Dove v Eureka Operations Pty Limited t/as Coles Express

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dove v Eureka Operations Pty Limited t/as Coles Express [2021] NSWPIC 218
APPLICANT:	Deborah Judith Dove
RESPONDENT:	Eureka Operations Pty Limited t/as Coles Express
MEMBER:	Jane Peacock
DATE OF DECISION:	30 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation for proposed bilateral endoscopic carpal tunnel release surgery; not disputed that the applicant has bilateral carpal tunnel syndrome or that the proposed surgery is reasonably necessary; dispute as to causation; respondent submitted condition a constitutional one; evidence weighed in the balance; Held- employment was the main contributing factor to the contraction of, or aggravation, acceleration, exacerbation or deterioration of the disease of bilateral carpal tunnel syndrome; award for the applicant.
DETERMINATIONS MADE:	1. The applicant has leave by consent to amend the Application to Resolve a Dispute to seek an order for the payment of applicant ‘s section 60 expenses in respect of the costs of and incidental to the bilateral endoscopic carpal tunnel release surgery as proposed by Dr Hanslow. 2. The respondent pay the applicant’s section 60 expenses in respect of the costs of and incidental to the bilateral endoscopic carpal tunnel release surgery as proposed by Dr Hanslow

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), as amended, Ms Deborah Judith Dove (the applicant) seeks orders in respect of surgery proposed in the form of bilateral endoscopic carpal tunnel release as a result of bilateral carpal tunnel syndrome.
The Respondent is Eureka Operations Pty Limited t/as Coles Express (the respondent). The respondent was self-insured at the relevant time for the purposes of workers compensation by the Coles Group Limited (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

The applicant was granted leave by consent to amend the Application to seek an order for the payment of applicant ‘s section 60 expenses in respect of the costs of and incidental to the bilateral endoscopic carpal tunnel release surgery as proposed by Dr Hanslow.
It is not disputed that the applicant has bilateral carpal tunnel syndrome.
It is not disputed that the surgery proposed in the form of is reasonably necessary as a result of bilateral carpal tunnel syndrome.
It is disputed that it results from work.
More specifically it is disputed that the applicant’s employment was the main contributing factor to the contraction, aggravation, acceleration, exacerbation or deterioration of the disease of bilateral carpal tunnel syndrome.

PROCEDURE BEFORE THE 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.

EVIDENCE

Documentary Evidence

The following documents were admitted into evidence before the Commission and considered in making this determination:

For the applicant:
(a) Application and attached documents.
For the respondent:

(b) Reply and attached documents.

It is noted that objection was taken by the counsel for the respondent to the detailed job description on pages 5-6 of the Application and correspondingly parts of the reports of the Independent Medical Expert (IME) qualified on behalf of the applicant, Dr Poplawski. These objections were recorded on the transcript and reasons given for the admission of the documents which need not be repeated here as they have been recorded.

Oral Evidence

The applicant was given leave to adduce oral evidence and the respondent was given leave to cross-examine the applicant for the reasons given at the hearing which were recorded and need not be repeated here.

FINDINGS AND REASONS

The applicant was employed as store manager. She worked for the respondent since 2003 but was employed by their predecessor in the same role. There is no dispute she suffers from the disease of bilateral carpal tunnel syndrome. There is no dispute that the proposed surgery is reasonably necessary. Causation is in dispute.
This case must be determined on the evidence and in accordance with the law.
The applicant gave evidence in a statement dated 23 July 2020. She has worked for the respondent as a store manager since 2003 (having been employed in the same operation in its previous incarnation of Shell).
The applicant works shift work totalling 40 hours per week.
She gave evidence as to what her duties as a store manager included:
“My duties as a Store Manager include:
·        Setting the store up for customers (when opening);
·        Serving customers, putting away deliveries, re-sticking shelves, performing stock takes; and
·        General office duties including data entry, ordering and balancing book work.
Coles express is like a mini supermarket; we stock a range of grocery items, including drinks, confectionery, milk and diary products and chips. We also stock motoring products such as motor oil.”
The applicant gave more detailed evidence in a document entitled “job description of
Ms Deborah Dove, Coles Express 8 September 2020” found at pages 5-6 of the Application.
The applicant gave evidence about “Circumstances of injury; 24 July 2019 (deemed)”:
“’20. Around July 2018, I started to experience numbness in the fingers of my hands; primarily the left, but also the right. These symptoms would mainly come on at work but were short lasting and I was able to work through them.
21.    Around March 2019, my symptoms began to develop more frequently and became more severe. I found myself waking at night with pina and needles and numbness in both hands.
22.    around July 2019, I was experiencing pins and needles, along with numbness down the full length of her arms.
They occurred at home but were more noticeable at work when I was trying to attend to my duties.
23.    I was intermittently dropping objects and finding difficulty lifting boxes and putting stock away. I also found it difficult to perform tasks that require fine motor skills.
24.    On 24 July 2019, I was loading shelves at work., I picked up a box of chips, which weigh around 2.16kg (12pkts x 0.180 kg each) and went to place it on the shelf when I experienced a sudden onset of pain, radiating from the region of my left shoulder, down my entire arm. The fingers of my hand also numb.
26.    the pain caused me to stop what I was doing and say to Wayne, another employee, “I can’t do this. my arm is really sore.”
There is no dispute on the evidence about the incident on 24 July 2019.
The applicant gave evidence that she was unable to complete her shift and went to see her general practitioner (GP) who referred her to Dr Reyneke, neurologist, for nerve conduction studies.
On 20 August 2019 the applicant underwent nerve conduction studies with Dr Reyneke, which confirmed a diagnosis bilateral carpal tunnel syndrome. There is no dispute on the evidence that the applicant suffers bilateral carpal tunnel syndrome. The dispute is one of causation.
On the same day as the nerve conduction studies the applicant was reviewed by the GP
Dr George who referred the applicant to Dr Hanslow orthopaedic surgeon.
On 29 October 2019 the applicant was reviewed by Dr Hanslow who recommended bilateral endoscopic carpal tunnel release surgery. Dr Hanslow made an approval request of the insurer.
On 21 November 2019 at the request of the insurer the applicant was examined by
Professor Cumming who opined that the condition was constitutional.
On 6 December 2019 the insurer denied liability for the claim.
The applicant gave evidence in her statement:
“40. Since the date of my injury (deemed) I have remained working full time with the aid of anti inflammatory medication, my wrist braces and an alteration of my work duties.
41. I have a good team working with me and they are supportive of my limitations, displaying a willingness to change jobs with me as dictated by the onset of my symptoms.”
There is no evidence from the respondent which traverses the evidence of the applicant that she changes jobs with team members to help manage the symptoms from work tasks. Professor Cumming was given this history and in fact certifies her fit for pre injury duties only on the basis that she gets this assistance at work.
The applicant consulted her GP Dr George on 24 July 2019. Dr George’s consultation notes are in evidence. He referred her for nerve conduction studies.
On 13 August 2019 the applicant saw another GP Dr Thambugala (who she has consulted from time to time in the past about various health matters). Dr Thambugala recorded the following:
“ps with pins and needles left since 5 days
Usual GP at blue haven – Dr Geroge
Pain worse after rapid use if hands
Wakes at night with pins and needles and shakes hands to relieve pain
No trauma, no hypothyroidism, no TB, no amyloid, no FA, no gout, diabetes- has had tests since. Steroids, no alcohol abusee, no liver disease
Work- -previous repetitive activity – putting away stock
Strenuous activity - work related
No trauma
No gym”
Dr Thanbulaga conducted a physical examination. He noted the need for nerve conduction studies and the notes show he advised the applicant she should not undertake heavy lifting or repetitive activity. He recommended a referral, rest, physio, splinting and to consider a steroid injection.
Sensory nerve conduction studies were undertaken by Dr Reyneke, neurologist, dated 20 August 2019 which concluded:
“There is evidence of severe median nerve lesions at both wrists, consistent with carpal tunnel syndrome.”
The applicant went and saw Dr George the same day with the benefit of the nerve conduction studies and he recorded:
“severe CTS B/L
Deborah works in Coles Express
Worsening pains both hands for 2/12
Nerve conduction study shows severe b/l CTS
This could be due to her work
I will ref to Dr Hanslow for her opinion and management”
Pursuant to the referral from the GP dated 20 August 2019, the specialist appointment with Dr Hanslow was made for 29 October 2019.
On 5 September 2019 the applicant saw the GP Dr George again who records reason for visit:
“Workcover
She has got bilateral carpal tunnel syndrome due to the nature of her work
she has spoken to her manager who advised to initiate work cover certificate
I have done the same for her
If it gets approved she can see the specialist under workcover”

On 8 October 2019 the applicant saw the GP again and he records the reason for visit:
“Work cover review
Her manager asked to change her work cover certificate to preinjury duties
She is not fit for preinjury duties.
She is in a lot of pain.
She is doing the best she can but when the pain gets too much she delegates.
I will mention this on the new certificate
She will require surgery
She has a specialist appointment end of the month.”
The applicant saw the specialist Dr Hanslow on 29 October 2019.
She saw her GP again on 6 December 2019 who records the reason for visit as:
“Workcover review apparently her employer got to see an independent specialist in Sydney.
He gives the same opinion.
She is waiting for approval for surgery.
Continue current capacity.
Work cover certificate updated.”
She saw the GP again on 12 December 2019. She was upset about the IME report from Porfessor Cummings whom she felt misinterpreted what she told him about continuing to woek despite the pain because he reported that work did not aggravate her symptoms.
Dr George records the reason for visit as:
“Work cover
Debbie attended with her husband.
He brought me two lengthy reports.
The first one was from an independent medical; she had with an orthopaedic surgeon in Sydney.
He did concur with the diagnosis of carpal tunnel syndrome but in his report, he said the cause of this is because she is menopausal, obese diabetic woman and t and attended with her work.
She has done the same job for nearly 20 years and there has been a lot of repetitive activities daily.
She has always been motivated to work despite being in pain.
It looks like the specialist took the wrong way and reported that her work does not aggravate her symptoms.
She is clearly upset.
She is planning to pursue this matter further by seeing a solicitor.
She also got a report from Coles based on the specialist report.
Inevitably Debbie will be sent to another orthopaedic surgeon through her solicitor and hopefully this issue can be resolved.
Supportive chat.”
Dr George saw the applicant again on 8 January 2020 and he records the reason for visit as follows:
“Work cover review.
Discuss independent medical opinion which I totally disagree with
She is taking legal action.
She continues to have pain but continues to work
Things she can’t [sic] do she delegates.
Workcover certificate updated.”
The counsel for the respondent submitted that the applicant continues to work and that this should be regarded as supportive of the respondent’s case that the bilateral carpal tunnel syndrome is not causally related to work.
The applicant gave clear evidence in her statement dated 23 July 2020 that she delegated work when she had an onset of symptoms from work tasks. The respondent did not traverse this evidence. This is consistent with her reports to the GP that she delegated the work she could not manage because of her symptoms. Moreover Professor Cummings IME qualified on behalf of the insurer only certified fit for preinjury duties on the basis she was able to manage her symptoms by delegating tasks.
Dr Hanslow, orthopaedic surgeon (specialising in foot and ankle surgery, hand surgery and joint replacement), saw the applicant on 29 October 2019 on referral from the GP Dr George. She provided a report back to the GP with a copy to the insurer seeking approval for surgery dated 29 October 2019 as follows:
“She is a 54 year old right handed employee of Coles express who was seen today with her husband. She presents with a 9 month history of bilateral hand symptoms that have become worse in the last 3 months. The left is worse than the right. She was lifting a box of coke in July 2019 and noticed increased severity of pins and needles plus pain the left arm, She is frequently waking at night due to pins and needles which are global. She is intermittently dropping objects and having difficulty with fine motor skills. She had used a spilt with some success.”
Nothing turns on the error in the history that it was a box of coke. The critical part of the history is that symptoms increased in severity when lifting a box at work.
Dr Hanslow conducted an examination and noted the findings of the nerve conduction study. She diagnosed carpal tunnel syndrome and recommended bilateral endoscopic carpal tunnel release. She sought approval from the insurer for the surgery.
The insurer subsequently denied the claim.
Dr Poplawski, orthopaedic surgeon, is the IME qualified on behalf of the applicant. He saw the applicant on 21 April 2020 and provided a report of the same date.
He recorded a history broadly consistent with the other evidence. He conducted a physical examination and noted the findings of the nerve conductions studies.
He provided the following summary:
“Ms Dove developed bilateral carpal tunnel syndrome, with the left side considerably worse than the right, with these symptoms developing in about March 2018 and progressively increasing. However she was not unduly troubled by these until the deemed date of injury i.e. 24 July 2019, when she developed sudden onset of more severe symptoms on the left whilst packing shelves with boxes of chips. The symptoms have come under partial control with the use of anti inflammatory medication and intermittent use of wrist braces, but continue to trouble her particularly at work, which she is however managing as she is able to change jobs with fellow roles as dictated by the onset of more severer symptoms.”
Dr Poplawski is asked to answer the following question:
“Do you consider our client’s workplace injury to be the result if an aggravation, acceleration, exacerbation or deterioration of any pre-existing ailment, illness or condition and if so, Do you consider our client’s employment with Coles express to be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of this pre-existing ailment, illness or condition? Please provide reasons for your opinion:”
And he answers:
“Some individuals are genetically and physically predisposed to the development of CTS with the initial trigger factor being raised pressure in the carpal tunnel caused by overuse of the hand, such as flexion and extension movements of the wrist and strenuous hand grip activity. This can cause the shortage of oxygen to the involved tissues resulting in a build up of pressure, particularly in confined spaces such as the carpal tunnel, over a prolonged period of time of such repetitive activities, resulting in diffuse increase in connective tissues and increased pressure on the median nerve. Pressure from activity of the surrounding flexor tendons is a contributing factor an obesity is another,
Ms Dove has been involved in a considerable amount of activities involving wrist flexion and firm gripping in the course of her 25 years of work at Coles express supermarket, Over this period of time I believe that increase in diffuse connective tissues occurred in the transverse carpal ligament, resulting in increased pressure on the median nerve and the development of symptoms.
It is true to say that obesity is a predisposing cause to the condition, but this is only one factor and I do not believe is the main one in this instance, where there is a clear history of frequently repeated trauma as described above.
In my opinion, I believe it is more likely than not that had Ms Dove not been involved in frequent and prolonged activities in the form of repetitive artist flexion and gripping in the course of her work at Coles, then she would not have developed the condition of carpal tunnel syndrome.
In this respect I feel that her employment with Coles express is the main contributing factor in the development her bilateral carpal tunnel syndrome.”
Dr Poplawski provided a supplementary report dated 19 October 2020 at the request of the applicant’s lawyers.
Dr Poplawski considered that Professor Cummings report was incomplete in terms of the history taken and “does not reflect the true gradual and progressive onset of Ms Dove’s symptoms precipitated by her work activities.”
Dr Poplawski address Professor Cummings opinion about the applicant being menopausal, obese and diabetic as follows:
“He also states that Ms Dove is predisposed to carpal tunnel syndrome as a result of being menopausal, obese and diabetic. However it is also true that many, probably most, women in this category do not develop symptoms of carpal tunnel syndrome unless some form of trauma or repetitive activities, such as frequently repeated gripping and lifting activities with the hands precipitated symptoms. In my opinion had Ms Dove not been involved in the frequently repeated work activities outlined above, she more likely than would not have developed bilateral carpal tunnel syndrome.”
Dr Poplawski had regard to the description of the applicant’s duties (as found at page 5 to 6 of the Application) and he opined:
“In the course of her work Ms Dove was involved in frequent and prolonged activities in the form of repetitive wrist flexion and gripping, this ultimately resulting in symptoms of bilateral carpal tunnel developing.”
He recited the specific activities described by the applicant and opined:
“the activities are certainly in keeping with the development of carpal tunnel syndromes over a period of time”
The respondent has not provided any evidence which traverses the applicant’s evidence about the repetitive nature of her duties with repetitive lifting.

The respondent has not traversed the applicant’s evidence that when she is unable to do certain tasks at work which cause an onset of symptoms she delegates those jobs to other members of staff.
The respondent relies on the opinion of Professor Cummings, the IME qualified on behalf of the respondent who saw the applicant on 21 November 2019 and provided a report dated 22 November 2019.
Professor Cummings took a history. He records under “day’s work” and “loss of time”:
“Day’s work
She drives a short distance to work, working full time and she is both the administrator and hands on employee of this service station. There are no specific activities during her day which she considers likely to bring on the pins and needles in her hand.”
Loss of time:
She has not lost any time from work, but she does always work in a team so if she does face problems she can have a change in task.”
He conducted a physical examination and noted the results of the nerve conduction studies.
Professor Cumming provided his diagnosis and opinion as follows:
“Ms Deborah Dove presents with parathesis in her hands and although there are some variations in her history the diagnosis is that of carpal tunnel syndrome. ….
Netheless the nerve conduction studies are strongly positive and she is an obese diabetic female in the menopausal age group which is a typical personation for constitutional carpal tunnel syndrome.
She works in a service station there are no tasks that are specifically appropriate for carpal tunnel syndrome in her days work nor, on specific interrogation, is she able to identify any tasks which produce parathesis during her day’s work.”
He considered her fit for preinjury duties on the basis of the statement made regarding her co-workers being able to work in a team with her.
He supports the need for the proposed surgery.
I must make a determination in this case on the evidence and in accordance with the law.
It is not disputed that the applicant has bilateral carpal tunnel syndrome and that the surgery proposed is reasonably necessary.
It is disputed that the bilateral carpal tunnel syndrome arose out of or in the course of her employment as a store manager. The applicant relies on the disease provisions and alleges that the bilateral carpal tunnels syndrome is a disease to which her employment was the main contributing factor to the onset of the disease or the main contributing factor to the aggravation, acceleration, deterioration of acceleration of the disease. The respondent says the disease is a constitutional one and also that the applicant has not discharged her onus of proof.
The applicant has given evidence about the repetitive nature of the tasks she performed in her employment over a prolonged period of time, since 2003 with the respondent. There is no evidence from the respondent which traverses the applicant’s evidence in this regard.
She has given evidence about the onset of her symptoms and evidence about a severe exacerbation of her symptoms on 24 July 2019 which rendered her unable to complete her shift. She saw her GP that day and was referred for nerve conduction studies. Those studies confirmed bilateral carpal tunnel syndrome and her GP referred her for specialist opinion to Dr Hanslow who proposed surgery and requested approval from the insurer to proceed.
The applicant’s evidence is supported by the opinion of the IME qualified on the applicant’s behalf Dr Poplawski, orthopeadic surgeon. Dr Poplawski has a broadly consistent history and he has provided a clear and reasoned explanation of how the repetitive nature of the tasks performed by the applicant over many years in her employment have been the main contributing factor to the development of the disease or aggravation of it.
Professor Cumming, IME qualified on behalf of the respondent, opines that the condition is a constitutional one and the fact that the applicant is female in the menopausal age group who is obese and diabetic makes her a typical presentation for bilateral carpal tunnels syndrome. He opines:
“There are no activities at work which she regards as being triggered to the onset of her symptoms and therefore I do not consider that there is any factor which is a main contributing factor on an aggravation basis.”
This is despite the applicant having a clear history of a severe exacerbation of symptoms on 24 July 2019 when lifting at work while packing shelves which rendered her unable to complete her shift. Moreover Professor Cummings only considers the applicant fit for pre-injury duties on the basis that she can delegate to her teammates.
When I weigh all the evidence in the balance, I prefer the evidence of the applicant, consistent with the contemporaneous notes of the GPs Dr George, Dr Thombugal, consistent with the opinion of the treating surgeon Dr Hanslow and the IME Dr Poplawski.
I do not consider when all of the evidence is weighed in the balance that
Professor Cummings has taken adequate account of the repetitive nature of the applicant’s day to day tasks performed over some 20 years and since 2003 in the employ of the respondent.
The respondent counsel says that the applicant has not discharged her onus of proof. I do not agree. She has given her evidence, It is broadly consistent with the notes of the two GPs. It is consistent with the history recorded by her treating specialist Dr Hanslow and that recorded by the IME Dr Poplawski. The IME Dr Poplawski gives a very clear explanation of how the repetitive nature of the tasks performed over time can impact the carpal tunnel as set out above. When I weigh the totality of the evidence in the balance, Professor Cummings has not taken adequate account of the repetitive nature of the applicant’s duties performed over many years. Dr Poplawksi has addressed the issues of the contributing factors of obesity, female in the menopausal age group and a diabetic, and has given a reasoned explanation of why the repetitive nature of the applicant’s duties performed over time would be considered the main contributing factor. I prefer for the reasons given the opinion of
Dr Poplawski. I note that the counsel for the respondent submitted that I would take account of the relative professional standing of the two experts because whilst they are both orthopaedic surgeons, Professor Cummings is a full professor and hence a more eminent expert than Dr Poplawski. I am not persuaded by this submission. Both IMEs qualified on behalf of the parties are experts who are qualified to give opinion about causation of the applicant’s bilateral carpal tunnel and one expert is not to be preferred to the other because of their relative eminence. I have weighed their opinions in the balance with the totality of the evidence and preferred, for the reasons given, the opinion of Dr Poplawski.
When I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that the applicant’s employment was the main contributing factor to contraction of, or to the aggravation, acceleration, exacerbation or deterioration of, the disease of bilateral carpal tunnel. As it is not disputed that the surgery is reasonably necessary, I will order as follows:
(a) The applicant has leave by consent to amend the Application to Resolve a Dispute to seek an order for the payment of applicant ‘s section 60 expenses in respect of the costs of and incidental to the bilateral endoscopic carpal tunnel release surgery as proposed by Dr Hanslow.
(b) The respondent pay the applicant’s section 60 expenses in respect of the costs of and incidental to the bilateral endoscopic carpal tunnel release surgery as proposed by Dr Hanslow

[2021] NSWPIC 218

30 June 2021