Kaur v State of NSW (Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kaur v State of NSW (Western Sydney Local Health District) [2021] NSWPIC 328
APPLICANT:	Ramandeep Kaur
RESPONDENT:	State of NSW (Western Sydney Local Health District)
MEMBER:	Michael Wright
DATE OF DECISION:	2 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for carpal tunnel release surgery for disputed left carpal tunnel syndrome consequential to accepted right wrist injury; left carpal tunnel alleged to be consequential condition as a result of overuse to compensate for the right wrist injury; Kooragang Cement Pty Ltd v Bates, Tubemakers v Fernandez and EMI Ltd v Bes considered; Held - found relevant causal relationship established and right wrist injury made material contribution to the need for the left carpal tunnel release surgery; award in favour of the applicant.
DETERMINATIONS MADE:	1. Left carpal tunnel release surgery as proposed by Associate Professor Smith (the proposed surgery) is reasonably necessary as a result of injury sustained by the applicant on 18 June 2018.
ORDERS MADE:	2. The respondent to pay the costs of and incidental to the proposed surgery in accordance with section 60(5) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Ms Ramandeep Kaur (the applicant) claims pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) the cost of left carpal tunnel release surgery proposed by A/Prof Smith as a result of injury to the right wrist on 18 June 2018 and consequential left carpal tunnel syndrome condition.
In a section 78 notice dated 31 May 2021, the insurer disputed the claim for compensation for consequential injury to the left wrist and left carpal tunnel surgery. Among other matters, this was explained as the insurer was disputing that the applicant suffered a consequential condition of the left wrist resulting from the accepted right wrist injury and that the applicant had not discharged her onus of proof in establishing that the left carpal tunnel condition resulted from the incident on 18 June 2019 or the accepted right sided carpal tunnel injury.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration of this matter on 23 July 2021 the applicant was represented by Mr Morgan of counsel, instructed by Ms Radosevic, solicitor and the respondent by
Mr McEnaney of counsel, instructed by Mr Khoshaba, solicitor.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) Application to Admit Late Documents dated 5 July 2021 and attached documents, and

(d) Application to Admit Late Documents dated 20 July 2021 and attached documents.

Oral Evidence

There was no application to give oral evidence and there was no request to cross-examine a witness.

Applicant’s statement

The applicant provided statements dated 28 January 2021 and 20 July 2021.
In her statement dated 28 January 2021, the applicant stated that on 18 June 2018 she suffered injury to her right wrist when a dementia patient punched her over the volar aspect of her right wrist, causing immediate pain in the right wrist. She stated that she consulted her GP, Dr Dinakar, on the same day.

The applicant stated that she had a week off work and underwent an ultrasound of her right wrist and forearm on 29 June 2018, which she said showed mild de Quervains. The applicant also stated that on 18 July 2018 she underwent an ultrasound steroid injection in her right wrist which did not help. She also underwent about 25 sessions of physiotherapy from 27 July 2018 until 2019.

She stated that she consulted Dr Adusumilli, surgeon, and also Dr Dowla, neurologist.
The applicant stated that on 18 December 2018 she underwent a right carpal tunnel release by Dr Adusumilli.

The applicant stated that the surgery did not help with her pain and she kept experiencing pins and needles and continued to have stiffness around her wrist.

The applicant stated that on 8 September 2019 the pain became extremely noticeable and it started to affect her ability to perform her work duties. She stated that as a result of her injury she had to rely more on her left arm and wrist and she started feeling pain. She stated that she was unable to use her right hand because it was still in pain and very weak.

The applicant stated that the pain in her left hand became more noticeable on 8 September 2019 as her employer changed her duties frequently. She stated that this required the use of her left hand as her right hand was in a sling for a long period of time. The applicant outlined in detail her main work duties and responsibilities involving the use of her left hand.

The applicant stated that she was constantly putting all of her pressure on her left hand and wrist and her work was very repetitive and constant. She stated that due to the overcompensation of her left hand she sustained a carpal tunnel injury to her left hand.
The applicant stated that an ultrasound on 15 October 29 showed right carpal tunnel postsurgical changes and swelling of her nerves and also showed the left carpal tunnel and median nerve was swollen.
In her statement dated 20 July 2021, the applicant stated that she consulted A/Prof Nicholas Smith as she had not been happy with the outcome of her previous surgery. She first consulted A/Prof Smith on 29 July 2019.
The applicant stated that she underwent an ultrasound of both wrists on 15 October 2019, as arranged by A/Prof Smith. Following the ultrasounds, A/Prof Smith recommended carpal tunnel release of both her wrists.
The applicant stated that she continues to suffer from pain in both of her hands while working. She stated that her wrist continued to be in a lot of pain. She stated that she massages her wrists with Voltaren gel and uses daily heat packs and takes Panadol for the pain when required. She stated that she wishes to have the carpal tunnel release surgery on both the left and right wrists as soon as possible.

A/Prof Nicholas Smith

A/Prof Smith, hand and wrist surgeon, provided reports dated 29 July 2019, 30 October 2019, 9 December 2019, 22 January 2020 and 2 September 2020.
In his treating report dated 29 July 2019 to Dr Dinakar, A/Prof Smith diagnosed persistent right median nerve dysfunction following carpal tunnel release in December 2018 with possible ongoing compression. He recommended an ultrasound. A/Prof Smith recorded a history of the injury on 18 June 2018 and noted a history that prior to surgical treatment the applicant had frequent episode of sensory symptoms and nerve conduction studies “which indicated bilateral median nerve findings”.

A/Prof Smith recorded that following surgery in December 2018, the applicant had a few weeks relief of her median nerve symptoms “though the recurrence was back to the preoperative state following this”. He noted that the applicant now had similar episodic paraesthesia and had developed symptoms on the left side.

On examination, A/Prof Smith recorded “physical findings of moderate to severe median nerve dysfunction bilaterally”.

A/Prof Smith was of the opinion that the applicant had ongoing symptoms on the right “either recurrent or following incomplete release” and on the left she had “exacerbation of her median nerve compression, probably due to overuse following surgery on the right”. He recommended endoscopic surgery on the left side first and following that revision surgery on the right side if necessary following findings on the ultrasound.

In his treating report dated 30 October 2019, A/Prof Smith recommended endoscopic carpal tunnel release on the left side but at that point no further surgical treatment on the right side.

In his report dated 9 December 2019 to the workers compensation insurer, A/Prof Smith responded to questions put to him by the insurer.

In response to a question as to his medical rationale on causation of the injury, A/Prof Smith stated that:
“It is difficult to be entirely sure, though the right carpal tunnel syndrome seem to have been caused by an incident at work. She did not have any symptoms on the left side prior to this. She has had a lot of problems following the surgery on the right side and has relied increasingly on the left hand for activities of daily living. It is very possible that this unaccustomed usage has led to synovitis in the carpal canal and secondarily, compression of the median nerve, which is carpal tunnel syndrome.”
A/Prof Smith was also of the opinion that “the only injury was on the right side, which led to surgery on the right side and a prolonged recovery, necessitating increased use of her left side”. A/Prof Smith was also of the opinion that:

“She has had to carry on coping with life, and using her left hand increasingly. I do not believe that she has been back to work, the left carpal tunnel syndrome is probably secondary to the treatment of the right carpal tunnel syndrome, which was a work related problem. Therefore, the left carpal tunnel syndrome remains as a consequence of the right sided problem.”

A/Prof Smith, in response to a question as to the predominant cause of symptoms and how they are related to the compensable injury, stated:

“She has sensory symptoms on the left side, which began relatively recently. The symptoms are intermittent but occur on a daily basis. I have graded them as being moderate in severity. The predominant cause of her symptoms, on the left side, is carpal tunnel syndrome, and this has been related to compensable injury as above.”

In relation to a question as to the mechanism of injury and the probability that the current left wrist injury or similar injury would have happened anyway at about the same time or at the same stage of her life if she had not been at work or had not worked in that employment, A/Prof Smith stated that “I do not think this is likely at all”. He was also of the opinion that to his knowledge there were no other factors currently affecting the applicant’s condition.

In response to a question as to exhaustion of conservative treatment for the left wrist injury, A/Prof Smith noted that the applicant was trying to cope with splints but she has ongoing symptoms regardless and that “for moderate carpal tunnel syndrome, normally surgery is a reasonable option”. A/Prof Smith stated that the medical rationale for the proposed surgery was “to cure her left sided carpal tunnel syndrome”.

The report of 22 January 2020 was a progress report.

In his progress treating report dated 2 September 2020, A/Prof Smith noted that the applicant has bilateral carpal tunnel syndrome, both relating to her previous work injury as previously explained. He stated that “the problem clearly began in June 2018 when she was punched by a patient”.

A/Prof Smith was also the opinion that “at this stage, the surgical treatment for her should be bilateral endoscopic carpal tunnel release”. A/Prof Smith also stated that:

“anybody who has had carpal tunnel syndrome will tell you that overuse will increase the symptoms, and that is exactly what has [happened] on the left side”.

A/Prof Smith also stated that “we will ask for approval for bilateral endoscopic carpal tunnel release, which is what I feel she is justified in having with her work-related injury”.

Dr Eugene Gehr

Dr Gehr, orthopaedic surgeon, provided a medicolegal report to the applicant’s solicitors dated 28 January 2020 and supplementary reports dated 25 May 2020 and 29 March 2021.

In his report dated 28 January 2020, Dr Gehr recorded a history that on 18 June 2018 the applicant was taking a patient for a shower and he punched her over the volar aspect of the right wrist. He noted that the applicant stated that she immediately had pain in the wrist.

Dr Gehr noted the subsequent history of treatment of the right wrist, including the right carpal tunnel release on 18 December 2018. He noted that the applicant told him that the surgery did not help with the pain and the pins and needles that she was experiencing. Dr Gehr noted no further incidents or accidents since the subject injury.

On examination, Dr Gehr noted symptoms and tenderness in relation to the right wrist. He also noted decreased sensation in the median nerve distribution of the left hand. He noted imaging including an ultrasound which reported of the left carpal tunnel that the left median nerve was diffusely swollen.

Dr Gehr also noted a history that the applicant had problems with her left wrist with carpal tunnel symptoms over the last two months. He noted that nerve conduction tests have supported the diagnosis of left carpal tunnel, confirmed by ultrasound results. He noted that on examination he found a decreased range of motion of the left wrist and decreased sensation in the median nerve distribution of the left hand.

Dr Gehr diagnosed right carpal tunnel symptoms with persisting symptoms following surgery and right de Qurvains dating from the time of the subject accident. He also diagnosed left carpal tunnel syndrome with a history over the previous two months.

Dr Gehr was of the opinion that any future or recommended treatment would be a left carpal tunnel release.

The report dated 25 May 2020 was a brief opinion by Dr Gehr that the current condition in the right and left wrist were both related to the subject accident.

In the report dated 29 March 2021, Dr Gehr noted a statement from the applicant dated
21 January 2021 Dr Gehr noted that the applicant had to rely upon the use of her left arm and wrist and developed pain in that region, with worsening symptoms and constant pressure on the left hand and wrist. Dr Gehr was of the opinion, after noting the medicolegal literature as to the onset of symptoms in the contralateral limb, that was not surprising that she may have developed problems in the left wrist as she was not able to use the symptomatic right wrist.

Professor William Cumming

Prof Cumming, orthopaedic surgeon, provided medicolegal reports to the respondent dated 26 October 2018, 30 May 2019 and 23 October 2020.

In his report dated 26 October 2018, Prof Cumming recorded the history of injury on 18 June 2018 when the applicant was showering a confused patient who gave her a single heavy punch to the volar aspect of her right wrist. He recorded that the applicant’s symptoms continued, with pain on the volar and radial aspect of her wrist. He noted that the applicant then developed symptoms consisting of pins and needles in her thumb, index and middle finger, worse by night than day. He also noted that the symptoms had not occurred on the left side.

On examination, Prof Cumming relevantly recorded that the applicant was locally tender over the volar aspect of her wrist centrally and she was also tender dorsally over her wrist. He noted that testing produced pins and needles radiating to the thumb and index finger and also that she was tender over the radial aspect of the wrist on the first dorsal compartment.

Prof Cumming also recorded that a test for de Quervain’s syndrome was positive on the right side but not on the left and a test for carpal tunnel syndrome was positive on the right side and not on the left.

Prof Cumming also noted that the applicant had an ultrasound guided injection into her right first webspace on 17 July 2018 which was reported not to have helped.

Prof Cumming also recorded that the applicant had no problems on the left side. He noted that the applicant now complained of symptoms which were classical of carpal tunnel syndrome on the right side but not on the left. He further noted that “it is unusual that she has no left-sided symptoms and that her nerve conduction studies show in fact that the left median nerve is more affected on that modality than the right”.

Prof Cumming was of the opinion that the applicant was “suffering definitely from clinical right carpal tunnel syndrome and this is of a moderate degree and there is a mild de Quervains syndrome present also.” Prof Cumming attributed the onset of these conditions to the subject injury. Prof Cumming was of the opinion that the treatment would be surgical, subject to an MRI study, and probably the procedure should be an open carpal tunnel rather than endoscopic.

In response to a question that noted the opinion of Dr Dowla that the applicant had carpal tunnel syndrome moderately severe but worse on the left and recommended sequential carpal tunnel decompression, Prof Cumming was of the opinion that he did not believe that sequential carpal tunnel decompression was indicated as she had no symptoms on the left side at all.

In his report dated 30 May 2019, Prof Cumming noted the open carpal tunnel release surgery that was performed in December 2018. He recorded that the applicant said that subsequent to the surgery she developed pain on the radial aspect of her thumb region and that pins and needles have improved by 90% and was still improving.

Prof Cumming also recorded that the applicant stated that she had no therapy and her hand feels weak and she gets sharp pains. Prof Cumming noted an ultrasound the previous month which confirmed persisting enlargement of the median nerve of the right wrist.

Prof Cumming also recorded a history that the applicant’s “left wrist has no problems or symptoms…”. He noted a history of return to work on restricted duties of six hours per day for three days per week.

On examination, Prof Cumming noted a “full range of all articulations of both upper extremities with the exception of the right wrist, which lacks about 20° of flexion and extension and 10° of radial and ulnar deviation in comparison to the left side”.

Prof Cumming noted the recent investigation of a right wrist ultrasound on 19 March 2019.

Prof Cumming was of the opinion that based on his clinical examination, “the current diagnosis is that she is post carpal tunnel syndrome with the improvement outlined above, but with ongoing problems in her right hand”. He was also of the opinion that with persisting enlargement of the median nerve and, in these circumstances, if the applicant did not improve further, “then she should be referred to a full-time hand and wrist surgeon for review”.

In his report dated 23 October 2020, Prof Cumming noted that on previous examinations he made careful notes that her left hand had no symptoms or signs or evidence of carpal tunnel syndrome.

Prof Cumming noted that the applicant had seen A/Prof Smith and by that time she had developed recurrent symptoms in her right wrist and he considered that there was either incomplete carpal tunnel release or a recurrence of median nerve compression.
Prof Cumming stated that “this was not confirmed by review in neurological studies which showed that there had been considerable improvement in her nerve conduction studies. This was interesting because when I saw her previously, she was 90% improved clinically.”

In relation to the opinion of Dr Smith that when her left-sided symptoms occurred he considered this might be due to overload from the problems that she had faced in the right wrist, Prof Cumming stated that:

“I make a comment on this now in that it was six months after her surgery that I saw her
and Dr Perla another four months and she had no symptoms on the left side at all and
subsequently nerve conduction studies showed an improvement. I am not of the opinion
therefore after a year that her symptoms on the left side are related to her right side by
in terms of overload. The question of overload is discussed in AMA5 and the contralateral

limb to be considered. This is considered to be an extremely unusual condition and AMA5
considers it mostly, it is a myth.”

Prof Cumming also stated that:

“It is now my opinion, based on this file extract review, that my original provision of the
benefit of the doubt of the patient regarding her carpal tunnel syndrome was incorrect
and that in fact she was presenting with bilateral median nerve dysfunction which was
noted on her nerve conduction studies but her right side, being her dominant hand, was
symptomatic and it probably had nothing to do with the blow on the front of the wrist.”

Prof Cumming further stated that “I am of the very strong opinion that the condition in her left wrist is not related to the right wrist in any way”.

In relation to the applicant’s left-hand, Prof Cumming recorded that the applicant stated that she developed pins and needles at night in her left hand some six months ago. Prof Cumming further noted that:

“she confirmed this date of onset which was again slow and then she also had pain in her wrist which developed also on the front of the wrist and the radial aspect but also on the back of the left wrist and extending towards the elbow. She states that she never had any symptoms in her left hand particular pins and needles prior to the onset six months ago and this includes no attendance ever to her doctor regarding this… She had surgery to her right hand but she states that her symptoms in the right hand recommence quickly after the surgery… She states within a month of the surgery or even earlier, her symptoms had returned to the same level that they were prior to the surgery”.

Prof Cumming recorded that “the investigations which have been performed include the MRI study which she has outlined but she did not bring any investigations with her”. He noted that this confirms the status of the right carpal tunnel syndrome and the nerve conduction studies previously noted confirmed that she suffered from bilateral carpal tunnel syndrome, more severe on the left than the right.

Prof Cumming was of the opinion that the applicant is suffering from bilateral carpal tunnel syndrome and the right commenced soon after her injury and the left six months ago.
Prof Cumming noted inconsistencies on examination and in respect of history obtained by
Dr Mears.
Prof Cumming was of the opinion that the applicant “is suffering from constitutional carpal tunnel syndrome and that she may have mild de Quervain’s syndrome on the right side as detected by Dr Mears”. Prof Cumming also stated that:

“I am not of the opinion that her left carpal tunnel syndrome bares any relationship to her injury, not as a consequential injury nor related to overuse. I refer to AMA5 causation where consideration of the contralateral limb is discussed. It is my opinion on review now of her history and the fact that she attended her family practice in 2014 with left-sided carpal tunnel syndrome which is very clear from the history and Ms Kaur has been suffering from carpal tunnel syndrome since 2014 at a subclinical level. She received the benefit of the doubt regarding its presence on the right side following the injury; however, when she attended Dr Meares subsequently six weeks later, she made no mention of paraesthesia and he diagnosed de Quervain’s syndrome only. As I have stated, Dr Meares is an extremely experienced upper extremity surgeon.”

In relation to diagnosis, Prof Cumming stated that:
“I am now of the opinion that she suffered a bruised to her wrist with a blow which would have subsided and an MRI study has not confirmed any injury to the soft tissues in the carpal region. The blow did not cause the de Quervain’s syndrome and did not cause the carpal tunnel syndrome”.
Prof Cumming stated that:
“no there is no consequential injury to the left wrist. I have taken into account the statement that on 15 July 2014, she attended a family practitioner with classical left carpal tunnel syndrome and positive Phalen’s test. Nerve conduction studies were ordered.”
Prof Cumming commented on the opinion of A/Prof Smith as follows:
“I do not agree with the opinion of Dr Smith regarding the cause of the left-sided
wrist condition and I have provided my reasons for this above. AMA5 is clear
regarding the uncommon situation regarding overuse and her circumstances of
activity certainly do not allow for this. The condition arose when she was
sedentary in her activities. She has all of the criteria appropriate for a
constitutional carpal tunnel syndrome on the left side and she presented to her
doctor with it in 2014.”
Prof Cumming was of the opinion that the left-sided carpal tunnel release surgery is reasonably necessary but not as a result of the accepted injury to the right wrist.

FINDINGS AND REASONS

The respondent submitted that the left wrist condition is a constitutional problem. It was submitted that this is supported by the fact that symptoms in the left wrist came on only after six months following the December 2018 surgery.
The respondent submitted that the report of Prof Cumming dated 30 May 2019 was some six months after surgery. This report noted that there were no symptoms in the left wrist.
The respondent submitted that there was no dispute that the applicant now has left sided carpal tunnel syndrome. The respondent submitted that the dispute is to what caused the left-sided carpal tunnel syndrome. The respondent submitted that the left-sided carpal tunnel syndrome is a pre-existing condition. The respondent submitted that there was no evidence of a causal relationship between the left sided carpal tunnel syndrome and the accepted injury following the common sense approach to causation as outlined in Kooragang Cement Pty Ltd v Bates [1].
[1] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang)
The applicant submitted that Prof Cumming had fallen into the trap of applying scientific certitude in relation to the expression of opinion as to causation, which is not the test that is to be applied. The test is outlined in Kooragang and then considering whether there is a material contribution to the need for the surgery and also considering authorities such as Tubemakers v Fernandez[2] and EMI Ltd v Bes[3] that all of the evidence should be considered.
[2] (1976) 10 ALR 303 (Fernandez)
[3] [1970] 2 NSWR 238 (Bes)
The applicant submitted that in considering the relevant relationship there is the accepted injury for which surgery was funded and which took place in December 2018 and thereafter over the course of six months the applicant developed symptoms in the left wrist and arm.
The opinion of Prof Cumming was based on a number of propositions. The applicant had “subclinical” left carpal tunnel syndrome following symptoms in 2014. According to AMA5 the question of overload and the contralateral limb is considered to be an extremely unusual condition and is mostly a myth. There were no left sided carpal tunnel symptoms recorded by Prof Cumming in his earlier reports, nor in the earlier reports of Dr Mears and Dr Perla, until shortly before Prof Cumming’s examination of the applicant in October 2020. Prof Cumming revised his previous opinion and was now of the opinion that the previous diagnosis of carpal tunnel syndrome was incorrect and that in fact the applicant had bilateral median nerve dysfunction, noted on nerve conduction studies, but her right side was symptomatic as it was the dominant hand and the symptoms probably had nothing to do with the blow on the front of the wrist. There was inconsistency on examination of the wrist in October 2020 and inconsistencies in relation to the history of other injuries prior to the subject injury, including the shoulder. The applicant had mild to moderate obesity and was in the menopausal age group.
Prof Cumming in his report of 23 October 2020 noted that he had conducted for the purpose of that report a “file extract review”, as well as a re-examination. However, he also noted that he had seen the applicant in February 2020 and that “there is no copy of my report present that should be attained” and that there were other files, including a report from Dr Mark Perlo, which were upside down and he was unable to read them. Prof Cumming in his report requested that his report of 2020 be provided to him so that he could study it “as it is an extremely complex matter”. There was no evidence before me that this was done, nor was there evidence before me of a report of Prof Cumming of February 2020. Prof Cumming further noted that in response to a letter of reference by 19 February, presumably 2020, he made some handwritten notes on 20 February, presumably 2020, but he was not sure whether he saw the applicant on 20 February. He was not sure whether or not the referring letter of 20 February, presumably 19 February 2020, was the one they, presumably the insurer, still wanted to be used now. He noted that he did not have any recent referral letter.
This apparent confusion was reflected in the reasoning process of the report of
Prof Cumming of 23 October 2020. The report commenced with the “file extract review”, which seems to me to be subject to the caveat noted above. Prof Cumming expressed a number of conclusions, as noted above, in that “file extract review” and then turned to the examination of the applicant before providing his further opinions, which appeared to rely upon the framework of the “file extract review”. This report was the foundation for the respondent’s dispute of liability for the claimed consequential left carpal tunnel syndrome condition. Prof Cumming’s earlier reports were referenced in submissions for historical matters of examination and lack of symptoms in respect of the left side.
I am not persuaded by the opinion of Prof Cumming. He did not explain how it was that he made a diagnosis of carpal tunnel syndrome in or from 2014. He made no reference to carpal tunnel investigation reports or results prior to the injury of 18 June 2018, nor was I taken to them in submissions. He stated that the applicant “attended her family practice in 2014 with left sided carpal tunnel syndrome which is very clear from the history”.
Prof Cumming did not explain how in 2020 he reached a diagnosis of left sided carpal tunnel syndrome in 2014 from the clinical note to which he referred. He also did not explain what he meant by “subclinical”, nor did he point to the evidence of how such “subclinical” left-sided carpal tunnel syndrome continued from 2014.
The only investigation that was specifically identified by Prof Cumming as being reviewed in his three reports was in his report of 30 May 2019 in which he reviewed the right wrist ultrasound on 19 March 2019. He noted in his reports of 26 October 2018 and 23 October 2020 that the applicant did not bring investigations with her and he did not specifically refer to reviewing investigations.
Prof Cumming also relied upon what he regarded as inconsistencies in what he reported as the applicant’s denial of prior injuries or symptoms in other body parts, including the shoulder, elbow and back. This was referred to in the section 78 notice but not in submissions. He referred to what he regarded as inconsistencies in adopting a cautious approach to the reliability of the applicant’s history in relation to the subject injury.
A difficulty for the respondent’s case is that the opinion of Prof Cumming in his report of 23 October 2020 was that he revised his opinion that the applicant sustained right carpal tunnel syndrome in the subject accident. He relied upon the history and opinion of Dr Mears of
1 August 2018, in which Prof Cumming said that the report of Dr Mears made no reference to pins and needles and diagnosed only de Quervain’s syndrome. In response to a question relating to injury to the left wrist, Prof Mears indicated that he had not changed his opinion in relation to the left wrist and he was also of the opinion that he did not think the applicant ever suffered from an injury causing carpal tunnel syndrome to the applicant’s right wrist but this was constitutional, although confusingly again he finishes this opinion with the statement “and it is reasonable that she receives the benefit of the doubt following the injury”. This in my view is a part of what appears to be the reasoning of Prof Cumming, that is that the applicant has constitutional bilateral carpal tunnel syndrome, with initial right sided onset at some time after the subject accident and thereafter a subsequent left sided onset.
However, the section 78 notice dated 31 May 2021 did not dispute the right sided carpal tunnel condition. That notice referred to the “accepted right wrist injury on 18 June 2018” and the “accepted right sided carpal tunnel injury”. The respondent in submissions properly did not dispute the accepted right sided carpal tunnel injury or condition. In my view, as this aspect of the reasoning of Prof Cumming cannot be considered, there is a significant difficulty in relation to the weight to be given to the alternative thesis of Prof Cumming that the left carpal tunnel syndrome is constitutional.
Prof Cumming referred to the applicant having mild to moderate obesity and being in the menopausal age group, but he did not explain how such purported factors could result, in the case of the applicant, in a constitutional carpal tunnel syndrome in the face of the applicant’s evidence of overuse of her left hand and wrist in compensating for the accepted injury to the right wrist, unless it be said that the first onset of left sided carpal tunnel symptoms, which according to Prof Cumming was six months before his October 2020 examination, was itself the very reason why the left sided carpal tunnel syndrome was constitutional. This of course was the reasoning put forward by the respondent.
Prof Cumming rejected the applicant’s claim of causation by overuse by relying upon the authority of AMA5. He did not explain this how generalised approach applied to this particular applicant, other than referring in general to a “myth” and “her circumstances of activity certainly do not allow for this” when she was sedentary in her activities. Additionally, I accept the applicant’s submission that Prof Cumming has applied a scientific certainty of proof against the applicant in relation to causation, which is not the test to be applied.
I prefer the opinions of A/Prof Smith and Dr Gehr.
A/Prof Smith in his report of 9 December 2019 was specific in relation to his opinion as to causation. He noted that the applicant had a lot of problems following the surgery on the right side and relied increasingly on the left hand for activities of daily living. He was of the opinion that it was very possible that this unaccustomed usage led to synovitis in the carpal tunnel and also compression of the median nerve, which is carpal tunnel syndrome. Prof Cumming referred to earlier symptoms in 2014 in the left hand, which was not noted by A/Prof Smith. However, the history recorded by A/Prof Smith, including overuse following the right carpal tunnel surgery and relying increasingly on the left hand for activities of daily living, in my view provided a fair climate for him to provide his opinion. The applicant not unreasonably did not recall the 2014 symptoms, as noted by Prof Cumming, and there was no evidence before me of further left hand symptoms until 2019. A/Prof Smith was unequivocal that in his opinion it was not likely at all that her current left wrist injury or similar injury would have happened anyway at about the same time or at the same stage of her life. I accept the applicant’s submission that it was implicit in A/Prof Smith’s view that the onset of the left wrist symptoms was gradual.
Dr Gehr was of the opinion that the medical literature does document the possibility of the onset of symptoms in these circumstances and that it was not surprising that she may have developed problems in the left wrist as she was not able to use the symptomatic right wrist.
In my view, taking a common sense approach to causation, Kooragang, within the statutory context of the 1987 Act, there is a causal relationship, or “chain of causation” between the left carpal tunnel syndrome condition and the accepted right wrist injury of 18 June 2018. Following the injury to the right wrist, the applicant underwent surgery for a right carpal tunnel release on 18 December 2018. The applicant had a lot of problems following the surgery on the right side and she relied increasingly on the left hand for doing activities at work and activities of daily living. This increased usage of the left hand and wrist led to left carpal tunnel symptoms. By 29 July 2019, when the applicant first consulted A/Prof Smith, she had developed symptoms on the left side.

The applicant submitted that in determining causation the whole of the evidence is to be considered. As noted above, the applicant relied upon Fernandez and Bes.

In Bes, it was stated[4]

“… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”

[4] At [242]

In Fernandez the court referred with approval to the following passages of Dixon J in Adelaide Stevedoring Co Ltd v Forst[5]:

“First, I think that upon a question of fact of a medical or scientific description, a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer, and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.”
…
"Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated."

[5] (1940) 64 CLR 538 at [569]

The applicant’s evidence was that as a result of her injury to the right wrist she had to rely more on her left wrist and she started feeling pain in the left wrist. She stated that she was unable to use her right hand because it was still in pain and very weak. The applicant referred to extremely noticeable pain from about 8 September 2019 and described her employment activities which were contributing to the use of her left hand. A/Prof Smith recorded that following the surgery on the right side she had a lot of problems and relied increasingly on the left hand for activities of daily living. He further noted that following the injury on the right side leading to surgery on the right side, there was a prolonged recovery which necessitated increased use of her left side. He recorded that the applicant had to carry on coping with life and using her left hand increasingly. In my view, the whole of the evidence in this regard is of increasing use of the left hand following surgery to the right hand and a gradual onset of symptoms over time. There was no dispute as to the histories provided by the applicant and recorded by A/Prof Smith.

A/Prof Smith put it succinctly when he said that “anybody who has had carpal tunnel syndrome will tell you that overuse will increase the symptoms, and that is exactly what has [happened] on the left side”. This in my view provides support for a common sense view of causation and in a nutshell supports that common sense view of a sequence of external events of overuse and gradual onset of symptoms and the ground for finding those events are naturally associated.

The whole of the evidence as to causation, in my view are the reports of A/Prof Smith,
Dr Gehr, Prof Cumming and also the applicant’s statements. I have preferred the opinions of A/Prof Smith and Dr Gehr to that of Prof Cumming. I have considered the applicant’s statements in the contexts of the histories recorded, particularly by A/Prof Smith. I find that the applicant sustained left carpal tunnel syndrome, as diagnosed by A/Prof Smith, consequential to the injury to the right wrist on 18 June 2018.

Moreover, this evidence in my view establishes that the accepted right wrist injury has made a material contribution to the need for the surgery to the left wrist. A/Prof Smith was clear that for moderate carpal tunnel syndrome, being the applicant’s left carpal tunnel syndrome, normally surgery is a reasonable option. Prof Cumming was of the opinion that the left-sided carpal tunnel release surgery is reasonably necessary. Dr Gehr was of the view that any future or recommended treatment would be a left carpal tunnel release.

There is no real dispute as to the reasonable necessity of the surgery proposed by
A/Prof Smith, being the left carpal tunnel release. Further, noting the matters referred to in Diab v NRMA Ltd[6] and Rose v Health Commission (NSW)[7], Dr Gehr provided an estimate of the cost of surgery, for which there was no dispute; A/Prof Smith and Prof Cumming both thought that the proposed surgery was reasonably necessary; A/Prof Smith noted that the applicant had undergone conservative treatment options; A/Prof Smith was also of the view that the outcome was for curative purposes. I find that the proposed left carpal release surgery is reasonably as a result of the injury to the applicant’s right wrist on 18 June 2018.
[6] [2014] NSWWCCPD 72
[7] (1986) 2 NSWCCR 32

[2021] NSWPIC 328

2 September 2021