Martin v Queensland Property Investments

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Martin v Queensland Property Investments [2023] NSWPIC 586
APPLICANT:	Nicole Martin
RESPONDENT:	Queensland Property Investments Pty Limited
MEMBER:	John Turner
DATE OF DECISION:	3 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 38; dispute as to whether the applicant had been paid 260 weeks of weekly compensation in respect to a neck injury for the purposes of section 39; meaning of “injury” for the purposes of section 39; whether the applicant entitled to weekly compensation pursuant to section 41 following surgery to the cervical spine; principle of statutory interpretation where conflict between general and specific legislative provisions; Jaffarie v Quality Castings Pty Ltd, Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-stock Corp (No 2), Commercial Radio Coffs Harbour Ltd v Fuller, and Purcell v Electricity Commission of New South Wales considered and applied; Held – that the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of the injury to her cervical spine and therefore has no entitlement to further weekly compensation pursuant to section 39; the applicant has no entitlement to weekly payments of compensation pursuant to section 41 as a result of any incapacity resulting from the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by Dr Bhisham Singh on 19 April 2023; that there is an award for the respondent in respect to the claim for weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of the injury to her cervical spine and therefore has no entitlement to further weekly compensation pursuant to s 39 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the applicant has no entitlement to weekly payments of compensation pursuant to s 41 of the 1987 Act as a result of any incapacity resulting from the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by Dr Bhisham Singh on 19 April 2023. The Commission orders: 1. There is an award for the respondent in respect to the claim for weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Ms Nicole Martin, the applicant, was employed as a store person by Queensland Property Investments Pty Limited, the respondent.
The applicant filed with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD) on 10 August 2023 in which, as amended, it is alleged that she sustained injuries due to the nature and conditions of her employment between
1 January 2008 and 14 August 2020 including bilateral carpal tunnel syndrome affecting the hands, wrists and lower arms, left elbow strain, cervical spine disc herniation, surgical scarring, post-traumatic stiffness of the cervical spine with left sided facet arthralgia and shoulder brachialgia with trapezial muscle pain and aggravation of cervical spondylosis with foraminal stenosis and disc lesions at C5/6, C6/7 and a C3/4 disc lesion and post-traumatic stiffness of the left wrist.
The applicant alleges that as a result of the above nature and conditions of her employment she sustained personal injury on 1 January 2008 and / or 4 April 2014 and / or 14 April 2014 or in the alternative that due to aggravation, acceleration, exacerbation and / or deterioration of a disease condition she sustained injury on the deemed dates of 27 March 2008 and / or
4 April 2014 and / or 14 April 2014.
The applicant also alleges that she has suffered a consequential condition to her neck as a result of C5-C7 anterior cervical decompression and fusion + ICBG surgery performed on
19 April 2023.
The applicant claims weekly benefits compensation pursuant to s 38 of the Workers Compensation Act 1987 (the 1987 Act) from 19 April 2023 to date and continuing.
Relevantly there is no dispute that the applicant sustained injury in the course of her employment to both her wrists as well as her cervical spine. The respondent accepted liability for injury to both wrists in the form of carpal tunnel syndrome and Member Phillip Young in Commission proceedings W3910/21 in a Certificate of Determination dated
31 January 2022 found that the applicant had sustained injury to her cervical spine and declared that cervical spine surgery proposed by Dr Bhisham Singh was reasonably necessary medical treatment resulting from injury and directed the respondent to pay the costs of and incidental to the proposed surgery.
The respondent paid weekly compensation to the applicant between 16 April 2014 and
10 October 2021. The respondent has paid 260 weeks of weekly compensation.
On 19 April 2023 the applicant underwent C5 to C7 anterior cervical decompression and fusion + ICBG performed by Dr Singh being the surgery in respect to which Member Young had directed the respondent to pay the costs of any incidental to. The applicant seeks the payment of weekly compensation in respect to incapacity arising as a result of the said surgery.

AMENDMENTS

At the arbitration hearing in this matter held on 21 September 2023 the ARD was amended by consent to plead those injuries as appear in the ARD in Commission matter W3910/21 as well as any dates of injury relied upon by Member Young in his determination of that matter on 31 January 2022.
The name of the respondent was also amended by consent to “Queensland Property Proprietary Limited”.
The applicant also alleges a consequential condition of the neck due to the surgery performed on 19 April 2023.

ISSUES FOR DETERMINATION

The issues to be determined are:
(a) whether the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of “the injury” and therefore has no entitlement to further weekly compensation pursuant to s 39 of the 1987 Act;

(b) whether the applicant has an entitlement to weekly payments of compensation pursuant to s 41 of the 1987 Act as a result of incapacity resulting from the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by
Dr Bhisham Singh on 19 April 2023;
(c)    whether the applicant’s claim is estopped;
(d)    the pre-injury average weekly earnings (PIAWE) rate to be applied, and
(e)    the amount of, and entitlement to weekly compensation payments.

Two alternate PIAWE’s have been agreed at $590 which the respondent will submit on and $1,054 which the applicant will submit on. Whilst there is a dispute as to which PIAWE applies there is no dispute in regard to the amounts of the two alternate PIAWE’s.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
21 September 2023. Mr Mark Daley, counsel, instructed by Mr Soren Bakic, solicitor, appeared for the applicant, who was present. Mr Josh Beran, counsel, appeared for the respondent, instructed by Ms Stephanie Dunn, solicitor. 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:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents by the applicant dated 18 September 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

FINDINGS AND REASONS

Consideration and findings

Summary of evidence

It is the applicant’s evidence that she first noticed symptoms in either of her hands in approximately April 2013.[1] The applicant appears to have first consulted a doctor in respect to the condition when she attended the work medical centre and was then sent to Dr Yudakin at Mt Druitt Medical Centre. It is the applicant’s evidence that Dr Yudakin gave her a Workcover certificate and referred her for nerve conduction studies, and that the respondent paid for the consultation with the doctor and the applicant’s time off work.[2]
[1] ARD p. 31.
[2] ARD p. 31.
The applicant does not state when she attended on Dr Yudakin and as the clinical records from the attendance or a copy of any Workcover certificate issued at the time are not in evidence I am unable to ascertain with certainty as to when the attendance on Dr Yudakin occurred. However, it appears that it most likely took place on or about 4 April 2014 being the date that Dr Rachid Homsi records in his Certificate of Capacity dated 31 March 2015 as the date that the applicant was first seen at that doctors practice as well as the date of injury recorded by Dr Homsi.[3] This is also consistent with the applicant’s evidence that the nerve conduction studies were performed on 15 April 2014 and that she first made a claim in connection with carpal tunnel syndrome on 4 April 2014.
[3] Reply p. 52.
It is the applicant’s evidence that she first experienced symptoms in the left side of her neck in late 2013 / early 2014.[4] That on a particular day in late 2013 / early 2014, she grabbed a box of drinks weighing about 12kg with both hands and twisted to her right and put the box on the bottom of a pallet. This movement involved the twisting of her body and neck to the right whilst lifting the box and then bending down to deposit the box onto the pallet. When she turned to her right and put the box down onto the pallet, she felt a pulling sensation in the left side of her neck. It is the applicant’s evidence that she reported the injury to the shift officer and went to a medical centre at Woolworths Minchinbury where she saw a general practitioner (GP), who may have been Dr Nathan Gibbs, who provided a certificate and referred the applicant for physiotherapy which she had inhouse. The neck symptoms settled with physiotherapy in about one month but never fully disappeared.[5]
[4] ARD p. 32.
[5] ARD p. 33.
In a certificate of capacity dated 31 March 2015 Dr Rachid Homsi records a diagnosis of bilateral carpal tunnel syndrome worse on the left with a stated date of injury of 4 April 2014. The applicant was certified with capacity for some type of employment five hours per day, four days per week from 31 March 2015 to 16 April 2015.[6]
[6] Reply p. 52-54.
The applicant initially attended on Dr Eric Lim on 10 April 2015. The clinical note of the attendance records that the applicant had left hand tingling as well as intermittent neck pain. Dr Lim records a diagnosis of bilateral carpal tunnel syndrome.[7]
[7] ARD p. 232.
In a certificate of capacity dated 17 April 2015 Dr Eric Lim records a diagnosis of bilateral carpal tunnel syndrome as well as “potential neck issue” with a stated date of injury of
[8] Reply p. 55-57.
4 April 2014. The applicant was certified with capacity for some type of employment five hours per day, four days per week from 17 April 2015 to 1 May 2015.[8]
On 3 November 2015 Dr Nathan Hartin, spine surgeon, reported to Dr Eric Lim recording a diagnosis of bilateral carpal tunnel syndrome as well as left C6/7 foraminal stenosis.
The doctor noted that he saw the applicant in respect to bilateral hand dysaesthesia. The left hand appeared more affected than the right. The applicant localised the paraesthesia to the radial digits in keeping with a carpal tunnel syndrome. She was also experiencing a measure of neck discomfort with some radiation into the left paraspinal musculature. There was no pain radiating down the upper extremity however the applicant described a sense of weakness in the upper limbs. Dr Hartin observed that nerve conduction studies were consistent with carpal tunnel syndrome and that an MRI of the cervical spine performed on 22 September 2015 demonstrated degenerative changes particularly at the C6/7 level where there was bilateral neuroforaminal stenosis particularly on the left.
The doctor felt that the applicant’s symptoms were most consistent with carpal tunnel syndrome. However, the doctor also observed that there may have been some element of C7 radiculopathy which was also contributory. The doctor recommended that the applicant proceed with carpal tunnel release in the first instance. The doctor observed that should the symptoms thereafter persist; the applicant may require the cervical stenosis to be addressed. The doctor was of the opinion that if the symptoms resolved with carpal tunnel release, no intervention would be required in respect to the cervical spine.[9]
[9] Reply pp 48-49.
On 9 November 2015 the GP, Dr Eric Lim, reported on the applicant. Dr Lim recorded that the applicant had sustained injury to her wrists and left arm with a diagnosis of bilateral carpal tunnel syndrome as well as a “potential neck issue”.
The doctor recorded that the applicant presented on 10 April 2015 for an injury to her wrists and left arm. The applicant had reported that on 4 April 2014 whilst at work she suffered wrist, arm and neck injuries from repetitive picking.
Dr Lim observed that the applicant had suffered an aggravation of degenerative changes in her neck however the “priority” remained the applicant’s hands.[10]
[10] Reply pp 46-47.
It is the applicant’s evidence that Dr Nicholas Smith performed a left endoscopic carpal tunnel release in April 2016, a right endoscopic carpal tunnel release in December 2016 and revision of the right carpal tunnel release in July 2017. The respondent accepted and paid for all surgery for bilateral carpal tunnel syndrome and all time off in consequence.[11]
[11] ARD p. 35.
It is the applicant’s evidence that her neck symptoms have been persistent since late 2013 / early 2014 and that the symptoms gradually worsened from early 2014 aggravated by work. It is the applicant’s evidence that from the first time she saw Dr Eric Lim in 2015 the Workcover certificates / certificates of capacity issued always referred to her neck even though initially the focus was on her hands.[12]
[12] ARD p. 35.
Dr Lim in a certificate of capacity dated 1 June 2018 records a diagnosis of bilateral carpal tunnel syndrome; cervical spine C6/7 herniation; adjustment disorder and right elbow strain with a stated date of injury of 4 April 2014. The applicant was certified with no capacity for work between 16 June 2018 and 29 June 2018.[13]
[13] Reply pp.58-60.
On 17 August 2018 the respondent issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for injury sustained on 4 April 2014. The respondent denied that the applicant had sustained an injury. In support of the denial of liability the respondent relied on the medical opinion of Dr Breit who doubted that the applicant had suffered nerve compression both at the neck and the wrist and was of the opinion that the carpal tunnel syndrome was constitutional and not related to the applicant’s work duties.[14] The medical report of Dr Breit is not in evidence in these proceedings.
[14] ARD p. 48.
On 30 October 2018 Dr Lim reported on the applicant. Dr Lim recorded that the applicant had suffered an aggravation of a degenerative neck condition however the priority remained the applicant’s hands. The doctor diagnosed bilateral carpal tunnel syndrome, cervical spine C6/7 herniation, adjustment disorder, left elbow strain overcompensation as well as a possible double crush phenomenon.[15]
[15] ARD pp. 90-92.
The applicant brought proceedings in the former Workers Compensation Commission against the respondent. The ARD from those proceedings is not in evidence however it is the applicant’s evidence that injury to her neck was not pleaded. A Certificate of Determination – Consent Orders in WCC matter 1102/2019 dated 4 April 2019 relevantly records that the respondent agreed to pay the applicant on a voluntary basis $200 per week from
[16] ARD p.96.
8 October 2018 to date and continuing.[16]
On 6 May 2019 Dr Bhisham Singh, orthopaedic and spine surgeon, reported to Dr Eric Lim. Dr Singh noted that the applicant had been diagnosed with carpal tunnel syndrome. She had parasthesis in both hands, and also some shoulder pain. The doctor noted that the applicant had undergone bilateral carpal tunnel release surgery, and again on the left side, under the care of Dr Nicholas Smith.
Dr Singh noted that the applicant had persistent pins and needles in her left hand which became aggravated when she extended her neck. The doctor noted that an MRI of the cervical spine revealed disc bulging at C4 to C7 with significant foraminal stenosis on the left side at C6-C7 and C5-C6 as well as some stenosis at C4-C5 which in the doctor’s opinion was likely responsible for the pain radiating from the neck to the shoulder.
The doctor recorded the applicant’s chief complaint as neck pain with pins and needles.
[17] ARD pp. 93-95.
Dr Singh observed that the neck pain with pins and needles in the left hand was in a C7 distribution. The doctor noted that there was neck pain radiating to the shoulder but this was not as significant.[17]
It is the applicant’s evidence that on 14 January 2020 she had a follow up appointment with Dr Bhisham Singh at which time she complained of persistent neck pain with clunking and radiating symptoms to her left hand and consequent interference with sleep and difficulty with domestic activities. It is the applicant’s evidence that Dr Singh referred her for update investigations which she had on 24 January 2020. [18]
[18] ARD p. 40.
Dr Bhisham Singh reported to Dr Eric Lim on 14 January 2020. Dr Singh reported that the applicant had persistent neck pain with clunking, that she had radiculopathy in the C7 and C8 distributions of the left hand, that she had difficulty performing household chores such as vacuuming and cleaning the shower because of her neck and arm pain.[19]
[19] ARD p. 251.
On 5 March 2020 Dr Bhisham Singh reported to Dr Eric Lim that he had reviewed the applicant on 25 February 2020. The applicant had persistent neck and shoulder pain. The symptoms being referable to cervical stenosis at C6/C7, and foraminal stenosis from C5 to C7. Dr Singh noted that a recent MRI scan had revealed worsening of the disc bulging both at C5/C6 and C6/C7. The applicant had persistent clunking and pain.
Dr Singh recommended that the applicant consider anterior cervical decompression and fusion from C5 to C7.[20]
[20] ARD P. 252.
On 14 April 2020 Dr Bhisham Singh reported to Dr Eric Lim that he had reviewed the applicant that day via a telehealth conference. The applicant had ongoing neck pain and stiffness with symptoms going down both her arms. The doctor observed that the applicant had significant cervical spine pathology with central and foraminal stenosis at C6/7, and also disc bulging at C5/6. The doctor recommended that the applicant consider surgical treatment.[21]
[21] ARD p. 245.
On 26 May 2020 Dr Bhisham Singh reported to Dr Eric Lim that they were awaiting on approval for surgical decompression and fusion from C5 to C7 in view of the cervical pathology and ongoing symptoms of neck pain with bilateral arm radiation.[22]
[22] ARD p. 244.
Dr Bhisham Singh reported to the workers compensation insurer on 16 June 2020 that the applicant had cervical spinal disease with central and foraminal stenosis from C5 to C7.
Dr Singh noted that an MRI scan from 2015 revealed foraminal stenosis at C5/C6 and that subsequent MRI scans had demonstrated worsening of the bulging discs and foraminal stenosis which extended to multilevel disease.
Dr Singh observed that at the time of the start of her symptoms, the applicant was diagnosed as having bilateral carpal tunnel syndrome. For this diagnosis, neurophysiological studies were done, but she did not have any clinical neurological signs. Following bilateral revision carpal tunnel release on both sides, she failed to have improvement of the pins and needles in her hands, as per the reports of Dr Nick Smith and as per the history given to Dr Singh by the applicant. Therefore, Dr Singh maintained that the applicant very likely had a strong contribution of neurological impingement in the cervical spine to the symptoms of pain and pins and needles in the hand (radiculitis) which continued to be present and had been worsening over the last few years, hand-in-hand with the worsening MRI changes of the cervical spine.

Dr Singh opined that these symptoms developed after suffering a repetitive neck strain in the workplace along with a history of lifting and carrying. The doctor observed that whilst cervical multilevel spondylosis can be degenerative, he did not expect the applicant to have significant pathology at multiple levels in the cervical spine at the age of 43, especially with a history of repetitive workplace injury over the last several years, without having had non-physiological strain of the cervical spine secondary to employment. Dr Singh noted that
Dr Shatwell had queried the causality of the symptoms however in the opinion of Dr Singh it is more likely than not that her initial symptoms were partly or wholly due to the cervical spine injury. In support of his opinion Dr Singh observed that the applicant’s symptoms had not improved with carpal tunnel surgery on both sides even after it had been done twice. The doctor observed that the applicant’s symptoms had worsened, commensurate with the increasing pathology on the MRI scan subsequent to her original MRI scan five years prior.
The doctor proposed that the applicant have decompression and fusion from C5 to C7.[23]
[23] Reply pp. 50-51.
On 10 December 2020 the respondent issued a notice pursuant to s 78 of the 1998 Act denying liability in respect to injury to the neck, elbow, cervical spine C6/C7 herniation, secondary psychological injury and double crush phenomenon.[24] The respondent denied that the applicant had sustained the alleged injuries.
[24] ARD p. 52-53.
In support of its decision to deny liability the s 78 notice observed that the applicant had lodged a claim for carpal tunnel syndrome on 17 April 2014 and liability only for that injury had been accepted on 5 September 2014. That the certificates of capacity up until
25 July 2016 stated that the applicant was suffering from bilateral carpal tunnel syndrome and a possible neck issue.
The respondent observed that liability had never been accepted for any neck issue. That liability had not been reviewed for any neck injury as no claim had been lodged for injury to the neck. The respondent advised that as liability had not been accepted for the cervical spine C6/7 herniation, adjustment disorder, elbow strain overcompensation and double crush phenomenon, no payments of compensation would be made in respect of those alleged injuries.
It is the applicant’s evidence that she began working as a supervisor at Pet Barn on
[25] ARD p. 42.
4 January 2021. This role largely involved customer service, paperwork and some minor lifting. She usually avoided lifting stock as there were stronger staff who completed this. But on a few occasions, she had to help lift stock or assist an elderly customer with lifting their items. When she did have to lift stock, she found it difficult as it caused her pain mainly in her hands and a small amount in her neck. The pain was momentary and not long lasting.[25]
It is the applicant’s evidence that she attended on Dr Calvache Rubio on 27 July 2021 at which time she expressed her concerns over the deterioration of her neck. She had been frequently waking up with a stiff neck. It is the applicant’s evidence that Dr Calvache Rubio gave the applicant a referral for an MRI of her neck.[26]
[26] ARD p. 42.
On 20 August 2021 the applicant commenced proceedings in the Commission against the respondent, proceedings W3910/21. Relevantly, the applicant in the ARD as amended claimed weekly benefits compensation from 8 October 2017 to 6 January 2021 pursuant to ss 36 and 37 of the 1987 Act as well as the costs of neck surgery proposed by Dr Bhisham Singh. The applicant relied on multiple injuries including injury to her neck and bilateral carpal tunnel syndrome by reason of the nature and conditions of her employment.
The matter was the subject of an arbitration hearing before Member Philip Young on
15 November 2021. On 31 January 2022 a Certificate of Determination with a Statement of Reasons by Member Young was issued.
Member Young determined:
“1.     Award in favour of the applicant against the respondent for weekly payments of compensation as follows:
(a) between 8 October 2018 and 7 January 2019 pursuant to s 36 of the 1987 Act in the sum of $560.50 per week, and
(b) between 8 January 2019 and 6 January 2021 pursuant to s 37 of the 1987 Act in the sum of $472 per week.
2.      The respondent is to receive credit for payments of weekly compensation made to the applicant from 8 October 2018 to date.
3.      Award in favour of the applicant being a general award in respect of medical expenses pursuant to section 60 of the 1987 Act.
4.      Declaration pursuant to section 60(5) of the 1987 Act that the cervical spine surgery proposed by Dr Singh is reasonably necessary medical treatment resulting from injury and the respondent is directed to pay the reasonable costs of and incidental to that surgery.”
Member Young in his Statement of Reasons noted at [4] that the respondent by an amended s 78 Notice dated 8 November 2021 declined liability for the applicant’s neck, elbows, shoulders and secondary psychological injury. The respondent had also declined the C5 to C7 cervical decompression and fusion surgery proposed by Dr Singh.
From January 2021 the applicant had obtained employment with Pet Barn.
In respect to the applicant’s claim for weekly compensation payments Member Young at [69] stated:
“The applicant’s claim for weekly payments commences on 8 October 2017 and the first entitlement period is expressed to end on 7 January 2019. The respondent’s submissions at [11] (a) repeat the commencement date of this weekly payments claim as 8 October 2017. The actual period is, I suspect, from 8 October 2018 which was the period referred to in the prior Certificate of Determination. Accordingly, the findings I make below in terms of weekly payments will be from 8 October 2018.”
Member Young’s findings included at [75] to [76]:
“By reason of the nature and conditions of the applicant’s employment and specific incidents of injury between 1 January 2008 to 4 September 2018 the applicant suffered personal injury and / or a disease injury to her cervical spine and wrists (bilateral carpal tunnel syndrome) together with other injuries.
The applicant was at all material times from 8 October 2017 to 6 January 2021 (the period) totally incapacitated for work within the meaning of the Section 33 of the 1987 Act.”
Before Member Young the PIAWE was agreed at $590.
It is the applicant’s evidence that on 18 April 2023, she had a pre-operation appointment with Dr Vestol.[27]
[27] ARD p. 44.
Dr Tonje Vestol in a certificate of capacity dated 18 April 2023 records a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/7 herniation, adjustment disorder, left elbow strain overcompensation as well as possible double crush phenomenon. The doctor certified the applicant with no current capacity for any work between 18 April 2023 and 30 May 2023.[28]
[28] Applicant’s AALD dated 18 September 2023 pp. 1-3.
Dr Singh in an operation report dated 19 April 2023 records that a C5-C7 anterior cervical decompression and fusion + ICBG had been performed due to neck and arm pain.[29]
[29] ARD pp. 256-257.
Dr Htun Htun Oo in a certificate of capacity dated 8 May 2023 records a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/C7 herniation, adjustment disorder, left elbow strain overcompensation and possible double crush phenomenon. Dr Oo certified the applicant with no current capacity for any work between 8 May 2023 and 18 June 2023.[30]
[30] Applicant’s AALD dated 18 September 2023 pp. 4-6.
Dr Trisha Lal in a certificate of capacity dated 5 June 2023 records a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/7 herniation, adjustment disorder, left elbow strain overcompensation and possible double crush phenomenon. Dr Lal certified the applicant with no current capacity for any work between 5 June 2023 and 17 July 2023.[31]
[31] Applicant’s AALD dated 18 September 2023 pp. 7-9.
It is the applicant’s evidence that on 26 July 2023, she attended on her GP, Dr Siddiqui at Workers Doctors to obtain an updated certificate of capacity at which time she said to
[32] Applicant’s AALD dated 18 September 2023 pp. 22.
Dr Siddiqui “I need to return to work because I have no money”. It is the applicant’s evidence that she did not feel that she was physically ready to return to work, but she felt that she needed to get back to work to make money.[32]
Dr Rubina Siddiqui in a certificate of capacity dated 26 July 2023 records a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/7 herniation, adjustment disorder, left elbow strain overcompensation and possible double crush phenomenon. Dr Siddiqui certified the applicant with capacity for some type of work between 18 July 2023 and 6 September 2023 at 6 hours per day / 2 days per week, avoiding pushing/pulling, lift / carry to 4-5kg to shoulder height, standing as tolerated and avoiding repetitive use of the hands.[33]
[33] Applicant’s AALD dated 18 September 2023 pp. 10-12.
It is the applicant’s evidence that although she had the certificate of capacity from
[34] Applicant’s AALD dated 18 September 2023 pp. 22.
Dr Siddiqui, she was unsure whether she would be able to return to work at Pet Barn due to the fact that her original injury did not occur whilst she was working for Pet Barn. She had this understanding because after she had the surgery, she had been told by her manager at the time that she was required to have full lifting capacity of 15kg to be fit to return to her role.[34]
It is the applicant’s evidence that she was so desperate to return to work that she contacted Dr Singh’s head nurse on 11 August 2023 to obtain a certificate of capacity. The applicant was not told by anyone that she required a certificate from her surgeon, but she assumed that because it was from a specialist it would be more credible for return to work. It is the applicant’s evidence that Dr Singh provided her with a medical certificate on 11 August 2023 certifying her fit to return to suitable duties. However, Dr Singh did not specify the hours the applicant was fit to work, so she was unable to use the certificate.[35]
[35] Applicant’s AALD dated 18 September 2023 pp. 22.
It is the applicant’s evidence that a certificate of capacity was not all that was required to allow her to return to work. Her physiotherapist advised the applicant that they needed to send an “injury pack” to the applicant’s doctors, the Workers Doctors. Dr Mo contacted the applicant the following day and read through this pack. It is the applicant’s evidence that when she spoke to Dr Mo, she again said to him “I need to return to work because I am struggling financially and I need the money”.[36]
[36] Applicant’s AALD dated 18 September 2023 pp. 22.
Dr Morgan Mo in a certificate of capacity dated 15 August 2023 records a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/C7 herniation, adjustment disorder, left elbow strain overcompensation as well as possible double crush phenomenon. Dr Mo certified the applicant with capacity for some type of work between 15 August 2023 and
[37] Applicant’s AALD dated 18 September 2023 pp. 13-15.
19 September 2023 at 6 hours per day / 3 days per week, avoiding pushing / pulling, lift / carry to 8kg non-repetitive, avoiding repetitive bending/twisting/squatting and to be able to rotate posture as required.[37]
It is the applicant’s evidence that on Monday, 14 August 2023, she was copied into an email from the Work Fitness & Injury Manager at Pet Barn, Joanne Regan, following up on a telephone conversation the applicant had with her. Her email was to the applicant’s manager at the time, advising that the applicant was able to return to work, in a restricted role. The applicant returned to work at Pet Barn on Wednesday, 16 August 2023.[38]
[38] Applicant’s AALD dated 18 September 2023 pp. 22.
It is the applicant’s evidence that the main reason she felt forced to return to work was due to her financial situation. She felt pressure to get back to work as her mother-in-law was helping out financially and they were having to borrow money off family to get by.[39]
[39] Applicant’s AALD dated 18 September 2023 pp. 23.
It is the applicant’s evidence that the duties she has been doing following her return to work at Pet Barn are very limited. Her symptoms have increased since her return to work.[40]
[40] Applicant’s AALD dated 18 September 2023 pp. 23.
Dr Rubina Siddiqui in a certificate of capacity dated 1 September 2023 records a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/C7 herniation, adjustment disorder, left elbow strain overcompensation as well as possible double crush phenomenon. Dr Siddiqui certified the applicant with capacity for some type of work between 1 September 2023 and
[41] Applicant’s AALD dated 18 September 2023 pp. 16-18.
13 October 2023 for 6 hours per day / 3 days per week, pushing / pulling non-repetitively, lift / carry to 8kg non-repetitive, avoiding repetitive bending / twisting / squatting with the ability to rotate posture as required.[41]
Payments of weekly workers compensation benefits commenced on 16 April 2014 and continued to 10 October 2021.

Summary of medico-legal evidence

Dr Uthum Dias, occupational physician, reported to the respondent on 30 March 2020.[42]
[42] ARD pp. 63-76.
Dr Dias records that the applicant reported that she started to notice painful pins and needles and numbness in both her hands in early April 2014. At the time she was working in the course of her normal duties and recalled that she was operating a pallet moving machine with both her hands, when she noticed worsening pins and needles, numbness and pain and discomfort in her hands and wrists. She was assessed at the respondent’s first aid office at the Minchinbury distribution centre and was subsequently advised to seek medical attention. Nerve conduction studies performed in 2014 confirmed a diagnosis of carpal tunnel syndrome, left worse than the right.
A left sided carpal tunnel release was performed in 2015 by Dr Nicholas Smith, orthopaedic surgeon. A right sided carpal tunnel release was performed in 2016 and in late 2017, due to ongoing debilitating left wrist symptomatology an open carpal tunnel release with transposition of a fat graft from the thenar eminence of her left palm was performed.
The applicant reported to Dr Dias that from approximately late 2014 or early 2015 onwards she had also suffered with chronic symptoms of neck pain, stiffness and discomfort.
Dr Dias noted that the applicant complained of ongoing debilitating symptoms of pain, stiffness and discomfort affecting her neck and pins and needles, numbness, weakness and pain affecting both hands and wrists. She struggled with driving for more than 20 minutes at a time, performing any tasks involving lifting or gripping with her hands and wrist and was unable to perform any tasks that involve overhead, or above shoulder height work due to pain and stiffness in her neck.
Dr Dias noted on examination that the applicant’s symptoms included of pins and needles, numbness and sensory dysaesthesia in a distribution consistent with the left C7 dermatome, as well as a bilateral median nerve distribution distal to the right and left wrists. Neurological examination findings were consistent with carpal tunnel syndrome and a left C7 radiculopathy.
In the opinion of Dr Dias, the applicant’s employment capacity had been compromised over the course of the previous six years, as a result of her conditions of bilateral carpal tunnel syndrome and degenerative cervical spondylosis. She initially developed symptoms consistent with bilateral carpal tunnel syndrome in early April 2014. The bilateral carpal tunnel syndrome proved to be recalcitrant and had remained significantly symptomatic. The applicant had also suffered from symptoms of chronic neck pain, since around late 2014/early 2015, associated with radicular symptoms which had become more pronounced over the course of the past two to three years.
Dr Drew Dixon, orthopaedic surgeon, provided a report to the applicant dated 3 June 2020[43] records that the applicant developed bilateral carpal tunnel syndrome which was subsequently confirmed on nerve conduction studies. She was reviewed by a hand surgeon and had endoscopic carpal tunnel release on the left in April 2016 and then on the right in December 2016 and for recurrent carpal tunnel syndrome, she had revision carpal tunnel release, synovectomy and hypothenar fat pad flap on 25 July 2017. She was also reviewed by a spinal surgeon in March 2020 who recommended C5 to C7 anterior cervical decompression and fusion.
[43] ARD pp. 78-86.
The applicant reported to Dr Dixon that with activity, the carpal tunnel symptoms recured in her left hand with intermittent paraesthesia in the thumb, index, middle and ring fingers and she had residual arthralgia of the wrist with stiffness. She had a very tender scar in the carpal tunnel region following her open revision carpal tunnel decompression with median neurolysis and synovectomy. The applicant reported residual stiffness of the wrist and her scar was very painful if bumped accidentally or tapped. The applicant reported that her right carpal tunnel has reasonably settled. She had significant night pain with paraesthesia in her left hand and wrist but was no longer wearing a night splint. She does, however, require analgesia. She developed mottling of the left hand in cold weather and had some recurrent swelling, per se, on the volar aspect of her left wrist adjacent to her surgical scar which remained very tender.
The applicant also reported pain and stiffness in her neck with crepitus on neck movement with left shoulder brachialgia with trapezial muscle pain and intermittent radiation of pain down her left arm with paraesthesia in the left hand which overlaps with carpal tunnel symptoms.
Dr Dixon concluded that the applicant developed bilateral carpal tunnel syndrome in the course of her work duties and had developed painful crepitus in her neck with stiffness and intermittent radicular complaint with pain in the arm, radiating to the left hand.
Dr Dixon noted that the applicant's GP had referred the applicant to a spinal surgeon who noted that there was pain radiating from the neck into the left paraspinal musculature. He noted the applicant had been using Gabapentin to control her dysthesia and that the MRI scan of the cervical spine of 22 September 2015 showed degenerative changes, particularly at C6/C7 level with bilateral foraminal stenosis, particularly on the left. He felt that while her symptoms were more consistent with carpal tunnel syndrome, there may be an element of C7 radiculopathy, which was also contributory. Dr Dixon concurred with those remarks.
Dr Dixon noted that when the applicant was seen by an orthopaedic specialist on
5 May 2019 the specialist had noted that the applicant had undergone carpal tunnel decompression and revision on the left but had persisting paraesthesia in the left hand which became aggravated when she extended her neck and that the MRI of the cervical spine showed disc bulges from C4 to C7 with significant foraminal stenosis on the left at C6/7 and C5/6 with some stenosis at C4/5, which the specialist felt was likely to be responsible for the pain radiating from the neck to the left shoulder. The specialist recommended a trial injection to the left side from C5 to C7.
A/Prof Shatwell, orthopaedic surgeon, provided a report for the respondent dated
[44] ARD pp. 104-115.
5 October 2021[44] in which he records that the applicant reported that she had developed pain in her neck in 2008. She had particular problems disengaging jammed cartons and boxes when the handling machinery caused pileups of merchandise from time-to-time which she had to clear. She reported to A/Prof Shatwell that the neck pain became severe enough for her to report her symptoms to her supervisor and she was seen by the company doctor and received “in-house” physiotherapy on several occasions.

The applicant reported that she later developed pins and needles in her hands, more on the left side than the right when she returned to work in 2011 after maternity leave. The symptoms came on gradually and she kept on working. She eventually sought help from the company doctor who arranged for some nerve conduction studies and diagnosed carpal tunnel syndrome. The exact date when symptoms began was not known to the applicant, but she felt that the nerve conduction studies were performed prior to the birth of her child which is not consistent with the onset of pins and needles in 2011. The symptoms were more troublesome when she returned to her work even though she reduced her hours to 20 per week.
A/Prof Shatwell records that the applicant’s symptoms were particularly severe around
4 April 2014 and more painful in the left hand. The applicant reported to A/Prof Shatwell that she was driving a pallet jack and seen by a doctor at the warehouse on that day. The doctor arranged for the applicant to be driven to the Mt Druitt Medical Centre for a full medical examination. The physician at Mt Druitt considered the symptoms were due to carpal tunnel syndrome and a nerve conduction study was arranged which confirmed this.
A/Prof Shatwell records that the applicant was referred to Dr Yee, hand surgeon, who gave a cortisone injection to the left wrist which was of temporary benefit. Dr Yee recommended carpal tunnel release surgery and a second opinion regarding the diagnosis was obtained from Dr Nicholas Smith, hand surgeon, and he performed a left-sided endoscopic carpal tunnel release on 12 April 2016.
The applicant reported that prior to this procedure she had been seen by Dr Eric Lim on or about 10 April 2015 who referred her for an MRI Scan of the cervical spine which was performed on 22 September 2015. Dr Lim also referred the applicant to Dr Nathan Hartin, neurosurgeon. Dr Hartin saw the applicant on 3 November 2015 and advised that the MRI scan showed degenerative changes in the cervical spine particularly at C6/C7 level with bilateral neuroforaminal stenosis particularly on the left side.
A/Prof Shatwell noted that Dr Hartin wrote in a letter to Dr Lim that he felt that the symptoms at the time were “most consistent with a carpal tunnel syndrome”. Dr Hartin further stated, “there may be some element of C6 radiculopathy which is contributory”. Dr Hartin recommended carpal tunnel release in the first instance.
The applicant went ahead with left carpal tunnel release on 12 April 2016 and this relieved the symptoms for a few months but unfortunately they recurred. A right carpal tunnel was released performed endoscopically by Dr Smith on 6 December 2016. The right-sided symptoms were improved satisfactorily, and Dr Smith advised an open procedure to revise the left carpal tunnel release, and this was performed on 25 July 2017.
The applicant reported to A/Prof Shatwell that the symptoms on the right side improved satisfactorily but were not 100%. The symptoms on the left side were still present and more troublesome than on the right side. A/Prof Shatwell noted that due to continuing disability with pain in her arms, the applicant was referred by Dr Lim to Dr Bhisham Singh who saw the applicant on 6 May 2019. Dr Singh considered the symptoms in the left hand were in the distribution of the C7 nerve root. In his opinion the symptoms were due to foraminal stenosis on the left side of her neck at C5/C6 and C6/C7 levels.
The applicant reported to A/Prof Shatwell that there was a claim for neck problems in 2012 when she had returned to her picking and packing duties with the respondent. There were some pins and needles in the left hand at that time. The symptoms settled with physiotherapy. Persistent pins and needles in both hands developed over a period in 2013 and 2014. They were severe in April 2014.

Section 39 of the 1987 Act

The applicant received payments of weekly workers compensation benefits between 16 April 2014 and 10 October 2021, an aggregate period of 260 weeks.
The respondent asserts that as the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of “the injury” she has, pursuant to s 39 of the 1987 Act, no entitlement to further weekly compensation. Section 39 of the 1987 Act states:
“(1)Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note—
For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
For current purposes s 39(2) is not relevant as the applicant has not been assessed for permanent impairment.
The applicant submits that the claim for weekly compensation arises from incapacity that has arisen due to the C5 to C7 anterior cervical decompression and fusion + ICBG surgery performed by Dr Singh on 19 April 2023. The surgery which Member Young directed the respondent to pay the costs of in Commission proceedings W3910/21.
The applicant submits that whilst payments of weekly compensation commenced on
16 April 2014 it was not until the determination of Member Young which awarded the applicant payments of weekly compensation between 8 October 2018 and 6 January 2021 that the applicant received weekly compensation in respect to her neck injury. That the respondent’s notice dated 10 December 2020 issued pursuant to s 78 of the 1998 Act, which denied liability for injury to the neck, made it crystal clear that no payments of compensation, weekly or otherwise, had been paid in respect to any alleged injury to the neck and that the only injury for which liability was accepted was bilateral carpal tunnel syndrome.
It is submitted on behalf of the applicant that incapacity for employment initially arose, and liability accepted, for the bilateral carpal tunnel syndromes and that the applicant subsequently developed problems with her neck that didn’t appear to the doctors at the time to be incapacitating. However, the neck condition worsened with time and by 2018 became a feature of the medical certificates and medical opinions and by June 2018 a C6/7 herniation had been diagnosed.
The applicant’s submission that liability for injury to the applicant’s neck was not accepted by the respondent prior to the determination of Member Young is correct.
The applicant submits that for the purposes of s 39 of the 1987 Act “injury” is pathology and the incapacity arising from that pathology and not the injurious incident or event. That the incapacity arising from the injury to the neck and that arising due to other pathologies, in particular the bilateral carpal tunnel syndromes, are required to be treated separately.
The respondent submits that “injury” in s 39 of the 1987 Act refers to the injurious process and not pathology. In the respondent’s submission the nature and conditions of the applicant’s employment has caused pathology in both her wrists as well as her cervical spine. The nature and conditions of employment that caused the pathology in the wrists and the cervical spine was the same. The respondent submits that the payments of weekly benefits compensation made in respect to both wrists and the neck are required to be aggregated for the purposes of s 39 as the pathological conditions in question were caused by the same nature and conditions of employment, the same injurious process.
Section 4 of the 1987 Act defines injury and relevantly states:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”
I do not accept the respondent’s submission that “injury” in s 39 refers to the injurious process as opposed to the pathology. “Injury” as defined in s 4 includes an injurious event and the pathology caused by the event. However, the injurious process or injurious event is simply the mechanism of “injury” and not the “injury” itself. As Roche DP in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 stated:
“251. …“injury” in s 4 includes an injurious event and the pathology caused by that event.
253. The authority for the statement in the last sentence of the preceding paragraph is Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422. The correctness of that statement has never been challenged and the Commission has consistently applied it in several decisions (see, for example, Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [31]). Consistent with this approach, Giles JA (Hodgson JA and Brownie AJA agreeing) said in Wyong Shire Council v Paterson [2005] NSWCA 74 where his Honour explained (at [38]) that “[i]n general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury”.
254. In other words, an “incident” (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant “injury” in s 4 is the pathology that has arisen out of or in the course of the employment. As explained by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 a “personal injury” is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. The cause of the injury (the injurious event) is “not the important matter” (Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) in determining the compensation payable. (Obviously, the cause of the injury, and the circumstances in which it is received, will be important in determining if the injury was received in circumstances giving rise to an entitlement to compensation under the legislation. His Honour was saying that the important matter is the consequence of the injury, both in terms of pathology and in terms of the economic consequences.)”
The respondent submitted that if compensation is paid in respect to an incapacity that is believed to have arisen as a result of a pathology for which liability has been accepted, and it is subsequently found that the pathology for which liability had been accepted was not the cause of the symptoms which resulted in the incapacity, then any payments of weekly compensation should be counted towards the aggregate of 260 weeks under s 39.
The applicant submitted in response that the incapacitating symptoms remain the same and it would just be a mistake in diagnosis and in this case there are two pathologies giving rise to two different incapacities.
It is the applicant’s evidence that she first noticed symptoms in her hands in approximately April 2013 and that she first experienced symptoms in the left side of her neck in late 2013 / early 2014 and that the neck symptoms settled with physiotherapy but never fully disappeared.
The earliest certificate of capacity in evidence is by Dr Homsi dated 31 March 2015 which records a diagnosis of bilateral carpal tunnel syndrome which was worse on the left side.
Dr Lim in a certificate of capacity dated 10 April 2015 records that the applicant had left hand tingling as well as intermittent neck pain with a diagnosis of bilateral carpal tunnel syndrome and in a certificate of capacity dated 17 April 2015 Dr Lim records a diagnosis of bilateral carpal tunnel syndrome as well as potential neck issue.
On 3 November 2015 Dr Nathan Hartin, spine surgeon, reported to Dr Lim noting that he saw the applicant in respect to bilateral hand dysaesthesia providing a diagnosis of bilateral carpal tunnel syndrome as well as C6/C7 foraminal stenosis. Whilst Dr Hartin observed that nerve conduction studies were consistent with carpal tunnel syndrome an MRI of the cervical spine performed on 22 September 2015 demonstrated degenerative changes particularly at the C6/C7 level where there was bilateral neuroforaminal stenosis particularly on the left. Whilst Dr Hartin felt that the applicant’s symptoms were most consistent with carpal tunnel syndrome the doctor observed that there may have been some element of C7 radiculopathy which was also contributory. The doctor therefore recommended that the applicant proceed with carpal tunnel release at first instance, however, should the symptoms persist thereafter the doctor opined that the applicant may require the cervical spondylosis to be addressed.
Bilateral carpal tunnel releases were subsequently performed as well as a repeat procedure on the left side.
On 30 October 2018 Dr Lim reported that whilst the applicant had suffered an aggravation of a degenerative neck condition the priority remained the applicant’s hands. Dr Lim relevantly recorded a diagnosis of bilateral carpal tunnel syndrome, cervical spine C6/C7 herniation as well as a possible double crush phenomenon.
Dr Bhisham Singh reported to Dr Lim on 6 May 2019. Dr Singh noted that the applicant had undergone bilateral carpal tunnel release surgery with a repeat procedure on the left. The applicant continued to complain of parasthesis in both hands. Dr Singh noted persistent pins and needles in the applicant’s left hand which became aggravated when she extended her neck. Dr Singh also observed that the applicant had neck pain with pins and needles in her left hand in a C7 distribution.
Dr Singh again reported to Dr Lim on 14 January 2020 at which time the doctor observed that the applicant had radiculopathy in a C7 and C8 distribution of the left hand.
On 16 June 2020 Dr Singh reported to Dr Lim observing that at the start of her symptoms the applicant was diagnosed with bilateral carpal tunnel syndrome. Following bilateral carpal tunnel release the pins and needles in the hands had failed to improve. Therefore, Dr Singh was of the opinion that the applicant very likely had a strong contribution of neurological impairment in the cervical spine to the symptoms of pain and pins and needles in the hands (radiculitis) which had continued and had been worsening over the last few years, hand-in-hand with the worsening MRI changes in the cervical spine.
Dr Singh noted that A/Prof Shatwell had queried the causality of the symptoms however in the opinion of Dr Singh it is more likely than not that the applicant’s initial symptoms were partly or wholly due to the cervical spine injury. Dr Singh in support of his opinion noted that the applicant’s symptoms did not improve with carpal tunnel surgery. The doctor proposed the decompression and fusion surgery which has subsequently been performed.
Dr Dias on examination also noted that the applicant’s symptoms included pins and needles, numbness and sensory dysaesthesia consistent with the left C7 dermatome, as well as a bilateral median nerve distribution distal to both wrists.
Dr Dixon observed that the applicant had intermittent radiation of pain down her left arm with paraesthesia in the left hand which overlapped with the carpal tunnel symptoms. Dr Dixon concurred with the opinion that whilst the applicant’s symptoms had been consistent with carpal tunnel syndrome there may be an element of C7 radiculopathy which was also contributory.
The medical evidence supports that whilst the applicant was initially diagnosed with carpal tunnel syndrome a suspicion soon arose that there may have been a contribution to the symptoms being experienced by the applicant as a result of a condition affecting the cervical spine. In particular Dr Hartin whilst recommending carpal tunnel release surgery observed that there may be a contribution from the neck and that if the applicant’s symptoms did not improve following the carpal tunnel decompression the cervical spine would need to be looked at. Dr Bhisham Singh, the applicant’s treating surgeon in respect to the neck, noting the failure of the carpal tunnel release surgeries to improve the applicant’s symptoms concludes that the applicant’s initial symptoms were partly or wholly due to the cervical injury. Dr Singh having reviewed the applicant on multiple occasions over an extended period of time is best placed to provide an opinion and I accept the opinion of Dr Singh.
Whilst the respondent did not accept liability for injury to the applicant’s neck until the determination of Member Young in Commission proceedings W3910/21 it did in fact pay weekly compensation as result of the neck pathology and the incapacity arising therefrom with the neck symptoms being initially diagnosed as part of the symptoms arising from the accepted bilateral carpal tunnel syndrome injuries.
The applicant also submitted that if all the payments of weekly compensation were to be taken into account for the purposes of s 39 then it is not known which days the applicant had off work due to the neck condition prior to 8 October 2018, the day that payments of weekly compensation commenced under the determination of Member Young, and after
6 January 2021, the date that payments of weekly compensation ordered by Member Young ceased. I do not accept the applicant’s submission. The medical evidence supports that the applicant’s hand symptoms and subsequently her neck symptoms have at all relevant times been the cause of incapacity and the pathology in the applicant’s neck has at all relevant times contributed to the hand symptoms. I accept that the applicant’s neck condition has at all relevant times contributed to the applicant’s incapacity.
The applicant submits that the respondent is caught by the estoppel’s flowing from the earlier determination of Member Young in Commission proceedings W3910/21 where Member Young made findings and entered an award in respect to weekly compensation for two separate periods. The award for the first period was made pursuant to s 36 of the 1987 Act and in the applicant’s submission this could not have been done unless Member Young had formed the view that he was determining the first 13 weeks of weekly compensation relevant to the incapacity. In the applicant’s submission the same applies for the second period as the Member could not have made that award unless he was satisfied that the applicant was still within the second entitlement period pursuant to s 37 of the 1987 Act.
I do not accept the applicant’s submission. The applicant in the proceedings before Member Young did not rely solely on injury to the neck as being causative of incapacity but rather relied upon multiple injuries including the bilateral carpal tunnel syndromes for which liability had been accepted and compensation paid. Member Young at [75] of the Statement of Reasons specifically determined that the applicant had suffered personal injury and / or a disease injury to her cervical spine and wrists (bilateral carpal tunnel syndrome) due to the nature and conditions of her employment. There is no dispute that weekly benefits compensation had been paid to the applicant prior to 8 October 2018, being the date on which the award for weekly compensation made by Member Young commenced. The Statement of Reasons contains no findings as to when incapacity commenced due to injury to the neck and provides no explanation as to why the awards for weekly benefits were made pursuant to ss 36 and 37 given the previous payments of weekly compensation.

The applicant relies on the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by Dr Singh on 19 April 2023 as a consequential condition. I do not accept this submission as it has already been determined that the applicant sustained injury to her neck as a result of the nature and conditions of her employment with the respondent. The surgery performed by Dr Singh is for treatment of the already accepted injury. In any event, even it were accepted that the surgery was a consequential condition it would not alter the effect of s 39 as the liability for any consequential condition forms part of the liability for the original injury which caused the consequential condition.
For the above reasons I find that the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of her accepted neck injury.

Section 41 of the 1987 Act

The applicant submits, in the alternative, that she is entitled to at least 13 weeks of weekly compensation pursuant to s 41 of the 1987 Act. Section 41 of the 1987 Act states:
“(1) An injured worker who suffers incapacity resulting from injury related surgery is entitled to weekly payments of compensation (special compensation) as provided by this section in respect of that incapacity when the incapacity occurs after the second entitlement period.
(2)    The special compensation provided for by this section is payable at the rate provided under section 37, as if the period of incapacity in respect of which the special compensation is payable occurred during (not after) the second entitlement period.
(3)    Special compensation is not payable in respect of any period of incapacity that occurs—
(a)during the first 13 consecutive weeks after the end of the second entitlement period, or
(b)more than 13 weeks after the surgery concerned, or
(c)during any period in respect of which the worker is otherwise entitled to compensation after the second entitlement period (under section 38).
(4)    Surgery is injury related if it is surgery that the worker undergoes in the course of medical treatment provided to the worker as a result of an injury (the initial injury) received by the worker (being medical treatment for which the insurer has accepted liability under this Part).
(5)    The following requirements must be satisfied for a worker to be eligible for the special compensation provided for by this section—
(a)    the worker must have received weekly payments of compensation in respect of the initial injury and have had current work capacity prior to suffering the incapacity resulting from the injury related surgery,
(b)     the worker must have returned to work after the initial injury (whether in self-employment or other employment) for a period of not less than 15 hours per week and have been in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week.
(6)    This section does not limit section 52 (Termination of weekly payments on retiring age).”
As noted above s 39(1) states:
“Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.”
The applicant submits that s 39(1) does not override s 41 as firstly if it did it would make a mockery of putting in a specific provision for surgery if the same compensation could be obtained under s 38 of the 1987 Act which would leave s 41 with effectively no work to do. Secondly there is nothing in s 41 that specifically says that it is restricted to the 260 weeks and a general clause as a matter of statutory construction is normally read as being overridden by a specific clause. In the applicant’s submission s 39 was clearly intended to cover ss 36 to 38 of the 1987 Act and was not intended to apply to s 41.
In the respondent’s submission s 41 does not override s 39 as the opening words of s 39(1) clearly state that “Despite any other provision of this Division…” and s 41 appears within the same Division as s 39.
I reject the applicant’s submission. Where there is a conflict between general and specific provisions, the specific provision prevails.[45] However, the principle only applies where there are two inconsistent provisions that cannot be reconciled as a matter of ordinary interpretation[46] which is not the case in respect to ss 39 and 41. Section 39 clearly and unambiguously declares on its face that it applies “[d]espite any other provision of this Division…”. Section 41 appears in the same Division as s 39.
[45] Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-stock Corp (No 2) (1980) 29 ALR 333 at 347; Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 at 50.
[46] Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 at 657.
I also do not accept that s 41 has effectively no work to do as the same compensation could be obtained under s 38 of the 1987 Act. Section 38 places a number of requirements on a worker to be eligible to receive payments of weekly compensation pursuant to that section. A worker may well be eligible to receive compensation pursuant to s 41 but remain ineligible under s 38. For example, a worker may not have applied in writing before the end of the second entitlement period for a continuation of weekly payments after the second entitlement period or may not have been assessed by the insurer as having no current work capacity but had returned to work on less than 15 hours per week.
For the above reasons I find that the applicant is not entitled to receive weekly compensation pursuant to s 41 of the 1987 Act.

Estoppel

Given the above findings in respect to ss 39 and 41 it is not necessary to determine the estoppel issue raised by the respondent.

SUMMARY

I find that:
(a) the applicant has received an aggregate period of 260 weeks of weekly compensation in respect of the injury to her cervical spine and therefore has no entitlement to further weekly compensation pursuant to s 39 of the 1987 Act;
(b) the applicant has no entitlement to weekly payments of compensation pursuant to s 41 of the 1987 Act as a result of any incapacity resulting from the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by
Dr Bhisham Singh on 19 April 2023, and
(c) there is an award for the respondent in respect to the claim for weekly compensation.

[2023] NSWPIC 586

3 November 2023