on this particular day has been the main contributing factor to the development or subsequent deterioration of potential median and ulnar-nerve entrapment at the wrist and elbow respectively, for the reasons outlined previously.”
Dr Doig said earlier in the report that in the absence of any direct trauma or traction to the arm, employment was not the main contributing factor to either the condition of carpal tunnel or the ulnar cubital tunnel at the elbow. He said that the cause of median and ulnar-nerve entrapment in the locations in the arm complained of by the applicant remains contentious and is thought to be multi-factorial in the majority of cases.
[6] AALD 22 April 2022.

In a supplementary report dated 8 April 2022[7] Dr Doig said that it would appear that the ulnar nerve irritation at the right elbow appears unrelated to the initial incident of September 2011, unless there is evidence available to the contrary. There was certainly no history of any injury to the right elbow in the initial incident of September 2011, and in particular no direct blows in or around the anatomical area of the ulnar nerve.
[7] AALD 11 April 2022.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary they are as follows.

Applicant

The applicant refers to the evidence in her statement dated 13 December 2021, summarized above. She relies on the frank incident of 1 September 2011, noting that the disabilities and restrictions particularized at [19] of the statement are commented upon by medical experts in the case. She emphasizes the difficulty she had in obtaining treatment for her condition in Tamworth from general practitioners in the city, and the lack of abnormality found by Dr Croker in the right wrist when he first saw her in 2012, and the doctor’s request for an MRI scan of the right wrist which revealed that she had suffered a ganglion in the wrist. Dr Croker made a referral to Dr Kemp, who did not diagnose the cause of her symptoms or recommend surgery.
The applicant acknowledges that, for whatever reason including the fact that she lived in the country, her treatment was “long and interrupted”, but notes the pain she experienced with her right wrist in the post injury employment in which she engaged. This was in February 2013 whilst employed by Monogram as a front desk clerk when she says that she suffered aggravation as a result of the typing she was obliged to do in that job.
The applicant notes the symptoms of pain and numbness in her elbow (referred to in the statement as left elbow but accepting that is probably a typographical error). The applicant notes the restricted hours of 15 per week that she worked in her own hairdressing business until the time of her first surgery in December 2018 and the period of incapacity following that surgery. The applicant submits that the evidence supports a finding that the pain in her wrist never left her from the time of the original incident in September 2011 until the first surgery carried out by Dr Meads which resulted in an improvement in her symptoms.
With reference to the medical evidence, the applicant notes that Dr Peters in his report addressed to Allianz on 14 June 2012 provided a diagnosis of right wrist synovitis, noting that the principal source of pain arose from the Ulnar-Triquetral Joint[8]. Dr Peters also noted that by that time investigations showed a problem with the carpal tunnel.
[8] ARD p 32.
The applicant refers to the evidence of Dr Croker, and Dr Kemp, noting the disagreement between Dr Kemp and Dr Peters as to the diagnosis of the right wrist condition, and the only recommendation of Dr Kemp that she should change jobs.
The applicant notes the history recorded by Dr Meads in his report to Dr Khanal dated 24 October 2018[9] of a seven-year history of pain in her upper limb, unabated and becoming worse over time. Dr Mead’s diagnosis was that the applicant had mild carpal tunnel syndrome and severe cubital tunnel syndrome and recommended surgical release, which was carried out on 20 December 2018[10]. Dr Meads continued treatment until March 2019 and was referred again to Dr Meads in July 2020 by her new general practitioner, Dr Emma Madams,[11] with increasing numbness in her right hand. This referral culminated in further surgery on 10 September 2020[12].
[9] ARD p 47.
[10] ARD p 48.
[11] ARD p 55.
[12] ARD pp 56 & 57.
The applicant submits that the history recorded by Dr McGlynn in his report dated 22 September 2021 is consistent with her evidence to the Commission, and that Dr McGlynn in preparing that report had access to all of the medical reports in respect of the applicant’s treatment from the date of injury. After examination of all of this material, Dr McGlynn offers a plausible link between the findings of Dr Peters and the current symptoms experienced by the applicant. She developed carpal tunnel syndrome as a result of the swelling and volume increase in the carpal tunnel compressing the median nerve caused by the ganglion and tenosynovitis. This diagnosis sets out how the injury occurred and provides reason for the ongoing unremitting pain.
In respect of the opinion of Dr Doig, the applicant questions as to what material he had access to when preparing his initial report dated 21 February 2022[13]; it is not apparent from the report. The applicant submits that from what is said by the doctor at [2] and [3] in his report it seems that Dr Doig only had access to the evidence from the doctors who treated her in 2011 and 2012. Dr Doig states that it is impossible for him to retrospectively state if the decompressive nerve surgery was necessary as a direct result of the incident of 1 September 2011.
[13] Reply p 4.
The applicant submits that there is evidence in support of her claim that she was incapacitated for work for the periods claimed after surgery.
The applicant notes that Dr Doig in his supplementary report dated 8 April 2022 is in contrast to the plausible findings of Dr McGlynn as to causation of her carpal tunnel syndrome and consequent cubital tunnel syndrome. The applicant stresses that she experienced pain in her wrist and elbow, increasing gradually over time, and that this is apparent from Dr Meads’ initial report to Dr Khanal dated 24 October 2018. The applicant submits that Dr Doig did not have a full clinical history of her condition on which to base his opinion.
The applicant submits that the Commission would be satisfied that the medical treatment rendered by Dr Meads helped her and was causally related to the injury she suffered on 1 September 2011, and that such treatment was reasonably necessary as a result of such injury.

Respondent

The respondent submits that Dr Doig did not have all of the material now attached to the ARD when he prepared his first report dated 21 January 2022 but did have such material when he prepared his later two reports.
The respondent submits that the applicant’s argument is basically flawed when she attempts to link the symptoms that she experienced in her right wrist in 2011 with the carpal tunnel symptoms and cubital tunnel symptoms she experienced in 2018 and 2020. The respondent notes that the applicant relies on a specific injury which occurred on 1 September 2011 and refers to the “enormous gap” of six to seven years between 2012 and 2018/2020. The respondent’s case is based on an attack on the opinion of Dr McGlynn, based on a detailed examination of the contemporaneous medical records of the applicant’s treatment in 2011 and 2012 at the hands of Dr Peters, Dr Croker and Dr Kemp, their findings and, in the case of Dr Croker and Dr Kemp, their inability to find the cause of the applicant’s complaints.
The respondent rejects the applicant’s submission that because she lived in the country, she had difficulty in accessing ongoing treatment from practitioners in Tamworth, noting that this is a large regional city and that medical resources are readily available therein.
The respondent submits that the opinion of Dr McGlynn is flawed because the doctor does not acknowledge that Ms Chester continued to work as a hairdresser until her first surgery, that she returned to self-employed hairdressing work after that surgery which would have aggravated her condition, and that in 2017 she gave birth to a son, which would obviously have caused swelling (in the wrist). It is apparent from the general practitioner clinical notes dated 2017 that the applicant also had an issue with weight loss at that time. These were matters not considered by Dr Meads.
The respondent submits that if the applicant was suffering from carpal tunnel syndrome, she would have sought treatment prior to 2018.
The respondent submits that from an examination of the report of Dr McGlynn dated 22 September 2021 under “History of Injury”, it is apparent that the doctor was not aware that Ms Chester continued to work as a hairdresser after 1 September 2011. The respondent also notes in that report an inaccurate statement by Dr McGlynn that tenosynovitis was diagnosed by the clinicians treating the applicant in the early phase after the injury. The respondent submits that this is not the case. There was no diagnosis of tenosynovitis at that time or diagnosis of a significant ganglion. The respondent submits that if tenosynovitis or a ganglion was not in existence in 2011, the applicant’s argument based on the opinion of Dr McGlynn fails.
The respondent submits that it is an “enormous leap” to move from the position that the applicant had a pre-existing propensity to develop carpal tunnel syndrome to diagnose an injury to the right wrist which caused tenosynovitis.
The respondent refers to the reports of Dr Peters dated 30 May 2012 and 14 June 2021[14], and notes his diagnosis of right wrist synovitis and principal source of pain arising from the Ulnar-Triquetal Joint. The respondent notes that Dr Croker arranged for an MRI scan of the right wrist and reported thereon to Dr Peters on 17 July 2012[15]. He found no evidence of synovitis or tenosynovitis and referred the applicant to see Dr Kemp. The respondent submits that if the applicant had been suffering from a significant ganglion at the time either Dr Croker or Dr Kemp examined her, they would have noted this.
[14] ARD pp 31-32.
[15] ARD pp 34-37.
The respondent noters that Dr Kemp found on his examination of the applicant on 29 August 2012 no evidence of tenosynovitis of the “ECU” nor of specific tenosynovitis over the radial side of the wrist.
The respondent submits that there is no support for the diagnosis of Dr McGlynn that the applicant was suffering from early tenosynovitis following the injury to the wrist in September 2011.
The respondent notes that the applicant had a desk job involving typing in 2012 and 2013, and that there is no sound evidence as to when the carpal tunnel syndrome from which she suffered in 2018 and which led to surgery, developed. The respondent raises the possibility that the self-employment of the applicant in her own hair dressing business could have been causative of the condition, or that it could have developed as a result of her pregnancy.
The respondent submits that the applicant’s claim that the elbow condition from which she suffered was consequent upon the carpal tunnel syndrome fails if there is a finding that the carpal tunnel syndrome did result from the injury of 1 September 2011.
The respondent refers to the reports of Dr Meads dated 11 February 2019 and 11 March 2019[16] containing a diagnosis by the doctor of extensor tenosynovitis in the fourth compartment and that the applicant was still suffering from initial compartment syndrome. This diagnosis is eight years after the injury of September 2011. There is no reference by Dr Meads to a ganglion, meaning that if one was present, it was of no consequence at all.
[16] ARD pp 50-51.
The respondent relies on the opinion of Dr Doig expressed in his reports to the effect that there is no link between the carpal tunnel syndrome, for which the applicant underwent surgery at the hands of Dr Meads, and the injury of September 2011.
The respondent submits that there is no contemporaneous evidence to support the applicant’s claim for incapacity for the two periods for which she claims weekly benefits, following the two lots of surgery carried out by Dr Meads.

Applicant in reply

The applicant submits that there is no evidence to support the respondent’s submission that her pregnancy was in any way causative of the carpal tunnel syndrome from which she suffered. Such a submission is made without any basis at all.

FINDINGS AND REASONS

Injury

The respondent submits that the opinion of Dr McGlynn is flawed for a number of reasons, including that he was unaware that she continued to work as a hairdresser after September 2011, work that the respondent submits would have aggravated her condition, and that he was wrong in stating that tenosynovitis was diagnosed by the clinicians treating the applicant in the early phase after the injury. The respondent also submits that other factors could have been causative of the carpal tunnel syndrome for which Ms Chester underwent surgery at the hands of Dr Meads in 2018 and 2020. These include the fact that she gave birth to a son which, according to the respondent would obviously have caused swelling (presumably in the wrist, although this was not stated), and that this was also not considered by Dr McGlynn. The respondent also submitted that, according to the general practitioner notes from 2017, Ms Chester suffered weight loss which was not considered by Dr McGlynn.
The respondent submits that there was a flawed basis for the opinion of Dr McGlynn that is more likely than not that the ganglion and tenosynovitis caused swelling and volume increase in the carpal tunnel compressing the medical nerve, and that this caused a pre-existing tendency to develop carpal tunnel syndrome to become symptomatic, leading to the surgery carried out by Dr Meads. For these reasons, the respondent submits that the opinion of Dr Doig should be accepted.
The applicant says in her statement that in about 2013 Dr Peters retired from private practice, she was left without a treatment provider, and that she had not been able to locate a copy of her records as Dr Peters is no longer practising medicine. Ms Chesters went to the first available general practitioners “...at Northwest health Tamworth”, none of whom she says provided any assistance or treatment for her condition, even though she made complaints about her right wrist. Ms Chester says that during this time she was still complaining of pain in her right wrist but unfortunately, nobody knew what to do about this condition.
Ms Chester than says that in May 2017 she started consulting with the first available doctor at Smith Street Medical Centre as she was unhappy with the service provided by Northwest Health Tamworth. She says that she was mostly referred for physiotherapy, however, was briefly provided with a script for Lyrica. The applicant then says that she was not referred for any substantial treatment until she had consulted with Dr Niroj Khanal in September 2018.
The clinical records of Dr Peters and Northwest Health Tamworth are not in evidence, although it does appear from the documents viewed by Dr McGlynn that he saw the “Clinical notes of Dr K H Peters dated 23 July 2013”[17]. I have not been taken to such notes nor have I been able to locate them in the evidence. The reports of Dr Peters dated 30 May 2012 and 14 June 2012, referred to above at [53], are in evidence and referred to in the list of documents viewed by Dr McGlynn, as are the clinical notes of the Smith Street Practice as at 24 September 2020. Clinical notes from Northwest Health Tamworth are not in evidence, but all of the other records from treating practitioners which are in evidence appear to be included in the list of documents viewed by Dr McGlynn.
[17] ARD p 22.
It appears from the clinical notes of the Smith Street Practice that the applicant first consulted Dr Miralyn Abueg on 9 March 2017 when “new patient to practice...seen with husband, Reece” is recorded[18]. Further reference will be made to these notes. For the period prior to that findings must be made on the available evidence, including that of the applicant in her statement.
[18] ARD p 66.
Returning to that statement, I note that Ms Chester at [55]-[65] thereof provides a history of her return to work after the subject accident up until the time of the initial surgery carried out by Dr Meads in December 2018. There is no reason not to accept that evidence, or what the applicant says thereafter about her return to work on normal duties up to and after the second surgery in September 2020, and her cessation of self-employment and commencement of current employment as a disability support worker in May 2021.While Ms Chester was self-employed as a hairdresser she was working 15 hours a week, and until her surgery in September 2018 when she started to notice symptoms of pain, numbness and tingling in her left elbow confirms that she would flex her elbow and elevate her hand to relieve pain in her wrist. This included when she had been using a computer for a prolonged period of time.
From the clinical notes of the Smith Street Practice it is apparent that the applicant was seeing practitioners on that practice for a number of different medical conditions on a reasonably regular basis up until 26 September 2018 when there is the first reference therein for a referral to Dr Meads at the John Hunter Hospital in his private rooms[19]. There are a number of complaints of shoulder, wrist and elbow pain recorded as follows:
[19] ARD pp 66-74.
(a)    on 29 May 2017 when among other matters, there is listed “Chronic histor of shoulder and wrist pain” [sic];
(b)    on 6 October 2017 a history of “6 years of pain from ?shoulder to wrist” and to physiotherapy treatment for shoulder pain. The applicant does refer to this shoulder problem at [69]-[70] of her statement as being active from 2018 to 2018, not related to work and mostly resolved;
(c)    on 18 September 2018 when there is reference under “Actions” to “Letter written to Dr Michael Katekar re. AAA Specialist Referral Letter”;
(d)    on 18 September 2018 in the referral letter to Dr Katekar itself in which his opinion and management is sought regarding a nerve conduction study, and the following history is noted:
“Ms Chester has a right sided pain which started after a wrist fracture approx 7 years ago.
Ms Chester was cleaning in a rotation fashion and heard a click of her wrist. The ulnar prominence was in pain for some time and she now has progressive pain working its way along her Ulnar nerve distribution. It has ascended past her elbow and is now into her shoulder.”[20]
[20] ARD p 96.
(e)    on 25 September 2018 when Dr Khanal records:
“came to discuss the result
Tarsal tunnel syndrome
pain for 7 years
see referral letter for more information”
and the reason for visit is noted as:
“Right cubital tunnel syndrome”, and
(f)    on 26 September 2018 when the referral is made to Dr Meads.
In my view these entries corroborate what the applicant says in her statement that she experienced ongoing problems in her right wrist from the time of the original injury on 1 September 2011, and those problems led to development of symptoms in her right elbow.
Dr Meads does not in his initial report to Dr Khanal dated 24 October 2018, or in subsequent reports, express a view on the causation of the carpal tunnel syndrome and cubital tunnel syndrome for which he treated Ms Chester. He is a treating doctor and was not asked to. He does however record in that first report the applicant as presenting with right upper limb pain which had been present for seven years, an accurate history of the original injury, and subsequent treatment thereof which is in accord with the applicant’s evidence. He diagnoses carpal tunnel syndrome and severe cubital tunnel syndrome for which he recommends surgery.
What is significant in my view is that Dr McGlynn, a specialist hand surgeon, in his report dated 22 September 2021, had access to all of the available treatment records in respect of the applicant’s right wrist and elbow, including those of Dr Peters, Dr Croker, Dr Kemp, the Smith Street Practice, Dr Katekar (including his radiology report dated 26 September 2018, although I have been unable to locate that particular report), and Dr Meads. He comments on the findings of both Dr Croker and Dr Kemp. He was aware, contrary to the respondent’s submission, that Ms Chester had continued to work as a hairdresser, saying “She ceased doing hairdressing five years ago and now works as a disability support worker”, and “...she worked as a hairdresser for 15 years up until five years ago”, meaning that he was aware that the applicant worked as a hairdresser until 2016. Dr McGlynn was aware that Ms Chester developed chronic fatigue symptoms following the birth of her child four and a half years prior to the date of his report. Dr Mc Glynn appears to have accepted Dr Peters’ diagnosis that the applicant suffered from right wrist synovitis, and that the principal source of pain arose from the Ulnar-Triquetal Joint. This is notwithstanding Dr Croker’s opinion that the MRI of the right wrist dated 10 July 2012 on which Dr Croker commented in his report dated 17 July 2012 to Dr Peters showed that there was no evidence of synovitis or tenosynovitis. Dr Croker however did note the presence of a small ventral radiocarpal ganglion, which Dr McGlynn says was partially responsible for the swelling and volume increase in the carpal tunnel compressing the median nerve.

Dr Kemp in his report dated 29 August 2012 noted the radiologist’s finding of a small ganglion over the volar aspect of the radiocarpal joint. He found no evidence of “...tenosynovitis of the ECU joint nor specific tenosynovitis over the radial side of the wrist.”[21] He was at loss to explain the applicant’s wrist pain, but did say in the last paragraph of his report:
“Her presentation however is not unique. In this age group from time to time I see young women in particular with a similar history and injury profile who eventually settle.”
The term “ECU” was not explained in submissions. I understand it to refer to the extensor carpi ulnaris muscle, located in the forearm between the elbow and the base of the little finger. It is fair to infer that Dr McGlynn was aware of Dr Kemp’s finding. Dr McGlynn had a copy of Dr Kemp’s report of 29 August 2012 and noted that the applicant was seen by the doctor in August 2012 and that he did not arrive at a diagnosis
[21] ARD p 38.
The three reports of Dr Doig on which the respondent relies are summarised above at
[30]-[33]. In the first report Dr Doig says that Ms Chester appears to have suffered a soft tissue injury to the right wrist, particularly on the ulnar side. He noted that initial medical imaging and investigations failed to reveal any abnormality other than a volar radio-scaphoid ganglion on the MRI scan of July 2012 which may have been co-incidental. Subsequent diagnosis was mild carpal tunnel entrapment at the wrist and more significant entrapment of the ulnar nerve within the cubital tunnel at the dominant elbow which have symptomatically responded to surgery.
When Dr Doig says that he found it impossible to state definitively if the incident of 1 September 2011 pre-disposed towards nerve entrapment in the right arm, he is referring to the cubital tunnel syndrome, as he is in the subsequent paragraph [3] on the fifth page of his report, when he notes that Ms Chester failed to mention symptoms in the right arm to the treating general practitioner (who was at that time Dr Peters), rheumatologist (Dr Croker) and hand surgeon (Dr Kemp). That finding is in my view consistent with the applicant’s evidence and the opinion of Dr McGlynn that patients with painful hand conditions frequently hold their elbow flexed and the hand elevated to relieve the discomfort. Therefore, according to Dr McGlynn, the cubital tunnel syndrome is a consequential injury related to the hand/wrist condition caused by the workplace incident.
In the report dated 21 February 2022 Dr Doig finds the absence of trauma in the form of a direct blow, or traction to the arm, as the reason for discounting the applicant’s employment as the main contributing factor to either the condition in the wrist or elbow. He does acknowledge that the cause of median nerve and ulnar nerve entrapment in these locations remains contentious and is thought to be multi-factorial in many cases.
This opinion as to causation of Dr Doig’s is consistent with the finding of Dr McGlynn as to the causation of the carpal tunnel syndrome as a result of injury to the wrist on 1 September 2011 and the subsequent development of the condition of cubital tunnel syndrome in the elbow. There was no trauma in the form of a direct blow to the wrist or elbow. Dr Doig does not add anything further of relevance to his previously expressed opinion in his further report dated 8 April 2020.
For the foregoing reasons I accept the opinion of Dr McGlynn as to causation of the carpal tunnel syndrome suffered by the applicant as a result of injury to her right wrist on 1 September 2011 and the condition of cubital tunnel syndrome in the right consequent upon the wrist injury.
The applicant relies on the frank incident as being causative of her injury, as found by Dr McGlynn. That frank incident occurred in the course of the applicant’s employment with first respondent. That employment was a substantial contributing factor to the injury suffered by the applicant.
I find that the applicant suffered carpal tunnel syndrome as a result of injury to the right wrist on 1 September 2011 and cubital tunnel syndrome consequent upon that injury.

Surgery

Dr McGlynn finds that the surgery carried out by Dr Meads on 20 December 2018 and 4 August 2020 substantially arose from the work injury on 1 September 2011, and that following these two surgical procedures Ms Chester would have been totally unfit for any form of employment for two weeks whilst her wounds were healing then fit for restricted work duties with minimal use of the right limb for a further four weeks.
Dr Doig does not state that the surgery carried out by Dr Meads was inappropriate for the carpal tunnel syndrome and cubital tunnel syndrome from which the applicant suffered, and the respondent does not submit that if there is a finding in favour of the applicant, such surgery was not reasonably necessary. The respondent’s submissions focussed on causation of the applicant’s injury and consequent condition.
The applicant obtained initial good relief from the first surgery, but the conditions recurred necessitating further surgery. In the post-operative review by Dr Meads on 23 September 2020[22], he recorded that Ms Chester showed significant improvement. The doctor mentioned further review in four weeks, but such review is not in evidence. Dr McGlynn gave a guarded prognosis in his report, noting the relapse of symptoms after the first surgical procedure and the second procedure approximately one year before the date of his consultation and report. He said that there was a small risk of further recurrence.
[22] ARD p 59.
The respondent has not raised an issue as to the cost of the surgery, and the applicant submits that if she is successful, there should be a general order in her favour pursuant to s 60 of the 1987 Act, to include the cost of surgery.
Having regard to the relevant matters listed at [88]-[89] by Roche DP in Diab v NRMA Ltd[23] I find that the surgery carried out by Dr Meads on 20 December 2018 and 4 August 2020 was reasonably necessary as a result of injury to the right wrist on 1 September 2011.
[23] [2014] NSWWCCPD 72.

Incapacity

Notwithstanding the submission of the respondent that there is no contemporaneous evidence of incapacity for the two periods of incapacity of 14 days each claimed by the applicant following the surgeries carried out by Dr Meads, I accept the finding of Dr McGlynn that Ms Chester would have been totally unfit for any form of employment for two weeks following each operation. There will be an award in favour of the applicant for weekly benefits from 20 December 2018 to 3 January 2019, and from 10 September 2020 to 24 September 2020 pursuant to s 36 of the 1987 Act at the rate agreed by the parties in the event of an award in favour of the applicant of $587.67 per week.

SUMMARY

The applicant suffered injury to the right wrist on 1 September 2011 in the form of carpal tunnel syndrome arising out of or in the course of her employment with the first respondent.
The applicant’s employment with the first respondent was a substantial contributing factor to the injury suffered by the applicant.
The applicant suffered the condition of cubital tunnel syndrome consequent upon injury to the right wrist on 1 September 2011.
The surgery performed by Dr Meads on 20 December 2018 and 4 August 2020 was reasonably necessary as a result of injury to the right wrist on 1 September 2011.
The second respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act as a result of injury to the right wrist on 1 September 2011 including the costs of and incidental to surgery on 20 December 2018 and 4 August 2020.
The second respondent is to pay the applicant $587.67 per week pursuant to s 36 of the 1987 Act for the periods from 20 December 2018 to 3 January 2019, and from 10 September 2020 to 24 September 2020.
The first respondent is to reimburse the second respondent for the compensation paid by the second respondent pursuant to [91]-[92] above.

[2022] NSWPIC 219

16 May 2022