Comlekci v Fairfield City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Comlekci v Fairfield City Council [2022] NSWPIC 175
APPLICANT:	Naciye Comlekci
RESPONDENT:	Fairfield City Council
MEMBER:	Gaius Whiffin
DATE OF DECISION:	21 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for injuries to right hand/wrist; consideration of factual material, medical reports and other treatment records; consideration of physiological change requirement under section 4 of the Workers Compensation Act 1987 (1987 Act); Castro v State Transit Authority (NSW), Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia considered; consideration of substantial contributing factor requirement under section 9A of the Workers Compensation Act 1987; Dayton v Coles Supermarkets Pty Ltd considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Act and ‘suitable employment’ under section 32A of the 1987 Actconsideration of documentation required to find pre-injury average weekly earnings; Held - award in favour of the applicant for medical expenses; applicant’s current work capacity assessed as equivalent to the Fair Work Act 2009 (Cth) minimum wage; insufficient earnings information provided to assess pre-injury average weekly earnings and direction made for more information and submissions to be provided.
DETERMINATIONS MADE:	1. The applicant sustained a personal injury arising out of or in the course of her employment with the respondent. 2. The applicant's employment with the respondent was a substantial contributing factor to the personal injury. 3. The applicant was incapacitated for work as a result of the personal injury between 5 August 2021 and 28 February 2022. 4. The applicant was able to earn $772.60 per week in suitable employment between 5 August 2021 and 28 February 2022. 5. The applicant requires medical treatment, and the respondent is liable to pay reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
ORDERS MADE:	6. The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the 1987 Act, including the cost of a bone scan with SPECT in accordance with the recommendation in Dr Oates’ report dated 1 October 2021. 7. The respondent is to file and serve a wage schedule and copies of the applicant’s payslips and wage records for the period 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the applicant’s PIAWE) by 6 May 2022. 8. The applicant is to file and serve a wage schedule by 13 May 2022. 9. The applicant is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022. 10. The respondent is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022. 11. Any submissions in reply are to be filed and served by 25 May 2022. 12. At the conclusion of the time allowed for submissions the balance of the dispute will be determined “on the papers”.

STATEMENT OF REASONS

BACKGROUND

Naciye Comlekci (the applicant) is 52 years old and commenced employment as a full-time early childhood educator with Fairfield City Council (the respondent) on 6 August 2012. She has not worked since 5 August 2021 as since then, the respondent has required that she provide it with a certificate clearing her to return to her pre-injury employment duties. She has not been able to provide such a certificate.
The applicant alleges that she sustained injuries to her right hand and right wrist on 10 September 2020. She was attempting to prevent a child from climbing through a fence on the respondent's property when the child attempted to head-butt her. In shielding her face with her right hand, the child's head impacted with that hand. She was subsequently off work for a short period of time, and then performed restricted duties for the respondent until 5 August 2021.
On 13 April 2021, the respondent issued a notice denying liability under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998Act) for the applicant's claim in relation to her right hand and right wrist. The applicant has not received any weekly compensation since 5 August 2021.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 5 August 2021 to 28 February 2022 and she also claims expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether the applicant sustained injury arising out of or in the course of her employment pursuant to section 4 (a) of the 1987 Act.
(b) If the answer to (a) is in the affirmative, whether the applicant's employment with the respondent was a substantial contributing factor to the workplace injury pursuant to section 9A of the 1987 Act.
(c) If the answers to (a) and (b) are in the affirmative, whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the workplace injury, since 5 August 2021.
(d) If the applicant has been incapacitated for work as a result of the workplace injury since 5 August 2021, what is the correct calculation of her pre-injury average weekly earnings (PIAWE).
(e) If the answers to (a) and (b) are in the affirmative, whether the applicant is entitled to reasonably necessary medical and other expenses pursuant to section 60 of the 1987 Act since 13 April 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

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.
An extensive conciliation conference was held in the dispute on 22 March 2022. On that occasion, Mr Parker of counsel appeared for the applicant instructed by Mr Lleonart, and Mr Macken (solicitor) appeared for the respondent. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
After dealing with some preliminary matters, there was insufficient time left from the allocated time in order for the parties to make oral submissions on 22 March 2022. Written submissions were therefore ordered and have been provided.
The applicant had filed an Application to Admit Late Documents on 15 March 2022. This application sought to admit a supplementary report from Dr Oates dated 4 March 2022 as well as a letter to the applicant from the respondent dated 7 February 2022. The respondent objected to the application. I found no prejudice to the respondent in the admission of the letter dated 7 February 2022 as the letter was created by it and sent to the applicant; and that document was therefore admitted as it was in the interests of justice to do so. I did however find prejudice to the respondent if the supplementary report from Dr Oates was admitted, as the respondent had not had an opportunity to obtain medical evidence in response to the report. Further, I considered that the applicant had the opportunity to obtain (and should have obtained) the report prior to lodging the Application to Resolve a Dispute (the ARD). No explanation was provided by the applicant as to why the report had not been obtained earlier. I therefore refused the application to admit the supplementary report from Dr Oates.
The applicant also sought to admit late documents by emailing some financial documents of the applicant’s to the Commission on 22 March 2022. The respondent did not object to the admission of the applicant’s Australian Taxation Office 2022 income statement, and it was admitted. The respondent however objected to the admission of the applicant’s Australian Taxation Office income statements for 2021, 2020, and 2019, and it also objected to the admission of the applicant’s 3 February 2022 payslip. I found no prejudice to the respondent in the admission of the payslip as it was a document initially created by it and provided to the applicant; and that document was therefore admitted as it was in the interests of justice to do so. I did however find prejudice to the respondent if the 2021, 2020, and 2019 income statements were admitted as the respondent had not had a proper chance to consider those documents or investigate them. Although the income statements had been previously provided to the respondent, there had been no indication that they would be relied upon in the proceedings. Further, the income statements should have been lodged with the ARD, and no explanation had been provided as to why this had not been done. I therefore refused the application to admit the income statements.
The applicant was ordered to file a further Application to Admit Late Documents attaching only the applicant’s Australian Taxation Office 2022 income statement and her 3 February 2022 payslip from the respondent. That application was lodged by the applicant on 23 March 2022.
In determining whether to admit the late documents sought to be admitted by the applicant, I considered the six matters referred to at clause 28 of Procedural Direction Personal Injury Commission 4, as well as rule 69 of the Personal Injury Commission Rules 2021 (the Rules). While the applicant had failed to comply with the Procedural Direction and the Rules in not lodging the documents earlier, I considered that the interests of justice should allow the admission of the documents that did not cause the respondent any real prejudice. I considered that those documents would assist in the timely resolution of the dispute and their admission was therefore in accordance with the objects of the Commission.
The applicant also sought orders from the Commission that the respondent produce a report from Dr Price (who it seems examined the applicant on behalf of the respondent on 21 December 2021) as well as the material that the respondent used when calculating the applicant’s PIAWE. The respondent refused to produce either of this documentation.
I refused to make the orders sought by the applicant.
In relation to Dr Price’s report, the applicant was aware of the relevance of the report when the ARD was lodged, and yet had failed to issue any notice for production in accordance with Part 5.2 of the Rules and Procedural Direction Personal Injury Commission 9.
In relation to the PIAWE material, the applicant was aware of the relevance of the report when the Reply (disputing her PIAWE calculations) was lodged, and yet had failed to issue any notice for production in accordance with Part 5.2 of the Rules and Procedural Direction PIC 9. She had also failed to request the material during the Commission’s teleconference.
Finally, the applicant sought that the Commission’s calculation of the applicant’s PIAWE be deferred until following the determination by the Commission of the substantive issues in the dispute. This application was refused as, in my opinion at the time, such a deferral was clearly not within the objects of the Commission to facilitate the just, quick, and cost effective resolution of disputes.
The respondent made no application that the Commission’s calculation of the applicant’s PIAWE be deferred until following the determination by the Commission of the substantive issues in the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)   The ARD and attached documents;
(b)   respondent’s Reply and attached documents;
(c)   respondent’s Application to Admit Late Documents lodged 14 March 2022 and attached documents – application consented to by applicant;
(d)   only page 3 of the applicant’s Application to Admit Late Documents lodged 15 March 2022, and
(e)   applicant’s Application to Admit Late Documents lodged 23 March 2022 and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant provided a statement signed on 19 October 2021. She describes an injury occurring on 10 September 2020 when a child who was known to be aggressive attempted to head-butt her. She put her hands up to around chest height, and her right hand was then impacted by the child’s head and “forced downwards very suddenly”.
At the time she was working for the respondent as an early childhood educator, at its Wetherill Park Early Learning Centre, full-time, five days per week.
After the 10 September 2020 incident, she felt immediate pain and discomfort and had to leave work. She sought medical attention from a local medical centre and had two days off work. She then took two weeks of annual leave. Upon her return to work, she initially only worked two days per week for a number of months. She was then able to return to full-time employment, working half her hours with children and half her hours in the office.
She describes how on 2 August 2021, her manager required her to chop up some food, which she was unable to do because of her ongoing right wrist symptoms. She then received a telephone call from her employer on 5 August 2021 advising her to cease work until she could obtain a medical certificate clearing her to perform her full pre-njury duties. She has been unable to obtain such certificate since 5 August 2021 and remains off work.
She states that she previously injured her right hand on 25 October 2019 but made a complete recovery from that injury “after a few months”. The pain on that occasion was in the lower part of her palm whereas her current pain affects her wrist and is “quite different to the pain that I had after the 2019 incident”.
While the applicant initially sought medical attention from a local medical centre, she then began to consult with her local general practitioner, Dr Theocharous. While his clinical notes (which are attached to the application from page 28) are not that easy to read, it does appear that the applicant first consulted with him about her right wrist injury on 10 September 2020 (page 62 of the ARD).
The applicant states that she continues to suffer pain and stiffness affecting her wrist.
Dr Theocharous has provided a brief report dated 13 August 2021 (page 22 of the ARD) in which he opines that the applicant suffered a hyper extension injury to her right wrist in the course of her duties as a childcare worker. He opines that her work was the sole contributing factor to the injury that she sustained. He states that when he examined her, he found reduced movements of the wrist with associated tenderness and palpation in all directions. He does not put a date to these examination findings in his report, but it is reasonable to infer from the report that the findings were made before he ordered any radiological tests. In this regard, X-rays of the wrist took place on 10 September 2020.
Dr Theocharous referred the applicant to a specialist, Dr Lee, who she consulted with on 20 April 2021.
There are two certificates of capacity from Dr Theocharous (pages 22-27 of the ARD) covering the period from 10 August 2021 to 28 February 2022. In both certificates, the doctor certifies the applicant as fit for some type of full-time work but with restrictions in lifting (5kg in the 10 August 2021 certificate and 8kg in the 1 December 2021 certificate) and pushing/pulling (“minimal” in the 10 August 2021 certificate and 10kg in the 1 December 2021 certificate) with the right arm. The doctor also recommends that a hand brace be worn in the 1 December 2021 certificate.
In his 13 August 2021 report, the doctor opines:
“She is fit for all her pre injury duties apart from dealing with babies. This is due to the possibility of dropping a baby and the legal ramifications that may follow from such an incident.”
The applicant’s solicitors arranged for her to be examined by Dr Oates on 15 September 2021. The doctor prepared a report dated 1 October 2021 (at page 12 of the ARD).
The doctor takes the following history from the applicant:
“Ms Comlekci tried to calm the child but then the child unexpectedly tried to headbutt her and the child's head struck her right hand, forcing it into hyperflexion (forwards bent at the wrist). She felt immediate pain across the dorsum of the right wrist and then more predominantly on the ulnar side of the wrist. She immediately applied ice so there was no significant swelling. She attended a medical centre just across the road.”
The applicant told the doctor that she has not been pain free in her right wrist since her accident, although the pain had improved with time. She is using her left hand more and has modified the tasks that she needs to perform with her right hand in order to reduce the pressure on her right wrist. Certain movements of her right hand however cause her immediate pain and a pulling sensation along the ulnar side of her wrist. She has difficulties with tasks such as turning a steering wheel, food preparation, lifting a kettle, closing scissors, prolonged writing, and prolonged keyboard work. She cannot push downwards onto the heel of her right hand.
Dr Oates summarises the radiological evidence provided to him.
There was an X-ray of the applicant’s right wrist on 25 October 2019 (following the applicant’s accident on that date) which showed mild deformity of her distal radius raising the possibility of a past fracture. The X-ray report can be found at page 4 of the respondent’s Application to Admit Late Documents.
There was an x-ray of the applicant’s right wrist on 10 September 2020 which showed normal wrist alignment and bony irregularity without evidence of fracture. The X-ray report can be found at page 3 of the respondent’s Application to Admit Late Documents.
There was a CT scan on 14 September 2020 which showed similar findings.
There was a MRI scan of the applicant’s right wrist on 6 October 2020 (the MRI report can be found at page 2 of the respondent’s Application to Admit Late Documents) which Dr Oates summarises as follows:
“No TFC tear or perforation. Minor non-–specific DRUJ effusion. Minor sprain/degenerative appearance at the margin of the scapholunate ligament, though no disruption. Very minor marginal carpal cysts, though no significant arthropathy and no bone contusion. Minor volar ganglion. No significant arthropathy nor bone contusion is seen.”
There was an ultrasound of the applicant’s right wrist on 27 September 2021 (which Dr Oates was obviously shown after he examined the applicant but before he provided his report). The ultrasound report (which can be found at page 79 of the ARD) is summarised by Dr Oates as follows:
“Dorsal wrist joint space synovitis extending to triangular fibrocartilage complex recess. No ganglion. No extensor digitorum tenosynovitis. ECU and FCU tendons appear intact.”
On examination, the doctor found restricted range of movement in the applicant’s right wrist, and she complained of ulnar-sided right wrist pain at the end of the radial and ulnar deviation, and when turning the forearm into supination. The doctor found full range of left wrist movement, and no swelling in either wrist.
The doctor also found tenderness on the ulnar border of the right wrist.
Dr Oates’ diagnosis was:
“soft tissue injury to right wrist with MRI evidence of extensor carpi ulnaris strain and non-specific swelling at the distal radioulnar joint, which is the result of inflammatory synovitis”.
The doctor found significance in that none of the radiological testing showed any significant arthritis in the right wrist. He also found significance in that the ultrasound indicated extensive dorsal wrist joint space synovitis, which he opined was an indication of inflammation, rather than arthritis.

The doctor opined that the incident on 10 September 2020 was a substantial contributing factor to the applicant’s current right wrist condition. Relevantly, he opined:
“She had an incident of forced hyperflexion, pushing the palm of the hand forcibly towards the forearm, resulting in soft tissue strain to the ulnar side of the wrist. The injury is consistent with the mechanism described of a child headbutting her and catching the back of her right hand.”
The doctor did not agree that the applicant had sustained an aggravation of a pre-existing asymptomatic arthritis condition as he could find no convincing radiological evidence of the condition being present.
The doctor believed that the applicant’s condition required further medical investigation.
Dr Oates recommended that the applicant not perform any employment duties that would require her to pick up and carry babies and young children. He otherwise believed that she was fit for her pre-injury duties as long as she wore a brace on her right wrist.
The applicant has also put into evidence three letters which she received from the respondent, dated 31 August 2021 (page 6 of the ARD), 16 December 2021 (page 10 of the ARD), and 7 February 2022 (page 3 of the applicant’s Application to Admit Late Documents dated 15 March 2022).
These documents show that from 6 August 2021, the respondent has required that the applicant have a medical clearance in order to be able to return to her pre-injury duties with it, without restriction (emphasis added). The respondent arranged for the applicant to be examined by Dr Price on 21 December 2021. The respondent advises in its 7 February 2022 letter that Dr Price’s report “states that you are deemed unfit to safely return to pre-–injury duties without restrictions, in your position as a child care worker”.
In relation to the financial evidence relied upon by the applicant, it is noted that in her statement, she advises that her weekly earnings were “$1350 (est)”. She also relies upon a payslip from the respondent in relation to a pay date of 3 February 2022 (page 1 of the applicant’s Application to Admit Late Documents dated 23 March 2022). That payslip refers to the applicant’s hourly rate of $35.57 and is based upon her working a 76 hour fortnight. The payslip notes that she had taken sick leave without pay between 3 January 2022 and 28 January 2022.

Respondent’s evidence

The respondent relies upon the medical opinions proffered by Dr Smith in his reports dated 24 February 2021 and 19 March 2021. The doctor examined the applicant on 24 February 2021.
Dr Smith takes a similar history from the applicant to the history taken by Dr Oates. He also refers to the radiological reports referred to by Dr Oates, although he did not have access to the ultrasound report.
When the doctor consulted with the applicant, she told him that she was working, although still avoiding activities which required dexterity and strength, such as nappy changing. On examination, he noted:
“There is pain with balloting her right DRUJ and there is a slight restriction in the range. Dorsi flexion and volar flexion while radial and ulnar deviation are remarkable. There is no other clinical abnormality.”
In his 24 February 2021 report, Dr Smith opines that on the balance of probabilities, the applicant has early right wrist joint arthritis. He notes however that this is an uncommon condition which generally occurs bilaterally. He recommends further investigations.
The doctor believed that the incident on 10 September 2020 could represent an initial aggravation to the underlying previously asymptomatic osteoarthritic change in the wrist. He opines that the incident was not a substantial contributing factor to the applicant’s arthritis condition, but was a major contributing factor to the aggravation of the condition on that date.
He states that the applicant is fit for work, although she would be advised to wear a splint and avoid particular activities.
In his 19 March 2021 report, Dr Smith confirms the opinions in his earlier report, but adds that the initial aggravation of the applicant’s osteoarthritic condition by 10 September 2020 incident would have “ceased after a matter of hours, a day or two or three at the most”. He opines that the applicant will continue to have symptoms in her right wrist because she will continue to reactivate the arthritic process with various activities that she performs.
The respondent also relies upon five documents that it obtained following a direction for production that was issued to Dr Theocharous. The documents are included in the respondent’s Application to Admit Late Documents dated 14 March 2022. The three radiological reports admitted have been discussed earlier.
There is also a document suggesting that the applicant had an injury to her cervical spine in 2010. No further evidence has been put forward by either party regarding the significance of this injury.
Finally, there is a report from Dr Yee dated 20 April 2021. The applicant was referred to Dr Yee by Dr Theocharous. According to Dr Oates, the applicant consulted with Dr Yee on three occasions, but the only report from the doctor that is before the Commission is this report. Dr Yee’s report is brief, but relevantly opines:
“From my point of view she has arthritis at the wrist, and the bone scan will definitively show if this is the case.”
The respondent has not put into evidence any financial documentation in relation to the applicant’s earnings with it. It does however rely upon the applicant’s 2022 Australian Taxation Office income statement (page 2 of the applicant’s Application to Admit Late Documents dated 23 March 2022). That document refers to the applicant as having earned $27,262.31 with the respondent between 1 July 2021 and 30 January 2022.

Applicant’s submissions

The applicant’s submissions have been reduced to writing. I will not go through them in detail.
In the submissions, the applicant closes off her claim for weekly compensation at 28 February 2022, and she states that she would be content with a general order for section 60 expenses pursuant to the 1987 Act.
The applicant submits that the evidence in her statement should be accepted as there is no evidence to the contrary. I accept this submission.
The applicant submits that I should accept that the respondent has not been willing to provide her with any work since 5 August 2021. I accept this submission on the evidence of the letters before me from the respondent to the applicant. I have sufficient evidence to draw an inference that the respondent possesses a report from Dr Price stating that the applicant is unfit to return to her pre-injury duties without restrictions.
The applicant submits that upon the medical evidence (including that of Dr Smith) as well as the evidence contained in her statement, I would have no difficulty in finding that she sustained a personal injury arising out of or in the course of her employment with the respondent (in accordance with section 4 of the 1987 Act) and that her employment was a substantial contributing factor to that injury (in accordance with section 9A of the 1987 Act).
The applicant submits that the symptoms arising from her personal injury continue to the present. She submits that the opinions of Dr Smith should be rejected in this regard, as those opinions are speculative, inconsistent, contrary to the evidence in her statement, and contrary to the opinions of Drs Theocharous and Oates.
The applicant submits that she requires ongoing medical treatment for her personal injury, and she relies upon the opinion of Dr Oates in this regard. She submits that even Dr Smith suggests the need for ongoing investigations.
The applicant submits that she is entitled to weekly compensation between 5 August 2021 and 28 February 2022. She relies upon section 47 of the 1987 Act. She submits that she was totally incapacitated during this period. She also submits that she was not fit for suitable employment (in accordance with section 32A of the 1987 Act) during the period.
The applicant submits that her PIAWE should be assessed at $1,350.00 per week at least.

Respondent’s submissions

The respondent’s submissions have also been reduced to writing. I will not go through them in detail.
The respondent submits that I cannot be satisfied that the applicant sustained a personal injury in accordance with section 4 of the 1987 Act on 10 September 2020. It points to there being no evidence proffered from the first doctor who the applicant consulted with on that date. It also submits that Dr Theocharous did not refer to any work incident in his notes from his consultation with the applicant on that date.
As noted at paragraph 27 above, Dr Theocharous’ notes are not easy to read. It is clear however that he referred the applicant for a right wrist X-ray on 10 September 2020 (see report at page 3 of the respondent’s Application to Admit Late Documents dated 14 March 2022). It is also clear from his report dated 13 August 2021 that he obtained a consistent history from the applicant regarding the 10 September 2020 incident. In accordance with paragraph 29 above, I find on the balance of probabilities that he obtained that history and found the clinical signs on examination that are referred to in paragraph 29, on 10 September 2020.
The respondent submits that I cannot be satisfied that employment was a substantial contributing factor to the applicant’s injury in accordance with section 9A of the 1987 Act. It points in this regard to the possibility of a previous fracture raised in the radiological evidence, the “very significant” injury sustained by the applicant on 25 October 2019, and the opinions of Drs Smith and Yee regarding the applicant’s right wrist symptoms as being arthritic in nature. It submits that the opinions of Drs Smith and Yee should be preferred to the opinion of Dr Oates as they examined the applicant prior to Dr Oates, as Dr Yee was the applicant’s treating hand surgeon, and as Dr Oates requested further investigations.
The respondent submits that the applicant’s injury should be categorised as a disease pursuant to section 4 of the 1987 Act. In those circumstances, the respondent submits that I cannot be satisfied that employment was the main contributing factor to either the contraction of the disease or the aggravation, acceleration, exacerbation, or deterioration of the disease.
The respondent submits that even if it is accepted that the applicant has sustained a compensable injury, that injury would have lasted three days at the most according to Dr Smith. It points to the similar radiological findings in the applicant’s right wrist both prior to and subsequent to the 10 September 2020 incident. It also submits that the opinions of Dr Smith are consistent with the opinions of Dr Yee. It further submits that Dr Oates only saw the applicant after “some flair (sic) up of her condition on 2 August 2021 when she was unable to complete a task involving chopping up food”. I do not intend to deal with the last submission as the evidence in the applicant’s statement as well as the history that she provided to Dr Oates suggest that she did not attempt to chop up food on 2 August 2021, having advised the respondent that she was unable to do so.
In relation to the applicant’s capacity for work between 5 August 2021 and 28 February 2022, the respondent submits that there is no lack of capacity. The restrictions suggested by Drs Oates and Theocharous relate to risk rather than incapacity, and in any case, they would not prevent the applicant from carrying out her full pre—injury duties.
The respondent uses the applicant’s 2022 Australian Taxation Office income statement to calculate her PIAWE at $879. The respondent submits that she is able to earn substantially more than that amount in suitable employment at the current stage.
The respondent finally disputes the applicant’s claim pursuant to section 60 of the 1987 Act as the expenses claimed in this regard could not be said to be reasonably necessary as a result of the applicant’s injury.

FINDINGS AND REASONS

Whether the applicant sustained a workplace injury arising out of or in the course of her employment pursuant to section 4 (a) of the 1987 Act

“Injury” is defined in section 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) 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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

There is a review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). That case makes it clear that what is needed to establish “injury” is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning (atrial fibrillation), without pathological change, did not constitute injury.
Consistent with Castro, in the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear), Deputy President Roche stated:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).” (at [60])
I reject the respondent’s submission that I cannot be satisfied that the applicant sustained a personal injury on 10 September 2020. Dr Theocharous has found on examination of the applicant reduced movements of the wrist with associated tenderness and palpation in all directions. I have found that this examination occurred prior to him ordering X-rays, which he ordered on 10 September 2020.
Having regard to Dr Oates’ diagnosis, I am satisfied that the applicant suffered an injury to her right wrist arising out of or in the course of her employment with the respondent on 10 September 2020. There does not need to be radiological change (as suggested by the respondent in its written submissions) for an injury within the meaning of section 4 to occur. As Deputy President Roche stated in Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82:
“A ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at [39]). The Commission has consistently applied this statement (North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 from [79] (Felstead)). Moreover, as was explained in Felstead (at [81]), to constitute a personal injury, such a physiological change or disturbance change “may be as simple as a bruise or a soft tissue strain”. (at [30]).
The complaints of the applicant as to what occurred on 10 September 2020 (which I accept) in relation to the forcing downwards of her right wrist suddenly and the resulting immediate pain and discomfort, also make it clear that what then occurred was a physiological change or disturbance to her wrist.
This finding of injury is also consistent with the reports presented by Dr Smith. In his 24 February 2021 report, he notes that the “patient demonstrated a hyperextension injury to her right wrist to me”, and he proceeds to opine that “the injury she describes could easily represent an initial aggravation to that underlying previously asymptomatic pathology”. The underlying pathology that he refers to is an arthritic condition which he believes was only aggravated for a maximum of 3 days by the incident on 10 September 2020. For reasons that I will explain later, I reject Dr Smith’s opinion that the applicant suffered from an asymptomatic arthritic condition. However, his description of what occurred on 10 September 2020 and the effect that it had upon the applicant is consistent with physiological change or disturbance to her wrist.

Whether the applicant's employment with the respondent was a substantial contributing factor to the workplace injury pursuant to section 9A of the 1987 Act

Section 9A relevantly provides:
“No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”
Sub-section (2) of section 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:
(a)      the time and place of the injury,
(b)      the nature of the work performed and the particular tasks of that work,
(c)       the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)       the worker’s lifestyle and his or her activities outside the workplace.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]) to be decided after a consideration of all the evidence.
In this matter, I am satisfied that the applicant’s employment with the respondent was a substantial contributing factor to the injury which I have found she suffered on 10 September 2020. I accept the opinions of Drs Oates and Theocharous in this regard.
I also note that Dr Smith (while opining that the applicant suffered an aggravation of her osteoarthritic disease on 10 September 2020) opined that her employment on that date was a major (emphasis added) contributing factor to the relevant aggravation.
In its submissions, the respondent alleges that the applicant sustained an injury to her right wrist in her teenage years, and that the radiological evidence suggests a past fracture. The applicant concedes in her statement that she has a vague recollection of such an injury, but she informs Dr Oates that she believes that the symptoms from the injury only lasted a few days, and she does not remember any plaster mobilisation or active treatment (page 18 of the application). There is absolutely no evidence to suggest that any such injury was causing the applicant any symptoms as at 10 September 2020.
In its submissions, the respondent also raises the applicant’s 25 October 2019 injury. However, there is no medical evidence led by the respondent regarding the significance of this injury to the determination as to whether the 10 September 2020 injury was substantially contributed to by the applicant’s employment. The applicant states that she made a complete recovery from the 25 October 2019 injury after a few months, and no medical evidence suggests otherwise.
In relation to the respondent’s submission that the applicant has an arthritic condition, I accept the evidence of Dr Oates otherwise.

In his report, Dr Oates thoroughly reviews the radiological evidence and finds no significant arthritis present. He had access to the applicant’s 27 September 2021 ultrasound results (which Dr Smith did not) and opines that the findings from the ultrasound are indicative of inflammation and not arthritis. He takes a consistent history from the applicant and performs a thorough examination of her.
Dr Smith’s opinions are based largely upon his view that the applicant had a pre-existing asymptomatic arthritic condition. Relying upon the evidence of Dr Oates, I find this not to be the case. Dr Smith importantly did not have access to the applicant’s 27 September 2021 ultrasound results when he prepared his reports. He has not commented upon those results at all.
I find Dr Smith’s opinion regarding the applicant having an arthritic condition to be speculative. He acknowledges that such a condition normally occurs bilaterally, and he also acknowledges that it is an uncommon condition (see page 10 of the Reply). He also suggests further investigations.
The respondent asks that I prefer Dr Smith’s opinion as he examined the applicant prior to Dr Oates. In my opinion, this actually places Dr Smith in a less advantageous position as he did not have access to the applicant’s 27 September 2021 ultrasound results.
The respondent places reliance upon Dr Yee’s opinion in his 20 April 2021 report as referred to at paragraph 64 above. I do not however place much weight upon the opinion in this report considering the brevity of the report and the request in the report for further investigations. I also note that according to Dr Oates, the applicant consulted with Dr Yee on three occasions, yet I only have his 20 April 2021 report. Indeed the 20 April 2021 report refers to the report as being following a “review”.
I also place significant reliance upon the opinion of Dr Theocharous, who does not refer to any arthritic condition of the applicant’s in his 13 August 2021 report. According to his clinical notes, the applicant has been attending his surgery since 17 July 1992. In this context, the doctor’s comment about employment being the “sole contributing factor to the injury” (rather than any arthritis condition, the 25 October 2019 injury, or any childhood injury) carries weight.
I do not intend to deal with the respondent’s submission at paragraph 79 above considering the finding that I have made regarding the applicant sustaining a personal injury within the meaning of section 4 (a) of the 1987 Act on 10 September 2020.

Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the workplace injury, since 5 August 2021

I have already rejected the evidence of Dr Smith that the applicant suffered from an asymptomatic arthritic condition which was aggravated for a maximum of three days by the 10 September 2020 injury. In accordance with the opinions of Drs Oates and Theocharous, I find that the applicant is still incapacitated by reason of that injury.
Both doctors agree that the applicant is fit for full-time employment, with restrictions. Dr Oates opines that she should protect her right wrist in a brace, and “it is best that she does not work in an area requiring frequent picking up and carrying of babies and young children to reduce the risk of the right wrist giving way and dropping the child” (page 18 of the ARD). Dr Theocharous has provided medical certificates covering the period between 5 August 2021 and 28 February 2022 (see paragraph 33 above).
The applicant is employed by the respondent as an early childhood educator, in which she is clearly required to look after babies and young children, which would include picking up and carrying them.
It is also in my opinion highly relevant to note that the respondent itself does not consider the applicant to be fit for full-time employment, without restrictions. I find that to be the clear effect of its letters to the applicant dated 31 August 2021, 16 December 2021, and 7 February 2022. I do not accept the submission of the applicant that it is estopped in these proceedings from arguing otherwise, but I do place considerable weight upon the concerns raised in the letters regarding the applicant’s ability to safely perform the inherent requirements of her work.
In my opinion, the respondent is in the best position to understand what those requirements are, and faced with the medical certificates from Dr Theocharous in relation to the applicant’s restrictions, it arranged for the applicant to be examined by Dr Price. While I do not have Dr Price’s report before me, I do accept the summary of the report that the respondent provided to the applicant in the 7 February 2022 letter that “you are deemed unfit to safely return to pre-–injury duties without restrictions, in your position as a Child Care Worker”.
I find that since 5 August 2021, the applicant has not been fit for her pre-injury employment.
Both Dr Oates and Dr Theocharous are concerned that the applicant may drop babies or young children if she was required to lift and carry them. This also seems to be a concern of the respondent’s from its letters to the applicant dated 31 August 2021, 16 December 2021, and 7 February 2022. If the applicant was to drop a baby or young child, the risk of injury would not only be to the baby or young child. Dr Oates in this regard refers to the risk of the applicant’s right wrist giving way if she dropped a baby or young child.
Having found that the applicant is incapacitated, it is next necessary to determine whether the applicant had current work capacity during the period claimed between 5August 2021 and 28 February 2022.
The applicant submits that she was totally incapacitated during that period. The respondent submits that any employment restrictions would not preclude her from carrying out her full employment duties during that period. I reject both submissions.
Clause 9(1) of Schedule 3 to the 1987 Act provides:
“An injured worker has ‘current work capacity’if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
I have found that the applicant is not yet able to return to her pre-injury employment. The question is therefore whether she was able to return to work in suitable employment during the period claimed.
Section 32A of the 1987 Act provides the definition of suitable employment as follows:
“’suitable employment’ in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.“
The parties have not provided much assistance to the Commission in order for it to make a finding as to the nature of the applicant’s suitable employment between 5 August 2021 and 28 February 2022. There is no evidence of any job that was made available to the applicant during that period, there is no evidence from any vocational expert, there is no evidence of the applicant’s education or skills or work experience, there is no evidence as to how (if at all) the respondent had provided rehabilitation services or vocational training to the applicant, and there is no evidence of any return-to-work plan prepared by the respondent.
Of the matters referred to in section 32A, there is however the medical certificates from Dr Theocharous covering the period between 10 August 2021 and 28 February 2022. The restrictions referred to in the certificates are consistent with the opinion of Dr Oates that the applicant is fit for full-time work with lifting and carrying restrictions. Dr Theocharous also mentions pushing and pulling restrictions.
Although Dr Theocharous reduces the level of the restrictions in his second medical certificate, I do not believe that those minimal changes increase the suitable employment available to the applicant.
I find that the applicant’s suitable employment between 5 August 2021 and 28 February 2022 is employment which complies with the restrictions referred to in the certificates from Dr Theocharous.
I am required to make a finding as to what the applicant would be able to earn in suitable employment. Considering the lack of assistance provided to me by the parties as to what the applicant could earn in employment which complies with the restrictions referred to in the certificates from Dr Theocharous, I find that the applicant would be able to earn the full-time minimum wage (set pursuant to Part 2-6 of the Fair Work Act 2009 (Cth)), which as at 1 July 2021 was $772.60 per week.
In making this finding I also find that the applicant is fit for full-time work but at the most basic level having regard to the restrictions placed upon her earning capacity by Dr Theocharous.

PIAWE

In the ARD, the applicant asserts that her PIAWE is $1350.00, whilst in the Reply, the respondent asserts that the PIAWE is $878.00.

122.Regrettably, the parties have failed to provide the Commission with any reliable documentary evidence to allow me to accurately calculate the applicant’s PIAWE.

The applicant relies on her 2022 Australian Taxation Office income statement and a payslip dated 3 February 2022, which post-dates her injury.
The income statement is unreliable because it is clear that during the period between
1 July 2021 to 30 January 2022, the applicant had periods when she was not paid, as evidenced by the 3 February 2022 payslip referring to her as receiving sick leave without pay between 3 January 2022 and 28 January 2022.
The payslip refers to her hourly rate of $35.57 with the respondent as at 3 February 2022. This translates to $1,351.66 per week for a 38 hour week. It is clear from the payslip that the applicant is paid on the basis of working a 76 hour fortnight. Whilst this is consistent with her statement, it represents her post-injury rather than pre- injury earnings. Therefore, it is of little probative value regarding calculating her PIAWE.
Under rule 68 of the Rules:
“(1)   If the amount of weekly compensation or statutory benefits is in dispute, a party must include in an application in Commission proceedings a schedule of earnings containing full particulars of the amount claimed.
(2)   If a party wishes to dispute the accuracy of a matter in the schedule of earnings, the party must lodge and serve on the other parties a schedule of earnings containing full particulars of the party's allegations of the earnings.
(3)    The schedule of earnings is to be lodged and served with the first document lodged and served by the party in the proceedings, in addition to the documents that must be lodged and served under rule 67.
(4)   A matter not disputed by a party under subrule (2) is taken to be admitted by the party.”

127.As there are competing PIAWEs without documentary corroboration, neither party has admitted PIAWE. In default of any agreement between the parties, and having now had the opportunity to review the submissions of the parties, I am not in a position to calculate the applicant’s PIAWE and her entitlements.

128. Therefore, I propose to make the following order:

(a)   The respondent is to file and serve a wage schedule and copies of the applicant’s payslips and wage records for the period between 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the applicant’s PIAWE) by 6 May 2022.
(b)   The applicant is to file and serve a wage schedule by 13 May 2022.
(c)   The applicant is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022.
(d)   The respondent is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022.
(e)   Any submissions in reply are to be filed and served by 25 May 2022.

At the conclusion of the time allowed for submissions the balance of the dispute will be determined “on the papers”.

Section 60 expenses

I have accepted the applicant’s evidence that she continues to suffer pain and stiffness in her right wrist. I have found that she is still incapacitated as a result of the personal injury which she received on 10 September 2020. She is entitled to have her reasonably necessary medical expenses pursuant to section 60 of the 1987 Act paid.
In her submissions in reply, the applicant states that she is content with a “general order” being made in relation to her past section 60 expenses. I intend to make such an order.
In relation to her proposed future treatment, the only specific costs claimed are for a dynamic ultrasound scan and a bone scan with SPECT. These investigations are recommended by Dr Oates (page 18 of the ARD) and I find that they are reasonably necessary treatment for the personal injury on 10 September 2020. I intend to make an order that the respondent pay for the bone scan. However, it is not clear from Dr Oates’ report whether the ultrasound undertaken by the applicant on 27 September 2021 complies with his recommendation for a dynamic ultrasound scan. I do not therefore intend to make a specific order in relation to the dynamic ultrasound scan.

SUMMARY

I find that the applicant sustained a personal injury arising out of or in the course of her employment with the respondent pursuant to section 4 (a) of the 1987 Act.
I find that the applicant's employment with the respondent was a substantial contributing factor to the personal injury pursuant to section 9A of the 1987 Act.
I find that the applicant was incapacitated for work as a result of the personal injury between 5 August 2021 and 28 February 2022.
I find that the applicant was able to earn $772.60 per week in suitable employment between 5 August 2021 and 28 February 2022.
I find that the applicant is entitled to have her reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act paid by the respondent.
I find that I do not have sufficient documentary evidence before me to be able to accurately calculate the applicant’s PIAWE.
I therefore direct:
(a)   The respondent is to file and serve a wage schedule and copies of the applicant’s payslips and wage records for the period between 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the applicant’s PIAWE) by 6 May 2022.
(b)   The applicant is to file and serve a wage schedule by 13 May 2022.
(c)   The applicant is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022.
(d)   The respondent is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022.
(e)   Any submissions in reply are to be filed and served by 25 May 2022.

At the conclusion of the time allowed for submissions the balance of the dispute will be determined “on the papers”.
There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act.

[2022] NSWPIC 175

21 April 2022