Dous v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dous v Blacktown City Council [2025] NSWPIC 374
APPLICANT:	Nagwa Dous
RESPONDENT:	Blacktown City Council
MEMBER:	Cameron Burge
DATE OF DECISION:	5 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses; claim for payment of bilateral carpal tunnel release; whether condition is a work-related injury; applicant suffers bilateral carpal tunnel syndrome which the parties agree requires surgical release; respondent denies liability for the costs of and incidental to the proposed surgery on the basis the condition is not work-related; Held – on a commonsense evaluation of the lay and material evidence the carpal tunnel syndrome is caused by the applicant’s employment; section 4(b)(i); Kooragang Cement Pty Ltd v Bates; the respondent is to pay the costs of and incidental to the bilateral carpal tunnel release.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury in the nature of bilateral carpal tunnel syndrome in the course of her employment with the respondent, with a deemed date of injury of 15 March 2024. 2. The bilateral carpal tunnel release proposed by A/Prof Smith is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of and incidental to the proposed bilateral carpal tunnel release. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nagwa Dous brings proceedings seeking payment by the respondent for the costs of and incidental to a bilateral carpal tunnel release.
The applicant was employed by Blacktown City Council (the respondent) as a full-time cook at a childcare centre, where she worked for approximately 17 years up to her deemed date of alleged injury of 15 March 2024. She alleges the nature and condition of her employment caused her carpal tunnel syndrome and has thereby given rise to the need for surgery.
Although there is no issue, the proposed surgery is necessary, the respondent disputes whether the requirement for it has been brought about as a result of a work injury.

ISSUES IN DISPUTE

The parties agreed that the only issue in dispute is whether the applicant’s bilateral carpal tunnel syndrome is a work-related injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 7 July 2025. Mr Morgan of counsel instructed by Ms Azer appeared for the applicant. Mr Saul of counsel instructed by Ms Palamara appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attachments;
(b)    Reply and attachments;
(c)    respondent’s Application to Lodge Additional Documents (ALAD) and attachments dated 23 June 2025, and
(d)    applicant’s ALAD and attachments dated 24 June 2025.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant’s carpal tunnel syndrome is a work injury

There is no question the proposed carpal tunnel surgery is necessary. The issue for determination is whether there is any causal link between the requirement for surgery and a work injury. In other words, whether the carpal tunnel syndrome is a work injury.
The applicant claims her injury was in the nature of a disease process brought about or relevantly aggravated by the nature and conditions of her employment. In her statement dated 26 February 2025, the applicant sets out in detail the duties which she performed. That evidence was:
“7.     I commenced employment with BLCC [The Respondent] as a full-time cook at a childcare centre in Blackett. At the time of my injury, I had been employed in this role for approximately 17 years. I worked between the hours of 7:00 am and to 12:00 pm, Monday to Friday. I worked alone and did not receive any assistance with my work duties.
8.     I have always been a hard worker and very much committed to my role with BLCC. No concerns and respect of my work performance have ever been raised with me previously, either formally or informally. I have not received any disciplinary warnings at the like. In fact, I was always recognised in a positive light, having good relationships with all levels of management in council. I received many awards during my time with the council.
9.     I would arrive at work at 6:45 am for a 7:00 am. On the Friday of each week, I would submit the order for the following week’s fruit and vegetable, bread and milk delivery. These deliveries would arrive separately from different suppliers on the Monday morning of each week.
10.    The fruit and vegetables would be delivered in boxes to the kitchen. I estimate receiving a total of approximately 10 kg of fruit and 10 kg of vegetables. I would put aside the fruit and vegetables required for the day, which I would start to prepare that morning and pack the rest into the fridge.
11.    The bread was also delivered to the kitchen in two large bakery trays. I removed the bread from the tray and would pack the bread inside the fridge.
12.    The milk was delivered in crates and left outside the centre. We received approximately two crates of milk and custard, which included six two litre bottles in each crate. In addition, the crates included about four yoghurts, which were about one litre each. I would carry the crates from outside the centre where they had been delivered and into the kitchen. I could only carry one crate at a time as it was heavy. I would then pack the bottles into the fridge. On some occasions, my colleagues assisted me in carrying the crates.
13.    Every two weeks, I would order and receive the meat delivery. The meat was delivered to the kitchen and upon its arrival, I would pack the meat into the fridge.
14.    There was another delivery, being pantry items, every two to three weeks. This was a very large delivery and included items such as rice, pasta, flour, sugar, biscuits, tomato paste, amongst other things. This delivery was delivered to the kitchen in approximately three large pallets with boxes filled with items. I would unpack the boxes and organise and pack the items into the storage room. Once the boxes were empty, I would then flatten the boxes by hand and put them in the bin. This was a very strenuous and repetitive task.
15.    My ordinary day involved preparing and cooking food for approximately 30 to 40 children and 10 staff members. The meals included breakfast, morning tea, lunch, dessert and afternoon tea. There were also special occasion days, such as Mother’s Day, Father’s Day, Grandparent’s Day and yearly festivities. When there was a special occasion, this included a significantly greater amount of food preparation. I began my morning with washing and then cutting and/or peeling fruit for morning and afternoon tea. I used to make cutting and/or peeling approximately two kilos of fruit every day. Once the fruit was cut, I would then pack the fruit and put it inside the fridge.
16.    I would then wash and cut and/or peel the vegetables for lunch. I used to make cutting and/or peeling approximately two kilos of vegetables every day. I would also prepare the meat by cutting it into very small pieces for children. I would cut approximately two kilos of meat every day. Once the vegetable and meat preparation had done, I would pack it into the fridge.
17.    I would spend approximately two to three hours on food preparation every morning.
18.    As meal times approached, I would then make and cook the food. This included battering several waves of bread, making sandwiches, cooking pasta or rice and making a dessert, usually cupcakes. I would also make special items for younger children such as purees and special meals, depending on the children’s dietary or religious requirements. Cooking involved using several large and heavy pots, pans and trays and large kitchen utensils. I would use a large industrial oven.
19.    Once the meals were prepared, I would put the items on serving plates and fill up the trolley with the plates, cups and cutlery. I would then push the trolley, which had wheels, to the respective rooms and often assisted with serving the food. Once the children had finished their meals, I would pack up the dirty items onto the trolley to be taken back to the kitchen by pushing the trolley which was heavy with all these items on it. That would also put a new leftover in containers to be packed into the fridge. I would repeat this for each meal during the day.
20.    My duties as a cook also involve cleaning duties. I would rinse approximately 150 plates and 100 cups several times a day, pack those onto a tray and then lift the heavy tray to be loaded into the industrial dishwasher. I would rinse items, pack and load the tray and operate the dishwasher approximately 14 times a day. This involved rinsing and loading all items I used including pots, pans and utensils. Once the washing cycle finished, I would unload all the items and put them in their respective areas. It was very heavy and repetitive work.
21.    I would also wipe down all the benches and ensure every area of the kitchen was clean. I would also mop and undertake any type of cleaning work necessary to ensure the kitchen was in immaculate condition. I always prided myself on a safe and clean environment. In fact, I would frequently receive compliments as to the state of the kitchen.
22.    I would repeat the above tasks every day from Monday through to Friday. The work was repetitive, strenuous and involved prolonged and repetitive use of my arms and hands. There is essentially no task associated with my job role where I am not using my arms and hands.”
The nature and extent of the applicant’s duties is not an issue. There is no evidence to contradict her version of her duties.
The applicant described the onset of symptoms in her statement as follows:
“23.   At the end of the shifts, I would experience pain, stiffness and discomfort in my wrists and hands, including my thumbs. I understood that this was expected given the nature of the tasks I was performing during my workday. I continued to persevere through the pain. I was so passionate about my job and loyalty to the centre was very important to me. I therefore did not raise any complaints and persevered with my role.
24.    Over the years, particularly in the 12 months before I ceased working, the symptoms deteriorated and became more intrusive. The wrist pain became associated with weakness and pins and needles radiating into my hand. I was having trouble carrying out my duties and found that I would often take short breaks from cutting when the symptoms became intrusive in fear that I might accidentally cut myself. I was also having difficulty lifting and carrying items because my grip strength had weakened.
25.    In the 12 months to 18 months before I ceased working, I provided support to the Minchinbury Centre at the requesting my employer for about a month or so, cooking for approximately 40 or so kids as their cook was off. This was in addition to my role and the above-mentioned duties. Again, I did this due to my commitment to the employer. This placed a heavy toll on my hands/arms and elbows.
26.    I stopped working on 15 March 2024, as I could no longer tolerate the symptoms and I was having great difficulty safely carrying out my duties. I also sustained a separate psychological injury which was contributing to my incapacity for work.”
There is no claim for psychological injury canvassed in these proceedings.
The applicant carries the onus of proving that her bilateral carpal tunnel syndrome is work-related. In determining the cause of an injury, the Commission must have regard to the totality of the evidence, both lay and expert, and apply a commonsense test of causation, as set out in the oft-cited, decision of Kirby P (as he then was) Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In support of her claim, the applicant relies on the opinion of her treating specialist, A/Prof Smith. In a report to the respondent dated 18 July 2024, A/Prof Smith, when asked whether the applicant’s bilateral wrist injuries are chronic conditions, replied “if you mean by chronic long-standing, well, I would say that yes, she has had bilateral carpal tunnel symptoms for 12 months. However, they are definitely work-related”.
A/Prof Smith was then asked what impact age and gender have on these diagnoses and whether the applicant was likely to have developed the condition irrespective of her employment. A/Prof Smith replied:
“Being alive has an impact on the development of problems. Certainly, work can bring on problems that would not otherwise be present or would have happened later on in life. She certainly feels that work has had a significant impact in regards to generation of her symptoms.”
In a report to the applicant’s general practitioner (GP), Dr Moussad dated 8 July 2024, A/Prof Smith provided the following history:
“She has carpal tunnel symptoms bilaterally which have been present for 12 months and relate to her work. She is definitely a lot worse when at work and better when she has been resting.”
A/Prof Smith also provided a report to the applicant’s solicitors dated 7 March 2025, in which he went into further detail in relation to causation. After setting out a history consistent with that contained in the previous reports, A/Prof Smith was asked whether the applicant’s employment is the main contributing factor to her injuries and replied:
“It is impossible to be 100% certain on the main contributing factor apart from the median nerve being in a confined place in the carpal tunnel. Certainly, she does not have any significant medical problem, nor pregnancy which would be contributing. She was very clear from the outset that her activities in the workplace significantly exacerbate her symptoms, and as such, this would indicate a clear association. Similarly, rest, when away from the workplace, is associated with a decrease in her symptoms, again, this would suggest a correlation.”
Whether the applicant’s alleged injury is in the nature of a disease or the aggravation of a pre-existing disease, the test of causation remains the same. That is, her employment must be the main contributing factor to her condition or the relevant aggravation. As the authorities make clear, there can only be one main contributing factor, and the test of causation is therefore more stringent in cases such as the present than in those involving frank injuries where employment need only be a substantial contributing factor to an injury.
The respondent relies upon the report of Prof Cumming, orthopaedic surgeon. In his initial report dated 17 December 2024, Prof Cumming took a consistent history of the onset of symptoms, however, did not examine in significant detail the applicant’s duties. Rather, Prof Cumming simply noted the applicant worked five days per week as a cook for the respondent.
On examination, Prof Cumming noted the applicant’s hands were very sensitive and that she had sensory changes in the distribution of the median nerve of both hands symmetrically, together with a positive Phalen’s test, a positive Durkan’s test and a positive Tinel’s test. In relation to diagnosis, Prof Cumming stated:
“I am of the same opinion as AP Smith that she has bilateral carpal tunnel syndrome which is atypical and her nerve conduction studies are negative. Nevertheless, as she has stated, she used to have an injection into her wrist and then decide whether or not to proceed to carpal tunnel release. I did not find the same evidence for De Quervain’s syndrome and I found this diagnosis to be doubtful. This is on a critical basis…
The carpal tunnel syndrome is atypical as the nerve conduction studies were negative and AP Smith very correctly is proceeding slowly, diagnostically, and therapeutically in view of these circumstances.
It is my opinion that her carpal tunnel syndrome is a constitutional condition as I am not of the opinion that the work of a cook is such that the nature and conditions of work provide evidence that the carpal tunnel syndrome is a work-related matter.”
The applicant criticised that Prof Cumming’s report on the basis his opinion did not explain why the applicant’s duties could not have caused or contributed to her carpal tunnel syndrome. Mr Morgan noted Prof Cumming’s opinion was essentially a three-line sentence without any explanation, and was essentially a bare ipse dixit statement. He noted there was no examination of the actual duties carried out by the applicant or any consideration of how heavy and repetitive they may be.
In a supplementary report dated 3 April 2025, Prof Cumming again stated the applicant’s condition was constitutional and not work-related. In that report, Prof Cumming noted “it is very important to differentiate between causation and aggravation, exacerbation, etc.” He said the circumstances for the applicant are that “she has constitutional perimenopausal carpal tunnel syndrome, although this is a clinical diagnosis and in the absence of nerve conduction studies and MRI confirmation, the diagnosis is provisional”.
Prof Cumming then noted the applicant has extremely sensitive hands and “therefore, working in the kitchen would be impossible as she did not even like me to touch her hands”. Prof Cumming said, “I believe this explains the situation in which it is important to differentiate between the actual causation and then the clinical state which may be aggravated by specific activities”.
He described the causation of the applicant’s condition as perimenopausal carpal tunnel syndrome, but “her aggravation status is very significant as she has very sensitive hands and did not wish me to touch them. Under these circumstances, I consider that the aggravation status is very significant and a major reason why she cannot work”.
In his supplementary report dated 7 March 2025, A/Prof Smith noted the diagnosis of Prof Cumming and was asked whether he agreed with it. A/Prof Smith replied:
“No, as much as I respect Prof Cumming as an excellent senior colleague, I must differ with him in this regard. I would say carpal tunnel syndrome to a degree is a human condition in that the median nerve is in an enclosed space, and very prone to compression because of the anatomy.
Any activity which promotes synovitis in the extrinsic finger flexors will tend to cause carpal tunnel syndrome. Even in non-work-related cases, patients are usually very clear that an increase in physical activities exacerbates the symptoms, and it is not hard to imagine why in terms of the anatomy involved. Therefore, in the absence of a significant medical condition, which causes carpal tunnel syndrome, which is not present here, I would suggest that her work environment, which may be fairly heavy, as a cook, is probably the most provocative part of her life in terms of generating this problem.”
At the margins, Prof Cumming and A/Prof Smith are in agreement that there can be constitutional factors which give rise to carpal tunnel syndrome. Likewise, both doctors are of the opinion that there may be aggravating events which lead to an increase in symptoms, in the applicant’s case, presumably her employment.
Although Prof Cumming does not specifically mention the applicant’s duties as an aggravating factor, in the context of this matter, it would seem to me, on a commonsense basis, they would be. That would also accord with A/Prof Smith’s opinion that an increase in physical activity exacerbates the symptoms. Indeed, when one considers the detailed and unchallenged evidence of the applicant’s nature and conditions of employment, it is apparent they sit comfortably within what A/Prof Smith describes as “fairly heavy” work as a cook, sufficiently provocative in terms of generating her problem. That is, A/Prof Smith has found the applicant’s employment was the main contributing factor to the disease process, as he refers to the applicant’s employment as “generating” her problems.

The applicant also relies upon the opinion of Independent Medical Examiner (IME) Dr Gehr. Dr Gehr sets out in far greater detail the applicant’s duties than Prof Cumming. Having done so, and found the presence of carpal tunnel syndrome on examination, Dr Gehr concluded the applicant’s bilateral carpal tunnel syndrome developed due to the nature and conditions of her employment because of repetitive use of hands and wrists during the course of full-time duties from 7.00am to midday, five days per week.
In his supplementary report dated 26 May 2025, Dr Gehr addressed Prof Cumming’s findings and disagreed with them. He noted the gradual onset of symptoms over several years relating to repetitive use of her hands and arms, such repetitive use often being associated with the development of carpal tunnel syndrome.
Having regard to the totality of the lay and medical evidence, I am of the view the applicant’s employment was the main contributing factor to the onset and development of her carpal tunnel syndrome. That is, her employment was the main contributing factor to the development of the disease process, and therefore satisfies the requirements of s 4 (b) (i) of the Workers Compensation Act 1987 (the 1987 Act).
In so finding, I prefer the views of A/Prof Smith and Dr Gehr to those of Prof Cumming. A/Prof Smith is a treating surgeon, who, absent a finding of error in relation to the history taken or the methodology adopted, is entitled to be given considerable weight, particularly when it is supported by IME evidence, such as that of Dr Gehr and is consistent with the applicant’s detailed statement evidence as to the nature and conditions for employment.
By contrast, Dr Cumming provides no real reasons for his finding that the applicant’s condition is constitutional in nature and that her duties would not be capable of either causing or aggravating it.
In my view, the evidence in this matter is overwhelming. Accordingly, I find the applicant’s employment with the respondent was the main contributing factor to the development of her bilateral carpal tunnel syndrome, and also that the requirement for the bilateral release of that condition was brought about as a result of her work injury.
As noted, there is no question the applicant requires the surgery. The only issue for determination is whether there was a cause, a relevant causal link between her employment and the requirement for that surgery. Having found the condition is work related, it is only necessary for that condition to make a material contribution to the requirement for surgery. In this matter, it is not suggested that anything other than the carpal tunnel syndrome has caused the requirement for the relevant procedure, and having found in the applicant’s favour on the issue of injury, it will follow that the respondent will be ordered to pay the costs of and incidental to the surgery.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 374

5 August 2025