Lopez v Schwartz Family Co Pty Ltd Atf the Schwartz Family Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lopez v Schwartz Family Co Pty Ltd Atf The Schwartz Family Trust [2025] NSWPIC 168
APPLICANT:	Pacita Lopez
RESPONDENT:	Schwartz Family Co Pty Ltd Atf The Schwartz Family Trust
MEMBER:	John Turner
DATE OF DECISION:	22 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; accepted injury to left wrist with diagnosis of carpal tunnel syndrome; whether proposed treatment reasonably necessary as a result of the accepted left wrist injury; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, Rose v Health Commission (NSW), Bartolo v Western Sydney Area Health Service, and Diab v NRMA Limited cited; Held – the left wrist carpal tunnel release surgery proposed is reasonably necessary as required by section 60.
DETERMINATIONS MADE:	The Commission determines: 1. That the left wrist carpal tunnel release surgery proposed by Dr Agus Kadir is, as required by s 60 of the Workers Compensation Act 1987, is reasonably necessary as a result of the injury sustained by the applicant on the deemed date of 19 May 2004. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Pacita Lopez (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she pleads that she sustained injury to both her wrists on the deemed date of 19 May 2004 as a result of the nature and conditions of her employment with the Schwartz Family Co Pty Ltd Atf The Schwartz Family Trust (respondent).
The applicant seeks the costs of and related to left carpal tunnel release surgery.
It is not disputed that the applicant sustained the alleged injury to her left wrist.

ISSUES FOR DETERMINATION

The parties agreed that the only issue which is to be determined is whether, as required by
s 60 of the Workers Compensation Act 1987 (1987 Act), the left wrist carpal tunnel release surgery proposed by Dr Agus Kadir is reasonably necessary as a result of the injury sustained by the applicant on the deemed date of 19 May 2024.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 28 March 2025. Mr David King, counsel, instructed by Longton Compensation Lawyers, appeared for the applicant, who was present. Mr Greg Young, counsel, instructed by Hall & Wilcox Lawyers, appeared for the respondent. The proceedings were conducted in-person. 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:
·        Application to Resolve a Dispute (ARD) and attached documents;
·        Reply and attachment; and
·        documents attached to an Application to Lodge Additional Documents (ALAD) lodged on behalf of the respondent dated 20 January 2025.
The following documents are in evidence in respect to history only as they offend regulation 44 of the Workers Compensation Regulations 2016:
·        report of Dr Max Ellis dated 28 September 2012 (pp. 64 to 68 of the attachments to the ARD),
·         reports of Dr Richard Powell dated 23 March 2011, 23 June 2014 (pp. 92 to 111 of the attachments to the Reply),and
·        report of Dr Robert Breit dated 9 October 2014 (pp. 112 to 117 of the attachments to the Reply).

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Section 60 of the 1987 Act requires that the treatment is “reasonably necessary” as a result of injury. The pleaded injury is not in dispute. The causal connection between the accepted work injury to the left wrist and the need for the proposed left carpal tunnel release surgery is in issue.
The applicant bears the onus to prove its case on the balance of probabilities. The determination of issues of causation requires a commonsense evaluation of the causal chain.[1]
[1] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Mr Young submitted on behalf of the respondent that the issue is what was the progression of the left wrist condition between when the accepted injury was sustained on the deemed date of 19 May 2004 to when Associate Professor Gumley examines the applicant and has further tests conducted in 2021 and initially recommends the left carpal tunnel release surgery in 2022. In the respondent’s submission the question to be considered is: Why does the condition worsen resulting in the alleged need for the proposed surgery?
In the respondent’s submission there is a significant gap from around 2006 to 2021 where the left wrist simply does not feature in the applicant’s complaints and in the respondent’s submission there is no explanation as to why the proposed surgery results from the accepted work injury.
In the respondent’s submission it is not enough for the applicant to simply say that there is an accepted injury, and that the injury has just naturally developed to the point where the proposed surgery is required and therefore the need for the proposed surgery results from the accepted injury. In the respondent’s submission there is nothing explicit to that effect in the medical evidence and the left wrist injury does not feature at all amongst the applicant’s concerns in her early statements.
In the respondent’s submission the applicant’s own statement evidence ignores how and why her symptoms have worsened.
Electrophysiological studies were performed by Dr Rail on 11 March 2004 which, whilst not in evidence, apparently demonstrated bilateral carpal tunnel syndrome which was at that time was worse on the right side. Repeat nerve conduction studies were performed on 21 March 2005 by Dr Dennis Cordato who also reported that there was electrophysiological evidence of bilateral mild carpal tunnel syndrome, which was worse on the right side.
On or about 19 July 2004 the applicant underwent right carpal tunnel release surgery at the hands of AssociateProfessor Gumley.
The applicant brought proceedings in the former Workers Compensation Commission (WCC) being matter 20104-05. A copy of the pleadings in those proceeding are not in evidence however they appear to have related to injuries which the applicant had sustained to her right wrist on 19 May 2004 and her right shoulder on 10 August 2004 as the applicant, as part of those proceedings, was referred to Approved Medical Assessor (AMS) Mohammed Assem for assessment of impairment due to injury to the right wrist on 19 May 2004 and the right shoulder on 10 August 2004.
AMS Mohammed Assem in a Medical Assessment Certificate (MAC) dated 9 May 2006 noted the previous nerve conduction studies and diagnosed mild right carpal tunnel syndrome and incipient left carpal tunnel syndrome on a background of a thyroid disorder. The MAC otherwise contains little reference to the left wrist condition which is understandable as it was irrelevant to the matters which the AMS had been requested to consider.
There are no clinical notes in evidence from any general practitioner who treated the applicant prior to 16 December 2009. There is in evidence the clinical notes from Dr Tablante for the period from 16 December 2009 to 11 March 2024.
Dr Richard Powell, orthopaedic surgeon, examined the applicant on 10 March 2011 providing a forensic report to the respondent dated 23 March 2011 in which the applicant’s left wrist condition is not referred to.
The respondent submits that the lack of consideration of the left wrist condition by Dr Powell is an indication that the left wrist and hand did not feature in the applicant’s overall symptomatology. I do not accept the respondent’s submission. The purpose for which the report was produced was clearly not related to the left wrist injury and therefore the left wrist condition was irrelevant to the doctor. The only examination performed by Dr Powell was of the right shoulder, the only radiological examination reviewed related to the right shoulder and the cervical spine, the only impairment assessment provided was in respect to the right shoulder with the doctor’s attention being drawn to an impairment assessment of the right shoulder by Dr Christopher Brown. Similarly, a further report of Dr Powell dated 23 June 2014 was produced for purposes unrelated to the left wrist condition.
The first statement in evidence from the applicant is date 4 August 2011. Due to the diverse and complex nature of the applicant’s various medical conditions it is difficult to determine with certainty as to whether the applicant made any recorded complaints to Dr Tablante in regard to her left wrist condition prior to making the statement, however it appears that she did not and there is certainly no direct reference to left sided carpal tunnel syndrome.
The applicant in her statement of 4 August 2011 records that she was diagnosed with bilateral carpal tunnel syndrome but otherwise does not deal with her left wrist condition.
In the respondent’s submission the applicant does not mention the left wrist condition because it is not a problem at that time. I do not accept the respondent’s submission for the following reason. In my view it is necessary to consider the purpose for which the statement was made.
Given the time at which the statement was made, it appears to have been made for the purposes of a claim for impairment compensation pursuant to s 66 of the 1987 Act. Whilst the pleadings in relation to those proceedings are not in evidence a MAC by AMS Mohammed Assem dated 10 December 2012 in WCC proceeding 011119/12 is in evidence. The MAC records that the applicant was referred for assessment of whole person impairment (WPI) of the right upper extremity and scarring/TEMSKI for injury sustained on 10 August 2004.
The statement therefore appears to have been produced in relation to a claim unrelated to the left wrist injury. The fact that the statement contains virtually no mention of the left wrist condition is entirely understandable as the left wrist injury and condition was irrelevant to the claim in respect to which the statement was made.
On 25 September 2012 Dr Max Ellis examined the applicant at the request of her then solicitors to whom the doctor provided a forensic medical report dated 28 September 2012. Dr Ellis recorded in his report that the applicant was continuing to suffer from numbness and paraesthesiae in both hands, but particularly in the right.
AMS Mohammed Assem in the previously mentioned MAC dated 10 December 2012 records that the applicant was referred for assessment of impairment of her right upper extremity and scarring/TEMSKI for injury sustained on 10 August 2004. The MAC does not deal with the left wrist condition, which was irrelevant to the AMS’ considerations, apart from noting that electrophysiological studies in 2004 and 2005 had demonstrated bilateral carpal tunnel syndrome, which was worse on the right side.
The clinical notes from Dr Tablante record that on 23 May 2013 the applicant was “still complaining of severe bilateral shoulder pain, neck pain radiating down into both arms with paraesthesia affecting both hands, now with associated lower back pain.”[2] The use of the adjective “still” in relation to the paraesthesia affecting both hands indicates that the complaints had been ongoing especially when juxtaposed against the use of the adverb “now” in respect to the lower back pain. Whilst the clinical note does not refer to the diagnosis of carpal tunnel syndrome and potentially attributes the symptoms to radiation from the neck the paraesthesia of the hands is the symptom which appears to be related to the carpal tunnel syndrome.
[2] ARD p. 106.
There is in evidence a further statement of the applicant dated 14 January 2014. This statement appears to have been produced in support of a claim made by the applicant for permanent impairment compensation pursuant to s 66 of the 1987 Act. Whilst there are no pleadings in evidence a MAC of AMS Mohammed Assem dated 12 August 2014 in WCC matter 005192/13 records that the applicant was referred for assessment of WPI of the left upper extremity (wrist), right upper extremity (wrist) for injury sustained on the deemed date of injury of 19 May 2004.
The applicant’s evidence in her statement of 14 January 2014 in respect to her left wrist condition is in essence limited to her stating that she had and was experiencing pins and needles sensations in both hands.
In the respondent’s submission it would have been important for the applicant to state if there had been any natural progression of her left wrist condition however she records no complaint about the left wrist or state that there had been a worsening of the condition.
I do not accept the respondent’s submission that the statement contains no complaint in respect to the left wrist condition. Whilst the injury was sustained to the left wrist with the applicant being diagnosed with carpal tunnel syndrome the symptoms which manifest affect the hand in the form of numbness and paraesthesia and the applicant does state that she was continuing to experience pins and needles sensations in both hands.
Whilst the applicant’s evidence in the statement is brief in respect to her left wrist condition it is consistent with the contemporary medical evidence. There is no evidence that the applicant had received any treatment for the left wrist condition by the time that the statement was made, nor does it appear that there had been any deterioration or worsening of the condition. As Mr King submitted on behalf of the applicant there was simply nothing to report.
AMS Mohammed Assem in the MAC dated 12 August 2014 records that the applicant reported that she experiences intermittent pins and needles in both hands that sometimes occur without any identifiable incident or injury. She indicated that her symptoms involved the first, second, third and fourth digits in both hands. She indicated the symptoms were both on the palmar and dorsal aspect of her hand. The applicant did not report any discomfort in her left wrist.
On examination the AMS recorded that the applicant’s grip strength was markedly restricted bilaterally, and that sensation was diminished in a patchy distribution involving the radial, ulnar and medial nerve distribution of both hands that did not correspond to a specific anatomical pattern. The AMS observed that there were inconsistencies on examination.
The AMS assessed 0% WPI left upper extremity (wrist). The AMS observed in respect to the reasons for the assessment that the applicant did not report any symptoms involving her left wrist and there was no limitation of movement or any other objective findings. The reasons for the impairment assessment are not in my view inconsistent with the findings on examination which related to the hand and not the wrist.
Dr Robert Breit, orthopaedic surgeon, provided a forensic report to the respondent dated
9 October 2014 in which apart from recording that the applicant complained of tingling in both hands involving the palms and ulnar three fingers of the left hand does not refer to the left hand and wrist condition.
The respondent submits that the lack of consideration of the left hand by Dr Breit is an indication that the left wrist and hand did not feature in the applicant’s overall symptomatology. I do not accept the respondent’s submission. Dr Breit takes a consistent history of the applicant’s complaints in respect to the ongoing symptomatology in the left hand. The purpose of the report also needs to be considered. The doctor does not appear to have been asked for an opinion in respect to the left hand and wrist condition and therefore appears to have been irrelevant to the injuries which the doctor was considering. Dr Breit does not appear to have examined the left hand and wrist, there being no record of any such examination. The doctor records the specific questions which he was asked to address and whilst the doctor was asked to provide a current diagnosis and prognosis the doctor is directed in subsequent questions to injuries sustained on 10 August 2024 and when asked to consider the applicant’s work capacity the doctor only considers a shoulder injury and specifically states that he had not taken into consideration any of the other alleged injuries, claims of pain and disability.
On 20 February 2019 Dr Bassel Hassan reported to Dr Tablante in respect to the results of nerve conduction studies, that the studies were within normal limits. The studies were performed for left elbow pain, and whilst the studies appear to refer to the left wrist I do not know if these studies would have been relevant to the diagnosis of left carpal tunnel syndrome.
On 24 February 2021 Dr Tablante wrote to Professor Ireland providing a summary of the applicant’s medical conditions. Dr Tablante did not refer to the left wrist and hand in that summary. It appears that Professor Ireland referred the applicant to Dr Abdul Mamun, neurologist. On 12 July 2021 Dr Mamun reported to Professor Ireland that he would request Workcover approval for upper limb nerve conduction studies to identify mononeuropathy such as right elbow or right sided carpal tunnel syndrome. It does not appear from the report that Dr Mamun was treating the applicant for any left upper limb symptoms. On 25 August 2021 Dr Mamun performed the nerve conduction studies reporting that the results were consistent with the clinical diagnosis of bilateral carpal tunnel syndrome with the findings being worse on the left side. Dr Mamun recommended a progress study in 6 months.
On 25 August 2021 Dr Mamun reported to Professor Ireland that he had advised the applicant to wear a splint at nighttime for the left sided carpal tunnel syndrome as well as providing her with exercises to perform.
The clinical notes of Dr Tablante record that on 13 September 2021 the applicant was referred to a hand surgeon. Interestingly the clinical notes of Dr Tablante at and about this time do not record any particular complaints in respect to the left wrist or direct reference to carpal tunnel syndrome.
On 17 November 2021 Associate Professor Gumley, hand and wrist surgeon, reported to
Dr Tablante that the applicant appeared to have had a satisfactory outcome from her right carpal tunnel and first dorsal compartment release, and now had dominant nerve symptoms on the left, which appeared at the time of the examination to be principally in the little and ring fingers.
Associate Professor Gumley noted that the applicant had a positive nerve conduction study in August, presumably the study performed by Dr Mamun. Whilst Associate Professor Gumley recorded that the applicant had used a wrist brace since the performance of the nerve conduction study in August this was not the case. Associate Professor Gumley suggested monofilament mapping of both hands due to concerns of possible involvement of the cervical spine as well as carpal tunnel syndrome.
The monofilament mapping was performed by the hand therapist, Sauvjanya Lama, who reported on 23 November 2021 to Associate Professor Gumley that the applicant reported paresthesia in the radial three and a halfdigits on the left side and that she had good active range of motion of the finger, thumb and wrist bilaterally.
On 7 December 2021 Associate Professor Gumley reported to Dr Tablante that the applicant continued to have rather “atypical” nerve related changes in both upper limbs. Associate Professor Gumley agreed with the opinion of Dr Mamun that repeat nerve conduction studies should be performed six months after those which had been performed in August 2021.

On 16 February 2022 further nerve conduction studies were performed by Dr Mamun. The findings were again consistent with a clinical diagnosis of bilateral carpal tunnel syndrome. The findings were again worse on the left side however the findings were slightly better when compared to the previous study of 25 August 2021. Dr Mamun suggested that further progress studies be performed in 6 to 12 months.
On 4 March 2022 Associate Professor Gumley reported to Dr Tablante in respect to the repeat nerve conduction studies and that the applicant would like to avoid surgery and would wear a brace each night.
On 25 July 2022 Associate Professor Gumely reported to Dr Tablante that the applicant continued to have left carpal tunnel syndrome features with thenar weakness, altered sensibility and that she would like surgery arranged for a left carpal tunnel decompression.
On 27 July 2022 and 5 September 2022, Associate Professor Gumley requested approval for an Indianantome carpal tunnel release. His quoted fee for the procedure including that of an assistant at operation was $1,662.
On 23 October 2024 Dr Agus Kadir, orthopaedic surgeon, requested approval for left open carpal tunnel release. Dr Kadir’s fee including that of an assistant was quoted as $1,310.
The applicant made a statement specifically for the purposes of this claim and these proceedings which is dated 3 December 2024. The respondent submits that the applicant’s evidence in this statement does not explain how or why her left wrist condition worsens. In the respondent’s submission the applicant simply states at [14] that even though she was not working “my left wrist gradually got worse and worse.” The respondent complains that the applicant does not provide any evidence as to when or why. In the respondent submission that deterioration must have occurred sometime between the making of the applicant’s statement dated 14 January 2014 and August 2021 when Dr Mamun performed the nerve conduction studies.
In my view the evidence does not indicate any dramatic worsening in the applicant’s left carpal tunnel syndrome but rather that it had grumbled on since the injury was sustained and that whilst it did worsen and has done so to a point where carpal tunnel release surgery, a relatively minor surgical procedure, has been recommended it has not worsened dramatically.
In my view the evidence is consistent with such a view for the following reasons. Even though by 27 July 2022 the applicant’s symptoms were such that she wished to undergo left carpal tunnel release surgery and Associate Professor Gumley believed that the condition warranted the surgical procedure Dr Tablante does not directly refer to the applicant’s carpal tunnel syndrome in his clinical notes until 3 March 2022 when the doctor notes the results of the nerve conduction study and that she would be seeing Associate Professor Gumley. The records do not record a history of escalating complaints in respect to the left wrist condition either before or after the entry of 3 March 2022 and there is little or no reference to the left sided carpal tunnel syndrome after 3 March 2022 until the cessation of the clinical notes on 11 March 2024.
Whilst it is not disputed that the applicant suffers from a left sided carpal tunnel syndrome, and the applicant regularly attended on Dr Tablante between 16 December 2009 and
11 March 2024 there is virtually no reference in respect to the left carpal tunnel syndrome and its associated complaints in the doctor’s clinical notes not even once decompression surgery had been recommended. To my mind this does not indicate any dramatic worsening in the applicant’s symptoms.
The events leading to the recommendation for the left carpal tunnel decompression surgery commence not with the applicant complaining about left hand and wrist symptoms but rather with the nerve conduction studies performed by Dr Mamun in August 2021. It does not appear that the applicant was referred to Dr Mamun in respect to the symptoms arising as a result of the left carpal tunnel syndrome but rather in respect to symptoms affecting her right upper limb and whilst Dr Mamun, following the nerve conduction study, recommended to the applicant that she wears a splint he does not record in any detail what symptoms the applicant was actually suffering as a result of the condition. There was also uncertainty as to the cause of the symptoms with Associate Professor Gumley requesting monofilament mapping to assist with identifying the nerves which were the source of the symptoms.
Dr Agus Kadir, orthopaedic surgeon, who was consulted by the applicant on 1 August 2024 records that the applicant complained of left hand numbness and pain consistent with ongoing left carpal tunnel syndrome. The symptoms complained of by the applicant to
Dr Kadir are fairly consistent with the applicant’s previously reported complaints.
As to why the condition deteriorated. The applicant is not a medical expert who can give an opinion as to the pathological process. She can of course give evidence as to any specific events which may have occurred, but it is not her evidence that there were any events that caused the condition to worsen. Her evidence is that even though she was not working her “left wrist gradually got worse and worse.” Furthermore, there was no submission, and I have not identified any events in the clinical notes of Dr Tablante whom the applicant saw regularly to indicate that there were any incidents or events that caused a worsening of the symptoms. This is consistent with the opinion of Associate Professor Gumley who reported to GIO Workers Compensation on 26 August 2022 that his records do not indicate a new incident occurring following a shoulder injury on 10 August 2004 ( GIO had asked Associate Professor Gumley if there had been any new incident after a shoulder injury on 10 August 2004).
In respect to expert evidence as to whether the need for the proposed left carpal tunnel release surgery results from the accepted injury on the deemed date of 19 May 2004.
On 31 October 2022 Associate Professor Gumley reported to Dr Tablante that the applicant had returned for re-evaluation of her left carpal tunnel syndrome. Associate Professor Gumley observed that the applicant had clinical features paralleling her nerve conduction study. In the doctor’s opinion surgery was appropriate for the carpal tunnel problem. Associate Professor Gumley observed that the applicant dated her left sided complaints from prior to 2010, at which time she had a right carpal tunnel decompression with good outcome. The right carpal tunnel release surgery was in fact performed in July 2004 (the MAC of 9 May 2006 records that the right carpal decompression surgery was performed in July 2004). The applicant reported that her symptoms had persisted since that time, despite her not being actively working since approximately 2012. No new injury had occurred since 10th August 2004. In Associate Professor Gumley’s opinion, given the history, it is likely that the applicant has persisting carpal tunnel syndrome associated with her work.
In the respondent’s submission Associate Professor Gumley does not explain why or how the need for the surgery results from the pleaded injury. I do not accept the respondent’s submission. It is the opinion of Associate Professor Gumley, as noted above, given the history that the applicant’s likely has persisting carpal tunnel syndrome associated with work noting that no new injury had occurred, and the applicant had reported that her symptoms had persisted. The purpose of the proposed carpal tunnel release surgery is to treat the carpal tunnel syndrome.
On 22 October 2024 Dr Agus Kadir, orthopaedic surgeon, reported to the applicant’s solicitors that the applicant’s first and only consultation with him had occurred on 1 August 2024. Previously the applicant had been treated by Associate Professor Gumley.
Dr Kadir records that the applicant complained of left hand numbness and pain consistent with ongoing left carpal tunnel syndrome.
In the opinion of Dr Kadir whilst the applicant was managing her right upper limb problems and recovering from this, she overused her left hand and her left carpal tunnel syndrome worsened and persisted till today.
Dr Kadir diagnosed left carpal tunnel syndrome and recommended left open carpal tunnel release surgery which in his opinion is reasonably necessary due to her ongoing symptoms and discomfort. In the opinion of Dr Kadir there is no alternative treatment for this chronic condition, as she had continued to have significant symptoms for the last 20 years, since the onset of the symptoms in 2004. The doctor believed that the surgery would resolve the symptoms effectively or at least significantly reduce them. The doctor observed that it was difficult to know if it can be resolved fully, after 20 years of nerve compression, as there might be some irreversible changes.
In what appears to be a response to the nerve conduction study performed by Dr Mamun on 16 February 2022, which Dr Mamun reported as being slightly better when compared to the previous study of 25 August 2021. Dr Kadir advised that the nerve conduction study reports did not cause him to change his recommendation observing that the main indication for surgery is the severity of the clinical presentation. Dr Kadir advised that the nerve conduction studies helped in diagnosing and monitoring the progress of the treatment. The applicant in his opinion still has significant enough left hand symptoms despite the nerve conduction study that showed slightly better values.
The respondent submits that Dr Kadir does not provide an opinion as to causation. I accept that Dr Kadir does not provide a direct opinion as to the causal connection between the accepted work injury and the need for surgery. However, Dr Kadir does provide an opinion that there is no alternative treatment to the proposed carpal tunnel release surgery for the applicant’s chronic condition, as she had continued to have significant symptoms for the last 20 years, since the onset of the symptoms in 2004 which is the time of the accepted work related injury. In my view, whilst Dr Kadir does not articulate a direct opinion as to causation, it can be inferred from the doctor’s opinion that there is no alternative treatment due to the symptoms being present since their onset in 2004 that the need for the surgery results from the subject injury.
The applicant relies on a forensic report of Dr Jonathan Negus, orthopaedic surgeon, dated 28 August 2023. Dr Negus diagnosed slightly atypical carpal tunnel syndrome symptoms in both wrists and is of the opinion that the applicant requires left carpal tunnel release surgery which in his opinion is reasonable and necessary, observing that if the carpal tunnel syndrome is left, the applicant is more likely to be left with permanent disability.
In the opinion of Dr Negus, it is reasonable to attribute her symptoms to the nature and conditions of her employment as she had been working in this position for over 10 years and had no symptoms prior to the onset of her symptoms.
Dr Negus provided a further forensic report to the applicant dated 8 November 2023 in which the doctor confirmed that the left carpal tunnel release surgery was reasonable and necessary as the correct treatment option for someone with established carpal tunnel syndrome. In his opinion it is appropriate as she has symptoms and signs of carpal tunnel syndrome, it is effective as the surgery is highly effective surgery for treating carpal tunnel syndrome and stopping symptoms and signs from worsening as well as leading to improvement of many symptoms and signs such as pain and sensory loss, the cost of the surgery is approximately $3,000 with another $1000 for hand therapy and splints. In the opinion of Dr Negus, the only other treatment option available is night-splinting which is not appropriate for the applicant given the amount of time which had passed.
Dr Negus provided a further and final forensic report to the applicant dated 20 May 2024 in which he estimated the costs for the surgery proposed by Associate Professor Gumley including in-hospital fees as follows - surgical fee and assistant fee for the procedure as likely to total $2,000, hospital fee for the procedure including theatre time and day surgery bed likely to total $3,000 as well as an estimated $500 worth of hand therapy following the procedure.
In the respondent’s submission the opinion of Dr Negus should not be accepted. In the respondent’s submission the history taken by Dr Negus is lacking. In particular, in the respondent’s submission, Dr Negus is not aware that the applicant considered her left wrist symptoms to be of such little significance that she did not refer to them in any meaningful way in her first two statements. That there is a gap in complaints which it is vital for Dr Negus to have considered in forming of his opinion.
I accept the respondent’s submission. The opinion of Dr Negus as to causation is of little assistance. Dr Negus simply concludes that it was reasonable to attribute the applicant’s symptoms to the nature of the applicant’s work duties with the respondent as she had no prior symptoms. This does not assist with the issues in dispute. That the applicant sustained injury to her left wrist is not in dispute. Dr Negus does not consider the time that has elapsed since the injury was sustained and provide an opinion as to why, almost 20 years after the injury was sustained, the proposed surgery became necessary.
The respondent relies on a forensic medical report of Dr David Pennington, hand and plastic surgeon, dated 9 January 2025 who was provided with copies of the reports of Dr Negus. The applicant reported that she had not worn the brace as suggested by Associate Professor Gumley. She had previously used a brace which had not helped.
Dr Pennington records that the applicant complained of left hand tingling and numbness in her thumb, index and middle fingers, weakness of grasp and pain at the base of her palm (not the wrist) on and off for twenty years. She reported that the symptoms “come and go”, are worse at night, and are relieved slightly by shaking her hand or massaging her fingers. She drops things frequently and has weakness of grip in that hand.
The applicant reported that on no occasion could the applicant remember a steroid injection being suggested for her carpal tunnel syndrome which Dr Pennington found strange. There is no reference in the medical evidence that I have noted of a steroid injection having been recommended by Dr Tablante, Dr Kadir, Associate Professor Gumley or Dr Mamun.
Dr Pennington agreed with the diagnosis of left carpal tunnel syndrome.
Dr Pennington observed that the applicant has two significant pre-existing, non-work-related conditions which are known to predispose to carpal tunnel syndrome, being diabetes and hypothyroidism.
Dr Pennington disagreed that the proposed left carpal tunnel release surgery was both reasonable and necessary as part of a work-related condition of left carpal tunnel syndrome.
In the opinion of Dr Pennington, although carpal tunnel syndrome release surgery “might be appropriate”, it is usually reserved for failed conservative therapy such as splinting and steroid injection and the applicant had neither for left carpal tunnel syndrome.
In Dr Pennington’s opinion, on the balance of probabilities, the applicant would have developed carpal tunnel symptoms at the same time as she did in 2004, regardless of her work because of her pre-existing conditions of diabetes and hypothyroidism. Moreover, she had not worked for 12 years, but her diabetes and hypothyroidism still exist. Therefore, in
Dr Pennington’s opinion the proposed carpal tunnel release surgery is neither reasonable or necessary, as there is no basis for a work-related cause in the last 12 years. Furthermore, the applicant had not been offered a steroid injection in the left carpal canal, which
Dr Pennington observed is commonly indicated for mild carpal tunnel syndrome and widely accepted as first-line treatment by the majority of hand surgeons. Dr Pennington advised that the cost of a steroid injection would vary between $800 and $1,2000, depending on the individual practice (either surgeon or radiologist). He estimated the costs of the proposed surgery at between $3,000- $5,000.
In the opinion of Dr Pennington, a trial of steroid injection to the left carpal canal is indicated, although not for a work-related diagnosis. He observed that steroid injection is effective long-term in around 50% of patients. The other 50% eventually come to surgery. Should recurrence occur after injection, consideration could then be made to carpal tunnel release surgery.
In the opinion of Dr Pennington, the applicant’s condition is not work-related, and therefore the proposed surgery is not reasonably necessary.
In the respondent’s submission the opinion of Dr Pennington that the proposed surgery is not reasonably necessary as there is no basis for a work related cause in the last 12 years should be accepted. In the respondent’s submission Dr Pennington provides a potential explanation for the deterioration which has resulted in the need for the carpal tunnel release surgery being the predisposing conditions of diabetes and hypothyroidism.
I do not accept the opinion of Dr Pennington. In my view, on the evidence, there is no dispute that the condition which the applicant suffered from at the time of injury was left wrist carpal tunnel syndrome. The respondent does not challenge that diagnosis. The condition was confirmed by the nerve conduction studies performed in 2004 and 2005. As previously discussed, it is my view that the condition grumbled on over the years and whilst the symptoms might have waxed and waned the injury continued without complete resolution.
Dr Pennington questions whether the applicant sustained a work related injury stating that in his opinion, on the balance of probabilities, the applicant would have developed the condition at the same time regardless of her work because of the pre-existing conditions of diabetes and hypothyroidism however injury is not in dispute. Dr Pennington in my view does not consider the ongoing symptomatology and does not provide any opinion as to why and when her left carpal tunnel symptoms and injury as a result of work would have resolved. As I have previously discussed I am of the view that whilst the applicant’s symptoms may have worsened the evidence does not support that there had been any dramatic change in those symptoms. Whilst Dr Pennington refers to the applicant’s conditions of hypothyroidism and diabetes as being pre-disposing factors to carpal tunnel syndrome the doctor does not provide an opinion to the effect that those conditions would have caused the deterioration in the applicant’s condition.
For the above reasons I prefer and accept the opinion of Associate Professor Gumley that given the history it is likely that the accepted work injury to the left wrist in the form of carpal tunnel syndrome has persisted. In my view the opinion of Associate Professor Gumley is consistent with the evidence as previously discussed.
I am therefore of the view that the applicant’s left wrist injury in the form of carpal tunnel syndrome is a continuing injury which has not resolved. That the applicant’s symptoms have grumbled on since the accepted injury was sustained and whilst they have worsened, they have not done so dramatically. The fact that pre-existing conditions, such as the diabetes and hypothyroidism, may have been factors in the need for treatment does not mean that the proposed treatment is not a result of the injury. As Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] …a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

For the above reasons I am of the view, and find, that the treatment proposed being carpal tunnel release surgery is being proposed to treat the pleaded injury.
Having considered causation, I now turn to a consideration of whether the proposed treatment being carpal tunnel release surgery is reasonably neccessary.
Burke CCJ considered the expression “reasonably necessary”, then appearing in s 10 of the Workers Compensation Act 1926 (1926 Act) relating to treatment expenses, in some detail in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose). His Honour said at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
The “reasonably necessary” test was also considered in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo). In Bartolo, Burke CCJ described the test of “reasonably necessary” as follows:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered by Roche DP in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

I now turn to analysis of the evidence in respect to the relevant matters according to the criteria of reasonableness identified by Roche DP in Diab.
· (a) The appropriateness of the particular treatment.
Associate Professor Gumley, Dr Negus and Dr Kadir all agree that the proposed surgery is appropriate. Dr Pennington also agrees that the surgery might be appropriate but only if the conservative therapies of splinting and steroid injection fail.
In my view the medical evidence supports that the proposed treatment is appropriate. The alternative treatments suggested by Dr Pennington are discussed below.
· (b) The availability of alternative treatment, and its potential effectiveness.
Dr Pennington is of the opinion that the alternative treatments of steroid injection and splinting be tried first prior to carpal tunnel release surgery being considered. The applicant did not previously follow the recommendation of Associate Professor Gumley to wear splints. It appears that the applicant had previously worn splints for right sided carpal tunnel syndrome without benefit. The applicant does not appear to have been offered a steroid injection and Dr Negus, Associate Professor Gumley as well as Dr Kadir do not mention or provide an opinion in respect to a steroid injection. Dr Pennington however observes that in 50% of cases steroid injections do not provide a permanent resolution in which case carpal tunnel release would then need to be considered.
In my view this consideration does not weight against the carpal tunnel release surgery the applicant having previously tried splinting, albeit on her right wrist, without benefit, the 50% chance that a steroid injection will not be successful in permanently resolving the applicant’s symptoms, the relatively minor nature of the proposed surgery as well as the relatively modest costs of the proposed surgery.
· (c) The costs of the treatment.
The costs of the surgery are relatively modest as estimated by Dr Pennington and Dr Negus.
· (d) The actual or potential effectiveness of the treatment.
Associate Professor Gumley, Dr Negus and Dr Kadir as well as Dr Pennington all agree that the surgery is likely to be effective. Whilst Dr Kadir does concede that full resolution of the symptoms may not occur due to the potential for permanent nerve damage due to the period of time that the applicant has been symptomatic he is still of the opinion that the surgery will be of benefit even if there is not complete resolution of the symptoms.
· (e) The acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Associate Professor Gumley, Dr Negus and Dr Kadir as well as Dr Pennington all accept the treatment as likely to be effective for the condition from which the applicant suffers. The surgery is regularly for carpal tunnel syndrome.
For the above reasons I am of the opinion that the considerations referred to in Diab weight in favour of the proposed carpal tunnel release surgery being reasonably necessary for the applicant’s accepted left wrist injury.
For the above reasons I am of the view and find that the left wrist carpal tunnel release surgery proposed by Dr Agus Kadir is, as required by s 60 of the 1987 Act, reasonably necessary as a result of the injury sustained by the applicant on the deemed date of 19 May 2004

[2025] NSWPIC 168

22 April 2025