Jun v Kozy Ozzy Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jun v Kozy Ozzy Pty Ltd [2025] NSWPIC 357
APPLICANT:	So Young Jun
RESPONDENT:	Kozy Ozzy Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	28 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and medical expenses; whether applicant sustained a consequential left wrist injury resulting from an accepted right wrist injury; Held – applicant sustained a consequential left wrist injury as a result of the accepted right wrist injury; applicant has no current work capacity; there is an entitlement to the payment of weekly benefits and reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential left wrist injury as a result of the accepted right wrist injury on 19 May 2023. 2. The applicant is entitled to the payment of weekly benefits compensation from 26 July 2023 to date and continuing at the pre-injury average weekly earnings rate of $1,634.32 subject to indexation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 (1987 Act). 3. The applicant is entitled to the payment of reasonably necessary medical or related expenses arising from her right and left wrist injuries and secondary psychological condition pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge. The Commission orders: 1. The respondent to pay the applicant weekly compensation at the pre-injury average weekly earnings rate of $1,634.32 subject to indexation as follows; (a) 26 July 2023 to 23 August 2023 at $1,634.32 x 95% or $1,552.60 pursuant to s 36(1) of the 1987 Act; (b) 24 August 2023 to 30 September 2023 at $1,634.32 x 80% or $1,307.46 pursuant to s 37(1) of the 1987 Act; (c) 1 October 2023 to 30 March 2024 at $1,634.32 x 1.0237, or $1,673.05 rounded to $1,670 x 80% being $1,336 pursuant to s 37(1) of the 1987 Act; (d) 1 April 2024 to 30 September 2024 at $1,670 x 1.0179, or $1,699.89 rounded to $1,700 x 80% being $1,360 pursuant to s 37(1) of the 1987 Act; (e) 1 October 2024 to 30 March 2025 at $1,700 x 1.0198, or $1,733.66 rounded to $1,730 x 80% being $1,384 pursuant to s 37(1) of the 1987 Act, and (f) 1 April 2025 to date and continuing at $1,730 x 1.0043, or $1,737.44 rounded to $1,740 x 80% being $1,392 pursuant to s 37(1) of the 1987 Act. 4. The parties have 14 days liberty to apply with respect to the calculation of indexation of the weekly compensation amounts referred to above. 5. The respondent to pay the applicant’s reasonably necessary medical or related expenses arising from her right and left wrist injuries and secondary psychological condition pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms So Young Jun commenced working for the respondent Kozy Ozzy Pty Ltd as a casual tiler on 18 May 2023.
On her second day of work she experienced severe right wrist pain while grouting bathroom walls at a renovation site but continued to work. Later that day she noticed swelling in her right wrist and she was unable to continue working due to right hand and wrist pain.
The following day the applicant started to experience pain in her right hip, right foot, right shoulder and right ankle.
On 1 June 2023 the applicant lodged a claim form. Her claim for wrist sprain was provisionally accepted on 8 June 2023.
A notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) was issued on 14 July 2023 disputing compensation for the right trapezius, right shoulder, lower back, bilateral wrists, right hip, upper thigh, right ankle and foot and psychological referral.
The liability depute was maintained and amended on 14 May 2025 following internal review.
An Application to Resolve a Dispute (ARD) was lodged in the Personal Injury Commission (Commission) on 28 April 2025 claiming weekly benefits and medical expenses.
The dispute was listed for conciliation conference/arbitration hearing on 27 June 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant sustained a consequential left wrist injury as a result of the accepted right wrist injury on 19 May 2023;
(b) the extent and quantification of any entitlement of the applicant to weekly benefits from 25 July 2023 to date and continuing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (1987 Act), and
(c) whether the applicant is entitled to payment of reasonably necessary medical expenses as a result of injury on 19 May 2023 pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 27 June 2025 in Sydney. Mr Jon Trainor appeared for the applicant instructed by Mr Phillip Han, legal representative. Mr John Gaitanis appeared for the respondent instructed by Ms Mary-Jean Lewis, legal representative. Ms Brookes, interpreter, was present, as was Mr Masuku.
At the preliminary conference held on 30 May 2025 the applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,634.32. The respondent indicated it was intending to obtain a supplementary report from A/Prof Waller, the admission of which would be determined at the conciliation/arbitration.
During conciliation the applicant objected to the admission of the section on page 2 of
A/Prof Waller’s supplementary report of 30 May 2025 commencing on “Page 763” and ending “1999: 1 – 10” attached to the respondent’s Application to Lodge Additional Documents dated 23 June 2025.
The respondent submitted that as this is a claim for weekly benefits and medical expenses it is incumbent on the parties to present evidence regarding capacity. The certificates of capacity go to 13 July 2023, Dr Shahzad’s opinion is dated 12 April 2024, Dr Modem’s report as a psychiatrist is as at August 2023 and Dr Lee’s opinion is as at August 2024.
A/Prof Waller has provided earlier reports. A/Prof Waller’s report of 30 May 2025, the date of the preliminary conference, deals with the consequential left wrist injury. The article referred to in the supplementary report and objected to postulates on consequential injuries not being supported by scientific evidence, and is cited by A/Prof Waller in support of his opinion in this respect.
The applicant objected to the above section of the supplementary report being admitted on the basis of the inherent unfairness of the applicant having no opportunity to obtain evidence in reply. The options of adjourning to allow that, or if it were to be admitted conferring with the applicant as the nature of the forensic case had changed, does not facilitate the just, quick and cost effective resolution of the issues.
The applicant has been without the benefit of medical expenses being paid or receiving weekly compensation for over two years. Any delay caused by the admission of the further evidence is contrary to that principle. There would be additional cost including to obtain further evidence. It would be an extraordinary indulgence to have two late reports admitted. There is no explanation provided for the delay in obtaining the reports or the delay in serving the report of 30 May 2025.
Following hearing submissions from counsel I determined that the section of A/Prof Waller’s supplementary report referred to above was to be excluded on the bases that the article A/Prof Waller refers to in his supplementary report of 30 May 2025 was not in evidence, and his opinion regarding ‘favouring’ and ‘consequential overuse’ symptoms is otherwise clearly stated in the report. The report dated 30 May 2025 was served on 23 June 2025 leaving little opportunity to obtain and review the article A/Prof Waller refers to.
During conciliation the respondent also sought to have admitted a further supplementary report of A/Prof Waller dated and served on 26 June 2025, being the day before the conciliation/arbitration.
The applicant objected to its tender as she submitted it would represent a huge injustice as she had not had any opportunity to meet that evidence.
The respondent submitted this report also deals with the capacity issue in terms of the right wrist injury and is not dissimilar to Dr Shahzad’s opinion in any event, but aside from the weight a file review may be given, all supplementary reports should usually be admitted. There is no evidence regarding capacity after Dr Lee’s barely explained opinion of
19 August 2024.
The applicant submitted there was great prejudice to the applicant should that further report be admitted. The claim is supported by medical evidence regarding incapacity to August 2024 and while that may be a little dated, a radical change in the underlying balance of the forensic evidence in the case, which was not raised at the preliminary conference, would create a huge injustice to the applicant. She would be placed in the position of making a very difficult decision about how the case should proceed which would not facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Following consideration of counsel’s submissions the further report of A/Prof Waller dated
26 June 2025 was not admitted on the bases that the Commission usually requires all evidence to be served with the ARD and Reply, and consideration of the guiding principle of the Commission in s 42 of the Personal Injury Commission Act 2020 to facilitate the just, quick and cost effective resolution of the real issues in the proceedings when it exercises any power given to it by that Act.
I was not satisfied admitting the further report of A/Prof Waller of 26 June 2025 was necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings in accordance with r 67C(4) of the Personal Injury Commission Rules 2021. While the applicant’s capacity is addressed by A/Prof Waller in this report, a real issue in the proceedings, there would have been significant prejudice to the applicant if it were to be admitted. Not admitting the report of 26 June 2025 in the circumstances of the case facilitates the just, quick and cost effective resolution of the real issues in the proceedings.
The respondent has accepted the applicant sustained a right wrist injury and that she suffers with a secondary psychological condition.
During conciliation the applicant withdrew her claim for injuries to all other body systems or parts aside from the claim made for a consequential left wrist injury.
I am satisfied 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    respondent’s Application to Lodge Additional Documents dated 23 June 2025 and the attached supplementary report of A/Prof Waller of 30 May 2025 aside from the section on page 2 of the report commencing “Page 763” and ending “1999: 1 – 10” (ALAD 1), and
(d)    respondent’s Application to Lodge Additional Documents dated 8 July 2025 and attached document (ALAD 2).

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

In her statement signed on 15 April 2025 the applicant describes working as a tiler between 2015 and 2019, handling stock in a warehouse for around four years and working as an assistant project manager for a month between 2019 and February 2023.
The applicant commenced employment with the respondent on 18 May 2023 as a tiler on a casual basis. On successful completion of a trial period the respondent stated she would be offered a position with an annual salary of $85,000.
In her role as a tiler the applicant’s duties were cleaning tile joints for grouting using a knife and hand tools, applying grout to the floor and bathroom area, squeezing excess water form a bucket, cleaning wall and floor tiles with a sponge, and applying silicone in the bathroom area.
On 19 May 2023, her second day of work with the respondent, the applicant experienced severe pain in her right wrist while grouting the bathroom walls at a renovation site. She noticed swelling in her right wrist during lunch time but continued working.
At around 2.00pm she had almost finished the grouting when she started experiencing severe pain in her right hand and wrist. She was unable to squeeze the sponge or move her wrist anymore due to the pain.
The applicant informed her employer of these symptoms and left work at about 2.30pm.
The following day the applicant started experiencing pain in her right hip, right foot, right shoulder and right ankle, not being the subject of this claim.
The earliest available date to see Dr Islam, general practitioner, was 24 May 2023. After that the applicant consulted Dr Hajeong Lee, her treating general practitioner.
Radiology investigations resulted in diagnoses of triangular fibrocartilage complex tears in her right wrist as well as carpal tunnel syndrome, De Quervain’s tenosynovitis, mild Extensor Carpi Ulnaris (ECU) tendinosis and tenosynovitis, a tear of the ulnar styloid attachment and of the triangular fibrocartilage complex with ECU, and intersection syndrome. In her right arm she was diagnosed with lateral epicondylitis. In her left forearm and wrist she was diagnosed with intersection syndrome.
Dr Lee referred the applicant to Dr Sungaran, orthopaedic surgeon, who recommended a steroid injection in her right wrist. She also had physiotherapy from the date of the incident until 31 May 2023 with Mr Joshua Han and Mr Thomas Kuk.
The applicant had a further right wrist MRI, hand therapy and more injections in her right wrist for pain management.
An ultrasound of both wrists on 21 November 2023 revealed overuse-related changes in her left wrist due to compensation. The applicant had a steroid injection to her left wrist on
5 March 2024 which provided partial relief.
She still experiences left wrist pain due to overcompensation and discomfort particularly when lifting and grabbing items.
Previous injuries include a motor vehicle accident in 2017 when her right leg was injured and which resolved following regular physiotherapy sessions, right thumb pain in 2019 which resolved in about seven days, and minor right wrist pain in 2019 related to the nature of her work at that time from which she fully recovered.
The applicant suffers with disabilities including constant pain and discomfort in both wrists and arms and her shoulder, restricted movement in both wrists, arms and shoulder, pain after housework, an inability to lift heavy objects, pins and needles, she relies on medication and she suffers from stress and frustration and depression. She has been unable to return to pre-accident employment and relies on family members for home support.
The applicant has been unable to attend the gym as she used to due to pain and weakness in her grip, and she is unable to play the drums or bowl. She is unable to hold objects for long and cannot use her hands with too much force since the incident. She finds it difficult to concentrate for prolonged periods as she needs to rotate her hands or fingers to avoid a stinging sensation in both hands.

Dr Farhan Shahzad, independent occupational physician

Dr Shahzad provides his report dated 12 April 2024 following an examination of the applicant on 5 April 2024.
Dr Shahzad records the mechanism of injury as described by the applicant, and that she started experiencing pain in her left wrist from overusing to compensate for her upper limb immobilisation following the incident. Dr Shahzad notes she has sustained various injuries including intersection syndrome in both wrists.
Dr Shahzad reports on the onset of left wrist pain noted by Dr Lee on 7 June 2023. An ultrasound of the applicant’s left forearm and wrist in November 2023 showed intersection syndrome, and she had a steroid injection to the left wrist on 5 March 2024.
The applicant’s current symptoms are recorded as right wrist pain and symptoms, and include that she also has left wrist pain due to overcompensation which improved following the injection but from which she still suffers, triggered by activities such as housework or driving.
On examination of the left wrist Dr Shahzad finds evidence of intersection syndrome, normal range of movement but tenderness is noted over de Quervain’s.
Dr Shahzad’s diagnoses include intersection syndrome at the left forearm and wrist, and he opines that the employment is the substantial contributing factor to the onset of her injuries. The left wrist condition developed as a consequential condition as a result of overusing to compensate for her right wrist injury on 19 May 2023.
The medical assessments and treatments following the accident, including evaluations by general practitioners, ongoing pain and soreness in her left wrist, functional limitation, evidence of intersection syndrome and tenderness over de Quervain’s on physical examination, are indicative of the compensatory injury to her left wrist as a result of the workplace right wrist injury and her employment with the respondent in Dr Shahzad’s opinion.
There are no relevant pre-existing issues or aggravations with respect to the left wrist.
Dr Shahzad’s view is the applicant is unfit to return to work or to her pre-injury work as a tiler due to limitations with lifting/carrying, pushing/pulling, sitting and standing. Her future prognosis is guarded.

Dr Hajeong Lee, treating general practitioner

Dr Lee provides a medico legal report on 19 August 2024.
With respect to the left wrist Dr Lee finds tenderness along tendons and around wrist joints and that intensive, excessive use of the wrist caused the main injuries. Her employment is the substantial contributing factor to her injuries, subsequent incapacity and need for treatment.
Dr Lee’s opinion is that the applicant’s left wrist injury was a consequential injury caused by the right wrist injury and the limited use of her right wrist, with consequently overuse of the left wrist.
Dr Lee recommends four hours a day in purely sedentary work at the moment due to physical restrictions, however she is unable to work now with psychological symptoms. The applicant will be limited to sedentary work.
Treatment needs include physiotherapy and hand therapy, steroid injections and review by a hand surgeon if any further concerns arise.

Clinical records of Dr Jai Sungaran, treating orthopaedic surgeon

On 27 September 2023 Dr Sungaran reports to Dr Lee the applicant presents with bilateral wrist pain (radial sided) following an intense period of tiling and grouting which she had to complete as part of a work trial. She had used the sponge repetitively for many hours and on several days to complete the job and found her wrists were very painful.
Dr Sungaran suggests a trial of an ultrasound guided steroid injection to see if it helps with her pain. This may also settle it down enough that she can start to use her wrists more and return to some work as this is a concern for her.
On 14 February 2024 Dr Sungaran reports the applicant’s pain across the radial side of her wrists is still present and a repeat ultrasound confirms bilateral intersection syndrome consistent with her clinical presentation and history. He recommends trialling ultrasound guided injections in both her wrists to see if that settles them down.

The report of an ultrasound guided left wrist steroid injection for intersection syndrome dated 5 March 2024 is referred to by Dr Sungaran.
On 27 March 2024 Dr Sungaran reports to Dr Lee with respect to the left wrist that the injection has made significant improvement in her left wrist pain however she still wears a brace for support.
On 31 May 2024 Dr Sungaran reports to Dr Lee that the applicant’s left wrist is feeling much improved since the third injection but her right wrist has not changed a great deal in the last three months.

Clinical records of Physiotherapy Focus Strathfield

Physiotherapy treatment between 30 January 2024 and 16 July 2024 is provided primarily for the applicant’s right wrist injury.
With respect to the left wrist there are references to a mild sore left wrist with gripping and tenderness on the intercarpal joint of the left hand, bilateral wrist and forearm pain, and the left wrist after injections having very mild resting pain and being much improved.

Clinical records of Rapid Therapy Lidcombe

Physiotherapy treatment was provided between 26 May 2023 and 8 August 2023 for right foot pain, right hip and right shoulder discomfort.
On 2 June 2023 a record is made that right wrist swelling is better but using the right wrist aggravated discomfort and pain.
Between June 2023 and August 2023 a record is made of intermittent left wrist pain, and
on 1 August 2023 that the left wrist pain is ongoing.

Clinical records of Dr Hajeong Lee, general practitioner

Dr Lee records the accident description on 31 May 2023 as ‘wrist and other pains doing intensive site work’.
The start of left wrist pain is recorded on 7 June 2023.

Radiology

The left forearm and wrist ultrasound report of 29 November 2023 includes a clinical history of gradually worsening pain.
The conclusion is that the findings are compatible with intersection syndrome involving compartments 1 and 2 crossover.

Schedule Out of Pocket Expenses

Future out of pocket expenses for general practitioner consultations, physiotherapy, hand therapist review, hand surgeon review, left cortisone injection, psychological treatment and analgesic medications totals $12,068.92.
A schedule of past out of pocket expenses is provided and totals $1,980.29.

Claim form

The claim form dated 1 June 2023 includes a description of the applicant’s tasks and of the injury, and that the applicant also has a consequential injury to the left wrist.

Calculation Form pre-injury average weekly earnings

The applicant is described as a trial employee receiving daily payments. Her injury was during the trial period of a week and she was about to transition into a permanent position with an annual salary after the trial.
Two days payment was made, and given the circumstances there is a lack of payment records. The trial was necessary as she had been away from tiling work for over four years.
The amount she was expected to earn as a skilled tiler and project manager in organising job sites was $85,000 annually. Ordinary hours each week are 40, the ordinary gross hourly rate is $43.75 and per week is $1,750.
The form is signed by the respondent on 6 June 2023.

Respondent’s evidence

A/Prof Craig Waller, independent orthopaedic surgeon

A/Prof Waller report of 24 July 2023 includes a history that the applicant developed pain in her left wrist in late June 2023 with a level of pain of three out of ten complained of, aggravated by movement.
A/Prof Waller found no detectable abnormalities in the left wrist, which was not injured on
19 May 2023.
The applicant’s employment was the main contributing factor to her right wrist injury but not to the left wrist symptoms.
There was no fitness for manual work at that time involving the applicant’s right hand and A/Prof Waller considered her physically fit for sedentary work not involving significant use of the right hand.
A/Prof Waller finds the applicant’s reported symptoms in the left wrist are not supported by objective clinical findings.
In the supplementary report dated 30 May 2025 A/Prof Waller’s opinion remained unchanged.
The applicant did not injure her left wrist at work on 18 or 19 May 2023, her symptoms began in June 2023 and were first mentioned to Dr Lee on 7 June 2023. There were no abnormal clinical findings in the left wrist.
The left wrist is independent and unrelated to the right wrist injury on 19 May 2023 and A/Prof Waller is of the opinion that the ‘favouring’ and ‘consequential overuse’ arguments that an injury in one limb leads to pathology in the contralateral limb due to compensatory overuse is a commonly held belief but is not supported in the scientific literature.

Dr Karthik Modem, independent psychiatrist

On 11 August 2023 Dr Modem makes the diagnosis of adjustment disorder with depressed mood secondary to the pain and limitations experienced from the physical injury at work.
The employment was the main contributing factor for the wrist injury, causing pain and limitations leading to a secondary psychological injury.
In Dr Modem’s opinion the applicant is incapacitated to work as a tiler from a physical and psychological perspective. The psychological symptoms will continue as long as she suffers from her ongoing physical pain, which is a constant reminder of the incident at work, the injury she sustained, experiencing pain, the loss of function, loss of role, and loss of ability.
The applicant is motivated to return to gainful employment and is keen and willing to work provided her pain is under some semblance of control to participate in employment.
Dr Modem’s opinion is that usually in adjustment disorders the symptoms do not persist for more than six months once the stressor has terminated, however sometimes the disturbance lasts six months or longer when it is chronic and the stressor continues.
Based on the history provided and the current assessment Dr Modem believes the applicant’s prognosis is guarded, and it is highly unlikely the psychological injury will improve without improvement in physical injury. She has not had any assertive treatment and is yet to see a psychologist.
The applicant complained of pain as the main barrier and trigger to returning to work.

Certificates of capacity

Dr Lee certifies the applicant as having no current capacity for work from 19 May 2023 to
13 July 2023 as a result of right trapezius, right shoulder, lower back, right and left wrists, right hip/upper thigh and right ankle and foot injuries.

Right wrist ultrasound

The conclusion of the right wrist ultrasound report of 24 May 2023 is imaging features of intersection syndrome (dorsal extensor compartment 1 and 2 inflammatory changes between the tendons), amenable to ultrasound guided injection.

Ms Hyejin Jung Surgery Consultation report

The surgery consultation record of Ms Hyejin Jung dated 14 October 2021 notes;
“- disc symptoms got better / no need physio?
- left wrist pain / will see and call back if symptoms getting worse
- felt tired, advised blood test.”[1]
[1] ALAD 2 page 1.
The general practitioner management plan and team care arrangements were reviewed by Ms Jung and good progress was recorded.

Applicant’s submissions

The applicant’s submissions were recorded and form part of the Commission’s record. These are summarised below.
The applicant relies on Dr Shahzad’s report with the ultrasound of her left arm on
29 November 2023 as clear unequivocal objective evidence that she has intersection syndrome, an immutable fact, which explains her left wrist complaint.
The applicant has made consistent complaints of bilateral wrist pain, which are also consistent with the objective evidence.
A/Prof Waller in his report of 30 May 2025 refers to that ultrasound report but makes no comment on it. As his reports are silent on that objective evidence his opinion is unsatisfactory.
A/Prof Waller’s opinion is that favouring and consequential injuries have no basis in fact, which is a bare ipse dixit with no explanation or reason provided.
Here there is a relatively young woman who has clear complaints of left wrist pain supported by radiological evidence with no alternative hypothesis, and this should be accepted on the balance of probabilities that it is a consequential injury.
The applicant has an accepted right wrist injury and she gives evidence in her statement that she overcompensated for it and shortly afterwards she developed pain in her left wrist.
The applicant says she had a good symptomatic relief from the injection to her left wrist. She is not making florid descriptions so there is a sense of truth or accuracy about what she says.
The applicant’s evidence is that since the incident she is unable to return to work due to her injuries.
With respect to incapacity the medical evidence is splintered, with opinions confined to each doctor’s area of speciality.
A/Prof Waller in his report of 24 July 2023 says the applicant is physically fit for sedentary work that does not involve significant use of the right dominant hand. Dr Modem says in the report of 11 August 2023 the applicant is unfit to work as a tiler from a physical and psychological perspective. It is not entirely clear if in his opinion the applicant has no capacity for work due to her psychological condition. Dr Shahzad in his report of 12 August 2024 says the applicant is unfit to return to her pre-injury work capacity as a tiler.
The applicant’s submission is that the only doctor who has provided an integrated opinion is Dr Lee in his report of 19 August 2024. In a carefully assessed and explained report Dr Lee says the applicant has partial capacity as a result of her physical injury but when you superimpose on top of that the psychological consequences, she is totally incapacitated.
On that basis the applicant says the Commission would be satisfied she is totally incapacitated.
The applicant is entitled to weekly compensation on the basis of total incapacity pursuant to ss 36 and 37 of the 1987 Act. It follows she would be entitled to a general order for medical expenses under s 60 for injuries to her right wrist, left wrist and the secondary psychological injury.

Respondent’s submissions

The respondent’s submissions were recorded and form part of the Commission’s record. These are summarised below.
The Commission is being asked to accept the applicant’s evidence and also to accept there is a paucity of evidence from A/Prof Waller as to the causation of the left wrist injury.
A/Prof Waller is even handed, balanced and entirely appropriate in his findings. He looks at all the evidence and says that there is a work related right wrist injury. This is notwithstanding the applicant’s evidence she had a right wrist injury in 2019 from which she says she recovered, and she used to go to the gym, play drums and bowl which all require use of the wrists.
A/Prof Waller has not seized on those to say the right wrist injury is not work related and his opinion is balanced and compelling. He also says the left wrist is not work related and he is criticised for presenting that argument, but he is not obliged to say what it is not due to or to give other potential causes.
The applicant’s statement does not set out what activities she was performing to explain the left wrist injury being caused by overcompensation. The respondent submits there is a lacuna of evidence to satisfy the test in Kooragang Cement Pty Ltd v Bates.[2]
[2] (1994) 35 NSWLR 452 (Kooragang).
Dr Shahzad does not provide any support to the applicant in this regard.
One week after the 19 May 2023 injury, on 26 May 2023 Mr Han, physiotherapist, records her complaints of right foot pain, right ankle, right hip and right shoulder discomfort.
The tasks the applicant was required to do on day one of her employment are set out in her statement, and then on day two she experienced severe pain in the right wrist while grouting the bathroom walls and she noticed swelling in her right wrist.
The following day the applicant says she started experiencing pain in her right hip, right foot, right shoulder and right ankle which the respondent says are implausible complaints.
The tasks the applicant describes may be repetitive but they are not unduly arduous in the respondent’s submission.
The applicant is asking the Commission to accept that she has attended on practitioners a week after the incident and complained of all these problems, and to accept there is a consequential condition of the left wrist. There is a later suggestion of a left knee problem.
Dr Lee provides a certificate on 7 June 2023, not long after the incident, that includes diagnoses of right trapezius, right shoulder, lower back, right and left wrists, right hip and upper thigh and right ankle and foot. All these complaints were attributed to the injury.
It is just not feasible or credible to accept that the applicant has a left wrist injury due to overcompensation two or three weeks after the incident.
This gives credence to A/Prof Waller’s opinion that it is not consequential and it is not related to work, as well as all the other complaints that were abandoned today.
There is a previous complaint about the left wrist. On 14 October 2021 there is a reference in the general practitioner’s clinical records of “left wrist pain / will see and call back if symptoms getting worse.”[3] The applicant indicated she was satisfied that the respondent address on this document but does not at this time consent to it being admitted.
[3] ALAD 2 at page 2.
It cannot reasonably be accepted that there is a consequential left wrist injury. The most plausible explanation is that there was an injury on 19 May 2023 in relation to the right wrist but the Commission would not be satisfied there is a consequential injury to the left wrist.
With respect to capacity, Dr Shahzad’s opinion on capacity cannot be accepted. The report has been provided on the basis that incapacity flows from injury to all these body parts some of which have now been abandoned, and incapacity has to be demarcated.
The respondent submits incapacity should only be considered as flowing from the right wrist.
The respondent says the left wrist intersection syndrome is referable to something else, but even with that Dr Shahzad forms the view the applicant is unfit to return to her pre-injury work capacity as a tiler. This indicates she has capacity for other work, perhaps sedentary positions, management or office positions.
We know from the applicant’s evidence she has previously been engaged in other occupations; she worked as a tiler for four years, then in a warehouse full time handling stock for ASTRO Building Supplies for four years and she worked as an assistant project manager for a month.
This is obviously a sedentary role requiring fulfilling obligations with documentation, computer work, project management and liaising with people. Whether it is construction or otherwise she is a project manager which does not require heavy, arduous work and it does not utilise her wrist.
The physiotherapy records indicate the right wrist is getting better, for example on 25 July 2023 the range of motion is slightly better and the pain free range is greater. The applicant made a full recovery from an earlier right wrist injury in 2019 after receiving acupuncture treatment.
The certificates of capacity only go to 13 July 2023 and there is nothing after Dr Shahzad’s report of 12 April 2024.
Dr Lee says on 19 August 2024 the applicant would be able to do sedentary work as far as the right wrist is concerned, and non-repetitive work holding no more than 1kg. Dr Lee recommends four hours a day of purely sedentary work due to physical restrictions, however she is unable to work now with psychological symptoms. The prognosis is that the applicant’s capacity will be 40 hours per week in a sedentary occupation.
There is no evidence from the applicant that suggests she is receiving any treatment in relation to a psychological injury. Her statement evidence is that Dr Islam diagnosed her with adjustment disorder with depressive symptoms and initially referred her to Dr Chloe Kim, however her psychological treatment was later transferred to Ravina Mistry who is currently providing Cognitive Behavioural Therapy. None of that evidence has been produced.
Dr Modem provides a report on 11 August 2023 after taking a lengthy history and forms the view the applicant is suffering from some mood symptoms characterised by poor sleep and appetite, low mood, and she is tired all the time.
Dr Modem diagnoses adjustment disorder with depressed mood and goes on to say she developed this secondary to the pain and limitations of the physical injury suffered at work. However this report is nearly two years old and we do not have much in terms of continuing problems. Dr Modem also says she is keen and willing to work provided the pain is under control, and usually the symptoms of adjustment disorder do not persist for more than six months once the stressor has terminated.
The difficulty with accepting Dr Lee’s opinion of overlapping physical and psychological symptoms rendering the applicant totally incapacitated is relying on a report from 2023 and with no further evidence apart from the applicant’s statement.
The respondent submits A/Prof Waller’s opinion should be accepted in relation to the left wrist, and there is no evidence that any psychological injury goes beyond Dr Modem’s opinion in 2023.
The Commission would be troubled to allow anything more than a closed period with partial incapacity.
The clinical record of Dr Lee from 14 October 2021 was admitted by consent following the applicant’s counsel’s request that the applicant stand to show her body habitus. An order was made that this record be lodged and served by close of business on 30 June 2025.

Applicant’s submissions in reply

The respondent does not bear any evidentiary onus of proof but once the evidentiary onus has been established, and the applicant says it has, if the respondent does not go into evidence it makes it easier for the Commission to accept the applicant’s evidence. While A/Prof Waller does not have to provide an explanation on an evidentiary or presumptive basis, if there is no explanation it is a matter the applicant is entitled to raise as a reason why you would not be satisfied with the opinion.
In terms of overcompensation, the applicant’s statement evidence is sufficient in this jurisdiction that does justice in an expeditious way, requiring specialisation and short form litigation, and on that basis her statement on overcompensation is sufficient.
An adverse inference that by abandoning a number of physical injuries the applicant’s claim for the left wrist is implausible is not available. Those issues were abandoned because they did not touch on incapacity.
All of the medical evidence attributes the applicant’s incapacity to bilateral wrists. As this is not a s 66 claim there is no point spending time on body parts that have no effect on the nature and extent of the applicant’s incapacity.
It cannot be accepted that a prior complaint of left wrist pain in October 2021 means it persisted right up until the present time. There is no evidence of that being causative of the current left wrist injury.
The respondent’s proposition that capacity must somehow be severed from the abandoned body parts and the wrists and the secondary psychological condition is not an accurate statement of the law.
Watts v Rake[4] and Purkess v Crittenden[5] are authority for the proposition that where the applicant proves any incapacity as a result of an injury, and if an argument is to be run that there is a consequential or subsequent or some other incapacitating source, it is not for the applicant to negative it but it is for the respondent to produce positive evidence to that fact. There is no such evidence.
[4] [1960] HCA 58; (1960) 108 CLR 158.
[5] [1965] HCA 34; (1965) 114 CLR 164.
There is no evidence the work of a tiler is not heavy work. It involves long periods of crouching and vigorous use of the hands, in this case the dominant right hand. There may be heavier work out there but this is far from sedentary work.

Considering the nature of the work of a tiler, particularly to a woman of relatively small and physically weak status, it is entirely capable of giving rise to the injuries. It is hardly unexpected.
The applicant has given evidence of ongoing pain which is not contradicted. Any criticism that the applicant does not have more up to date treatment or that she has not improved quickly enough is in part because liability for her claim was disputed in July 2023.
Dr Modem says the applicant will continue to suffer an adjustment disorder while she is experiencing the physical pain. In Dr Modem’s opinion chronic pain is associated with symptoms of depression and anxiety, and the interplay between pain and psychological symptoms is complex. Pain and the resultant limitations on movement and function adversely impact her ability to carry out activities affecting her confidence, self-esteem, thereby maintaining her symptoms of anxiety and depression.
As the applicant’s physical symptoms regarding her right wrist persist to this time there is no basis on which Dr Modem’s opinion could be used to find the psychological symptoms have resolved.
The respondent submitted that there seems to be a very short time between the injury on
19 May 2023 and the onset of the consequential left wrist injury. Whether this is a plausible explanation is not something lawyers can comment on, it must be informed upon by medical opinion and the applicant says Dr Lee’s report provides that basis.
In terms of incapacity there has been no resolution of psychological symptoms, there has been some resolution of the left wrist condition although the right wrist condition persists, which explains the ongoing psychological problem.
The better view in the applicant’s submission is Dr Lee’s opinion that integrates the physical and psychological conditions.
The respondent submits there is no current evidence of the applicant’s physical or psychological conditions persisting.

FINDINGS AND REASONS

Did the applicant sustain a consequential left wrist injury

The question to be determined is whether the applicant developed symptoms and restrictions in her left wrist as a result of her accepted right wrist injury.[6]
[6] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [49]; Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45].
The applicant bears the onus of proof to establish her case on the balance of probabilities.[7]
[7] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44].
Whether the applicant can establish the left wrist injury resulted from overuse to compensate for her accepted right wrist injury is a question of fact to be determined following a “commonsense evaluation of the causal chain” on the basis of the evidence, including expert opinions.[8]
[8] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
There must be actual persuasion of the occurrence or existence of a fact before it can be found.[9]
[9] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The evidence establishes the applicant suffers with left wrist intersection syndrome which explains her complaints of left wrist symptoms.
Evidence of left wrist symptoms includes Dr Lee’s certificates of capacity from 31 May 2023 which note “R+L wrists.”[10] Dr Lee recorded “start L wrist pain”[11] on 7 June 2023. Mr Han, physiotherapist, notes intermittent left wrist pain in his records from 20 June 2023 to
[10] Reply page 21.
[11] ARD page 108.
1 August 2023. On 27 September 2023 Dr Sungaran records bilateral wrist pain.
The left forearm and wrist ultrasound report of 29 November 2023 concludes the findings are compatible with intersection syndrome involving compartments 1 and 2 crossover.
Mr Kuk, physiotherapist, records “mild sore left wrist with gripping”[12] on 30 January 2024.
[12] ARD page 69.
On 14 February 2024 Dr Sungaran notes the repeat ultrasound confirming bilateral intersection syndrome is consistent with the applicant’s clinical presentation and history.
Dr Shahzad diagnoses left wrist intersection syndrome on examining the applicant on
5 April 2024.
I do not place weight on A/Prof Waller’s opinion that the applicant does not have a left wrist condition given the ultrasound findings of 29 November 2023 and the medical evidence referred to above.
On 24 July 2023 A/Prof Waller reports he finds no detectable abnormalities in the left wrist and the applicant’s reported symptoms are not supported by objective clinical findings. The ultrasound of the left forearm and wrist of 29 November 2023 was not available to him at that time.
On 30 May 2025 A/Prof Waller reports that his opinion remains unchanged; the applicant did not injure her left wrist on 18 or 19 May 2023, and at the time of his assessment on
19 July 2023 there were no abnormal clinical findings. This report does not however address the findings in the ultrasound report of 29 November 2023 provided to him.
I place more weight on Dr Shahzad’s opinion as a result, noting he takes a detailed history, examines the applicant and reviews the ultrasound report of 29 November 2023.[13]
[13] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [54]; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399.
On a consideration of the evidence and for the reasons below I also find the applicant’s left wrist condition is a consequential injury that resulted from the accepted right wrist injury.
The applicant’s statement evidence is that she has left wrist pain due to overcompensation. Overuse-related changes in the left wrist due to overcompensation she says were revealed on ultrasound in November 2023.
The applicant’s claim form dated 1 June 2023 includes “consequential injuries to the left wrist.”[14]
[14] ARD page 123.
Dr Lee in his report of 20 August 2024 describes the left wrist injury as a consequential injury caused by the right wrist injury, with limited use of the right wrist and the consequent overuse of the left wrist.
Dr Shahzad’s opinion is that the applicant developed a consequential condition in her left wrist as a result of overusing it to compensate for her right wrist injury.
The medical assessment and treatments following the accident, including evaluations by general practitioners, ongoing pain and soreness in her left wrist, functional limitation, evidence of intersection syndrome and tenderness over de Quervain’s on physical examination, are in Dr Shahzad’s opinion indicative of a compensatory injury to her left wrist as a result of the right wrist injury.
A/Prof Waller in his report of 24 July 2023 notes the history of the applicant developing left wrist pain and her current complaint of pain in the left wrist aggravated by movement, but finds there are no detectable abnormalities in the left wrist. A/Prof Waller says the left wrist symptoms are not related to her employment and are not supported by objective clinical findings.
As the respondent submits, A/Prof Waller is not obliged to provide an opinion on other potential causes of the applicant’s left wrist condition, and particularly as he finds no left wrist injury or abnormal clinical findings, however his opinion remains unchanged with the benefit of the ultrasound report of 29 November 2023.
The respondent submits there is a lacuna of evidence in the applicant’s statement in relation to activities that resulted in overuse from overcompensation. Although there is no great detail provided regarding those activities I do not accept that submission.
The applicant’s statement evidence includes a description of the effect of the right wrist injury on 19 May 2023 and that she was unable to squeeze the sponge or move her wrist anymore. She was unable to do anything with her right wrist.
The applicant describes difficulty performing household tasks such as cooking, washing and laundry without assistance, and relying on family members for help with domestic tasks. She is unable to attend the gym at all due to pain and weakness in her grip and difficulties with personal hygiene. She is no longer able to hold objects for long and cannot use her hands much with too much force.
Her left wrist pain improved following a steroid injection on 5 March 2024, however there is still discomfort during certain activities, particularly those involving lifting and grabbing objects.
Dr Shazad refers to the applicant’s left wrist pain and soreness with housework or driving.
The evidence supports the finding that the applicant’s inability to use her right wrist led to overuse of her left wrist for the activities she describes in her statement. The applicant’s evidence is uncontradicted and I accept it.
A/Prof Waller’s opinion in his report of 30 May 2025 is that at the time of his assessment of the applicant on 17 July 2023 there were no abnormal clinical findings in the left wrist, and the applicant’s left wrist condition is independent and unrelated to the right wrist injury on
19 May 2023.
It is A/Prof Waller’s opinion that the ‘favouring’ and ‘consequential overuse’ arguments that an injury in one limb leads to pathology in the contralateral limb due to compensatory overuse is a commonly held belief but it is not supported in the scientific literature.
The applicant submits this is a bare ipse dixit which I accept. A/Prof Waller, while an eminent medical expert, has not explained the basis of this opinion so that it can carry little weight.[15]
[15] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130].
I afford little weight to A/Prof Waller’s opinion for the following reasons;
(a)    the history taken by A/Prof Waller regarding the applicant’s left wrist pain is brief;
(b)    A/Prof Waller does not report any clinical findings in the left wrist contrary to
Dr Sungaran, Dr Lee and Dr Shazad;
(c)    A/Prof Waller does not comment on the ultrasound report of 29 November 2023;
(d)    the opinion is contrary to the opinions expressed by Dr Shahzad and Dr Lee and A/Prof Waller does not address the difference in those opinions;
(e)    there is no explanation provided for the opinion that the left wrist condition is independent and unrelated to the right wrist injury, and
(f)    there is no explanation of the basis for the opinion that consequential overuse in one limb does not lead to pathology in the contralateral limb.
The respondent’s submission is that it is not feasible or credible that the applicant developed a consequential left wrist injury in the short period following the right wrist injury on
19 May 2023, which adds credence to A/Prof Waller’s opinion that the left wrist condition is unrelated to her work.
I am unable to accept this submission. While it may appear unlikely a consequential left wrist injury would develop within a short time, there is no evidence before the Commission of any period of time within which an overuse injury may be expected to occur.
I prefer Dr Shazad’s opinion as discussed above that the applicant developed a consequential left wrist injury as a result of overusing it to compensate for the right wrist injury. Dr Lee is of the same opinion.
There is no evidence the applicant had a pre-existing left wrist condition at the time of the right wrist injury on 19 May 2023.
I accept the applicant’s submission that the record made on 14 October 2021 by Ms Jung of left wrist pain, with the applicant to call back if symptoms were getting worse, is not evidence of ongoing left wrist symptoms.
Dr Shahzad notes there are no relevant pre-existing issues or aggravations with respect to the left wrist.
This is also supported by the applicant’s statement evidence that she worked full time handling stock in a warehouse for a building supplies company between 2019 and 2023, and considered herself fit and healthy to handle the physical demands of her employment.
Following an evaluation of the evidence and applying the commonsense test in Kooragang, I am persuaded and determine that on the balance of probabilities the applicant’s left wrist injury is the result of overuse to compensate for the accepted right wrist injury of
19 May 2023.

The applicant is entitled to the payment of weekly benefits

The applicant will be entitled to the payment of weekly compensation pursuant to s 33 of the 1987 Act if total or partial incapacity results from an injury. She claims weekly benefits from 25 July 2023 to date and continuing pursuant to ss 36 and 37 of the 1987 Act.
An entitlement to weekly benefits requires a determination of the applicant’s current work capacity.
In accordance with cl 9, Schedule 3 of the 1987 Act an injured worker has ‘current work capacity’ if they are able to return to work in suitable employment but the weekly amount they have capacity to earn is less than the weekly amount they had immediately before the injury.
An injured worker has ‘no current work capacity’ if they have a present inability arising from an injury such that they are not able to return to work, either in their pre-injury employment or in suitable employment.
The available evidence with respect to the applicant’s capacity for work is as follows;
(a)    Dr Lee certified the applicant as having no current capacity for work from
19 May 2023 to 13 July 2023 for injuries including to her right and left wrists;
(b)    in the certificates of capacity Dr Lee refers to the applicant being unable to continue to work due to “especially right wrist pains”;[16]
(c)    Dr Lee refers the applicant to Dr J S Kim for psychology assessment on
22 June 2023;
(d)    A/Prof Waller on 24 July 2023 opines the applicant is currently unfit for manual work involving her right hand and she is physically fit for sedentary work not involving significant use of the right hand;
(e)    Dr Modem on 11 August 2023 opines the applicant is incapacitated for work as a tiler from a physical and psychological perspective, she is motivated to return to gainful employment however it is highly unlikely the psychological injury will improve without improvement in the physical injury. The psychological symptoms will continue as long as the applicant suffers from her ongoing physical pain;
(f)    Dr Shahzad on 12 April 2024 opines the applicant is unfit to return to work or to her pre-injury work as a tiler and her prognosis is guarded;
(g)    Dr Sungaran reports on 31 May 2024 the applicant’s left wrist is feeling much improved since the third injection, but her right wrist “has not changed a great deal in the last three months”;[17]
(h)    on 19 August 2024 Dr Lee notes the applicant has very limited functional capacities using her right hand and she is only fit for sedentary work from the physical injuries point of view, and not for repetitive work or holding more than 1kg. Dr Lee recommends the applicant has capacity to work four hours a day in purely sedentary work due to her physical restrictions, however she is unable to work now with her psychological symptoms, and
(i)    the applicant’s statement evidence of 15 April 2025 is that Dr Islam diagnosed her with adjustment disorder with depressive symptoms on 14 August 2024 and she is currently undergoing Cognitive Behavioural Therapy. She continues to experience persistent pain in her right wrist with numbness and electric sensations in her right thumb as well as left wrist pain, and she has been unable to return to work due to the injuries.
[16] Reply pages 21, 24 and 27.
[17] ARD page 59.
The available evidence does not support the respondent’s submission that the applicant has capacity to work 40 hours a week in a sedentary role at this time.
The applicant’s submission is that Dr Lee’s opinion should be preferred as it integrates the physical and psychological injuries finding the applicant is unable to work, which I accept.
In Dr Modem’s opinion the applicant’s psychological symptoms will continue as long as she suffers from her ongoing physical pain. I accept the applicant’s statement evidence that she continues to experience persistent right wrist pain as well as left wrist pain, and that she is receiving treatment for her psychological condition. There is no contradictory evidence.
The record by Mr Han, physiotherapist, on 25 July 2023 that the applicant’s right wrist is better is made prior to Dr Lee’s report in August 2024 that the applicant is unable to work due to her physical and psychological symptoms and her recent evidence that the pain persists.
As the respondent submits, the applicant’s evidence is that she recovered quickly from minor right wrist pain in 2019,[18] however her statement evidence is that she has not yet recovered from the right wrist injury of 19 May 2023.
[18] ARD page 124.
I accept the applicant’s submission that there is no evidence produced by the defendant that shows a contribution from any pre-existing condition to the applicant’s current incapacity.[19]
[19] Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
Considering the available evidence I find the applicant has no current work capacity.
PIAWE is agreed at $1,634.32.
In accordance with the s 78 notice of 14 July 2023 weekly payments were received by the applicant from 20 May 2023 to 25 July 2023, a period of nine weeks.
The applicant is entitled to weekly benefits in the period 26 July 2023 to 23 August 2023 (four weeks) pursuant to s 36(1) of the 1987 Act, and from 24 August 2023 to date and continuing pursuant to s 37(1) of the 1987 Act.

The applicant is entitled to the payment of reasonably necessary medical expenses

As a result of her injuries the applicant is entitled to receive payment of reasonably necessary medical or related treatment expenses pursuant to s 60 of the 1987 Act.
There will be a general order for the payment of reasonably necessary medical or related expenses that result from the applicant’s right and left wrist injuries and secondary psychological condition on production of accounts, receipts and/or Medicare notice of charge.

SUMMARY

The applicant sustained a consequential left wrist injury as a result of the accepted right wrist injury on 19 May 2023.
The applicant is entitled to weekly benefits compensation from 26 July 2023 to date and continuing at PIAWE of $1,634.32 (subject to indexation) pursuant to ss 36(1) and 37(1) of the 1987 Act.
The applicant is entitled to the payment of reasonably necessary medical or related expenses arising from her right and left wrist injuries and secondary psychological condition pursuant to s 60 of the 1987 Act on productions of accounts, receipts and/or Medicare notice of charge.

[2025] NSWPIC 357

28 July 2025