Encourage Group Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Encourage Group Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2025] NSWPIC 495
APPLICANT:	Encourage Group Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Caitlin Gerahty
MEMBER:	Josephine Bamber
DATE OF DECISION:	23 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application pursuant to section 145 by the applicant (an uninsured employer) for a determination as to its liability to reimburse the Workers Compensation Nominal Insurer for payments it made in respect to injury to the second respondent; Held – the second respondent sustained injury to her left wrist pursuant to section 4(a) while in the employ of the applicant; the applicant concedes it did not have a policy of workers compensation insurance for injury; the applicant is liable to reimburse the Workers Compensation Nominal Insurer for the payments it has made as claimed pursuant to section 145 in the amount of $23,878.87.
DETERMINATIONS MADE:	The Commission determines: 1. The second respondent sustained injury to her left wrist on 11 September 2023 pursuant to s 4(a) of the Workers Compensation Act 1987 while in the employ of the applicant. 2. The applicant concedes it did not have a policy of workers compensation insurance for injury on 11 September 2023. 3. The applicant is liable to reimburse the Workers Compensation Nominal Insurer for the payments it has made as claimed in its Notice dated 17 June 2024 issued pursuant to s 145 of the Workers Compensation Act 1987 in the amount of $23,878.87. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Caitlyn Gerahty, the second respondent, was employed by the applicant, Encourage Group Pty Ltd, as junior behavioural therapist on a part-time basis when she sustained injury on
11 September 2023. It is agreed that at that time the applicant did not have a policy of workers compensation insurance.
The Workers Compensation Nominal Insurer, the first respondent, issued a Notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) dated 17 June 2024 seeking reimbursement by the applicant for payments it had made to and on behalf of
Ms Gerahty in the sum of $23,878.87 comprised of weekly compensation in the period
12 February 2024 to 2 June 2024 in the amount of $19,747.37 and treatment expenses of $4,131.50 for services between 21 November 2023 to 3 June 2024.
The Generic Application has been filed by the applicant pursuant to s 145(3) of the 1987 Act seeking a determination of its liability in respect of the payments set out in the Notice.

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 matter proceeded in arbitration hearing on 26 May 2025 on the MS Teams platform. The applicant was represented by Mr Paul Macken, solicitor instructed by Ms Naydene Mostert, who was present. The first respondent was represented by Mr Daniel Stiles, counsel, instructed by Ms Miriam Browne, solicitor, and Mr Michael Butcher from the workers compensation nominal insurer. The second respondent was represented by Mr John Mrsic, counsel, instructed by Mr Grant Watson, solicitor and Ms Mary Ajok and Ms Caitlyn Gerahty was present.

FINDINGS AND REASONS

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Generic Application and attached document;
(b)    Reply and attached documents filed by the first respondent;
(c)    Reply filed by the second respondent;
(d)    Application to Admit Late documents (AALD) dated 20 November 2024 filed by the first respondent;
(e)    Application to Lodge Additional Documents (ALAD) dated 5 December 2024 filed by the applicant;
(f)    ALAD dated 17 December 2024 filed by the second respondent;
(g)    ALAD dated 3 February 2025 filed by the second respondent;
(h)    ALAD dated 6 March 2025 filed by the first respondent, and
(i)    ALAD dated 10 March 2025 filed by the applicant.
The ALAD dated 26 May 2025 filed by the applicant was not admitted into evidence. It attached a statement dated 26 May 2025 by Naydene Mostert. Both respondents objected to the statement on the ground it was late and no explanation had been provided for the delay in serving it. The main objection, which I accepted, was one of relevance because the Commission is dealing with the liability of the applicant to reimburse the WCNI for payments made up to 17 June 2024 and the statement does not assist in determining that matter as the observation related by Ms Mostert was just that on 18 March 2025 she saw Ms Gerahty depart her home with a young person.
Mr Macken argued that even though the statement deals with observations of Ms Gerahty outside the period in question in the s 145 Notice those observations have relevance because bank statements show payments made to Ms Gerahty and he submits that the Commission should infer these payments related to childcare, and the observations of
Ms Mostert, albeit later, support such an inference. He submits if there is capacity for employment at the time then it should be found there was capacity for employment in all periods. I find this submission does not have merit because just the act of leaving one’s home with a child does not support such a finding. Mr Macken can submit about the bank records as he sees fit but I find the observation by Ms Mostert nine months after the period for which the WCNI seeks reimbursement is not relevant. I have an obligation to deal with the real issues in dispute and I find this statement does not deal with those issues. Furthermore, the statement is lodged very late in the proceedings and there is no explanation why it was only filed two days before the hearing, noting it deals with Ms Mostert observing Ms Gerahty on 18 March 2025.
Paragraph 4 of the statement is an opinion of Ms Mostert and as Mr Mrsic submitted she is not qualified to provide opinion evidence about Ms Gerahty’s capacity for employment.
For these additional reasons, the statement was not admitted into evidence.
The balance of the documentary evidence is set out below, where relevant, when considering counsel’s submissions.

Oral evidence

Dr Khoo, Ms Gerahty’s general practitioner, was summonsed to attend by the applicant as Mr Macken sought to cross-examine him. The doctor joined promptly online and expressed his concerns about the delayed payment of a report requested from him by Mr Macken and about his fees for producing his medical records relating to Ms Gerahty.
Dr Khoo read out a report he had prepared but not yet issued because he was only paid for it that morning. Dr Khoo says two questions were asked of him. He said the answer to question one was:
“Ms Gerahty had an ultrasound on 21^st September 2023 which confirmed the presence of De Quervain’s tenosynovitis. She had treatment with a hand physiotherapist with minimal improvement. She had subsequently seen an interventional pain management specialist, Dr Lewis Holford, on the 21^st of March 2024 who diagnosed Ms Gerahty with complex regional pain syndrome type 1. Ms Gerahty underwent a series of three stellate ganglion blocks between 30^th of October 2024 and 27^th of November 2024.”
Dr Khoo says question two was:
“The certificate indicated that the patient had no current capacity for work, the patient has however indicated that she has worked professionally as a babysitter in the past. Do you consider that the patient would have some capacity to work as a babysitter notwithstanding the condition diagnosed?”
There was an objection taken at this point by Mr Mrsic on the basis that this question is dealing with current capacity whereas the payments of weekly compensation for which the s 145 was issued is in the period up to 2 June 2024. I asked Mr Macken if he objected to me asking the doctor to limit his answer to that period and Mr Macken agreed. Dr Khoo responded in that period there was no capacity for employment as set out in his certificates.
Mr Macken then asked the doctor if he agreed that De Quervain’s tenosynovitis is a disease process? Dr Khoo responded “correct”. The other parties stated they did not have any questions for Dr Khoo and he was excused.
It is evident from Mr Macken’s submissions, which are discussed in detail below, the main issues in dispute are:
(a) whether 11 September 2023 is the correct date of injury because he argues this injury falls under the disease provisions, and
(b) even if the date of injury is 11 September 2023, whether the payments made by WCNI are as a result of that injury or as he submits a subsequent injury on
[1] The second incident date occurred on 24 October 2023 but it is sometimes referred to as on 25 October 2023.
24 October 2023.[1]
It is useful to briefly summarise the available documentary evidence before considering the legal representatives’ submissions.

Ms. Gerahty’s statement

Ms Gerahty is aged 23. She commenced work with the applicant in October 2021 on a part-time basis as a junior behavioural therapist, working about 40 hours per week. Naydene Mostert ran the business and there was one other employee. She states that the work involved providing services to children, mostly with intellectual disabilities. She would travel to their homes, schools and at time to public places to provide support. She says the general age of the children she dealt with was between 3 and 10 years of age.
She says she has a hypermobility disorder, a type of connective tissue disorder for which she has had treatment over the years. She sets out her medical and accident history in her statement but says she had never previously experienced symptoms in her left wrist, although she had symptoms affecting her left shoulder culminating in a shoulder reconstruction in March 2021 by Dr Perko. She is right-handed.
Ms Gerahty states on 11 September 2023 she was assisting an intellectually disabled 16-year-old girl taking her to a park as part of socialisation and integration into the community. A support worker, Ranika Walsh, from What Ability was also present. Ms Gerahty describes the events leading up to her experiencing her left wrist injury. She states at [14] - [17] of her statement dated 17 December 2024:
“Throughout the journey the child was hitting, punching, spitting, twisting, pulling and generally being disruptive as I was trying to hold her wrist so that we could safely walk to the park without her running off or putting herself in danger. I only needed to do this after she threw herself on the ground on the road and I had to help direct her to the footpath. The rest of the walk I used my body placement to ensure we could walk safely. At one stage my mobile phone was thrown across the road.
…
At the time and throughout the rest of the day I experienced some mild pain in my left wrist, but I did not think much of it at first. I finished the shift and later completed another shift.
The next day when I woke up, I noticed that my left wrist and hand had swollen to what seemed like double its normal size. It was extremely painful. Whenever I moved it, it became much more painful.
I wrapped my left wrist it in a compression bandage and splinted my lower hand and wrist. I applied ice to numb it and help with the swelling. Even though it was very swollen and painful, I still expected it would recover within a day or so.”
Ms Gerahty says on 14 September 2023 she lodged an incident report through the system used by her employer in respect of the incident on 11 September 2023. A copy of this report is attached to her statement and sets out details of the injury to her left wrist.[2] She states that by 17 September 2023 she was still in severe pain and sent a message with photos on MS Teams to Ms Mostert to update her about the injury and to take the next day off to see a doctor. She says Ms Mostert phoned her a short while later approving the day off.
[2] ALAD 17 December 2024 p 11.
Ms Gerahty went to Dr Khoo on 18 September 2023 who organised for her to have an X-ray and ultrasound of her left wrist and advised her not to return to work until the results were received. Ms Gerahty says she telephoned Ms Mostert to inform her of this.
She was off work from 18 September to 3 October 2023. Ms Gerahty says she telephoned Ms Mostert shortly after seeing Dr Khoo on 22 September 2023, who recommended she have a cortisone injection, and Ms Mostert said she would cover the costs privately.
Ms Gerahty states that she suggested putting the matter through insurance but Ms Mostert said this was only necessary if she had a fracture.
Ms Gerahty returned to work on 4 October 2023 with her wrist bandaged and, in a splint, and she says she was in extreme pain. She says Ms Mostert was very supportive and tried to accommodate her injury by placing her with younger non-aggressive children. After being told by Dr Watson that she needed an MRI she contacted Ms Mostert on 19 October 2023 to ask if she should put this through insurance, a copy of this email is attached to her statement.[3] Ms Mostert responded the next day and informed her because the injury had not been notified within 24 hours a claim could not be lodged with insurance. Ms Gerahty contacted SIRA who informed her she could make a claim and so she attended Dr Khoo and obtain a Certificate of Capacity, which she sent to Ms Mostert on 22 October 2023, a copy of this email is attached to her statement.[4] On 23 October 2023 Ms Mostert called Ms Gerahty and said she would pay for the MRI privately to avoid delay in dealing with icare.
[3] ALAD 17 December 2024 p 19.
[4] ALAD 17 December 2024 p 18.
Ms Gerahty says on 24 October 2023 she aggravated her left wrist at work when a girl hit and pushed her left wrist, causing her pain. Ms Gerahty says she reported this in a voicemail to Ms Mostert and completed a report in the Splose system, a copy of this incident report is attached to her statement.[5] Ms Gerahty attended Royal North Shore Hospital Emergency Department for treatment and the next day emailed Ms Mostert the discharge summary from the hospital.
[5] ALAD 17 December 2024 p 15.
Ms Gerahty sets out in detail the treatment she has received for her left wrist injury. I have not summarised this part of her statement as below I summarise the medical documentation.
From [50] to [56] in her statement Ms Gerahty comments on the contents of Ms Mostert’s statement dated 5 December 2024 and refutes various assertions contained therein.
Ms Gerahty sent an SMS message to Ms Mostert on 3 October 2023 saying she was allowed to return to client sessions the next day. She advises that her wrist had improved a lot with pain only occurring some of the time so she says she will be careful with it but she no longer needs to keep it entirely rested. She states she has attached a doctor’s note.[6]
[6] ALAD 10 March 2025 p 2.

Ms Mostert’s statement

Ms Mostert has provided a statement dated 5 December 2024. I find this statement to be unreliable and devoid of any probative facts. Ms Mostert tries to cast doubt on whether an injury occurred on 11 September 2023. As Mr Stiles submitted Ms Mostert’s answers to the WCNI questionnaire states the injury occurred on 11 September 2023. He argues there can be no dispute that an incident happened at work on 11 September 2023.[7] Mr Mrsic submitted these answers were given in a statutory declaration sworn on 30 November 2023 and
[7] WCNI Reply p 24.
Ms Mostert has never recanted from the answers in that document. I accept these submissions. In that statutory declaration Ms Mostert says the date of injury is 11 September 2023 and “Caitlin notified Naydene that there was behaviour on 11/09/2023. No injury was reported on the 11/09/2023. Completed an incident report on 14/09/2023. Naydene was on leave until 18/09/2023 when she became aware of the injury.” The next question is “did the claimant have to stop work because of the injury?” and the reply is “yes, she has”.
At [9] of her statement she asserts that if Ms Gerahty had issues at about that time it is more likely to be related to the personal matter of which she was preparing a report in respect of physical abuse on 9 September 2023.
I have read the material in the ALAD of 3 February 2025 and I will not summarise it as it refers to notifications made by Ms Gerahty to the Department of Communities and Justice about children with suspected harm to them including a notification on 9 September 2023. I do not consider this material is relevant to my determination. It does not provide evidence of physical abuse being perpetrated on Ms Gerahty.
Furthermore, Ms Gerahty has lodged copies of the correspondence with Ms Mostert and given evidence in her statement about Ms Mostert’s incorrect advices about making a workers compensation claim and that Ms Mostert offered to pay for her treatment privately. Ms Mostert has not challenged this evidence. In the email sent on 19 October 2023
Ms Gerahty informed Ms Mostert that her wrist has not been improving and she says, “the pain has in fact been increasing”. She informs Ms Mostert she was given a referral for an MRI as her specialist is very concerned. Ms Gerahty says she wanted to check in with
Ms Mostert as up to this point she has covered the situation privately and she asks if she now wishes to use her insurance. On 20 October 2023 Ms Mostert responded with incorrect information about making an insurance claim.
Weekly payments were not made by WCNI until the period commencing 12 February 2024 yet in the bank statement there are payments from Naydene Mostert including on
[8] ALAD 10 March 2025 p 10.
18 December 2023 for $1,936.55 which says, “workers comp”, and on 27 December 2023 for $973.13 with words “workers comp”.[8] A further payment from Naydene Mostert was made on 12 February 2024 for $1,754.26 but no explanatory words are included. These payments are not referred to in Ms Mostert’s statement. I mention these payments for completeness sake. I have not based my decision on them as they were not the subject of submissions.
Because the medical documents are scattered through the various bundle of documents lodged in the Commission I have summarised them briefly below in chronological order.

Dr Khoo’s consultation 18 September 2023

The doctor recorded:
“was hit by a child at work on 11/9/23- sore L. wrist
Discussed, refer of XR and U/S, analgesia scripts given, pt also taking Mobic
R/V after imaging to decide if she wants to start a WorkCover claim- pt notified her boss on the day it happened” [9]
[9] ALAD 5 December 2024 p 28.

X-ray and ultrasound report 21 September 2023

The clinical history on the report is “trauma to the left wrist”. The ultrasound revealed “mild fluid within the APL/EPB tendon sheath in keeping with mild tenosynovitis and suggestive of de Quervain’s tenosynovitis”. The radiologist states that a trial of an ultrasound guided steroid injection into the tendon sheath may be contemplated. The X-ray was normal.[10]
[10] ALAD 5 December 2024 p 14.

Dr Khoo’s consultation 22 September 2023

The doctor states “PT informed of XR and U/S results- mild de Quervain’s. PT still in a fair amount of pain. Discussed, refer for cortisone inj. Letter given to inform her employer”.[11] The letter to the employer states that Ms Gerahty “is currently experiencing pain in her left wrist after she was hit by a client at work. Ultrasound examination has revealed she has inflammation of her tendons in the area. She has been referred for cortisone injections to reduce the inflammation.”[12]
[11] ALAD 5 December 2024 24 p 28.
[12] WNCI Reply p 1.

Ms Gerahty’s email to Dr Watson 18 October 2023

Dr Watson has been the specialist who had been treating Ms Gerahty for many years for her hypermobility issues. Ms Gerahty emailed him on 18 October 2023 before going to see him. Rather than paraphrasing the contents of her email relating to her left wrist I have reproduced the relevant part below. I find this is highly relevant information because it immediately predates the second incident which occurred on 24 October 2023.
“On the 11th of September I was injured at work by being punched repeatedly on the left wrist by a teenage client. It was initially slightly painful but I was able to go about the rest of my day. When I woke up on the 12th my entire wrist and hand had swollen to double their size and all movement was extremely painful. I wrapped it in a compression bandage (including immobilising the thumb) and splinted the lower hand and wrist, hoping it would recover on its own with rest. I also iced it frequently. continued working (with clients no older than approximately 8 years old) between 11/09/23 and 17/09/23. I was then off of work from 18/09/23 to 03/10/23 and returned to work 04/10/23. I saw the GP on the 18th of September as the pain was increasing and if I removed the compression bandage and splint, it would dramatically swell within 5 minutes and be extremely painful. I was referred to an ultrasound and x-ray, which showed minor tendonitis. The technician who performed my ultrasound said that while she could see damage she was not seeing enough damage to explain my symptoms or level of pain and recommended an MRI. My GP did not give me a referral for an MRI. It has been almost 5.5 weeks since the injury and it is still causing extreme pain, I remain unable to remove the bandage or the splint for more than a few minutes before I can no longer tolerate the pain. Even wrapped as it is, I often have to walk with my left wrist resting on my right shoulder/chest as the motion of my arm swinging while walking is too painful. I am unable to bear weight and cannot hold the weight of my phone in my left hand for more than a minute or two. The pain is the worst on the top of the hand/wrist, and the inner (thumb side) wrist and thumb but on occasion moving my other 4 fingers also causes extreme pain. As far as I can tell my range of motion for my wrist, fingers and thumb is normal however any movement is severely painful. I have been prescribed mobic and panadeine forte. I took mobic for the first 2 weeks and have begun taking it daily again since 14/10/23.1 typically have quite a high pain tolerance and will rarely take pain medication however over the last week to week and a half I have had to take panadeine forte at least once on most days.”[13]
[13] ALAD 20 November 2024 p 1.

Dr Watson consultation 19 October 2023

He refers to the email and that Ms Gerahty had a left hand/wrist injury five and a half weeks ago with recurrent severe swelling and pain. He ordered an MRI of the left wrist.[14]
[14] ALAD 20 November 2024 p 4.

Dr Khoo’s consultation 20 October 2023

Dr Khoo recorded, “Pt’s L. wrist de Quervain’s symptoms not better. Will proceed as a WorkCover case. PT has spoken with her sports physician Dr Watson-awaiting MRI and opinion RE cortisone inj. Cert of Capacity given.”[15] The certificate of capacity dated
20 October 2023 has the date of injury 11 September 2023 and that she was first seen on
[15] ALAD 5 December 2024 pp 28 and 29.
[16] WCNI Reply p 2.
18 September 2023 for the injury with the description of injury “hit by client at work”. The diagnosis given was “left wrist de Quervain’s tenosynovitis”. The doctor certified in this certificate that from 4 October 2023 to 17 November 2023 she had capacity for some work for 8.75 hours for four days per week and from 18 September 2023 to 3 October 2023 she had no current capacity for any work.[16]

Royal North Shore Hospital 24 October 2023

Ms Gerahty went the Emergency Department of the hospital about injury to her left wrist. The date of injury was recorded as 24 October 2023 but it is stated that the original injury was approximately 6/52. The history is in the incident 6/52 she was punched in her hands and underwent an X-ray and ultrasound and was told she had De Quervain’s tenosynovitis and “since then she has worn a splint”. The doctor recorded that she had tenderness located at the snuffbox region and grip strength was limited by pain. The impression was a likely flare up of De Quervain’s tenosynovitis. She was certified unfit to work from 25 October 2023 to
[17] WCNI Reply p 7.
31 October 2023.[17]

Dr Khoo’s consultation 25 October 2023

It is recorded,
“Pt was hit another client today, specifically on her sore L. wrist. Discussed, new Cert of Capacity given for her to take the next 2 weeks off.
Pt due to see Dr Stuart Watson following an MRI-await results and opinion.”[18]
[18] ALAD 5 December 2024 p 29.

Dr Khoo’s referral to Dr Stuart Watson 25 October 2023

Dr Khoo referred Ms Gerahty to Dr Watson regarding her painful left wrist. He states “she was hit by a client and an ultrasound showed mild De Quervain’s. She is still in a lot of pain”.[19]
[19] ALAD 5 December 2024 p 31.

MRI left wrist 29 October 2023

The MRI was performed on 28 October 2023. The radiologist concluded there was no evidence of CRPS. Included in the report is reference to “adjacent ECU tendinopathy and subtle splitting with tenosynovitis. Possible further mild FCU and first compartment tenosynovitis.”[20]
[20] ALAD 5 December 2024 pp 15-16.

Dr Watson 2 November 2023

Dr Watson reported to Dr Khoo that Ms Gerahty had “persisting irritability of the left wrist following a flareup from repeated acute injury at work on 11 September 2023 and also 24 October 2023 with similar mechanism related to direct blows to the wrist from a client Caitlin was working with”. The doctor advises “there is no reason why she cannot return to work as soon as she is comfortable enough to do this but she obviously needs to try to avoid repetition of the assault which occurred as this is likely to flare up her symptoms”.[21]
[21] ALAD 20 November 2024 p 10.

Dr Khoo’s consultation 3 November 2023

Dr Khoo records “still has pain ++, needs referral to a hand physio for further management.”[22] Dr Khoo sent a referral on the same day to a hand physiotherapist in the same terms as he wrote to Dr Watson.[23]
[22] ALAD 5 December 2024 p 29.
[23] ALAD 5 December 2024 p 32.

Dr Khoo consultation 1 December 2023

Dr Khoo records, “still in pain. Hand physio suggested not to return to work yet. Cert of capacity given. Scripts for analgesia given”. The medication prescribed was Endone and Panadeine Forte.[24]
[24] ALAD 5 December 2024 p 30.

Hand therapy report 7 December 2023

The hand therapist, Victoria Tricardos, reported to Dr Watson.[25] There is reference to two injuries to the left wrist. On 11 September 2023 when working with a 16-year-old she was punched and kicked after trying to remove the client from the road and on 24 October 2023 a ten year old hit her wrist. She wears a brace and the pain is reported as getting worse.
[25] ALAD 20 November 2024 p 13.

Dr Watson 8 December 2023

Dr Watson reported to Dr Khoo that he had discussed the management of her left wrist with her treating physiotherapist. He said she has some features of CRPS type2 but these also intersect with the sort of response that can occur after injury in patients with joint hypermobility syndrome.[26]
[26] ALAD 20 November 2024 p 15.

Dr Khoo consultation 20 December 2023

Dr Khoo records that Ms Gerahty was still in pain and that the hand physiotherapist and
Dr Watson have suggested she not return to work yet. She was referred to Sabrina Dibble in addition to seeing the hand physiotherapist and referred to pain management specialist and a certificate of capacity was given.

Dr Khoo consultation 19 January 2024

Dr Khoo recorded that Ms Gerahty was still in pain and the hand physiotherapist suggested she not return to work yet. The doctor issued a certificate of capacity.[27]
[27] ALAD 5 December 2024 p 30.
I have not summarised the balance of Dr Khoo’s clinical notes. I have read them all in the ALAD of 20 November 2024.

Dr Khoo referral to Dr Beard 11 March 2024

Dr Khoo advised Dr Beard that Ms Gerahty has a painful left wrist and Dr Watson suspected chronic regional pain syndrome. He noted an ultrasound showed mild De Quervain’s.[28]
[28] WCNI Reply p 42.

Dr Watson 15 March 2024

Dr Watson reported to Dr Khoo that Ms Gerahty’s left wrist was still in a brace. He refers to a number of other non-injury related conditions.[29]
[29] ALAD 5 December 2024 p 18.

Dr Holford 21 March 2024

Dr Holford reported to Dr Khoo that Ms Gerahty’s symptoms developed following a work injury on 11 September 2023 when repeatedly hit on the left wrist. The following day she developed significant swelling and pain over the wrist which did not resolve over the subsequent week. The doctor noted the ultrasound showed tenosynovitis and he reported the results of the MRI scan dated 29 October 2023. He notes that Ms Gerahty feels her pain has progressed since onset and he describes the areas of her pain in her wrist and forearm and her symptoms. He says that Ms Gerahty has not worked since the time of her injury and is currently certified unfit for work. Dr Beard thought she had developed CRPS type 1 and sets out her treatment program.[30]
[30] WCNI Reply p 21.

Dr Beard 25 March 2024

Dr Beard reported to Dr Khoo. He describes her duties and notes she also enjoys doing activities with her 8-year-old niece. He says Ms Gerahty was injured at work in September 2023 and again in October. He noted she was utilising a splint for a large amount of time and he recommended weaning off it. Dr Beard though she had isolated De Quervain’s at that stage and her symptoms were more in keeping with the diffuse nature of her dystrophic changes or chronic regional pain syndrome.[31]
[31] WCNI Reply p 23.

Dr Holford 6 May 2024

Dr Holford reported to Dr Khoo he had reviewed Ms Gerahty and discussed her medication regime to treat her pain. He was arranging a psychologist to see her to optimise behavioural pain management strategies.[32]
[32] WCNI Reply p 46.

Dr Beard 10 May 2024

Dr Beard reviewed Ms Gerahty and reported to Dr Khoo she was still struggling with her left arm; she had developed quite significant numbness. He states that pins and needles began some months ago but they have become progressively worse over the last few weeks. He recommended nerve conduction studies to check on carpal tunnel syndrome.[33]
[33] ALAD 5 December 2024 p 19.

Dr Watson 4 June 2024

Dr Watson reported to Dr Khoo that Ms Gerahty had ongoing pain in her left wrist. She was having regular sleep disturbance and significant disruption to her quality of life caused by her symptoms. She was finding a brace useful to minimise her symptoms. He lists some findings consistent he says with CRPS. He recommended increasing Nortriptyline and Pregabalin doses.[34] Dr Watson states that the nerve conduction studies were normal.
[34] ALAD 5 December 2024 p 20.
In the ALAD of 6 March 2025 are copies of Dr Khoo’s SIRA Certificates of Capacity dated
13 February 2024, 11 March 2024, 8 April 2024 and 6 May 2024. They all certify she has no current capacity for any work, with the last covering the period up to 3 June 2024. They all refer to the date of injury of 11 September 2023.

Determination

Mr Macken submitted that Dr Khoo gave evidence that De Quervain’s syndrome is a disease and the date of injury being relied upon is 11 September 2023. He argued that this is not the date of injury in a disease case. He submits that the date of injury is the first period of incapacity and the first medical certificate in the case is dated 22 September 2023 and
Ms Gerahty had worked up to then. He argues the deemed date of injury is therefore not
11 September 2023. He says the first certificate of capacity, as distinct from a medical certificate, is dated 18 October 2023 and the date of incapacity referred to in that certificate is 8 September 2023. He submits that non-insurance is only conceded for the date of injury set out in the s 145 notice, 11 September 2023, and on any view of the evidence this is not a correct date of injury. Mr Macken submits that on this basis alone the reimbursement to WCNI must fail.
Mr Stiles argued, when one considers Ms Gerahty’s statement, what occurred on
11 September 2023 was a discrete “frank” injury. He refers to the paragraphs of her statement which I have set out above. I accept this submission and find that this injury falls within s 4(a) of the 1987 Act. In the case of Rail Services Australia v Dimovski & Anor[35] at [68] of the Court of Appeal decision Hodgson JA found:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury "consists in" the aggravation of a disease.”
[35] [2004] NSWCA 267, Dimovski.
Justice Hodgson explains that a contrary view would result, if incapacity did not commence immediately, the injury would be deemed to have happened at a later time than when it in fact occurred. I acknowledge there has been legislative change to s4(b) of the 1987 Act but the changes do not affect this statement of principle. Mr Stiles also relied on the decision of his Honour Judge Phillips in Australian Unity Home Care Service Pty Ltd v Kerr[36] which considered various cases including Dimovski.
[36] [2024] NSWPICPD 56, Kerr.
I find there is ample evidence that there was a discrete personal injury on 11 September 2023 which was summarised by Mr Stiles including the contents of Dr Khoo’s clinical note on 18 September 2023, and the X-ray and ultrasound report dated 21 September 2023.
[37] WCNI Reply p 4 in certificate dated 20 October 2023.
Mr Stiles also submitted that Dr Khoo had certified Ms Gerahty as having no capacity for employment from 18 September 2023 to 3 October 2023.[37] He submits, and I accept, this evidence refers to trauma to the left wrist at work on 11 September 2023.
Mr Macken in his submissions in reply submits that Ms Gerahty in her statement refers to the 16-year-old child was hitting her as they were walking to the park. He argues it was a series of events on that day and it was not one event. He says this is the nature and conditions of employment on the 11 September 2023. He submits that Dimovski does not apply because this was not one event. He argues this injury comes with in the disease provisions and the date of injury is not 11 September 2023 because it was not the date of first incapacity. I do not accept this submission. The fact that Ms Gerahty was struck multiple times on her left wrist on 11 September 2023 does not equate to her suffering a disease of gradual onset.
I find while she may have been hit multiple times that day that does not amount to a so-called nature and conditions injury. The mechanics of the injury are relevant to consider. This is not a case where a worker was using her left wrist repetitively such as in process work involving using her wrist to perform manual tasks repetitively. She was hit by a 16-year-old intellectually disabled child and all the assaults occurred on 11 September 2023 within her work shift. I find even though Dr Khoo described tenosynovitis as a disease that does not mean that Ms Gerahty on 11 September 2023 sustained a disease injury for the reasons set out in Dimovski. Multiple traumata, as suffered by Ms Gerahty, I find still come within the definition of personal injury in s4(a) rather than a disease injury under s4(b) of the 1987 Act.
Mr Macken also relies on the Royal North Shore Hospital discharge summary because it has the date of injury on 24 October 2023. However, the hospital discharge summary says it was a “flare up”.
Mr Macken submitted that the second issue, as far as injury is concerned, is while
Ms Gerahty alleges an incident or incidents on 11 September 2023, the medical evidence shows that she had recovered and returned to work in October. He submits there is a subsequent injury in October which then results in Ms Gerahty ceasing employment. He argues that if it is to be said that there is compensation payments made in respect of
11 September 2023 the only compensation payments which the applicant could be liable for would be in the period 18 September 2023 and 20 October 2023. He submits, however, in the s 145 notice list of payments none of the payments relate to that period at all, as the first payment of weekly compensation was on 12 February 2024. He submits that any payments after this date relate to a different injury and do not form part of the recovery notice.
I find that the evidence does not support a finding that Ms Gerahty had recovered when she returned to work on 4 October 2023. This is evident from the medical evidence pre-dating the second incident of 24 October 2023 including the contents of Dr Khoo’s consultation on
20 October 2023, Dr Watson’s finding on 19 October 2023 that she still had severe swelling and pain and the fact that he ordered the MRI scan before the second incident. In addition, and I find most powerfully is the email Ms Gerahty sent to Dr Watson on 18 October 2023, which I find sets out in detail the continuing problems Ms Gerahty was having with the left wrist.
Mr Macken referred to Dr Holford’s report dated 21 March 2024 submitting it specifies the injury without referencing the date.[38] This is not correct as the report states that he reviewed Ms Gerahty regarding her left wrist and upper limb pain, “Caitlin’s symptoms developed following a work related injury on 11 September 2023. In her role as a Behavioural Therapist working with children with special needs, Caitlin was repeatedly hit on the left wrist by a 16 year old girl with whom she was working.”
[38] ALAD 17 December 2024 p 20.
Mr Macken says in this report from Dr Holford he states that Ms Gerahty has not worked since the time of her injury. He argues this can only be a reference to the injury in October and it cannot be a reference to injury in September, because she had worked from
11 September, went off on 18 September 2023 and had worked again on 4 October. He submits the only injury for which Ms Gerahty has “not worked since” is that of 24 October 2023. I do not accept this submission that “clearly this is what the specialist is referring to” because Dr Holford identified the date of injury in the opening paragraphs of his report and he also details that she underwent and X-ray and ultrasound on 21 September 2023 which showed tenosynovitis. I find just because the doctor has not precisely recorded the days that Ms Gerahty did not work after 11 September 2023 does not undermine his opinion that she suffered an injury on 11 September 2023 in the form of tenosynovitis of the left wrist.
Mr Macken also submitted that Dr Beard in his report dated 25 March 2024 refers to
[39] ALAD 17 December 2024 p 23.
Ms Gerahty being injured in September 2023 and again in October. He argues that Dr Beard does not distinguish between the two and that all the payments in the s 145 notice post-date the October injury. However, Dr Beard does relate details about the injury, that she was repeatedly punched and hit over a four-hour period in September and then received a number of jabs in October.[39] What he does not do is offer an opinion about causation to support the applicant’s argument.
I find that just because payments made by WCNI post-date October 2023 does not mean they were not causally related to the incident on 11 September 2023. This argument ignores the fact that Ms Gerahty experienced the symptoms she sets out in her statement and received treatment before 24 October 2023. Mr Macken did refer to X-ray in September as being normal and argues the subsequent radiology on 29 October 2023 does seem to provide evidence of pathological alteration. However, the ultrasound showed tenosynovitis and Dr Watson observed on 19 October 2023 she had recurrent severe swelling and pain.

Mr Macken also referred to a report from Dr Watson dated 15 March 2024 who discusses a number of sites with regard to musculoskeletal pain. Mr Macken says his client is not responsible for these other areas. No one has asserted that payments were made by WCNI for any condition apart from related to the left wrist injury. I note Dr Watson in that report also refers to Ms Gerahty’s left wrist and records that she is seeing a chronic pain specialist about that and he asked to be kept informed of any treatment plan. There is no suggestion in
[40] ALAD 5 December 2024 p 18.
Dr Watson’s report that he was asserting the other areas he mentioned were part of the injury. He did note that her left wrist was still in a brace.[40]
Mr Macken submitted that the report of Dr Beard dated 10 May 2024 supports his argument that Ms Gerahty suffers from a disease process in the left arm which is progressing. He says that Dr Beard’s history illustrates this because the doctor states that she has developed quite significant numbness and has pins and needles beginning some months ago, which are progressively worse over the past few weeks.[41] He says compensation for such a disease is not payable. I reject this submission for the reasons I gave for finding Ms Gerahty sustained a s 4(a) injury. The fact that it worsened does not detract from that finding. Dr Watson has expressed the view her pre-existing hypermobility condition makes her vulnerable to developing problems with an acute injury.
[41] ALAD 5 December 2024 p19
Mr Macken referred to Dr Khoo’s clinical notes for 18 September 2023 and then stated that on 25 October 2023 Dr Khoo records that Ms Gerahty was hit by another client that day “specifically on her sore L. wrist. Discussed, new Cert of Capacity given for her to take the next 2 weeks off”.[42] He submitted that all time off work subsequent to that date is as a consequence of an injury which is not the subject of this s 145 notice and Application.
[42] ALAD 5 December 2024 p 29.
However, Mr Macken did not refer to the consultation notes for 22 September 2023 which state “PT informed of XR and U/S results- mild de Quervain’s. PT still in a fair amount of pain. Discussed, refer for cortisone inj. Letter given to inform her employer”.
He also did not refer to the entry on 20 October 2023 which states “Pt’s L. wrist de Quervain’s symptoms not better. Will proceed as a WorkCover case. PT has spoken with her sports physician Dr Watson-awaiting MRI and opinion RE cortisone inj. Cert of Capacity given.”[43]
[43] ALAD 5 December 2024 pp 28 and 29.
Mr Macken submitted the report by Dr Khoo to Dr Watson dated 25 October 2023 was done on the day of the second incident and so it is consistent with the payments of compensation being paid for that incident.[44] I do not agree with such an interpretation because Dr Khoo refers to the ultrasound showing mild De Quervain’s and it is clear from the records this ultrasound was performed after the incident on 11 September 2023 and before
[44] ALAD 5 December 2024 p 31.
24 October 2023.
The applicant relies on the SMS message sent by Ms Gerahty to Ms Mostert on
3 October 2023 in which she writes that the pain in her wrist has improved a lot with pain only occurring some of the time. She states, “so I will continue to be careful with it but no longer have to keep it entirely rested”. Mr Macken says this message shows there has been recovery, return to work and only intermittent problems and he says the second injury, which is not covered in the recovery notice, removes her capacity for work. He says the evidence does not support any connection between the payments made and the date of injury set out in the notice. He says this means the recovery action should fail. Mr Stiles submits that this message does not support a finding that her condition has resolved. I accept this submission from the contents of the message itself but also because this conclusion is supported by the medical evidence occurring before the second incident on 24 October 2023 which I have summarised above.
Mr Stiles referred to Ms Gerahty’s statement that her employer tried to accommodate her on her return to work so she could only work with young children and she states she continued to wear a splint and bandage. He argues that her condition had not resolved when she returned to work on 3 October 2023. I accept this submission as I find Ms Gerahty’s statement to be reliable evidence as it is consistent with the medical evidence.
Mr Stiles submits that Ms Gerahty says in her statement that on 24 October 2023 the incident with the child aggravated her wrist, which she felt occurred because the child noticed the bandage on her left wrist. Mr Stiles also referred to Dr Watson’s report after the second incident in which he referred to her having a “flare up”. In the report dated 2 November 2023 Dr Watson says she needs to avoid a repetition of the assault as it would likely flare up her symptoms. The Royal North Shore Hospital discharge summary also refers to the incident on 24 October 2023 being a “flare up of tenosynovitis”. I find these references in the medical evidence support the finding that Ms Gerahty sustained an injury on 11 September 2023, which did not heal, and she was thereafter vulnerable to suffering flare ups should her left wrist suffer an impact. I find the second incident was a “revelation” of her symptoms from her ongoing injury from 11 September 2023 and not the genesis of another injury. In Kerr at [60] His Honour Judge Phillips quotes a passage cited by Judge Neilson in Lyons v Master Builders Association of NSW Pty Ltd[45] that Windeyer J in the High Court of Australia found that “the Court is concerned with genesis rather than revelation”.
[45] (2003) 25 NSWCCR 422, Lyons.
I find there is no break in the causal chain because of the incident on 24 October 2023. I find that the medical evidence immediately before that date confirms that Ms Gerahty had a significant ongoing injury to her left wrist. Mr Macken submitted in reply there was no finding on the radiology before the second injury and the subsequent MRI scan showed pathological change. I do not accept the logic of this submission. The ultrasound before the second incident did reveal tenosynovitis, which despite treatment became worse. The fact is that there was no MRI before the second incident to compare the pathology before and after that incident. I find it is fallacious to accept that just because the MRI post-dated the second incident the changes shown on it occurred from that second incident. Clearly they equally could have pre-dated the second incident and while I cannot determine that point one way or another, what is significant is that Dr Watson was concerned in his clinical judgement, when considering Ms Gerahty’s injury on 11 September 2023, that he ordered she undergo the MRI before the second incident occurred.
I regard the pain Ms Gerahty experienced in the second incident was a flare up; a revelation of symptoms. In the text of 3 October 2023 Ms Gerahty made it clear that she was aware that she had to be careful with her wrist so as to avoid such flare-ups. This is why her employer gave her lighter duties, dealing with younger children. The Royal North Shore Hospital discharge summary refers to the second incident as a flare up. The fact that they refer to a “date of injury” as 24 October 2023 I find is not determinative. The applicant has the onus of proof it has not put on an expert report to consider causation to offer an opinion that it was the second incident that caused injury to Ms Gerahty and the payment of compensation, as distinct from the injury on 11 September 2023.
In relation to the question of capacity, Mr Macken submitted that Ms Gerahty’s CV shows she has considerable experience carrying out childcare or babysitting activities, both personally and corporately. He says there are payments made in 2023 in the bank statements of payments to Ms Gerahty which are not explained. However, in a s 145 matter the authorities establish that the uninsured employer has the onus of proof. Mr Macken did not seek to cross-examine Ms Gerahty and with the payments being unexplained, I do not accept I can infer from these records that Ms Gerahty has been working or has a capacity to earn.
Mr Stiles relied upon the medical certificates issued by Dr Khoo which certify her as having no capacity for employment. I accept that this evidence is consistent with Dr Khoo’s oral evidence. Dr Khoo has been Ms Gerahty’s longstanding treating general practitioner and I find he is well placed to judge her capacity for employment. I am satisfied that the payments made by WCNI for weekly compensation were appropriately paid for Ms Gerahty’s incapacity employment causally related to her injury on 11 September 2023.
Mr Mrsic adopted Mr Stiles’ submissions. He also submitted that Mr Macken did not cross-examine Ms Gerahty and the contents of her statement is very detailed. He also submitted that Dr Khoo confirmed in his oral evidence that Ms Gerahty was incapacitated for employment.
Ironically, Mr Macken responded to Mr Mrsic’s submission that Ms Gerahty was not cross-examined by submitting that this is not the practice in the Commission, yet I gave him leave to cross-examine Dr Khoo. If a party wishes to raise credit issues an application can made to cross-examine a witness. This was not done in this case. For the reasons, set out above I find I cannot draw any inferences from the deposit entries in the bank statements. I find to do so would be engaging in speculation.
I find and determine in accordance with s 145(3) of the 1987 Act that the applicant has liability for the payments made as advised in the Notice dated 17 June 2024.

[2025] NSWPIC 495

23 September 2025