Labit v University of New South Wales

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Labit v University of New South Wales [2022] NSWPIC 49
APPLICANT:	Héloïse Labit
RESPONDENT:	University of New South Wales
MEMBER:	Catherine McDonald
DATE OF DECISION:	8 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 expenses; balance of probabilities; Nguyen v Cosmopolitan Homes discussed; brief statement and brief medical evidence; Byrom v Inghams Enterprises Pty Ltd and South Western Sydney Area Health Service v Edmonds discussed; Held – award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Dr Héloïse Labit Hardy is employed by the University of New South Wales (UNSW) as a lecturer in the School of Risk and Actuarial Studies in the School of Business. She commenced employment in September 2016 as a research fellow and was appointed to her current position in May 2020. She said in her statement that both roles require working at a computer with a significant workload. She said that she started feeling soreness in her right wrist in March 2019 and that she has had constant symptoms in her hands and arms since December 2019 which have affected her ability to work. Dr Labit lost some time from work and incurred medical expenses. UNSW denies liability to pay compensation.
Dr Labit brought proceedings in the Workers Compensation Commission and an award of compensation was made in her favour. UNSW appealed and its appeal was allowed on some of the grounds on which it relied[1]. Snell DP remitted the matter for redetermination, consistent with his reasons. He ordered Dr Labit to provide written notice of the claims for weekly compensation and medical expenses before the next telephone conference.
[1] University of New South Wales v Labit [2021] NSWPICPD 32.
A schedule was lodged and it was confirmed at the telephone conference on 4 November 2021 that the only claim made is for s 60 expenses totalling $3,700.
The issues for determination are whether Dr Labit suffered a disease injury in the course of her employment and whether the s 60 expenses claimed are reasonably necessary medical treatment as a result of that injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 18 January 2021 when Mr W Carney of counsel appeared for Dr Labit and Mr P Macken, solicitor, appeared for UNSW.
I am satisfied that the parties understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring them to a settlement acceptable to all of them. I am satisfied that they have had sufficient opportunity to explore settlement and that they have been unable to resolve the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply;
(c)    Dr Labit’s Applications to Admit Late Documents dated 12 October 2020 and 27 November 2020;
(d)    UNSW’s Application to Admit Late Documents dated 9 December 2020, and
(e)    the schedule of s 60 expenses filed on 5 December 2021.
Dr Labit sought to rely on a further Application to Admit Late Documents dated 9 December 2021 attaching some recent medical reports, which UNSW was unable to meet. The application to rely on those reports was not pressed.
Because the evidence is relatively limited, I have dealt with it in chronological order.
Dr Labit’s initial statement is a letter dated 19 June 2020 which was updated on 10 August 2020. She briefly described her role which was currently a lecturer in the School of Risk and Actuarial Studies in the Business School at UNSW. Her previous role was as a Research Fellow in the ARC Centre of Excellence in Population Aging Research. She said that in March 2019 she felt soreness in her right wrist which did not affect her ability to work and did not last more than a few hours. The symptoms became worse in December 2019 when she had constant symptoms of numbness, pins and needles, pain and swelling in both arms which affected her ability to work. She had some days off work and her workload was reduced between January and April 2020. UNSW assessed her work station and provided new computer accessories. She underwent a steroid injection in March 2020 which reduced “some of the carpal tunnel symptoms”. Dr Labit said she rarely had pins and needles after April 2020. By the time of her statement she rarely had symptoms in her left hand though occasionally had problems with her left elbow.
Dr Labit said that she continued to see a physiotherapist and that treatment and exercise reduced the frequency of pain on her right side. She remained limited in the time she can use a computer free of symptoms. She ceased doing any housework, grocery shopping or cooking in December 2019.
In the update to her statement in August 2020, Dr Labit said that her condition had stopped improving after commencing her new role as a lecturer and that she was working more than 35 hours a week to meet deadlines. In June she was unable to teach one of her classes as her symptoms worsened. She spoke to her manager and with a reduced workload, she was able to average 39 hours a week for three weeks. In the week before she prepared her statement, Dr Labit worked one week of 57 hours to meet deadlines. She asked to work part time, intending to work 35 hours per week and began to take new medication. She intended to see “the hand surgeon” again if the reduction did not help as expected.
Dr Labit updated her statement again on 30 September 2020 and said that she was “officially working at 80% with a corresponding decrease in pay”. She was able to reduce her hours to meet her medical certifcate. She anticipated to continue working those hours until December 2020.
Dr Labit’s statement has not been updated since that time.
Dr Labit’s general practitioner is Dr N Brittain. His detailed clinical notes do not appear in the file. He referred Dr Labit to a hand therapist on 31 December 2019 and for an MRI scan of her cervical spine which was undertaken on 6 January 2020. The radiologist noted only mild disc protrusions in the mid to lower cervical spine without significant impingement on the cervical cord or exiting nerve roots.
Dr Labit saw Ms Marwedal, hand therapist, on 10, 15 and 22 January 2020 at Eastside Physiotherapy Centre. On 22 January, Ms Marwedal recorded “2 months rock climbing nov 2018 jan 2019, stopped march, pain increased last week, symptoms at night both wrists”.
A workstation assessment was undertaken by UNSW Safety and Wellbeing on 20 January 2020. Ms C Jaconelli noted that Dr Labit reported a 10 month history of pain in the right hand extending to her forearm and that she had developed symptoms in the left over time. Dr Labit had seen her general practitioner who had ordered a cervical MRI scan which was said to show no abnormality. Ms Jaconelli noted that Dr Labit had been fitted with a forearm brace which she had been wearing for about 10 days. Ms Jaconelli noted that Dr Labit’s role as a research fellow required her to undertake data entry, reading, writing and data coding involving heavy mouse use. She predicted an increased work load before moving into a new role as a lecturer, though that new role would provide more task variety and decreased computer work. No changes were made to the work station because Dr Labit had adjusted it according to a checklist. Ms Jaconelli recommended the purchase of a roller mouse bar or a vertical mouse.
Dr Labit completed a claim form on 7 February 2020. She said that she had wrist and forearm pain in both arms, worse on the right side as a result of the use of a computer at work. She said that the condition was first noticed on 1 March 2019 and had been progressive since that time. She stopped work on 17 January 2020 and reported the injury on 5 February 2020. Dr Labit said that she had returned to work on 21 January 2020 and was working 35 hours per week.
On 10 February 2020 UNSW issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). UNSW denied compensation on the basis that the injury is said to have occurred on 1 March 2019 but notice was not given until 5 February 2020. It denied that Dr Labit had complied with the requirements of the act with respect to notification of injury and that she had failed to lodge a claim within the six month “limitation period” prescribed in the Act.
On 12 February 2020 Dr Brittain referred Ms Labit to Dr D Wardman for nerve conduction studies. He said that she suffered “right greater than left wrist and forearm pain and sensory changes”. Dr Brittain said that the documented onset was in March 2019 and that he had first seen Dr Labit for the condition on 31 December 2020. I presume that is a typographical error for 31 December 2019.
Dr Brittain also referred Dr Labit to Dr B Schick, orthopaedic surgeon by letter dated 7 February 2020. Dr Brittain said the condition had developed with Dr Labit’s computer work for UNSW and noted that a cervical MRI was essentially normal. In a post script dated 13 February 2020 he said that the claim had been declined on the “pretext of delay in notification”. He said that he intended to support her with ongoing certification.
Also on 12 February 2020, Dr Labit underwent a hand therapy review with Ms S Marwedal who had initially seen her on 10 January 2020. On 20 February 2020 Ms Marwedal wrote to Dr Schick noting that Dr Labit had initially undergone an improvement with the use of a splint and rest but had recently had an increase in symptoms, even with a reduction in work. Ms Marwedal noted “Mo – Hx – CTS at early age”. I understand that to convey that Dr Labit’s mother had a history of carpal tunnel syndrome at an early age.
Dr Schick reported on 20 February 2020. Dr Schick obtained the history that Dr Labit’s pain had been intermittent until December 2019. It was worse when she was working, particularly typing, and better when she was on holidays. Dr Schick said that Dr Labit had strongly positive provocative tests for carpal tunnel syndrome on the right but no other positive findings. He said that the most likely diagnosis was bilateral carpal tunnel syndrome but her symptoms were atypical. He recommended nerve conduction studies and an ultrasound guided steroid injection.
Dr Schick made an addition to his report on which he said that Dr Labit had undergone nerve conduction studies which were normal. He recommended that she proceed with the injection “to see if she gets any relief”.
UNSW issued a review decision on 20 February 2020 under s 287A of the 1998 Act. The notice merely confirmed the grounds relied on and noted and examination on 12 March 2020 with Dr Reiter, rheumatologist.
Dr W Hunyh and Dr R Dhanapalaratnam undertook nerve conduction studies on 27 February 2020. The report, which appears in the Reply, concluded “Normal peripheral nerve values in the upper limbs”.
Dr Brittain also referred Dr Labit to Ms A Melman, physiotherapist, who reported on 5 March 2020. Ms Melman noted that the referral was in respect of bilateral elbow and wrist pain and that Dr Labit appeared to have carpal and cubital tunnel syndrome. She noted that Dr Labit was hypermobile in her upper limbs and had a forward head posture, both of which were likely to contribute to her symptoms. Ms Melman said that the symptoms were work-related and noted that an ergonomic assessment had been undertaken. She recommended physiotherapy gym sessions to build up strength and improve work posture tolerance.
A further workstation assessment was undertaken on 2 March 2020 at Ms Jaconelli’s request. An adjustable keyboard and a different kind of mouse were recommended.
Nerve conduction studies were undertaken on 27 February 2020. The results do not appear in the ARD but do appear in the Reply. The results are reported as showing normal peripheral nerve values in the upper limbs.
On 15 March 2020, Dr L Reiter, rheumatologist, reported to UNSW. She obtained a history that Dr Labit began to notice pain on the volar aspect of her right wrist on 1 March 2019 which settled with rest. She noticed the pain when she was at work “keying”. In December 2019 she had an increase in workload which she associated with an increase in right wrist pain as well as pain affecting the medial aspect of both elbows which radiated to her hands. She developed occasional pins and needles in her left and right fourth and fifth fingers and intermittent numbness in her right first, second and third fingertips when she used her hands. Dr Reiter recorded that Dr Labit attended her general practitioner in early 2020 when her symptoms became severe and that she had five sessions of treatment from a hand therapist. Dr Reiter noted that Dr Labit’s symptoms were much less in the last 10 days. She was wearing a rigid splint on her right wrist at night.
Dr Reiter set out Dr Labit’s symptoms. She noted Dr Labit was working five to six hours a day, five days per week. Dr Reiter set out her examination findings and noted that the MRI scan did not show evidence of nerve root impingement and the nerve conduction studies were normal.
Dr Reiter said that Dr Labit clinically has bilateral elbow medial more than lateral epicondylitis, left more than right ulnar nerve impingement at the elbow and right carpal tunnel syndrome. Dr Reiter said carpal tunnel syndrome was not due to work, based on a literature review, which showed that more recent evidence indicated that the incidence in data entry workers was similar to the general population. Dr Reiter said that the epicondylitis was also not due to the nature of Dr Labit’s work, based on the literature. Dr Reiter said that the conditions were constitutional.
Dr Reiter said:
“Therefore, none of the studies looked at the incidence, occurrence or possible causation of lateral and medial epicondylitis with keying and mouse work. It confirms again that lateral and medial epicondylitis only occur with occupations where there are activities with demanding forces including wrist and elbow, flexion and extension, similar to the findings by Shiri et al.”
UNSW issued a further review notice on 20 March 2020. It denied compensation for the reasons previously set out and on the basis that Dr Labit had not sustained an injury, that employment was not a substantial contributing factor to any injury and that her medical condition “does not appear to be causally connected to injury”. Based on the copies in the ARD and the Reply that notice did not contain reasons for that denial.
A decision notice issued on 23 March 2020 in substantially the same form.
Dr J G Bodel, orthopaedic surgeon, reported to Dr Labit’s solicitor on 11 May 2020. He undertook his examination by videoconference. He obtained a history consistent with that in Dr Labit’s statement. He noted that Dr Labit had numbness and tingling in the ulnar nerve distribution and set out his understanding that the nerve conduction studies confirmed the presence of carpal tunnel syndrome and slight abnormality in the ulnar nerve findings which were not sufficiently severe to diagnose ulnar neuritis.
Dr Bodel noted that Dr Labit wore splints at night and that she had undergone an injection into the right wrist which had initially produced more severe pain. After the injection the numbness improved and the tingling resolved. Her left arm symptoms improved significantly. Dr Bodel noted that Dr Labit’s role was to change though may still require a lot of keyboard work, though less physical use of the mouse.
Dr Bodel set out his examination findings, undertaken through video conferencing. He said:
“Careful inspection of both hands shows no wasting in the small muscles of the hand particularly the thenar muscle group on either hand. She does feel a thickness or a swelling in the index and middle finger and on careful inspection there does appear to be a slight swelling generally in the index and middle finger of the right hand but not elsewhere.
She has a full range of finger joint movement and can make a tight fist but there is slight weakness in the right hand when compared to the left on her assessment of the strength that she has. She demonstrated numbness and outlined exactly the medial nerve distribution in the right hand including the radial side of the ring finger. She also has some complaints of the tingling involving the ulnar nerve distribution involving the ring and little finger of each hand but that is intermittent.”
Dr Bodel said that Dr Labit’s condition was carpal tunnel syndrome which was primarily constitutional. He said that she had suffered an aggravation, acceleration, exacerbation and deterioration of that condition, particularly from repetitive typing and use of a mouse. Dr Bodel considered that Dr Labit probably also suffered early ulnar neuritis, for which there may be a familial disposition because her mother had suffered a similar condition at about the same age. He said:
“She has explored other alternatives including voice activated work but unfortunately the technical nature of her discipline (actuarial studies) requires very technical mathematical equation which does not lend itself to be modified by the use of voice activation.”
Dr Bodel said that employment was the main contributing factor to the condition.
The certificates of capacity from Dr Brittain are dated 28 April 2020, 14 May 2020, 11 June 2020, 30 June 2020, 15 July 2020, 16 August 2020 and 17 September 2020. Many of them are incomplete. The certificates confirm that Dr Labit had been referred for hand therapy and a physiotherapist guided strengthening program.
In a supplementary report dated 1 October 2020, Dr Bodel said that the agreed 20% reduction in Dr Labit’s workload was appropriate to manage the clinical condition. He also said that decompressive surgery may be required. No claim for surgery is brought.
On 8 October 2020, Dr Brittain prepared a very short report in which he said that Dr Labit’s bilateral forearm symptoms and ulnar neuritis were caused by her work duties and that he “ordered a 20% reduction in her work duties and hours” because he believed that her work was causing her symptoms.
Dr K Edwards provided a report to UNSW dated 18 November 2020. He obtained a history that Dr Labit’s work was initially mainly computer based requiring sending emails, writing reports and “doing coding”. He recorded that she does more computer based tasks since becoming a lecturer.
Dr Edwards recorded that Dr Labit’s hours were long from May to September, when her workload was reduced. The pain diminished while she was on leave in October and she had it “only every few days since”. Dr Edwards conducted a physical examination and recorded his findings. Based on that examination, he was unable to find any convincing evidence to support a diagnosis of carpal tunnel syndrome. He said there may be left ulnar nerve irritation at the elbow. He did not consider that her employment was a substantial contributing factor to any injury or to the aggravation or acceleration of any underlying injury.

Accounts

Because Mr Macken took me through the details of the invoices relied on in the Schedule prepared for Dr Labit, it is appropriate that I summarise them.
On 10 January 2020, Dr Labit saw Ms Marwedel at Eastside Physiotherapy and Sports Injury Centre and a wrist brace was supplied. Dr Labit saw Ms Marwedel again on 15 January 2020 and apparently on 22 January (though that page is incomplete). She consulted Ms Marwedel again on 6 and 19 February 2020. The condition was described as “wrist/hand – right” and for a reason which is not explained, quoted a Woolworths vendor number. The last invoice noted that no further appointment had been booked. A further invoice dated 25 February 2020 is incomplete.

Dr Brittain raised invoices on 7 and 12 February 2020. A medicare statement of claim confirms that Dr Labit saw Dr Brittain on 20 February 2020.
Ms Melman of Physio Posture Fitness rendered invoices for physiotherapy on 3 March 2020, 10 March 2020, 6 June 2020, 13 June 2020, 27 June 2020, 4 July 2020, 25 July 2020, 15 September 2020, 13 October 2020 and 10 November 2020. Each of the invoices noted the referral by Dr Brittain.
Dr Labit saw Dr T Chow of Sydney Spine and Pain on 27 November 2020, having been referred by Dr Brittain on 19 November 2020.
On 7 December 2020, Dr Labit saw Mark Stewart of Kensington Physiotherapy and had subsequent consultations on 16 December 2020, 1 February 2021, 19 February 2021, 23 March 2021, 16 April 2021, 21 May 2021, 18 June 2021, 30 July 2021 and 27 August 2021.

SUBMISSIONS

Mr Carney took me though the evidence, stating that he understood the matter had been remitted for rehearing because of the paucity of reasons in the previous decision for preferring Dr Labit’s medical case.
Mr Carney said that Dr Bodel’s report supported the conclusion that Dr Labit suffered the aggravation of a constitutional condition as a result of using a computer. In contradiction of that opinion, Dr Reiter agreed that Dr Labit had right sided carpal tunnel syndrome but denied it was caused or contributed to by work.
While conceding that Dr Schick’s report was brief, Mr Carney noted that the history he took that Dr Labit’s condition was worse with typing and improved on holidays. He said that Dr Reiter had not considered that important piece of evidence, nor had she considered the findings of Dr Labit’s physiotherapist about her posture and hypermobility. Her posture, Mr Carney said, was the reason for an assessment of her work station.
Dr Edwards said that he was unable to make a diagnosis. Mr Carney said that Dr Edwards’ opinion was out of kilter with the other evidence – including Dr Reiter – who accepted that Dr Labit suffered carpal tunnel syndrome. He said I would therefore not accept Dr Edwards’ opinion.
Mr Carney said that Dr Bodel’s supplementary report and the short report from Dr Brittain confirmed the causal link between the extent of Dr Labit’s workload and the injury.
Mr Macken noted that Dr Labit relied on a correlation between her work and the onset of pain. He said that did not necessarily mean that work had caused the pain. He noted that
Dr Labit had avoided all home duties but there had been no improvement in her condition.
Mr Macken said that Dr Labit’s statements did not provide the support for Dr Bodel’s opinion. He referred to Byrom v Inghams Enterprises Pty Ltd[2] (Byrom) to argue that the Commission cannot accept the evidence of a medical practitioner who relied on matters which did not form part of a worker’s evidence. He said that Dr Schick did not support the diagnosis of carpal tunnel syndrome, merely saying that it was likely and that nerve conduction studies were required. The addendum to his report did not confirm the diagnosis. Other specialists whom Dr Labit had seen, had not provided reports. He said that her case was only that she had carpal tunnel syndrome and that if that was not the diagnosis, or it was not caused by work, the case failed. Mr Macken said that I would give little or no weight to the reports of the physiotherapists.
[2] [2008] NSWWCCPD 67.
Dr Brittain, Mr Macken submitted, had adopted the role of an advocate. There was no detailed report to Dr Labit’s solicitors. His referral to Dr Schick said that the condition had been documented in March 2019 but there is no evidence that it was documented by him or anyone else. Dr Brittain said that the first time he saw Dr Labit for the condition was in December 2020.
Mr Macken submitted that Ms Marwedel, the hand therapist recorded that Dr Labit fatigued easily and quickly and did not limit that problem to work.
Mr Macken said that I would accept Dr Reiter’s opinion that the condition was not work related, noting that she had examined Dr Labit and Dr Bodel had not. He said that the history of flare ups of pain was not documented in Dr Labit’s statement and that Dr Bodel recorded an incorrect history about the findings on the nerve conduction studies. He said that I would not accept Dr Bodel’s evidence.
Noting that Dr Edwards was the “outlier” with respect to diagnosis, Mr Macken said that he had conducted a thorough examination and considered the investigations.
Mr Macken took me to Ms Marewdal’s notes in the Reply. He also pointed out the reference to Dr Labit suffering pain at night, which he said was not related to work and the reference to rock climbing in late 2018 and early 2019. Mr Macken said that the overwhelming weight of the evidence was not supportive of Dr Labit’s case and that she had not discharged her onus of proof.
Mr Macken also highlighted inconsistencies in the physiotherapy accounts.
In reply, Mr Carney said that the only anomaly in Dr Bodel’s opinion was the reference to the nerve conduction studies. In any event, Dr Reiter agreed that Dr Labit suffered carpal tunnel syndrome. Mr Carney said that Dr Reiter relied on generalised studies rather than Dr Labit’s individual case.

FINDINGS AND REASONS

As a result of Snell DP’s decision, it is common ground that Dr Labit’s claim is that she suffered a disease injury under s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). She is able to recover compensation “only if the employment was the main contributing factor to contracting the disease”.
The standard of proof on the balance of probabilities which applies in the Commission was described by the Court of Appeal in Nguyen v Cosmopolitan Homes[3] McDougall J, with whom the other members of the Court agreed, said[4]:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[3] [2008] NSWCA 246.
[4] At [55].
Evidence in the Commission is provided by way of statement. Practice Direction No.3 provides[5] that the statement should set out “all appropriate and relevant facts, together with a sufficiently detailed history”. In the absence of oral evidence, the Commission relies on the statement to provide the evidentiary basis for its findings of fact - that is why the history should be detailed. The Practice Direction provides:
“Any statement relied on by a claimant should include, but not be limited to:
(a)work history;
(b)the circumstances of the injury;
(c)information regarding medical treatment received in respect of the injury, and
(d)a summary of any ongoing effect/s of the injury.”
[5] In [21].
Dr Labit’s “statements” are brief and take the form of a letter with three updates, rather than one detailed statement. She said that both the roles of research fellow and lecturer require working at the computer with a significant workload. The statements do not describe her field of research, the tasks involved in her work as a research fellow or how that work was similar or different to the role of a lecturer. She said that she worked longer hours to meet deadlines but did not describe the nature or source of those deadlines.
There are suggestions in the evidence that Dr Labit may have had to key in large amounts of data in her role as a research fellow. If she was undertaking research in actuarial matters I accept that may be the case, though it is not clearly spelt out. Ms Jaconelli said that she was required to undertake data coding with heavy mouse use. Dr Bodel referred briefly to mathematical equations which did not lend themselves to voice recognition software and Dr Edwards referred to coding. Dr Reiter referred to “keying”.
However, Dr Labit did not describe the tasks in a way which would allow me to draw a conclusion about the precise nature of her work. She said that she was required to use a keyboard and mouse to complete most tasks. The same can be said for many workers. Many workers also work long hours. The statement and most of the other documents refer only to “computer work” and a “significant workload” which may cover a wide range of activities. Dr Labit’s descriptions of the number of hours worked per week and stating that they increased to meet unspecified deadlines, do not assist me to understand precisely what tasks were required of her. She did not explain the other tasks required in her roles nor the difference between the roles of research fellow and lecturer. Her evidence is that a decrease in working hours had not led to an improvement, though she hoped for one as at the date of her last statement in September 2020.
In a case where causation of the condition is disputed, Dr Labit’s evidence about her tasks was important. She is required to prove that there was a causal, not merely a temporal relationship between her work and the condition and she is required to provide the factual basis to accept the medical evidence.
In Byrom, O’Grady DP said[6]:
“It is clear that the absence of evidence from the Appellant concerning work conditions was of fundamental significance when the Arbitrator came to assess the weight, if any, to be attached to the expert medical evidence concerning the question of ‘causation’. The reports of those witnesses had been admitted into evidence including that material recorded by the Doctors as to work conditions. Having regard to the legislative framework governing the functions of the Commission it was a matter for the Arbitrator to determine what, if any, weight should be attached to that evidence. It is my view that the Arbitrator’s approach to the evaluation of the evidence before him was guided by, and in conformity with, relevant principles of the general law. The history as recorded by the Appellant’s medical witnesses concerning work conditions were separate and distinct from the record made by those witnesses of the Appellant’s bodily symptoms at relevant times. The absence of evidence from the Appellant as to those work conditions may properly be perceived by the Arbitrator as a failure by the Appellant to completely establish the factual basis upon which those witnesses’ medical opinions are based. (See Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 per the Court).”
[6] At [81].
Dr Labit’s medical evidence is sparse. The documents from her general practitioner do not fulfil the requirements for expert evidence in the Commission. They comprise two referral letters and a brief report dated 8 October 2020 in which he said that he considered that work was the cause of her symptoms. Dr Brittain did not offer any reasoning to support his statement.
The requirements for expert evidence were set out in (among other cases) South Western Sydney Area Health Service v Edmonds[7] [2007] NSWCA 16 McColl JA said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[7] [2007] NSWCA 16 at [130]-[132].
Dr Schick provided one brief report and the evidence is not clear as to how many times Dr Labit saw him. He quoted Dr Labit’s history that the condition was worse with typing and better when she was on holidays. In doing so, he merely noted her symptoms but did not offer any opinion on the causation of the condition. His report is inconclusive in that he considered her symptoms atypical. He added a comment that the nerve conduction studies were normal. He recommended she proceed with a proposed injection but there is no report to show whether he saw Dr Labit again or what his final opinion was.
While Dr Bodel did consider that Dr Labit’s symptoms were work-related, he did so relying on his understanding that the nerve conduction studies confirmed the presence of carpal tunnel syndrome and that there was some slight abnormality in the ulnar nerve findings. The factual premise for Dr Bodel’s opinion is flawed because his assumption is inconsistent with the report interpreting those studies. Apparently Dr Bodel has not been asked to review his opinion on this issue.
The history on which Dr Bodel relied is also not spelt out in a statement by Dr Labit.
There is an another obstacle to accepting Dr Bodel’s opinion because he considered that the condition was the aggravation, acceleration, exacerbation and deterioration of a disease, rather than the main contributing factor to the development of a disease. He said that the condition was constitutional and noted that Dr Labit’s mother had developed carpal tunnel syndrome in her mid-thirties. The remainder of the evidence is based on the premise that the work caused the condition. Dr Labit’s case was presented on the basis that it was a disease without distinguishing between the separate limbs of s 4(b).
That review of the evidence leads to the conclusion that Dr Labit has not persuaded me on the balance of probabilities that her work was the main contributing factor to contracting the disease. In the absence of evidence from Dr Labit clearly providing details of her work tasks, the medical reports can be given little weight.
I have formed that view on the basis of the limited evidence in Dr Labit’s case. It remains appropriate to comment on UNSW’s evidence because my decision failure to be satisfied on the balance of probabilities does not necessarily mean that I have accepted UNSW’s evidence.
Dr Reiter considered that Dr Labit had carpal tunnel syndrome at the date of her report but that it was not caused by work. She relied on literature to form the view that carpal tunnel syndrome and medial and lateral epicondylitis cannot be caused by work, providing only limited summaries of the literature (and not providing copies).
Dr Reiter extrapolated from the results of four articles (one of which referred to other research) that work did not cause epicondylitis. She said that none of the literature reviewed looked at the incidence, occurrence or possible causation of epicondylitis from keying and mouse work. Her conclusion that the conditions only occur with demanding forces on wrist and elbow does not logically follow. Similarly, Dr Reiter relied on one literature review article in 2006 to say that carpal tunnel syndrome occurred in occupations which involve prolonged use of vibrating tools or repetitive wrist flexion/ extension with forceful grip. It is not possible to accept that that is the extent of the literature on the subject.
Dr Reiter did not provide any reasons for her statement that employment was not a contributing factor to the aggravation of carpal tunnel syndrome and it appears that she did not turn her mind to that question. Her opinion is not persuasive.
Dr Edwards’ opinion is that Dr Labit does not have carpal tunnel syndrome or medial or lateral epicondylitis. He formed the view that work was not a substantial contributing factor to an injury or in the aggravation or acceleration “of any underlying injury” because of his conclusion. He did not explain how his examination findings of slightly stronger grip strength in Dr Labit’s non-dominant hand and a positive Tinel’s sign over the ulnar nerve at the right elbow led to that conclusion.
The totality of the medical evidence is to the effect that Dr Labit does have carpal tunnel syndrome and either medial and lateral epicondylitis or ulnar neuritis and I prefer the preponderance of the evidence to Dr Edwards’ opinion.
For the reasons set out above, I am not satisfied that there is evidence to allow me to conclude that condition was caused or aggravated by Dr Labit’s employment. It follows that I am not satisfied on the evidence that the relatively small amount of medical expenses which this case is concerned was reasonably necessary medical treatment as a result of an injury. I therefore make an award for the respondent.

[2022] NSWPIC 49

8 February 2022