Connell v Thorndale Foundation Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Connell v Thorndale Foundation Ltd [2023] NSWPIC 536
APPLICANT:	Kay Connell
RESPONDENT:	Thorndale Foundation Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits for two closed periods; medical expenses; and permanent impairment compensation; accepted claim for injury to the right shoulder; respondent disputed that the applicant had sustained bilateral carpal tunnel syndrome, injury to the left shoulder, or injury to the cervical spine; parties agreed on applicant’s pre-injury average weekly earnings, and that claim for weekly benefits was to be determined before referral to a Medical Assessor; consideration of Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors, AV v AW, Alto Ford v Antaw, Stone v Stannard Brothers Launch Services Pty Ltd, Diab v NRMA Ltd, and Mason v Demasi; Held – applicant sustained bilateral carpal tunnel syndrome, being a disease injury to which employment was the main contributing factor; award for the respondent for injury to the left shoulder and cervical spine; award for the applicant for weekly benefits during periods when she had no current work capacity following carpal tunnel decompression surgery on each wrist; award for the applicant of medical expenses claimed, excluding treatment of cervical spine; matter remitted to President for referral to Medical Assessor for assessment of impairment as a result of injury to the right upper extremity and left upper extremity.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent in respect of the claim for injury to the cervical spine and left shoulder. 2. There is an award for the applicant of weekly benefits as follows: (a) $1,008.03 per week from 24 January 2012 to 14 April 2012, pursuant to s 36 of the Workers Compensation Act 1987; (b) $1,008.03 per week from 16 August 2016 to 27 August 2016, pursuant to s 36 of the Workers Compensation Act 1987, and (c) $848.86 per week from 28 August 2016 to 31 October 2016, pursuant to s 37 of the Workers Compensation Act 1987. 3. There is an award for the applicant in the amount of $3,617.45, pursuant to s 60 of the Workers Compensation Act 1987, excluding any amount in respect of treatment of her cervical spine. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 as follows: (a) Date of injury: 11 October 2020 (deemed) – disease. (b) Body systems/parts: (i) right upper extremity (right shoulder; right hand; right wrist), and (ii) left upper extremity (left hand; left wrist). (c) Method of assessment: whole person impairment. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. 6. The parties have liberty to apply with respect to the award for weekly benefits.

STATEMENT OF REASONS

BACKGROUND

The applicant, Kay Connell (Ms Connell) was employed by the respondent, Thorndale Foundation Ltd (Thorndale) as a disability support professional (DSP).
Ms Connell sustained an accepted injury to her right shoulder on 18 October 2019. She also claims to have sustained bilateral carpal tunnel syndrome (CTS); and injury to her right and left shoulders, arms, wrists, hands, and neck due to performing the duties of a DSP. In the alternative, she claims to have suffered an aggravation, acceleration/exacerbation or deterioration of a disease. The deemed date of injury is claimed to be 11 October 2020.
The applicant completed a Worker’s Injury Claim Form on 24 January 2012. She claimed to have severe bilateral CTS, due to repetitive movements/use of her hands within and outside the workplace, “during working hours”. There is a date recorded which is possibly 2008. It was “possibly contributed to by several injuries which have occurred”.
The applicant had reported the injury when she was told that surgery was pending.
On 23 March 2012, the respondent’s insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which was then the relevant section with respect to liability disputes.
EML disputed liability in respect of an injury on 29 May 2008, which it described as bilateral CTS. It disputed that employment was a substantial contributing factor to Ms Connell’s condition, and that “all treatment for the alleged injury is deemed not reasonable and necessary.” [sic].
The applicant’s second claim form is dated 19 October 2016. She claimed to have sustained injury to her wrists, arms, neck, back and lower legs, and “carpal tunnel”. This was claimed to be due to repetitive work over many years, lifting, bending, bus driving, cooking, bed making, assisting “and seat belt attaching for clients”, food delivery, and personal care.
On 7 February 2017, EML issued the applicant with a further notice pursuant to s 74 of the 1998 Act, with respect to right CTS, with date of injury of 16 August 2016.
EML disputed that the applicant had sustained injury; that employment was a substantial contributing factor to any injury; that she was incapacitated for employment; and that any “ongoing or further” medical treatment was reasonably necessary as a result of a workplace injury. EML noted that it had accepted provisional liability on 27 October 2016, and requested additional medical evidence.
The applicant completed a Notification of Injury, the date of which is unclear, but apparently was 8 October 2019. The document is very difficult to read, but she stated that she was performing her duties when she felt a “click” in her right shoulder. She continued to work but commented that she thought her bursitis had flared again, not realising that she had a tear in her shoulder.
By letter dated 17 June 2022, the applicant’s solicitors made on her behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The date of injury was claimed to be “nature and conditions of employment from about 24 February 2003 to 11 October 2020.”
The letter referred to three claim numbers, which related to injuries to the applicant’s neck, arms, and shoulders. The injuries had been “aggregated as they arise from the nature and conditions” of employment.
The injuries claimed were to the right upper extremity (shoulder, arm, and CTS); left upper extremity (shoulder, arm, and CTS); and cervical spine. The applicant claimed to have 35% whole person impairment (WPI). As the assessment exceeded 20%, she requested that EML recommence payment of weekly compensation and medical expenses.
On 7 July 2022, EML wrote to the applicant, advising her that payment of her medical expenses with respect to the injury on 8 October 2019 would end on 4 October 2022, as she had not been assessed with permanent impairment of more than 10%.
On 18 October 2022, EML issued the applicant with a notice pursuant to s 78 of the 1998 Act, in respect of injury on 8 October 2019.
EML disputed liability for the applicant’s claim for permanent impairment compensation. It disputed that she had sustained injury; that employment was a substantial contributing factor to injury; and that she was entitled to payment of weekly benefits or medical treatment.
EML also disputed that the applicant’s permanent impairment had resulted from an injury; and that her “alleged physical injuries” had resulted in more than 10% permanent impairment.
Despite having disputed “injury”, EML then stated that it did not dispute that the applicant sustained injury to her right shoulder on 8 October 2019. It disputed that she had sustained injury to her left shoulder, bilateral CTS, or injury to her neck (including that employment was a substantial contributing factor to injury).
By letter to the respondent’s solicitors dated 10 November 2022, the applicant’s solicitors made on her behalf a claim for weekly benefits from 24 January 2012 to 14 April 2012; and from 16 August 2016 to 31 October 2016 (each period being from the date of carpal tunnel surgery to the date of being certified fit for pre-injury duties).
By letter to the respondent’s solicitors dated 11 November 2022, the applicant’s solicitors made on her behalf a claim for the cost of treatment to her cervical spine and CTS.
On 15 December 2022, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for injuries on 29 May 2008 and 16 August 2016.
EML disputed that the applicant had sustained injury; that employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation or deterioration of a disease injury; and that the applicant was entitled to weekly payments or medical expenses.
The applicant lodged an Application to Resolve a Dispute (the Application) on 20 June 2023.
The applicant claimed to have sustained injury, deemed to have happened on
11 October 2020 and/or disease, with the same deemed date of injury.
The injury was described as “Being Nature & Conditions of employment from about
24 February 2003 to about 11 October 2022 [sic: 2020]” and including bilateral CTS on
27 May 2008; right CTS on 16 August 2016; and right shoulder injury on 8 October 2019, while the applicant was performing cleaning duties.
The applicant’s work was claimed to have involved heavy lifting, pulling, pushing, and repetitive use of her arms and hands, placing undue stress on her shoulders, arms, wrists, and hands; bilateral CTS; neck; and aggravation of her back. In the alternative, she claimed to have suffered aggravation, acceleration/exacerbation or deterioration of a disease.
The applicant claimed weekly benefits from 24 January 2012 to 14 April 2012; and from
16 August 2016 to 31 October 2016. She also claimed past medical expenses of $3,617.45; and permanent impairment compensation of $112,010 in respect of 35% WPI as a result of injury to her right upper extremity, left upper extremity, and cervical spine.
The respondent lodged its Reply on 10 July 2023.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    whether the applicant has sustained injury to her cervical spine, left shoulder, left hand/wrist and/or right hand/wrist;
(b)    whether the applicant’s employment was a substantial contributing factor to injury;
(c)    whether the applicant’s employment was the main contributing factor to a “disease injury”;
(d)    whether the applicant is entitled to payment of weekly benefits;
(e)    whether the applicant is entitled to payment of medical expenses with respect to treatment of her bilateral CTS, and
(f)    whether the applicant is entitled to permanent impairment compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for preliminary conference on 20 July 2023. Ms Laggas appeared for the applicant, who was present; and Mr Stringer appeared for the respondent, instructed by Mr Lacsina of EML.
The Application was amended to plead that the deemed date of injury is 11 October 2020. The respondent, which advised that the applicant’s pre-injury average weekly earnings (PIAWE) were not agreed, was directed to file and serve a wages schedule on or before
27 July 2023; and to comply with the applicant’s Notice for Production on or before
3 August 2023.
The matter was listed for conciliation/arbitration hearing on 18 August 2023 by the Teams platform. Ms Goodman of counsel, instructed by Ms Laggas, appeared for the applicant, who was present; and Mr Gaitanis of counsel, instructed by Mr Stringer, appeared for the respondent. Mr Lacsina also attended.
The Application was amended to delete the claim for injury to the back.
The parties agreed that the applicant’s PIAWE during both periods in respect of which a claim for weekly benefits is made were $1,061.08 per week.
The parties also agreed that the applicant’s claim for permanent impairment compensation was made in respect of injury to the right upper extremity (right hand, right wrist, and right shoulder); left upper extremity (left hand, left wrist, and left shoulder); and cervical spine.
The parties finally agreed to a determination of the applicant’s claim for weekly benefits before the medical dispute is referred to a Medical Assessor.
Due to the time taken in conciliation, during which the parties were able to agree on the above matters, it was not possible to hear the matter on 18 August 2023; and a direction was made for them to lodge and serve written submissions. They were directed that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
Both parties have lodged submissions in accordance with the direction.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Respondent’s Wages Schedule dated 17 August 2023.

FINDINGS AND REASONS

Evidence of the applicant, Kay Connell

The applicant’s statement is dated 4 November 2022.
She commenced full-time work as a DSP for the respondent on or about 24 February 2003. She assisted adults who had disabilities, including Down syndrome, autism, and intellectual issues.
She was required to perform the following duties:
·        lifting
·        carrying
·        bending
·        driving a bus
·        washing exterior and internal areas of buses
·        cooking – preparing meals
·        chopping food
·        stirring pots
·        bed making
·        assisting clients
·        securing clients’ seat belts
·        administering medication
·        feeding clients
·        fresh food delivery
·        grocery shopping
·        dusting
·        paperwork
·        taking clients for walks, to various activities and appointments, and on outings
·        supervising clients’ daily routines
·        showering, toileting and dressing clients
·        laundry duties, including hanging out laundry and ironing
·        sweeping and mopping
·        cleaning, including scrubbing and wiping
·        cleaning pet cages
·        recreational/educational support for clients
·        standing and walking for prolonged periods
She repetitively used her arms and hands to cut up food; and her arms to stir pots, serve food, and washing.
She lifted and carried food items, mop and bucket, vacuum cleaner, crates of milk “etc”. There was repetitive bending of her neck and back; repetitive use of her arms and hands whilst cleaning, cooking, and scrubbing; and repetitive use of her arms to wipe benches, clean floors, mop, and vacuum. Vacuuming or cleaning involved prolonged forward bending of her neck and back.
She performed 24 hour shifts in three day blocks. She worked a three shift roster, being from 6am to 2:30pm; 2pm to 10:30pm; and 10pm to 7am.
In 2004, she felt discomfort and pain in her right hand and wrist. She sought treatment at Penrith (Mall) Medical Centre and continued with her usual duties.
In about 2005, she started to have pain in her right shoulder blade area. She sought treatment from her doctor at Penrith Mall Medical Centre and continued with her usual duties.
She started to feel pins and needles in her hands and was referred to Dr Shaffi. She attended him in about 2005 and in August 2005 underwent nerve conduction studies of both arms.
She continued to have pain in her right shoulder area from time to time, especially while performing her duties. When the pain was intense, she consulted her doctor or would otherwise take medication.
In or about 2008, she also experienced pins and needles in her left wrist, whilst the symptoms in her right hand and fingers were increasing. She also had neck pain. She was referred for further investigations and continued to consult Dr Shaffi.
She was later referred to Dr Preketes, neurologist [sic] for treatment of her bilateral CTS, attending in about August 2008. He was also a treatment provider for the respondent’s clients.
Dr Preketes arranged for her to have carpal tunnel release surgery through the public hospital system because the insurer would not approve it. On the day of the surgery, he was called away and it did not proceed.
Dr Preketes re-scheduled the surgery, but she had to wait a significant period. He had to cancel the surgery again. The pain in her wrists was getting worse. She continued performing her usual duties.
She requested a referral to another doctor and was referred to Dr Al-Khawaja. She continued working her usual duties and did not take time off, as she saw her doctors between shifts.
In about May 2010, she was assisting a client when she struck her head heavily on a towel rail. She had pain in her head, neck and back, and attended Dr Obeidullah.
In about June 2011, Dr Obeidullah referred her for X-ray and later CT scan of her neck. She was then referred to Dr Al-Khawaja, whom she attended on 30 July 2011. She informed him of her neck and bilateral arm pain.
Dr Al-Khawaja advised her to deal with the CTS first, as treatment may improve her neck pain. If it persisted, he advised her to undergo decompression of C5/6 and C6/7.
She believed that approval for surgery was requested, and Dr Obeidullah discussed the carpal tunnel condition with EML, but approval was not provided.
Dr Al-Khawaja then made arrangements for surgery for her left wrist at Nepean Public Hospital, and operated on 24 January 2012. She took time off work, utilising her leave entitlements.
Following the surgery and recovery period, she was advised to commence hand therapy, but it was not approved by the insurer. Dr Obeidullah then created a care plan that included physiotherapy.
She attended an examination with Dr Whittaker on 27 February 2012, and told him the truth about her injuries.
When she returned to work, the respondent arranged a trial period between 9 April 2012 and 18 April 2012.
She continued to have neck pain following the left carpal tunnel surgery. There was some improvement, but the problem did not resolve. When she consulted Dr Obeidullah in April 2012, she was advised to proceed with right carpal tunnel decompression surgery and then re-assess her neck injury. He referred her for a nerve root injection to her neck.
The left shoulder pain was persisting, requiring a further ultrasound investigation, physiotherapy, and laser treatment to her neck and left shoulder. She was still receiving physiotherapy for her left wrist.
In June 2015 she was referred back to Dr Al-Khawaja. He performed carpal tunnel decompression of her right wrist on 16 August 2016. Dr Habib later referred her to Mr Walid Kesserwani, chiropractor.
Following the surgery to her right wrist, her neck pain improved slightly, but persisted. She also had numbness in her right hand and fingers.
She was absent from work until about 30 October 2016 and utilised her leave entitlements.
She continued working, performing her pre-injury duties. She continued to have pain in her neck, shoulders, arms, hands, and back.
In about 2017, she was assisting a client who had an epileptic fit, supporting her until the ambulance arrived. She was bending forward for about 25 to 30 minutes. She helped lift the client onto the trolley. She suffered an exacerbation of her injuries, with pain in her neck, shoulders, arms and back.

On another occasion, a client collapsed into her arms. He was a “hefty man” and she struggled to support him, while reaching with her other arm for the phone. She called for help but kept supporting him until it arrived. She felt a strain on her neck, shoulders, arms, and back.
She continued to receive treatment for her injuries, including ultrasound for her right shoulder and ultrasound guided injection into her left shoulder, at various times in 2018.
On 6 April 2019, she slipped at home, fracturing her right lower leg, and was absent from work until about October 2019. Her first day back was 8 October 2019, returning to her usual duties.
On 8 October 2019, she was working an overnight job. She had been performing cleaning duties. As she was dusting a picture frame, she felt sharp pain in her right shoulder. She went to the office to rest whilst the pain subsided.
At 5am she resumed her duties, and helped patients out of bed, and with showering, dressing, and feeding. She then removed and replaced bed linen. She struggled because of her shoulder pain.
At 6am the next shift arrived. She mentioned to a colleague that she had hurt her shoulder. By the end of the shift, she was in significant pain and went to the Penrith Mall Medical Centre. She was referred for investigation.
Dr Obeidullah advised that she had a tear in her shoulder. He referred her for physiotherapy and ultrasound guided injection.
She attended Dr Kuo for her right shoulder pain in about December 2019. He advised she would require surgery, which was arranged for 19 February 2020. Following the recovery period, she attended physiotherapy.
In about May 2020, Dr Kuo advised that she may return to work and perform light duties, which she did. She worked for three days per week, four hours per day. By August her hours were increased to five per day, three days per week. She was advised that provided she was able to cope with her duties, she would have a job.
By October 2020, the available work had slowed down, and on 11 October 2020, her employment was terminated. She was aged 72. The respondent advised her to retire because she “had been working long enough”. She did not want to retire. She was glad to be working and had worked there for 17 years. She had not returned to other employment.
She continued to have pain and discomfort in her neck, shoulders, arms, hands, and back.

Job Analysis: DSP

The Application has attached a job analysis for the occupation of DSP. It is neither dated nor signed, and it is unclear by whom it was prepared. It is headed Thorndale Foundation Ltd.
I will not refer to all the tasks required of a DSP.
The tasks included preparing meals, some of the physical requirements for which were repetitive use of the hands and arms to cut up food, stir stews and pots, and serve food.
Preparing paperwork involved the use of hands and arms to write and/or operate a computer; and prolonged forward bending of the neck when writing.
Supervising clients in cleaning, ironing, cooking, and daily activities involved repetitive use of the hands and arms to demonstrate various activities and help residents to dress.
Cleaning and mopping involved repetitive use of the arms to wipe benches, clean and mop floors, vacuum, and wash, lifting and carrying mops and buckets, vacuum cleaners, and other cleaning utensils.

Medical evidence

Penrith Mall Medical Centre

Some of the practice’s records are handwritten and difficult to read. It is not my intention to refer to every entry. It is not possible to tell by whom the handwritten entries were made. The applicant sometimes attended for unrelated matters but also mentioned the claimed work injuries.
I have not referred to attendances for injury to the back, on which the applicant no longer relies.
On 25 September 2001, there is a notation of painful neck, left sided muscles (?).
On 28 September 2001, there is a notation of painful neck on the left side, and ultrasound therapy to the neck.
On 1 December 2001, there is a record of ultrasound therapy to the back of the left side of the neck.
On a date in January 2003 (the actual date is unclear), the applicant had a painful neck, for which she wanted (or the word may be “sent”) physiotherapy and ultrasound.
On 4 November 2004, there is a notation of numbness of both hands, especially in the early hours. The applicant needed CTS check-up and nerve conduction study.
On 6 June 2005, the applicant was referred to Dr Shaffi for numbness in her left (possibly “thumb”). She had pins and needles in her hands, the right more than the left. “?” CTS was noted.
On 10 August 2005 there is a notation of nerve conduction studies and CTS of the right wrist.
On 8 May 2008, there is a record of pins and needles in the right hand. There was a diagnosis of CTS in 2006, “now similar symptoms on the other wrist.”
On 4 June 2008, there is a notation of a nerve conduction report – “bilat CT syndrome”.
On 21 May 2010, there is a notation that the applicant still had blurred vision. “Bashed her head on the towel rail”. She had neck pain related to her head, and “u/s to neck area”.
On 30 May 2011, there is a notation of painful neck, and “no (illegible) injuries”.
On 7 June 2011, there is a notation of painful neck, “no trauma”.
On 15 June 2011, there is a notation of CT of the cervical spine.
On 1 September 2011, there is a notation that the applicant had MRI, bone scan and nerve conduction – “bilat CT syndrome for surgery by Dr Al-Khawaja”. It is also noted “? w/c”.
On 3 January 2012, there is a notation of “w/c” and bilateral CTS. The applicant was booked for surgery at the public hospital. She had (possibly “seen”) Dr Preketes in 2008 with bilateral CTS. “Nerve conduction study by Dr M Shaffi”.
Dr Mohammed Obeidullah reported to EML on 25 January 2012.
The applicant had attended on 3 January 2012 and stated she had left bilateral [sic] CTS, with the date of diagnosis of 29 May 2008. Her symptoms had recently worsened, and her employer told her to place the injury under workers compensation.
In May 2008, the applicant attended complaining of pins and needles on the left wrist, similar to those on the right. Nerve conduction studies showed severe median neuropathy in both wrists.
The applicant was placed on the waiting list for Dr Preketes to decompress first the left carpal tunnel and then the right.
The applicant was referred to Dr Al-Khawaja in June 2011. He booked her for left side carpal tunnel decompression and would do the right side later.
Dr Obeidullah opined that employment would be “the substantial contributing factor” to the applicant’s diagnosis. Repetitive movements of both wrists can cause CTS. The applicant had repetitive wrist movements in her duties.
The applicant had no underlying non-work related conditions. She had suffered from CTS for some years. Recently her symptoms had worsened, due to the duties in her current employment.
The applicant had undergone left wrist surgery on 25 January 2012 and would have right wrist surgery in a couple of months. Her prognosis was good, following surgery and rehabilitation.
The applicant was certified unfit to work until 26 February 2012, when she would be reviewed.
On 27 January 2012, there is a notation that the applicant had carpal tunnel surgery on Tuesday. A workers compensation medical certificate (certificate of capacity, COC) was issued.
On 27 February 2012 Dr Zaglul Habib recorded that the applicant had work-related bilateral CTS. She had had surgery in her left wrist. She needed extension of her COC. She was having physiotherapy and seeing the specialist this week.
On 5 March 2012 a further COC was issued by Dr Habib. The applicant could not get physiotherapy as workers compensation was not paying for it.
On 6 March 2012, there is a notation of ultrasound to the left shoulder.
On 12 March 2012, there is a record of left carpal tunnel surgery on 24 January 2012. COCs were issued in March and April 2012.
On 16 March 2012, Dr Habib recorded that “WC issue discussed. IF treatment given to left shoulder. Suggested to discuss with Dr Obeidullah about WC as he is the doctor dealing with WC”. (Capitalisation in original).
On 24 March 2012, there is a notation of ultrasound to the left shoulder.
On 17 April 2012, there is a notation of ultrasound to left shoulder and “physio.”
On 2 May 2012, there is a notation about ultrasound for neck and shoulder, and what may be “laser” to neck and shoulders.
On 5 March 2013, Dr Habib recorded “Left sided neck pain for a week. No chest pain. No injury. Wake [sic] up with this pain.”
On 12 March 2013, Dr Habib recorded that the neck pain was better, with “no tenderness in left trapezius.”
On 29 June 2015, there is a record of a problem with the right wrist/hand. There was a history of CTS. The applicant had had surgery on the left side. She was to see Dr Al-Khawaja.
On 5 September 2016, Dr Habib recorded that the applicant had had surgery for right CTS. She needed chiropractor review. A referral was provided under a care plan.
On 19 October 2016, there is a notation that the applicant had surgery on her right wrist on 16 August 2016. It appears to go on “going on w/c as advised by the solicitor. W/c med cert given.” There is a further notation that “physio told her to (possibly ‘go’) on w/c then she saw the solicitor.”
On 3 July 2017, there is a notation that the applicant was seen by Dr Al-Khawaja, “Confirms that the work was responsible for the bilat CT syndrome and waiting for report/letter.”
On 17 July 2017, there was “still no letter from Dr Al-Khawaja”. The applicant had had MRI one week ago - “no reports yet”.
On 18 July 2017, there is a notation that “at last got it (the letter)” and a copy was given to the applicant.
On 23 August 2018, Dr Habib recorded that the applicant had had right shoulder pain for two weeks. “Nil injury”. There was marked restriction in all range of movement. The impingement test was positive. She was referred for ultrasound of her shoulder.
On 24 August 2018, Dr Habib recorded that the applicant had had the ultrasound. She had been told she had a tear of the tendon and bursitis.
On 25 August 2018, Dr Habib recorded that the ultrasound of the right shoulder had been noted. The reason for contact was recorded as right rotator cuff tear and right SA (subacromial) and SD (subdeltoid) bursitis.
On 3 January 2020, Dr Obeidullah recorded a WorkCover injury – “shoulder”. The pain was improving, and a certificate was provided.
On 12 October 2020, Dr Obeidullah recorded “shoulder still the same.” A COC was done.
On 3 August 2021, Dr Obeidullah recorded that the applicant had a painful left shoulder with painful movements, “no trauma”. He noted X-ray and ultrasound.
On 5 January 2022, Dr Obeidullah reported to EML.
The applicant’s workplace injury was a full thickness supraspinatus rotator cuff tear. Physiotherapy was ceased eight months post-surgery and she was discharged.
Dr Kuo had discharged the applicant in November 2020 but as her right shoulder had not 100% recovered, Dr Obeidullah wanted her to again see Dr Kuo. She was unable to do so due to COVID-19, and a phone consultation would not be suitable.
The applicant was admitted to hospital for an unrelated condition in December 2021.
The applicant’s left shoulder was treated by chiropractor Mr Michael Streeter. On her last attendance, he “stated limited overhead shoulder movements.” This could place more pressure on the use of her right shoulder, with risk of re-injury. There were no pre-existing factors relevant to this condition.
Chiropractic and physiotherapy treatment of the applicant’s left shoulder had ceased in September 2021. It had reached maximum medical improvement.
Dr Obeidullah reported to the applicant’s solicitors on 14 May 2023.
The applicant attended in May 2008, complaining of pins and needles in her left wrist, similar to those in her right. Nerve conduction study showed severe median neuropathy in both wrists. She was placed on the waiting list for Dr Preketes to decompress her left, and then right, carpal tunnel.
The applicant was referred to Dr Al-Khawaja in June 2011. He booked her for left carpal tunnel decompression and would do the right side later.
On 3 January 2012, the applicant attended and stated she had left bilateral CTS, with date of diagnosis of 29 May 2008. Her symptoms had recently worsened.
The applicant attended on 29 June 2015 and said she had a problem with her right wrist/hand. She had tingling, numbness and pain in her right ring finger.
The applicant was referred to Dr Al-Khawaja and “in his report she informed him that she was employed at a disability support centre and that repetitive hand movements caused her these symptoms, mainly when driving and cooking”. Dr Al-Khawaja performed right carpal tunnel decompression, and she suffered exacerbation of symptoms on 16 August 2016.
On 8 October 2019, the applicant sustained the injury to her right shoulder at work.
Dr Obeidullah opined that the history given for all three injuries was consistent with the diagnoses.
The diagnosis for both the right and left wrists was severe median neuropathy. In the right shoulder, the applicant had partial thickness tear and tendinitis of the supraspinatus tendon; subacromial and subdeltoid bursitis with evidence of right side impingement, and mild to moderate synovial sheath effusion surrounding the mildly thickened biceps tendon, in keeping with tenosynovitis.
Dr Obeidullah opined that the repetitive nature of the applicant’s duties was the cause of the condition diagnosed. She found the pain worse in her wrists when driving and cooking. She had sustained injury as defined by s 4 of the 1987 Act with respect to all three injuries.
Dr Obeidullah also opined that the applicant’s employment was a substantial contributing factor to her injuries. Repetitive movements, especially driving and cooking, were the cause of her right and left wrist CTS. The high reaching to dust caused her right shoulder injury on 8 October 2019, and repetitive movements are a known cause for this type of shoulder injury. The applicant’s duties consisted of several repetitive movements.
The applicant’s right wrist injury of 16 August 2016 was an exacerbation of the previous injury in June 2015. Employment was the main contributing factor.
Dr Obeidullah opined that the applicant had suffered a “disease injury”, an aggravation of a pre-existing disease, or the aggravation, acceleration, exacerbation or deterioration of a disease. Her employment was the main contributing factor. The specific duties were all repetitive movements - pulling/pushing, high level dusting, driving, cooking, cleaning, dressing clients, and lifting.
Dr Obeidullah accepted complaints made by the applicant from 2004 with regard to her injuries as related to the nature and conditions of her employment.
The applicant was certified unfit for pre-injury duties. Dr Obeidullah opined that her injuries interfered with any ability for her to work. Her injuries to both wrists and right shoulder made it extremely difficult to undertake any employment without pain and the risk of further injury.

Dr M K Shaffi – neurologist and neurophysiologist

Dr Shaffi reported on 15 July 2005, having performed nerve conduction study (NCS). He opined that the NCS was consistent with moderate to severe CTS on the right.
On 29 May 2008, Dr Shaffi performed further NCS. He opined that there was severe median neuropathy at the wrists on both sides.
On 4 August 2011, Dr Shaffi performed further NCS. He opined that there was median neuropathy at the wrist on both sides, consistent with severe bilateral CTS.
Dr Shaffi reported to Dr Obeidullah on 17 August 2021. He recorded that the applicant had pain in her left shoulder, related to perhaps an injury after a fall a few months ago. She was attending physiotherapy.

Dr Angelo Peter Preketes – plastic, reconstructive and hand surgeon

Dr Preketes reported to Dr Obeidullah on 27 August 2008.
The applicant had presented with bilateral CTS. Dr Preketes believed it had been present for three years. NCS showed severe median neuropathy in both wrists.
At the applicant’s request, Dr Preketes had placed her on his waiting list at Nepean Public Hospital, to decompress her left carpal tunnel first, and three months after, her right hand.

Dr Darweesh Al-Khawaja – neurosurgeon

Dr Al-Khawaja reported to Dr Obeidullah on 30 July 2011.
The applicant had presented with neck pain, pain in both arms, and left leg pain. She had been having the symptoms for years. Her condition was getting worse. She was mainly concerned at that stage with arm pain. She was found to have carpal tunnel before and was booked for surgery, but it did not happen.
The applicant had a CT scan of her cervical spine, which showed multilevel degeneration.
Dr Al-Khawaja had referred the applicant for MRI of her lumbar and cervical spines, for a bone scan and a new NCS.
On 22 August 2011, Dr Al-Khawaja reported that he had reviewed the investigations. The applicant’s NCS confirmed severe bilateral CTS.
Dr Al-Khawaja advised the applicant to fix the carpal tunnel first. If she kept having arm pain, he may need to look at her neck and try to decompress the lateral recesses at C5/6 and C6/7. He did not think he could help with surgical intervention of her lumbar spine.
Dr Al-Khawaja had booked the applicant for carpal tunnel decompression, starting with the left side. There was a good chance for this to help her hand pain, but he could not guarantee it.
On 13 February 2012, Dr Al-Khawaja reported that the applicant had had her carpal tunnel decompressed. Her symptoms had improved significantly. She still felt her hand was weak, which was normal after such surgery.
Dr Al-Khawaja asked Dr Obeidullah to refer the applicant for left hand therapy. He had asked her to wait another two weeks, and she could go back to suitable duties, as long as she did not pull or push with her left arm. She wanted to wait a little for her right side.
On 2 April 2012, Dr Al-Khawaja reported that the applicant had 50% improvement with the carpal tunnel decompression. She was still annoyed with left-sided neck pain going to the left axilla and sometimes the arm. She wanted to wait on her right carpal tunnel until the strength came back to her left arm.
Dr Al-Khawaja had referred the applicant for left C6 and C7 nerve root injection.
On 20 July 2015, Dr Al-Khawaja reported that the applicant had presented with right hand pain and right C8 paraesthesia.
Ms Connell was put on the waiting list for right carpal tunnel decompression at Nepean Public Hospital, and Dr Al-Khawaja would perform the procedure as soon as he could.
Dr Al-Khawaja reported on 3 September 2016.
The applicant had undergone carpal tunnel surgery. She reported significant improvement, and a bit of tingling in the middle fingers. Dr Al-Khawaja had assured this would go with time.
Dr Al-Khawaja asked the applicant not to work for the next two weeks. She could then resume work.
On 28 June 2017, Dr Al-Khawaja reported that the applicant was concerned about constant tingling of the left side, starting from the gluteal area, and reaching the knee. She had some episodes of pins and needles in both hands. Her neck was still giving her some problems but was not as bad as it was before.
The applicant’s condition had improved after surgery for both CTS. She had been working in a disability support centre, doing repetitive hand movements, mainly when driving and cooking, and she felt this was when her hand problems started.
Dr Al-Khawaja opined that “this has caused a major impact on Ms Connell’s hand symptoms giving her the carpal tunnel syndrome”. He had referred her for MRI of her cervical and lumbar spine.
On 19 November 2020, Dr Al-Khawaja reported that the applicant was annoyed with tingling in the front of her thighs. She did not have much axial spinal pain.
MRI of the cervical spine showed a step at C3/C4 and reverse lordosis. The applicant had significant disc and facet joint pathology, causing spondylosis that extended from C3 to C7. MRI of the thoracic spine showed disc injuries extending from C5 to C7 with no cord compression.

Dr Al-Khawaja opined that because the applicant did not have a lot of axial pain, she did not need any surgical treatment for her spine at that stage.
The applicant’s solicitors wrote to Dr Al-Khawaja on 23 February 2023. They requested a report that addressed, among other matters, causation of her condition; whether she had sustained an “injury” as defined in s 4 of the 1987 Act, including a “disease injury”; whether she had sustained any consequential injuries [sic: conditions]; whether the necessity for surgery arose from injuries sustained at work and was “reasonable and necessary” [sic]; incapacity for work after the surgeries; and whether he agreed with the opinions of
Drs Whittaker and Nair.
The applicant’s solicitors advised that Independent Review Office (IRO) approved funding for the report was $643.10 plus GST (goods and services tax).
There is then correspondence advising that Dr Al-Khawaja would charge $2,200 for a report, would not drop his fees, and did not abide by IRO rates.
The applicant’s solicitors cancelled their request for a report. As Dr Al-Khawaja had not provided reasons as to why a higher fee was warranted, IRO would not approve it.

Dr Ross Whittaker – rheumatologist

Dr Whittaker was qualified by the respondent and reported on 29 February 2012.
Dr Whittaker recorded a history that the applicant worked in one of three residences, with six to eight residents in each house. They were adults, who were not physically dependent but had Down syndrome, mild autism, and other intellectual disabilities.
The applicant’s duties included general supervision, assisting with showering, preparing meals, and taking residents to and from appointments, work, on outings and to other social activities.
The applicant developed her first symptoms of right CTS in late 2007. They progressed and she developed similar, but less pronounced, symptoms on the left.
The applicant consulted Dr Obeidullah and was referred to Dr Shaffi.
Dr Preketes recommended bilateral CTS decompression surgery, first on the left. The applicant was booked at Nepean Hospital and later at Mount Druitt Hospital, but each surgery was cancelled.
The applicant had had no further investigations or treatment. She took analgesics as required. Her symptoms then improved, possibly as a result of 15kg weight loss.
The applicant’s symptoms had worsened over the last eight months or so. Her weight had increased over this period. She also developed neck pain. She was referred to Dr Al-Khawaja.
The applicant re-submitted a claim on 3 January 2012. Dr Al-Khawaja recommended left, then right, carpal tunnel decompression surgery.
The applicant had left carpal tunnel surgery on 24 January 2012. She had been off work since. She had had hand therapy. She had a good outcome. Her pins and needles had resolved. Her left [sic: right] carpal tunnel surgery had not yet been booked.
Dr Whittaker recorded that the applicant’s left carpal tunnel symptoms had resolved. Her left hand was still a little weak. Her wound had nearly healed. There had been some pain at the base of the thumb.
The applicant’s right carpal tunnel symptoms continued to wake her up to two to three times per night. There was numbness and pain overnight and pins and needles first thing in the morning. Her hand felt slightly weak. There were some osteoarthritic changes around the base of the thumb and in other joints, which were not very symptomatic.
The applicant also had some neck pain, more pronounced on the left. A CT scan demonstrated multi-level degenerative change.
Dr Whittaker concluded that the applicant had developed bilateral CTS from approximately late 2007 onwards. She had had a good outcome from left carpal tunnel release. She had some early osteoarthritis in the left base of the thumb and the left second DIPJ (distal interphalangeal joint), which may cause some future symptoms.
Dr Whittaker opined that the applicant’s right CTS required decompression.
The applicant’s risk factors for developing CTS included gender, age, post-menopausal status, weight, base of thumb osteoarthritis, smoking, and drinking. Dr Whittaker opined that Ms Connell’s bilateral CTS was unrelated to her employment as a DSP.
Dr Whittaker opined that the applicant’s neck pain was due to degenerative cervical spine disease. This was constitutional, and often rendered symptomatic in women of her age group. It was unrelated to her employment.
Dr Whittaker concluded there was no workplace injury. The applicant’s employment was not a substantial contributing factor to the diagnosed conditions. There was no relationship between her work duties and her present condition.
The applicant was fit to return to her normal duties once she had recovered from surgery. She would require a further short period off work following right carpal tunnel surgery. She should then be fit to resume her normal duties. Following that surgery, most of the symptoms in her right hand should settle.

Dr Warren Kuo – orthopaedic surgeon

Dr Kuo reported to Dr Obeidullah on 9 December 2019.
Dr Kuo recorded a history that the applicant injured her right shoulder on 8 October 2019. She had pain at night and felt her shoulder was stiffer and weaker. She had not been able to return to work as there were no suitable light duties.
Dr Kuo opined that the applicant had sustained a right rotator cuff tear. He felt she would benefit from a right shoulder arthroscopy and rotator cuff/biceps repair.
The surgery was performed by Dr Kuo at Nepean Private Hospital on 19 February 2020.
Dr Kuo reviewed the applicant regularly after the surgery.
On 24 August 2020, Dr Kuo reported that the applicant continued to make progress. She was handling packing and processing work in the factory, which was not putting significant strain on her shoulder.
On 27 October 2020, Dr Kuo reported that the applicant had been discharged from physiotherapy. She had regained excellent range of movement and power, without pain. He had discharged her from his care.

BodyAid Total Body Healthcare

On 13 August 2021, Mr Streeter recorded left shoulder pain two weeks ago. He noted “Had a fall 3-4 months ago – could’ve been the catalyst. Pain comes and goes”. The applicant had pain on the lateral arm over the deltoid. She had no neck pain and “No previous shoulder injuries”.
On 31 August 2021, Mr Streeter recorded that there was 40% improvement of the applicant’s left shoulder pain. Her movement had improved, “more fluent”.
On 3 September 2021, Mr Streeter recorded that the applicant’s shoulder “hasn’t been too bad.”
On 10 September 2021, Mr Streeter recorded “shoulder feeling better”. The applicant was “happy to pay privately next sessions.”
On 24 September 2021, Mr Streeter recorded that “shoulder still feeling good. Been doing exercises.”

Dr Medhat Guirgis – orthopaedic surgeon

Dr Guirgis was qualified by the applicant and reported first on 12 April 2022.
Dr Guirgis recorded a history that the applicant was involved in physically demanding activities while employed by the respondent from about 24 February 2003 until
11 October 2020.
The duties recorded by Dr Guirgis were in accordance with the applicant’s statement evidence. He noted that she worked full time for a few years, after which she worked part time, 24 hour shifts in three day blocks.
From about November 2004, the applicant noticed episodic pain in her hands, associated with pins and needles in her fingers. Electro conduction studies revealed evidence of moderately severe median neuropathy in the right carpal tunnel. She tried to continue working, but over-compensating with her left arm.
The situation in both the applicant’s hands worsened, and she had surgery on the left carpal tunnel on 24 January 2012. There was improvement in the pins and needles and dysesthesia but no noticeable improvement in grip strength.
In about 2018, the applicant started noticing pain, clicking, and stiffness in her right and left shoulders. Investigations revealed evidence of partial thickness tear of the rotator cuff. She “again did not bother much initially”.
On 8 October 2019, the applicant had severe pain in her right shoulder while reaching to dust. Dr Kuo operated on her shoulder on 19 February 2020. The initial response was favourable, but since then she continued to complain of pain, tightness, and loss of strength in the right shoulder. She continued to complain of similar symptoms in her left shoulder, which steadily worsened to be more than the right.
After the applicant’s right shoulder surgery, she was provided with “suitable duties”, working from about 23 June 2020 to 11 October 2020, three days per week, four hours per day, including packing syringes and assembling small electrical parts/items and boxes.
Over the years of her employment, the applicant also suffered episodic neck pain and stiffness, with radiation to the right, more than left, shoulder, and top of the right, more than left, shoulder blades. She also continued to complain of episodic mid-back pain, mainly between the shoulder blades; and recurrence and aggravation of pain and stiffness in her lower back, dating back to an earlier injury.
Dr Guirgis opined that the nature and conditions of the applicant’s employment with Thorndale “played a significant factor” in the development and aggravation of the entrapment of the median nerves in the carpal tunnels. Surgical decompression would aim to prevent further nerve damage and help improve nerve function.
Dr Guirgis opined that each carpal tunnel release surgery was “reasonable and necessary” to limit further damage to the entrapped median nerves. The current residual symptoms and signs were caused by intra-neural scarring rather than external compression.
As regards the applicant’s cervical and thoracic spines, and aggravation of her lumbar spine, Dr Guirgis opined that the nature and conditions of her employment with Thorndale “played a significant factor” in triggering the symptoms, accelerating the progress, and aggravating the effects of the developing degenerative changes associated with getting older.
The applicant’s physically demanding work-related activities would have caused chronic cumulative micro-sprain/strain of the musculoligamentous structure of the spine as a result of the combined effects of dynamic and static overloading of the involved soft tissue structures.
Dr Guirgis opined that the injury process would not need to be associated with very high magnitudes of loads, but rather relatively low loads that were repeated or sustained.
Dr Guirgis referred to the investigations of the applicant’s cervical spine, sacrococcygeal area, lumbar spine, hips, shoulders, and left knee. He was not confident in opining that the nature and conditions of her employment caused significant input into the developing changes in her hips and knees. She had signs and symptoms of rotator cuff syndrome caused by excessive loading that gradually, but progressively, reduced the static and dynamic stabilisers of the shoulder joints, with ultimate tissue fatigue failure tolerance. The muscles would then fail to fully stabilise the joint.
If the head of the humerus was not kept in place against the glenoid, abnormal forces would be placed upon the tissues surrounding the joint, resulting in tendonitis and bursitis. The result of the inflammatory response would be scarring in the subacromial space, which would result in narrowing of the space between the rotator cuff and the coracoacromial arch above it, leading to subacromial impingement.
The applicant’s response to the right shoulder surgery performed by Dr Kuo was favourable for pain, but she still suffered residual complaints of stiffness and loss of strength.
The applicant had a steroid injection in her left shoulder on 4 September 2018, with limited response, and she was looking forward to having a similar arthroscopy on her left shoulder. Dr Guirgis recommended this as reasonable and necessary.
Dr Guirgis opined that employment was a substantial contributing factor to the injuries in the applicant’s wrists (CTS), shoulders (rotator cuff syndrome) and spine, and these injuries were a substantial contributing factor to the symptoms, signs, incapacities, and disabilities.
Dr Guirgis assessed the applicant with 16% WPI as a result of injury to her right upper extremity (right wrist and right shoulder); 19% WPI as a result of injury to her left upper extremity (left wrist and left shoulder); and 6% WPI as a result of injury to her cervical spine. He did not assess any WPI as a result of injury to her lumbar spine. The combined assessment was 35% WPI.
If the applicant’s shoulders were assessed separately, because she had reported her symptoms on different dates, Dr Guirgis assessed 8% WPI as a result of injury to her right upper extremity (right CTS); 8% WPI as a result of injury to her left upper extremity (left CTS); 6% WPI as a result of injury to her cervical spine; and 0% WPI as a result of injury to her lumbar spine, a combined total of 20% WPI.
The applicant’s WPI as a result of injury to her right upper extremity (right shoulder) was assessed as 10%; and as a result of injury to her left upper extremity (left shoulder) as 12%, a combined total of 21%.
Dr Guirgis provided a supplementary report dated 15 May 2023, having been asked to comment on the evidence of Drs Whittaker and Nair.
Dr Guirgis disagreed with Dr Whittaker. He was “quite aware of the discussion about the role of occupational and non-occupational risk factors” in the development of CTS.
The risk of developing CTS appeared to be associated, at least in part, with several different epidemiological factors, including genetic, medical, social, vocational, non-vocational, and demographic factors.
Dr Guirgis opined that a complex interaction probably existed between some or all of these factors. Descriptions of occupational hand/wrist diseases, for example, “writer’s cramp”, “telegraphist’s cramp” and “tailor’s cramp” had appeared in medical literature in the early 1900s. They included signs and symptoms that would now be recognised as CTS.
Dr Guirgis reported that the current consensus is that occupational risk factors play a significant role in the development of CTS. The occupational risk factors in this case included highly repetitive work, bent wrist postures, extended duration of effort, and exposure to vibrations.
Dr Guirgis also disagreed with Dr Nair.
“For the collagen-based soft tissues of the neck and shoulder”, Dr Guirgis referred to the “Envelope of Function” (Envelope) principles. This describes a range of loading/energy absorption that is compatible with tissue homeostasis of an entire joint system, that is, being compatible with the mechanisms of deformation and maintenance of the normal collagen based tissues. Loads that exceed the Envelope, but are insufficient to cause a macrostructural failure, are termed the zone of supra-physiological overload.
Dr Guirgis opined that, if sufficiently prolonged, supra-physiological loading placed across the patellofemoral system, macrostructural failure can occur, with the onset of symptoms and signs of chondromalacia patellae, “as what happened in the above case”.
I point out here that the applicant does not claim to have sustained injury to either knee, and chondromalacia patellae is irrelevant.
Dr Guirgis went on to say that “of course, the underlying age-appropriate catabolic changes were pre-existing” and would reduce the Envelope. Abnormal stress-loading, over a long period, to a degenerated spine, finds less compressibility in the disc, less reversible distortion of the disc, ligaments much less resilient, and foramina already narrowed to the point of a smaller margin of safety. The pre-existence of degeneration had been quiescent and in the subclinical state, in that no symptoms were noted.
Dr Guirgis opined that the “cumulative traumatic cascade caused that adaptation to be overwhelmed and symptoms thus resulted”. If the compensatory equilibrium was tenuous, a microtraumatic stress would have great repercussions, as happened with the applicant.
Dr Guirgis agreed that the applicant’s employment and duties were the main contributing factor to the injury and/or disease.
Dr Guirgis opined that DSPs are exposed to demanding, challenging, and even abusive behaviours on a frequent to constant basis. Such exposure to physically demanding activities would lead to working in an environment “way outside” the expected Envelope. The requirements to [sic] repetitive and stressful use of the wrists and hands and its role in CTS had been discussed in his report.

Dr Anil Nair – orthopaedic surgeon

Dr Nair was qualified by the respondent and reported on 29 August 2022.
Dr Nair recorded a history that the applicant’s duties with Thorndale were assisting with personal care.
The applicant had developed symptoms in both hands in or around late 2004, and CTS was diagnosed. She underwent bilateral carpal tunnel decompression surgery by Dr Al-Khawaja.
Dr Nair recorded that in 2018, the applicant noticed pain and stiffness in both shoulders, which she attributed to her duties, including cleaning overhead. She underwent surgery to her right shoulder on 19 February 2020. She continued to have pain and stiffness in both shoulders.
The applicant stated that she had longstanding symptoms in her cervical and lumbar spine, which she attributed to her workplace activities.
Dr Nair opined that the applicant’s right shoulder condition was more likely related to the nature and conditions of her employment, as opposed to an actual work-related injury. The bilateral CTS, cervical condition, and left shoulder conditions were due to an intrinsic tendency towards degeneration, as opposed to the nature and conditions of employment.
The applicant had generalised arthritis, as evidenced by a bone scan dated 23 April 2021.
Dr Nair opined that she would only be able to perform light office duties on a full-time basis, although he noted she had predominantly worked in aged care.
Dr Nair opined that, based on the evidence, the only condition that was work-related was the applicant’s right shoulder condition. He assessed 10% WPI as a result of that injury. The stiffness in her shoulder was almost certainly due to both the nature and conditions of her work, as well as post-operative.

SUBMISSIONS

The parties have provided written submissions, to which I will refer briefly.

Applicant

In support of her claim to have sustained bilateral CTS, the applicant referred to her evidence of the duties she performed, and the job analysis. She submitted there was quite a deal of repetitive work, involving use of the arms and hands, shoulders and neck.
The applicant submitted that the respondent did not dispute that she performed repetitive work with her hands, as set out in her statement.
The applicant noted that, although Dr Al-Khawaja treated her CTS, neck, and left shoulder, there was no report from him regarding causation. She submitted that there is evidence that her solicitors requested a report, but he proposed to charge a fee of $2,200, which he was not prepared to reduce. No adverse inference should therefore be drawn from the absence of a medico-legal report from him. However, he has provided treating medical reports.
The applicant referred to Dr Obeidullah’s report to EML dated 25 January 2012, and his opinion as to causation; and his report to her solicitors dated 14 May 2023, which confirmed his opinion.
The applicant also referred to the first and second claim forms. She submitted that, again, the respondent had not disputed the nature and conditions of her employment, as stated in the claim forms, and accepted by the doctors who had seen and treated her.
The applicant relied on the opinion of Dr Guirgis. She referred to his report.
The applicant noted that the respondent relied on the opinion of Dr Whittaker and referred to the history he recorded. Dr Whittaker reported that her symptoms, examination, findings, and NCSs were consistent with the diagnosis of CTS. She submitted Dr Whittaker did not appear to be aware that her symptoms started prior to 2007, and she had neurophysiological studies on 15 July 2005, confirming moderate to severe right CTS.

The applicant submitted that Dr Whittaker had not considered whether the repetitive duties she performed caused and/or aggravated her CTS. He did not obtain details of the more extensive and repetitive nature of her duties.
The applicant submitted that Dr Nair also did not consider the repetitive and heavy nature of her employment, and the effect those duties had on the cause and/or aggravation of her bilateral CTS.
The applicant submitted that Dr Guirgis was aware of the discussion about the role of occupational and non-occupational risk factors in the development of CTS. She relied on his opinion.
The applicant submitted that the Commission would accept Dr Guirgis’ opinion rather than those of Drs Whittaker and/or Nair. He had properly set out details of her physical activities and analysed the effect of the work she performed and the conditions under which it was performed. He had given extensive reasons for his conclusion, whereas neither Dr Whittaker nor Dr Nair had given reasons for concluding that the condition was not related to her employment. Neither considered whether the duties had any bearing on the condition.
The applicant relied on the decision in Perry v Tanine Pty Ltd t/as Ermington Hotel & Ors.[1] She submitted that Burke CCJ’s reasoning has been applied in numerous decisions in the Commission and the Workers Compensation Commission.
[1] [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry).
In respect of “main contributing factor”, the applicant relied on the decision in AV v AW.[2]
[2] [2020] NSWWCCPD 9.
The applicant submitted that Dr Nair did not deal with whether her employment was the main contributing factor to the contraction and/or aggravation, acceleration, exacerbation or deterioration of her bilateral CTS or any injury to her left shoulder and/or cervical spine.
Dr Whittaker, although he saw her very early, opined that her employment was not a substantial contributing factor, but provided no analysis or reasons.
In respect of whether the surgery to the right and left carpal tunnels was reasonably necessary, the applicant submitted that Dr Guirgis opined that it was, to limit further intra-neural damage to the entrapped median nerves.
The applicant submitted that the fact that she returned to her usual duties following her recovery from bilateral surgeries was a further indication that they were reasonably necessary. As to whether they were reasonably necessary as a result of the injury, she relied on Dr Guirgis’ opinion.
The applicant submitted that neither Dr Whittaker nor Dr Nair considered whether the bilateral surgery was reasonably necessary as a result of the injury. Their opinions are based on their conclusion that the bilateral CTS was not work related.
The applicant submitted that, in any event, she had only to establish, applying the common sense test of causation,[3] that the treatment was reasonably necessary as a result of the injury. That is, she had to establish that the injury materially contributed to the need for surgery.[4] The work injury does not have to be the only, or even a substantial, cause of the need for the treatment before its cost is recoverable under s 60 of the 1987 Act.
[3] Kooragang v Bates (1994) 35 NSWLR 452.
[4] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
As regards the claim for weekly compensation, the applicant submitted that the periods for which it is claimed were periods during which she was off work and certified totally unfit for work, following each operation. There are COCs covering the periods.
As regards the claim in respect of her cervical spine and left shoulder, the applicant submitted that she started to complain about pain in her neck on about 8 May 2008 and her left shoulder in about March 2012. On 16 March 2012, she was seen by Dr Habib and given interferential treatment to her shoulder.
The applicant submitted she complained to Dr Al-Khawaja of, inter alia, neck pain on
30 July 2011, having had these symptoms for years. He noted her complaints and the CT scan of her cervical spine. He continued to see and review her but had not provided an opinion on causation.
In respect of her left shoulder and cervical spine, the applicant referred to the history recorded by Dr Guirgis, and his opinion, on which she relied. She submitted the process he described was consistent with the description by Burke CCJ in Perry.
The applicant submitted that Dr Whittaker did not consider the effect of the nature and conditions of her employment on her degenerative cervical spine disease, and therefore whether they had in fact aggravated her disease.
The applicant submitted that Dr Nair also did not consider the effect of the repetitive and heavy nature of her employment on the causation and/or aggravation of her left shoulder and cervical spine conditions.
The applicant submitted the Commission would have no difficulty accepting the evidence of Dr Guirgis in respect of causation of her left shoulder and neck (injury) rather than that of
Drs Whittaker and/or Nair, in particular because their opinions are devoid of analysis of her employment and the effect it may have had on the condition of her left shoulder and neck.
The applicant submitted the Commission would feel an actual sense of persuasion[5] that she had suffered bilateral CTS, together with injuries to her neck and left shoulder, as a result of the nature and conditions of her employment. In the alternative, it would be satisfied she had suffered an aggravation “etc” of these conditions as a result of the nature and conditions of employment, in accordance with s 4(b)(ii) of the 1987 Act.
[5] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The applicant submitted she would therefore be entitled to an award of weekly benefits in accordance with the calculations she provided, and a general order for s 60 expenses, including the costs of and incidental to bilateral carpal tunnel surgery.
The applicant calculated the weekly benefits to which she was entitled as follows:
(a) $1,008.03 per week ($1,061.08 x 95%) from 24 January 2012 to 14 April 2012, pursuant to s 36 of the 1987 Act;
(b) $1,008.03 per week ($1,061.08 x 95%) from 16 August 2016 to 27 August 2016, pursuant to s 36 of the 1987 Act, and
(c) $848.86 per week ($1,061.08 x 80%) from 28 August 2016 to 31 October 2016, pursuant to s 37 of the 1987 Act.
The applicant finally submitted that the matter ought to be remitted to the President for referral to a Medical Assessor to assess WPI, with the date of injury of 11 October 2020, as follows:
(a)      right upper extremity (hand/wrist and shoulder);
(b)     left upper extremity (hand/wrist and shoulder), and
(c)      cervical spine.
In reply to the respondent, the applicant submitted that there is evidence that she was being treated in respect of her left shoulder as early as 16 March 2012.
The applicant submitted that the decisive issue is whether she suffered injury inter alia to her left shoulder as a result of the nature and conditions of her employment. She relied on her submissions.
The applicant submitted that the respondent’s submission as to the reason she did not tell
Mr Streeter about her right shoulder injury is pure speculation. As injury to her right shoulder had been accepted, the submission was unnecessary.
The applicant submitted that, as the respondent had not contested her version of what the nature and conditions of her employment involved, it was inappropriate to submit that the type of work she did was not “highly repetitive”, as recorded by Dr Guirgis.
The applicant submitted that the respondent’s criticism of Dr Guirgis’ evidence was unfounded. She had made other complaints, for example about her back, and he ascribed no impairment to these conditions.
The applicant submitted that it is not unusual for treating doctors not to provide an opinion regarding causation of a worker’s injury and/or condition; and they are much more interested in treating the patient. It was therefore not appropriate to infer that the treating specialists “did not conclude there was any relationship with the employment”, as submitted by the respondent. There was an explanation for the absence of a medico-legal report from Dr Al- Khawaja.
The applicant submitted that Dr Whittaker noted that she had a good outcome following left carpal tunnel decompression, which was contrary to the respondent’s submission. Dr Whittaker also opined that her right carpal tunnel required decompression but was of the view that bilateral CTS was unrelated to her employment.
The applicant submitted that Dr Nair has provided only one report. Nowhere did he consider that the surgery was not reasonably necessary as a result of injury. His opinion that further treatment would not be of predictable benefit cannot be in respect of the surgery, as she had had the surgery well before he provided his report.
In respect of the respondent’s submission regarding the application of s 52 of the 1987 Act, the applicant submitted that she had already reached retirement age in 2013, and therefore
s 52(b) of the 1987 Act applied.
The applicant submitted that, for the purposes of the right carpal tunnel decompression, the first date of incapacity was the date of the operation, that is 16 August 2016. The date of injury was therefore deemed to have occurred on 16 August 2016, in accordance with Alto Ford Pty Ltd v Antaw[6] and Stone v Stannard Brothers Launch Services Pty Ltd.[7] She was therefore entitled to the weekly compensation claimed in the Application.
[6] [1999] NSWCA 234 (Antaw).
[7] [2004] NSWCA 277 (Stone).
That submission differs from the initial submission that the applicant was entitled to the weekly benefits calculated as above.

Respondent

The respondent referred to the dispute notices.
The respondent submitted that the first report of left shoulder symptoms was in a report by Mr Streeter in August 2021.
The respondent submitted that the applicant’s undated statement (which is in fact dated
4 November 2022), had been compiled to the best of her recollection. It submitted her duties with her former employers would have been arduous and imposed a heavy toll on her.
The respondent submitted that it “is instructive to note” the applicant performed physical and arduous work from the time she left school until she commenced work with the respondent. At that time, she was 55, “no doubt with all of the attendant features of a hard-working life.”
The respondent submitted that the applicant had failed in her evidence to contend with
Dr Shaffi’s evidence of 17 August 2021.
The respondent conceded that it had not disputed the nature and conditions of the applicant’s employment, as stated by her in the claim forms and accepted by the doctors, but submitted that was not the decisive issue.
The respondent referred to the medical evidence, including investigations. It submitted that the decisive question was whether the nature of the applicant’s duties was sufficient to be described as repetitive adequately enough to cause the symptoms.
The respondent referred to Mr Streeter’s notation dated 13 August 2021, and submitted that it was apparent that any left shoulder condition was due to the fall. It was also “interesting” that the applicant did not tell Mr Streeter about her right shoulder injury, perhaps because she viewed it as another constitutionally based ailment.
The respondent also referred to Dr Shaffi’s report dated 17 August 2021 in which he recorded that the applicant’s left shoulder pain was perhaps related to an injury after a fall a few months ago.
The respondent referred to Dr Whittaker’s evidence, and that of Dr Al-Khawaja.
The respondent submitted that the concession by Dr Guirgis that CTS involves a complex interaction of factors was an important one. The applicant needed to establish that employment was the main contributing factor to an aggravation, which was not conceded. The respondent also referred to the decision of Deputy President Snell in AV v AW.
The respondent submitted that Dr Guirgis’ evidence was a “post-facto” reconstruction. He did not deal with the fall and there was no evidence to substantiate a left shoulder injury. It submitted that the type of work done by the applicant was not “highly repetitive”.
The respondent submitted that Dr Guirgis unreasonably tried to ascribe injuries to the thoracic spine and lumbar spine to the applicant’s employment. He was eager to ascribe every ailment, including those not uttered by the applicant, to her employment. His reports should be read in that light, and caution exercised.
The respondent submitted that, when the extensive history of the applicant’s prior employment was viewed, Dr Nair’s opinion would be viewed as plausible.
The respondent further submitted that the evidence of contemporaneous complaint regarding work having caused aggravation was “rather anaemic”.
It was also instructive to examine whether the nature of the employment was sufficient to be causative of an aggravation of the disease process or injury per se. The respondent referred to the decision of President Judge Keating in Department of Education and Training v Ireland.[8]
[8] [2008] NSWWCCPD 134.
The respondent submitted that, in Ashley v Secretary, Department of Justice[9], the evidence that collectively assists when determining causation and injury was identified.
[9] [2018] NSWWCC 131.
The respondent submitted that Dr Al-Khawaja did not provide any view on causation.
Dr Obeidullah acknowledged a relationship between the bilateral CTS and work in 2012, but the balance of the contemporaneous medical evidence was “anaemic.” That limitation did not satisfy the test of actual persuasion.
The respondent categorically disputed that employment “played any factor in any aggravation, which is denied”.
Liability for injury to the applicant’s right shoulder was not in issue.
With respect to the applicant’s left shoulder claim, the respondent referred to the history obtained by Dr Guirgis of symptoms in 2012. There was no discernible account of the applicant reporting any such injury until she was treated by Mr Streeter in August 2021 following a non-work related “fall 3-4 months ago”, for which she underwent X-ray and ultrasound on 3 August 2021.
The respondent submitted that the applicant did not satisfy the onus for injury to the left shoulder.
The respondent submitted that the applicant had widespread degenerative changes in her neck. Both Dr Whittaker and Dr Nair were unable to associate these conditions with her employment. Other than Dr Guirgis, no other practitioner commented that the cervical spine had been injured or aggravated in the course of employment.
The respondent did not dispute that the applicant had suffered from CTS that required surgical release on both the left and right wrists. It submitted that the only evidence that supported a connection between employment and the CTS was from Drs Obeidullah and Guirgis.
The respondent submitted that none of the treating surgeons has provided an opinion in relation to causation of the carpal tunnel condition, from which it could be inferred that they did not conclude there was any relationship with employment.
The respondent referred to the decision of Arbitrator Minus in Alva Wallace v TAB Ltd,[10] in which he found that CTS was primarily a constitutional condition, which could also be due to work factors.
[10] (WCC 2728-05) (Wallace).
The respondent also referred to the decision in Kylie Hosking v South Meats Pty Ltd,[11] in which the Workers Compensation Commission was swayed by the opinion of the treating hand surgeon, who confirmed the applicant’s work was “very difficult and strenuous” and “consistent with the aggravation of the disease of carpal tunnel syndrome”.
[11] (WCC 7984-2006) (Hosking).
The respondent submitted that Dr Obeidullah did not amplify upon the vague description that the applicant’s duties required repetitive movement of the wrists. Dr Whittaker provided a more detailed description of the work.
The respondent submitted that the applicant’s statement did not indicate she was engaged in the kind of work identified as causative of CTS in either Wallace or Hosking. It is not the type of work to which could be ascribed references such as those noted by Dr Guirgis.
The respondent submitted that Dr Guirgis proved its point that repetitive and demanding micro-work is more likely to cause CTS than the work the applicant performed.
The respondent submitted there was little factual evidence upon which to base an assessment of the applicant's duties. There was no evidence from her treating surgeons of her performing repetitive strenuous movements with her hands and wrists that might lead to the aggravation of the carpal tunnel condition.
As regards the reasonable necessity of the surgery, the respondent submitted that the applicant had to establish that the injury materially contributed to the need for surgery. It did not have to be the only, or even a substantial, cause of the need for treatment before its cost is recoverable under s 60 of the 1987 Act.
The respondent submitted that Drs Whittaker and Nair did not consider that the surgery was reasonably necessary as a result of injury. Dr Nair stated that further treatment would not be of predictable benefit. Dr Whittaker in 2012 considered the applicant’s condition should settle after surgery. That did not happen, which supported the proposition that she had a constitutional issue with the syndrome, which was what Dr Whittaker had concluded.
The respondent submitted that the evidence, including that of Dr Guirgis, did not adequately deal with the argument as to whether the need to decompress the carpal tunnels was reasonably necessary as a result of any symptomatic aggravation of the condition, if an aggravation was found.
The respondent submitted that the onus was on the applicant to prove the entitlement. Having regard to the settled authorities in relation to proposed surgery (see Rose, Diab, Bartolo),[12] it was clear that the question had not been adequately addressed. It submitted no order ought to be made in relation to medical expenses.
[12] Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32; Diab v NRMA Ltd [2014] NSWWCCPD 72; and Bartolo v Western Sydney Area Health Service [1997] NSWWCC 1; 14 NSWCCR 233.
As regards the claim for weekly compensation, the respondent submitted that the PIAWE was agreed at $1,061.08. If the claim in respect of CTS was successful, it would follow that the claims for weekly compensation and medical expenses would be determined in the applicant’s favour.
The respondent submitted that the second procedure occurred in 2016, when the applicant was 68. Her retiring age for the purpose of s 52 of the 1987 Act was 65 years. In accordance with s 52, an applicant has no entitlement to weekly compensation in the circumstances provided for in that section.
The respondent submitted that if the injury is found to have occurred in 2008, and no further aggravating factors were identified prior to the incapacity in 2016, it was arguable that the applicant had no entitlement to weekly compensation in 2016. If injury was found in 2016, she could have an entitlement up to the first anniversary of the incapacity. However, she returned to work on 30 October 2016, so the entitlement ceased as at that date.

SUMMARY

Injury

Section 4 of the 1987 Act defines injury as follows:
“‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, 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.”

The applicant in this matter relied on the “nature and conditions” of her employment, and in the alternative pleaded that she had sustained injury due to the aggravation, acceleration, exacerbation or deterioration of a disease. I will refer in these reasons to “aggravation” for convenience.

Carpal tunnel syndrome

In Perry, Burke CCJ said (at [48]):
“This concept of failure of some element of the body to cope with repetitive stress seems typical of carpal tunnel syndrome, many forms of rotator cuff lesion, problems of epicondylitis affecting elbows, tenosynovitis and a whole range of other problems affecting various joints, tendons, nerves and muscles of the body not infrequently presented to this Court in the industrial context.”
Burke CCJ went on to say (at [57]):
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
As the applicant submitted, Perry has been consistently applied in the Compensation Court, the Workers Compensation Commission, and the Commission.
I am satisfied that the applicant sustained bilateral CTS as a result of the nature and conditions of her employment. That injury is properly characterised as either the contraction or aggravation of a disease, as was the case in Perry.
The applicant has given uncontested evidence about the duties she performed for the respondent. The job analysis confirmed that some of the work was repetitive. I accept that she was engaged in repetitive tasks in the course of her employment with the respondent.
Dr Obeidullah, who has treated the applicant for many years, opined that her employment was “the substantial contributing factor” to her diagnosis, and that her duties involved repetitive wrist movements. He accepted that repetitive movements, especially driving and cooking, were the cause of her bilateral CTS.
Dr Obeidullah was well-placed to know the nature of the applicant’s duties. He opined that employment was the main contributing factor to the aggravation of a disease. While he is not a specialist, I believe some weight must be given to his evidence.
Dr Al-Khawaja has not provided a medico-legal report. I draw no adverse inference from that omission, which has in my view been adequately explained by the applicant’s evidence.
However, a review of Dr Al-Khawaja’s report dated 28 June 2017, shows that he in fact commented on causation.
Having recorded that the applicant felt her hand problems had started when she performed repetitive hand movements, Dr Al-Khawaja noted that this had caused a major impact on her hand symptoms, “giving her the carpal tunnel syndrome”. As I accept the evidence that the applicant’s work was repetitive, I accept Dr Al-Khawaja’s opinion.
The expression of opinion by Dr Al-Khawaja is also consistent with the notation in the GPs’ records on 3 July 2017 that the applicant had seen Dr Al-Khawaja and “confirm[ed]” that her work was responsible for her bilateral CTS.
The applicant also relied on the evidence of Dr Guirgis. He recorded a history of her duties that was consistent with her evidence.
Dr Guirgis was provided with the evidence of Drs Whittaker and Nair and explained why he disagreed with their conclusions. He appropriately acknowledged the factors that may contribute to the risk of developing CTS. He explained the occupational risk factors that applied to the applicant.
Neither Dr Whittaker nor Dr Nair recorded the detailed history of the applicant’s duties that was considered by Dr Guirgis. The history recorded by Dr Nair was limited to recording that her duties involved assisting residents with personal care. They involved considerably more than that. I therefore prefer the evidence of Dr Guirgis, supported as it is by that of
Drs Obeidullah and Al-Khawaja.
As CTS is a “disease injury”, the applicant must establish that her employment was the main contributing factor to either the contraction or aggravation of the disease.
After discussing the authorities, Deputy President Snell said in AV v AW (at [78]):
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I am satisfied that the applicant’s employment was the main contributing factor to either the contraction or aggravation of CTS.
Dr Whittaker has recorded the applicant’s other risk factors and opined that her CTS was not related to her employment. However, as I have noted, he did not record the detailed evidence of her duties obtained by Dr Guirgis or have the benefit of Dr Obeidullah’s long acquaintance with her.
Dr Nair did not opine on the issue of “main contributing factor” at all, although I believe it may be inferred from his evidence that he did not accept that employment was the main (or any) contributing factor to the applicant’s CTS.
Both Dr Obeidullah and Dr Guirgis opined that employment was the main contributing factor to the applicant’s CTS. Dr Al-Khawaja reported that repetitive hand movements had “giv[en] her” the CTS. I accept and prefer this evidence.

Injury to the left shoulder

I am not satisfied on the balance of probabilities that the applicant has sustained injury to her left shoulder.
I have set out above the references in the clinical records to the applicant’s complaints about her left shoulder. I am conscious that caution must be exercised in reliance on clinical records.[13]
[13] For example, see Mason v Demasi [2009] NSWCA 227, [2] per Basten JA.
Dr Habib recorded on 16 March 2012 that the applicant should discuss with Dr Obeidullah whether her left shoulder condition was work related.
Dr Obeidullah is supportive of the applicant but has not included injury to her left shoulder in any of the numerous COCs he has issued. He has not referred to any injury to her left shoulder in his report to her solicitors dated 14 May 2023. On the contrary, he has referred to “all three injuries”, and it is clear that he was referring to the bilateral CTS and the right shoulder injury.
There is also the evidence of both Dr Shaffi and Mr Streeter. Each recorded in August 2021 that the applicant had pain in her left shoulder that may have been related to a fall.
Mr Streeter recorded that the fall was three to four months ago and may have been the catalyst for pain. He also recorded that the applicant had no previous shoulder injuries. The applicant has given no evidence about a fall.
I am not persuaded by Dr Guirgis’ evidence regarding injury to the applicant’s left shoulder, given the lack of support from either her GP or her chiropractor, and that he has not recorded a history of a fall.
I assume that the reference in Dr Guirgis’ second report to chondromalacia patellae may have been caused by cutting and pasting part of another report. While it did not cause me to discount his opinion, I do not feel that his opinion as to injury to the left shoulder was as well reasoned or appropriately based on the evidence as his opinion on the applicant’s CTS.
The nature and conditions of the applicant’s employment were such that they could have caused injury to her left shoulder, but in my view there is insufficient evidence to accept that they did so.

Injury to the cervical spine

I am also not satisfied on the balance of probabilities that the applicant sustained injury to her cervical spine.
Once again, I have referred to the clinical records above. Some of the entries related to the applicant’s neck pre-date her employment with the respondent.
Dr Obeidullah has not provided any evidence in support of a claim for injury to the applicant’s cervical spine and has not included such an injury in any of the COCs he has issued.
While Dr Al-Khawaja has not provided a medico-legal report, he has also not opined in any of his reports that the applicant had sustained a work-related injury to her neck. His opinion that she had multi-level degeneration of her cervical spine is consistent with that of Dr Whittaker.
I am not persuaded by Dr Guirgis’ evidence with regard to injury to the applicant’s cervical spine. As is the case with the claim for injury to her left shoulder, I accept that the nature and conditions of the applicant’s employment could have caused injury to her cervical spine, but there is insufficient evidence to accept that they did so.

Weekly benefits

Section 52 of the 1987 Act provides as follows:

“52 Termination of weekly payments on retiring age

(cf former s 60A)
(1) In this section--

‘retiring age’ , in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.
(2) If a person--
(a) receives an injury before reaching the retiring age--a weekly payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the first anniversary of the date on which that person reaches the retiring age, or
(b) receives an injury on or after reaching the retiring age--a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury.
(3) This section has effect notwithstanding anything to the contrary in this Division.
(4) This section does not apply to injuries received before 30 June 1985.”

The applicant claimed weekly benefits in respect of two periods of incapacity, following each surgical procedure for CTS. I have determined that she has sustained bilateral CTS injury.
The respondent did not dispute that the applicant had no capacity for work during the two periods in respect of which she has claimed, and the PIAWE has been agreed.
The respondent submitted that in 2016 the applicant was 68, and her retiring age was 65. If the injury was found to have occurred in 2008, and there were no further aggravating factors prior to her incapacity in 2016, it could be argued that she had no entitlement to weekly compensation in 2016.
The applicant submitted that the deemed date of the injury in 2016 was the first date of incapacity, that is the date of the surgery. As she had already reached retirement age,
s 52(2)(b) of the 1987 Act applied.
There may be different deemed dates of injury, the first when the applicant was unable to work (for weekly compensation), and the second when a claim for lump sum compensation was made for that claim.
In Stone, Handley JA described Antaw as “authority for the proposition that s 16 may fix different dates for incapacity and impairment injuries.”
I accept the applicant’s submission that the deemed date of injury for the injury in 2016, in respect of the claim for weekly benefits, was the date of first incapacity, that is
16 August 2016. Section 52(2)(b) of the 1987 Act applies.
The applicant has made conflicting submissions as to the amount of weekly benefits payable in 2012 and 2016. The only submission made by the respondent related to the application of s 52 of the 1987 Act.
I will make an award in accordance with the applicant’s calculations and give the parties liberty to apply.

Medical expenses

Section 60 of the 1987 Act provides:

“60 Compensation for cost of medical or hospital treatment and rehabilitation etc

(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note : Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are--
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted--the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker's employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following--
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
‘appropriately qualified’ for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

I am satisfied that the applicant’s bilateral carpal tunnel surgery was reasonably necessary as a result of injury arising out or in the course of her employment.
Dr Al-Khawaja, the treating surgeon, opined that carpal tunnel decompression had a “good chance” of helping the applicant’s hand pain, but he could not guarantee it, and one would not expect him to do so. As Roche DP observed in Diab (at [89]):
“…bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
In any event, Dr Al-Khawaja’s evidence is that, after the surgery in 2012, the applicant’s symptoms improved significantly. She also reported significant improvement after the surgery in 2016. She returned to work after each procedure.
Dr Whittaker, while not accepting that the applicant’s CTS was related to her work, recorded that she had a good outcome from surgery in 2012, which was when he examined her. He opined that her right CTS required decompression, and that following that surgery, most of the symptoms in her right hand should settle. He therefore, in my view, supported the reasonable necessity of the surgery.
Dr Guirgis opined that each carpal tunnel release surgery was reasonable and necessary, which as Roche DP observed in Diab, is a more demanding test than the correct test of “reasonably necessary.”
Dr Nair opined that further treatment would not be of predictable benefit, but he has not provided an opinion as to the reasonable necessity of the surgery the applicant had already undergone. His opinion is therefore not of assistance in resolving this dispute.
In Diab, Roche DP, referring to Burke CCJ’s decision in Rose, said (at [88]) that the relevant matters, according to the criteria of reasonableness, included, but were not limited to:
(a)      the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)      the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)      the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Taking the above into account, the medical evidence suggests that the treatment was appropriate; the Application claims a total of $3,617.45, which is a modest amount, and the respondent does not submit otherwise; the treatment has been at least partially effective; and there is acceptance that it was appropriate and likely to be effective (as it has shown to be).
While the applicant submitted that she was entitled to a general order for s 60 expenses, the only claim made is that referred to above, for past medical expenses.
The applicant is entitled to an award pursuant to s 60 of the 1987 Act in accordance with the claim made in the Application, with the exception of any treatment for the cervical spine (her solicitors having made a claim for such treatment).

Claim for permanent impairment

The medical dispute will be referred to a Medical Assessor for assessment of permanent impairment as a result of injury to the right upper extremity (right shoulder, right hand and right wrist) and left upper extremity (left hand and wrist).

The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 536

13 October 2023