Hawkes v The Disability Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hawkes v The Disability Trust [2024] NSWPIC 201
APPLICANT:	Rebecca Hawkes
RESPONDENT:	The Disability Trust
MEMBER:	Jane Peacock
DATE OF DECISION:	22 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Left elbow injury; respondent denied liability for proposed left elbow release surgery; evidence weighed in the balance and on the balance of probabilities it was determined that the proposed surgery was reasonably necessary as a result of the work injury; Held – award for the applicant for medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the proposed surgery in the form of a tennis elbow release plus associated expenses as found to reasonably necessary as a result of injuries on 4 February 2023 and 15 February 2023.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Ms Rebecca Hawkes (the applicant) seeks a determination that surgical treatment in the form of a left tennis elbow release is reasonably necessary as a result of injuries on 4 February 2023 and 15 February 2023.
The respondent is The Disability Trust (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim for the proposed surgery.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffered injury to her left forearm and left elbow at work on 4 February 2023 and 15 February 2023.
She now seeks a determination that surgery in the form of a left tennis elbow release is reasonably necessary as a result of injury on 4 February 2023 and 15 February 2023.
The respondent disputes that the proposed surgery is reasonably necessary as a result of the injuries on 4 February 2023 and 15 February 2023. The respondent also disputes that the proposed surgery is reasonably necessary at all. The respondent seeks that an award be made in favour of the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, admitted by consent, and considered in making this determination:
For the applicant
a.     the Application and attached documents, and
b.     full copy of the general practitioner’s clinical records which were tendered by email at the arbitration hearing and as directed filed with an Application to Admit Late Documents by 4.00pm the following day and which were so filed.
For the respondent
a.     Reply and attached documents.

Oral evidence

The applicant did not seek leave to adduce oral evidence. The respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS

The applicant suffered injury to her left arm including her left elbow on two occasions (4 February 2023 and 15 February 2023) when she was struck by a patient under her care in the course of or arising out of her employment as a disability support worker with the respondent.
There is no dispute that the incidents on 4 February 2023 and 15 February 2023 took place as alleged, as they were reported.
The applicant now seeks to a determination that the surgery proposed by Dr Kadir in the form of a tennis elbow release plus associated expenses is reasonably necessary as a result of injuries at work on 4 February 2023 and 15 February 2023.
There is no dispute that injurious events occurred at work on 4 February 2023 and 15 February 2023.
Counsel for the respondent submitted that the dispute lies in what the nature of the injury occurring on those two occasions of being struck by a patient. He further submitted that determination of this dispute will inform the decision as to whether the proposed surgery is reasonably necessary as a result of the injury.
Essentially the dispute is whether the proposed surgery is reasonably necessary as a result of the injury. The dispute before me includes whether it results from the injury and also whether it is reasonably necessary at all.
I must determine, on the balance of probabilities, whether the surgery in the form of a tennis elbow release as recommended by Dr Kadir is reasonably necessary as a result of injury on 4 February 2023 and 15 February 2023. This determination must be made on the evidence and in accordance with the law.
Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
The law in this area is well settled.
Deputy President Roche in Diab v NRMA [2014] NSWWCCPD 72 (Diab) provided a useful summary of the authorities dealing with whether medical expenses are “reasonably necessary” as a result of injury as required under s 60 and set out the approach that is to be adopted.
Deputy President Roche in Diab said as follows:
“76.   The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
‘3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’
77.     The Commission has applied this test in several cases (see, for example, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).
78.     In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.’
79.     The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
80.     The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81.     Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3^rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82.     His Honour added, at [23]–[24]:
‘23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary” there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.
24.The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of “necessary”.’
83.     It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
84.     In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word ‘necessary’’.
85.     The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86.     Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.     Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
a.the appropriateness of the particular treatment;
b.the availability of alternative treatment, and its potential effectiveness;
c.the cost of the treatment;
d.the actual or potential effectiveness of the treatment, and
e.the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.     With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
90.     While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
As Deputy President Roche said in Diab each case will depend on its own facts.
It is disputed that the proposed surgery is reasonably necessary as a result of the undisputed injury to the left elbow on 4 February 2023 and 15 February 2023. It is also disputed whether the proposed surgery is reasonably necessary at all.
In summary, the applicant submits that she suffered undisputed injury to her left elbow on 4 February 2023 and again on 15 February 2023 when she was struck by a patient. She thought the injury would resolve and she tried to keep working. However, she says the condition did not resolve and she experienced persisting and increasing pain and restriction in her left elbow. On 23 April 2023 she woke with pain so bad she presented to hospital and underwent various investigations. She had physiotherapy and tried other conservative measures including strong pain killers but was provided with temporary relief only. It became so bad she could not wash her hair or lift dishes without difficulty. These were all activities she was able to do prior to injury without any restriction whatsoever. She gave evidence that she had never experienced symptoms in her left elbow prior to injury or been treated for any condition in her left elbow prior to injury. She was able to work as a disability support worker which includes the personal care of patients with a disability including cooking and cleaning without restriction prior to injury and rarely had time off work. There is no evidence to the contrary. Since injury she has experienced pain and restriction in her left elbow and this pain persisted and increased despite conservative measures. She was recommended injections but due to her phobia of needles, injections were not undertaken. She has been recommended surgery in the form of a left elbow release by Dr Kadir and she seeks a determination that the proposed surgery and associated expenses is reasonably necessary as a result of injury on 4 February 2023 and 15 February 2023.
In summary, the respondent submitted that while it does not dispute that the applicant was struck by a patient on 4 February 2023 and 15 February 2023, it is the nature of the injury which is in dispute and whether the proposed surgery results from the injuries on 4 February 2023 and 15 February 2023. The respondent also disputes whether the proposed surgery is reasonably necessary at all. In this regard the respondent relies on the opinion of Dr Powell, the independent medical expert (IME) qualified on their behalf, expressed in his two reports dated that are in evidence before me. Dr Powell acknowledges the pathology seen on the ultrasound in the left lateral epicondylar region but says this doesn’t result from the injuries on 4 and 15 February 2023. Rather the applicant has gone onto develop a pain disorder and surgery is not reasonably necessary as a result of the work injuries in these circumstances.
This case will be decided on the evidence. Turning then to an examination of the evidence in this case.
The applicant gave evidence in her statement dated 20 December 2023 that prior to the subject injury she had not suffered any injuries and did not suffer from any medical condition as follows:
“6. Prior to my subject injury, I did not suffer from any medical conditions, nor have I sustained any injuries.
7. I considered myself to be healthy, fit and highly capable of handling the physical demands of my employment. Prior to my subject employment, I did not experience any pain or restrictions in my left arm. I was able to wholly engage with activities of daily living without compromise and seldom took time off work.”
There is no evidence to the contrary of the above statement.
In 2021 the applicant started work with the respondent as an aged & disability support worker. She worked on a permanent part time basis 20-25 hours per week. She was responsible for the personal care of the patient as well as cooking and cleaning.
She gave evidence about the two incidents in February 2023 (4 February and 15 February) in which she says she sustained injury to her left arm and left shoulder as follows:
“11. On 4 February 2023, during an incident, Natalie, a female resident with Down Syndrome, attempted to flick a light switch. When I covered the switch with my left hand, Natalie struck me multiple times on the left elbow. Due to the shock, I couldn’t recall the exact number of strikes.
12. On 15 February 2023, at approximately 9.30am, while attending to a patent, Natalie, she threw a full can of coke, spilling it over the floor and myself, Natalie then grabbed the empty can, insisting it was hers. Upon explaining there was no more coke, she struck me in the head with the can and continued hitting me on the arm. Despite attempts to distance myself, Natalie persisted , pulling at my clothing and expressing a desire to go home, even though she was already there. Subsequently she struck another colleague with her slippers. I notified the team leader Nicole for assistance. Around 105pm Natalie’s’ agitation persisted leading to her spitting , yelling, screaming and throwing objects, resulting in increased pain in my elbow and visible bruising.”
The applicant went on to give evidence that she initially expected the bruising to subside and she continued to work but in fact she had an increase in the severity of the pain. She gave evidence as follows:
“Following the incident, I initially expected the bruising to subside. However I noticed an increase in pain severity, which affected my ability to grasp objects or exert force with my hand. Although reported to the supervisor I continued working , assuming the discomfort in my left elbow was merely due to bruising and swelling. I did not seek medical attention despite the escalating and continuous pain.”
On 23 April 2023 (about two months after the injuries in February 2023), the pain in her left elbow was so bad she presented to hospital. She gave evidence about this attendance as follows:
“On or around 23 April 2023 I woke up with severe left elbow pain prompting a visit to Shellharbour hospital for immediate assessment. Subsequent examination including x-rays ultrasound and CT scan revealed a muscular strain causing me pain.”

She went onto give evidence that in May 2023 she started physiotherapy which provided only temporary relief. She was also prescribed strong analgesics by her general practitioner (GP) including Endone, Panadeine forte and Targin but she gave evidence that they failed to alleviate her symptoms.
She gave evidence that she consulted GP Dr Mumford on 3 May2023 reporting persistent pain in her left elbow. She states:
“On or around 3 May 2023 I consulted with general practitioner Dr Michaelk Mumford I described persistent ongoing pian resembling a toothache in my elbow affecting my grip and causing discomfort, especially while sleeping.”
She was referred for ultrasound of the left forearm which she underwent on about 22 May 2023 and which she says “revealed no muscular injury or soft tissue haematoma. It indicated a partial thickness tear of the common extensor origin with lateral epicondylitis causing pain while lifting objects despite attempting gentle exercises.”
She continued to experience pain and restrictions including difficulty doing everyday tasks such as washing hair and handling cooking pots all of which she had been able to do prior to injury without restriction. She consulted Ms Smith, physiotherapist, on 6 June 2023 because of these ongoing problems reporting she was in constant discomfort which interrupted her sleep patterns. She gave evidence:
“The pain primarily focuses in the common extensor tendon radiating from the thumb to the shoulder”.
In view of persistent symptoms she consulted Dr Stuart Jansen, orthopaedic surgeon, on about 17 July 2023. Exercise modification and lighter work duties were discussed. He recommended an injection but due to a needle phobia the applicant says she did not proceed with this recommendation.
The respondent’s counsel says that needle phobia sits at odds with the applicant having had some injections (not into the elbow) some years prior. This argument does not assist the respondent. The applicant says she has a needle phobia and so she didn’t proceed with injections as a conservative measure. She tried without success other conservative treatment such a physiotherapy, light exercises and pain medications. It is well settled that the law does not require that every form of conservative treatment needs to be exhausted before surgery can be considered reasonably necessary.
The applicant went onto give evidence that on 19 July 2023 she consulted Dr Kadir who confirmed the diagnosis of left tennis elbow as a result of the work injuries. Minimal improvement was noted despite conservative measures. Injections and surgery were discussed as options.
The applicant says she went back to see physiotherapist Ms Smith on 25 July 2023 for further extension exercises aimed at strengthening her left elbows range of movement. She reported that she was experiencing “intense pain in the elbow, which radiated down to my forearm and shoulder”.
On 25 August 2023 she was certified totally unfit by her GP and in September partially unfit.
She continued with conservative measures including hydrotherapy. She gave evidence that they offered no relief as follows:
“Throughout August 2023 I attended supervised hydrotherapy sessions with Miss Smith, noting no change in the persistent pain I was experiencing”.
Throughout September 2023 she continued to Ms Smith for sessions which focused on gentle exercises for her elbows and shoulders. She gave evidence that she was troubled by persistent pain:
“However, due to persistent pain in my tendon, these exercises were limited. I continued experiencing frustration with work shifts”.
The applicant gave evidence about her capacity as follows:
“Following the work injury in February 2023, I initially continued working for four months, then ceased work, subsequently returning with restrictions on lifting weight to 2kg with my left arm. The ongoing pain in my left lateral elbow limited my daily activities.”
The applicant gave evidence about the difficulties she experiences in her daily life because of the ongoing pain in her left elbow:
“…presently I face difficulty and require assistance from my family for all household activities, including cooking cleaning shopping and laundry. I am limited in performing heavy domestic chores and estimate needing about 10 hours of unpaid help from my husband and older children”.
As at her statement in December 2023 she noted that she continued to see Ms Smith physiotherapist twice a week and her GP on a monthly basis.
She gave evidence that she was fully capable prior to injury of performing domestic duties at home and her work duties without limitation as a disability support worker. She says the impact of her physical injuries at work has had a significant emotional toll on her. She cannot do recreational activities she previously enjoyed. She wants the surgery recommended by Dr Kadir believing it will offer her the relief from ongoing pain and restriction. She gave evidence:
“I firmly believe that the proposed tennis elbow release surgery is essential for me regain some quality of life and eventually return to full time employment. Despite my efforts to improve my condition through conservative treatments, I haven’t found any lasting relief from the pain and stiffness in my left arm and shoulder. This injury has had a profound impact on my life and how I navigate through it. I am desperately seeking lasting relief from my symptoms, and I strongly believe that the suggested treatment will hopefully provide me with a better quality of life.”
The surgery is proposed by Dr Kadir, orthopaedic surgeon.
The applicant relies on the opinion of Dr Lai, hand and plastic reconstructive surgeon, and the IME qualified on her behalf. He saw the applicant at the request of her lawyers after liability was denied by the insurer on the basis of Dr Powell’s opinion. Dr Lai therefore had the opportunity to address the opinion of Dr Powell.
Dr Lai saw the applicant and provided a report dated 20 October 2023. He took a history which is consistent with the evidence given by the applicant in her statement and the other evidence that is before me.
He conducted a physical examination of which there were positive signs as follows:
“Examination of her left elbow did not reveal swelling or bruising present. There was significant tenderness to palpitation over the left lateral epicondyle region. Resisted middle finger extension and wrist extension caused significant pain in the left lateral epicondylar region”.
Range of movement of the left elbow was restricted.
He had regard to the radiological investigation namely the ultrasound of the left forearm dated 22 May 2023 which he notes reported as follows:
“There is a 5 x 4 x 2 mm partial thickness articular sided surface tear of the common extensor tendon origin with concomitant lateral epicondylitis. No muscular injury or soft tissue haematoma.”
Dr Lai disagreed with Dr Powell’s opinion that the imaging changes are long standing and degenerative in nature. Dr Lai opined as follows:
“Ms Hawkes has never had any symptoms of lateral epicondylitis prior to her work injuries on 4 February 2023 and again on 15 February 2023. She was struck on her left elbow on her lateral epicondylar region repeatedly during these two occasioning trauma to this region has led to a left lateral epicondylitis. The imaging study of an ultrasound of the left elbow was carried out on 22 May 2023 which was well over three months after the injury. By this time chronic changes would have shown. Therefore I disagree with Dr Powell’s statement that Ms Hawkes imaging changes are longstanding and degenerative in nature”.
Dr Powell had stated that “while Ms Hakes may have had some busing in the lateral elbow region from the incident described, this has proceeded through its natural history and resolved”. Dr Lai again disagreed with Dr Powell explaining as follows:
“Ms Hawks condition has not resolved as she is still showing signs of left lateral epicondylitis when examined.”
Dr Powell had opined “…it is more than likely that she has moved into some form of chronic pain disorder arising in the left lateral elbow region rather than exacerbation of degenerative disease at the left lateral epicondylar region”. Dr Lai again disagreed explaining as follows:
“I degree with Dr Powell. Ms Hawkes does not display symptoms of a typical chronic region pain syndrome with sweating or change of colour of the skin. There is also no evidence of allodynia being present.”
I note that there are positive signs elicited on examination of the left elbow including significant tenderness, pain and restriction and restriction on range of movement (ROM). These physical signs correlate to the findings on the imaging study. Despite this, Dr Powell dismisses any relationship to injury and attributes the applicant’s ongoing pain to the development of a pain disorder.
Dr Powell opined that the surgery wasn’t reasonably necessary because it could result in a worsening of the condition. I note the law is well settled that a good result from surgery does not have to be guaranteed for surgery to be considered reasonably necessary.
Dr Lai explained why his opinion differed on this aspect from Dr Powell as follows:
“I am of a different opinion to Dr Powell. Ms Hawkes condition is not degenerative but rather a result of trauma. There is already a muscle tear of the common extensor tendon. Ms Hawkes is unfortunately needle phobic and resistant to having an injection of cortsosone or PRP. In any case her symptoms of continuing pain with significant severity, may respond to cortisone injection but this usually is a temporary solution. Therefore her best option would be for surgical intervention with debridement of the lateral epicondyle and lengthening of the common extensor tendon which would relieve the symptoms”.
Dr Lai cautioned that the condition if not treated she has a guarded prognosis with continuing pain and stiffness in the left elbow.
Dr Powell, orthopaedic specialist, was the IME qualified by the insurer. He saw the applicant on 10 August 2023 (so about six months post injury) and provided two report dated 24 August 2023 and 21 November 2023 respectively.
He took a consistent history including that the applicant had no symptoms in her left elbow prior to injury on 4 February 2023 and 15 February 2023.
He recorded a history consistent with the other evidence before me.
He recorded the applicant’s report of current symptoms consistent with her continuing complaints to her doctors and consistent with her statement evidence as follows:
“Ms Hawkes has constant pain about the lateral aspect of the left elbow and proximal forearm. The pain increases in severity if she attempts to do anything using her hand to lift or handle objects.
On occasion the pain can radiate down into the forearm
She finds with movement there is a feeling of tightness in the forearm.”
Dr Powell conducted a physical examination which elicited positive signs.
He reviewed the ultrasound of 22 May 2023.
He summarised as follows:
“Ms Hawkes was struck repetitively on the lateral aspect of the left elbow and proximal forearm by a clients fists when trying to stop the client assessing a light switch in the course of her work on 4 February 2023.
In a second incident on 15 February 2023. Ms hawks was struck repeatedly in the same region of the left lateral elbow and forearm with an empty can of coca cola wielded by the same client.
Pain symptoms persisted in the region.
Management was with physiotherapy.
Ms Hawkes was found to have common extensor region failure and inflammation in the region and has bene offered surgical intervention for persisting pain symptoms.”
Despite the history of pain and restriction since injury and the positive finding elicited on examination and the absence of symptoms prior to injury, Dr Powell went onto dismiss the applicant’s ongoing complaints and condition as being the consequence of injury and to consider that it was more likely than not a pain disorder.
Dr Powell considered that determining diagnosis was difficult and that the mechanism of injury was of such force that it was only likely to result in soft tissue bruising. He considered the imaging changes to be long standing and are principally degenerate in nature and common in the community. He considered that while the applicant may have had some bruising in the lateral elbow region, this has proceeded through its natural history and resolved. He opined:
“Given the unexpected level of Ms Hawkes pain symptoms and their continuation despite the passage of time and various modalities of treatment undertaken along with reducing her exposure to physical loading in her work and home, and having undergone personal assault on two occasions her workplace, it is more likely that she has moved into some form of chronic pain disorder arsing in the left lateral elbow region rather than exacerbation of degenerate disease in the left lateral epicondylar region.”
In light of his view that the applicant was suffering a pain disorder, he did not consider surgery to be reasonably necessary as a result of injury or at all.
After file review he provided a further report of 21 November 2023 in which he maintained his opinion that the workplace incidents, given their mechanism were unlikely to have caused an any aggravation of the extensor origin tendinopathy and lateral epicondylitis subsequently identified on imaging.
When I weigh all of the evidence in the balance, I prefer, for the reasons given throughout, the evidence given by the applicant, supported by the opinion of treating surgeon Dr Kadir and the IME qualified on the applicant’s behalf Dr Lai to the opinion of Dr Powell, the IME qualified on the respondent’s behalf. There is no evidence before me that the applicant was symptomatic in her left elbow prior to being repeatedly struck on her left elbow and forearm on 4 February 2023 and again on 15 February 2023. She has given evidence that she initially thought her symptoms would resolve and she tried to keep working. However her symptoms persisted and progressed despite ongoing conservative treatment in the form of physiotherapy, supervised hydrotherapy as well as strong analgesic medications prescribed by her GP. She has been recommended injections but is needle phobic and would prefer surgery which has also been recommended. There is no evidence of resolution of symptoms. There were positive findings on physical examination by all the doctors whose reports are in evidence. According to the opinions of Dr Kadir and Dr Lai these findings are concordant with the finding on the ultrasound of pathology in the left lateral epicondylar region. Her pain symptoms do not amount to chronic regional pain syndrome because the clinical signs are not present which even Dr Powell accepts but still says that her symptoms from the injuries would have resolved by now and it has morphed into some unspecified type of pain disorder. This is despite the consistent history of the symptoms not resolving but worsening and her increasing inability to do normal activities of daily living without pain and restriction which she was able to do prior to injury. According to the opinions of Dr Kadir and Dr Lai, the physical signs are concordant with the imaging study of 22 May 2023. All conservative measures don’t have to be exhausted. The surgery doesn’t have to be guaranteed to be successful. The proposed surgery offers the prospect of relief of her ongoing pain and restriction which Dr Lai says if left untreated will continue to cause increasing pain and restriction.
I am satisfied when I have regard to the totality of the evidence that I have weighed in the balance that the proposed surgery and associated expenses is reasonably necessary as a result of the injury on 4 February 2023 and 15 February 20023 and accordingly an award will be entered under s 60 of the 1987 Act in the applicant’s favour in this regard.

[2024] NSWPIC 201

22 April 2024