Martin v Queensland Property Investments Pty Limited
[2022] NSWPIC 39
•31 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Martin v Queensland Property Investments Pty Limited [2022] NSWPIC 39 |
| APPLICANT: | Nicole Martin |
| RESPONDENT: | Queensland Property Investments Pty Limited |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 31 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments and medical expenses including proposed surgery to cervical spine; injury allegation nature and conditions of employment and specific work incidents; bilateral carpel tunnel syndrome and cervical spine injuries; prior certificate of determination – consent order with notation that respondent pay voluntary weekly payments; Held - applicant not estopped from claim weekly payments for whole period including matters subject of prior notation; authorities including Almario v Carrington Constructions Pty Ltd, Rose v Health Commission (NSW) and Diab v NRMA Ltd discussed; no findings and admissions to prevent applicant re-agitating weekly payments claimed; preponderance of medical opinion supports applicant’s incapacity, cervical spine and bilateral wrist injuries and reasonable necessity for surgery; no determination by the Commission so no estoppel; award in favour of applicant for weekly payments including declaration for section 60 of the Workers Compensation Act 1987 expenses and future cervical spine surgery. |
| DETERMINATIONS MADE: | 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 section 36 of the Workers Compensation Act 1987 (1987 Act) in the sum of $560.50 per week, and (b) between 8 January 2019 and 6 January 2021 pursuant to section 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. |
STATEMENT OF REASONS
BACKGROUND
Nicole Martin (the applicant) is a 44 year old lady who was employed by Queensland Property Investments Pty Limited (the respondent) as a storeperson.
The applicant alleges that between 1 January 2008 and 14 August 2020 (the first nature and conditions claim) she suffered personal injury, alternatively aggravation (etc) of disease by reason by the nature and conditions of her employment. The latter date was the date of termination of her employment. She said that she was subjected to workload overuse and repetition, repetitive “picking” causing bilateral carpal tunnel syndrome, left elbow injury, injury to cervical spine including C6/7 herniation or aggravation of same as well as injury to, or aggravation of, degenerative changes to her cervical spine. She also adds left sided arthralgia, shoulder brachialgia with trapezial muscle pain and double crush phenonium. Secondary psychological issues are also pleaded, together with right elbow injury consequential condition from overcompensation.
The physical injuries relied upon are pursuant to section 4 (b) (ii) of the Workers Compensation Act 1987 (1987 Act). Additionally, the applicant pleads primary psychological injury with date of injury 4 April 2014 and further injury virtually identical to the first nature and conditions claim, but with injury date 14 April 2014.
The respondent by an amended section 78 Notice dated 8 November 2021 has declined liability for the applicant’s neck, elbows, shoulders and secondary psychological injury. The respondent has also declined the C5-7 interior cervical decompression and fusion by Dr Singh. Weekly payments of compensation to the applicant ceased in October 2021 at which time the respondent noted that the applicant had received 260 weeks of weekly payments and did not have a whole person impairment of more than 20%.
From January 2021 it appears clear that the applicant obtained employment with PetBarn.
The weekly benefits claimed would appear to be a closed period from the applicant’s last date of employment (14 August 2020) until January 2021.
The original Application to Resolve a Dispute (ARD) was amended after 21 September 2021 to make the following specific claims:
(a) Section 60 medical expenses for the costs of proposed surgery to the applicant’s neck recommended by neurosurgeon Dr Singh and a general order for section 60 expenses.[1]
(b) Weekly payments at various rates from 8 October 2017 to 6 January 2021.
ISSUES
[1] Medicare Notice Application page 1,413.
The applicant has identified the issues as follows:
(a) Whether the applicant injured her neck and whether her employment was a substantial contributing factor or the main contributing factor to such injury.
(b) Whether as a consequence of injury to the applicant’s neck the proposed surgery is reasonably necessary.
(c) Whether by reason of previous Personal Injury Commission (Commission) proceedings the applicant’s entitlement to weekly compensation is to be denied because of res judicata and/or Anshun[2] estoppel.
(d) The respondent’s submissions do not rely upon an estoppel other than res judicata. The applicant’s submissions focus upon the bilateral carpel tunnel syndrome (which the respondent has paid and does not address) and the cervical spine injury appears to be the majority, if not the sole, focus of both sets submissions.
[2] Port of Melbourne Authority v Anshun [1981] HCA 45
EVIDENCE BEFORE THE COMMISSION
The following documents were admitted into evidence and were before the Commission:
(a) ARD and attachments lodged 24 August 2021 (Application).
(b) Reply and attachments lodged 14 September 2021 (Reply).
(c) Application to Admit Late Documents by the applicant’s solicitor lodged 15 September 2021 and attachments (AALD1).
(d) Application to Admit Late Documents filed by the respondent’s solicitor on 9 November 2021 and attachments (AALD2).
Oral evidence
No oral evidence was given.
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing before the Commission by audio visual link on 15 November 2021. Mr Daley of counsel instructed by Mr Sutton appeared for and with the applicant. Mr Grimes of counsel instructed by Ms Dunn appeared for the respondent. Ms Copping represented the insurer.
The matter initially proceeded to conciliation, but regrettably was not capable of resolution. I was satisfied that the parties to the dispute understood the issues relevant to the dispute and that I had used my best endeavours to attempt to effect settlement. That being the case, the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
PRELIMINARY ISSUE
An initial dispute concerned the admissibility of documents attached to the respondent’s AALD2 dated 8 November 2021. Mr Grimes explained that the reason for the amended section 78 Notice dated 8 November 2021 was that the original Application claimed only a small closed period but was later amended to claim arrears of workers compensation and the amended Notice was necessary to respond to that amended claim.
Mr Daley submitted that the Application had been filed in August 2021 and there was no attempt to put the estoppel issue in the Reply and the respondent consented to the amendment to the Application at the teleconference. Further, it was suggested that the applicant would be prejudiced by not being able to answer the additional allegations in the amended section 78 Notice.
Having considered these submissions I determined that the documents the subject of the respondent’s AALD2 should be admitted into evidence and the respondent’s solicitor was directed to file AALD2 and attachments within the Commission within seven days. A sound recording of those reasons for decision is available on application to the Commission.
There was a further preliminary issue in that the applicant had been seeking medical records from the Woolworths Medical Centre and the respondent had continued to assert that the Centre had been closed and consultation records could not be found. There was an issue in that context concerning complaint of neck injury and a sound recording of the Commission’s decision in that regard is also available. If I am incorrect about this assumption no doubt the parties will avail themselves of the reconsideration provisions.
SUBMISSIONS
Counsel for both parties prepared written submissions as follows:
(a) applicant’s written submissions dated 26 November 2021;
(b) respondent’s written submissions dated 13 December 2021, and
(c) applicant’s written submissions in reply dated 17 December 2021.
DISCUSSION AND REASONS
Estoppel and the prior proceedings
The prior proceedings resulted in an agreement that the insurer voluntarily make certain weekly payments. The entire claim by the applicant was discontinued.
The parties entered into a Certificate of Determination by Consent dated 4 April 2019. A notation was as follows:
“The following is not a determination of the Commission, however, I note the parties have agreed:
Notation:
On a voluntary basis the respondent is to pay the applicant $200 per week from 8 October 2018 to date and continuing”.[3]
[3] Application at page 849.
Whilst consent orders can constitute issue estoppel[4] close attention should be given to the specific effect of the wording the subject of the consent order.
[4] Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine).
In Tomlinson[5] the High Court outlined the three forms of estoppel, namely “cause of action” estoppel, issue estoppel and “Anshun” estoppel. The decision of four judges included the following observations (omitting footnotes):
“Estoppel in that form (issue estoppel) operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a ‘judicial determination directly involving an issue of fact or of law disposes once (sic-and) for all of the issue, so that it cannot afterwards be raised between the same parties…’”
[5] Tomlinson v Ramsey Food Processing Pty Limited [2015]HCA 28 (Tomlinson).
Nettle J in a separate judgment in Tomlinson came to the same result in that the appellant was not estopped. His Honour commented (omitting footnotes)[6]:
“The elements of issue estoppel
1. In Kuligowski v Metrobus, this Court adopted Lord Guest's formulation of the elements of issue estoppel in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2). That was as follows:
‘1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.’
[6] Tomlinson at [90].
Dixon J In Blair v Curran[7] observed:
“A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it has merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.”
[7] Blair v Curran [1939] HCA 23.
One important consideration underlining estoppel is public policy considerations. In Lambidis[8], Priestley JA (with whom Kirby P (as his Honour then was) and Powell JA agreed) said:
“[A]mong the public policy reasons common to both res judicata and issue estoppel are the protection of parties from unnecessary re-litigation and the avoidance of the expense, inconvenience and anxiety involved in the same persons fighting a second time on an issue already decided between them.”
[8] Lambidis v Commissioner of Police (1995) 37 NSWLR 320.
In Ramsay v Pigram[9] Barwick CJ encapsulated what was involved in answering that question by saying:
"Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case." (emphasis added)
[9] Ramsay v Pigram [1968] HCA 34 at [7].
The respondent’s submissions in the present matter in terms of estoppel rely upon principles outlined by Snell DP in Seaib[10]. Those submissions deal with res judicata estoppel created by a consent award. That is not, however, the position in the present matter. As pointed out in the applicant’s submission in reply[11] in the present matter there was no determination at all because the applicant’s claim in the prior proceedings was discontinued and payments were made voluntarily, not pursuant to an award. There has been no final determination of the dispute between the parties.[12]
[10] Seaib v Hayes Personnel Services (Aust) Pty Limited [2008] NSWWCCPD 36, referred to at respondent’s submissions at [32].
[11] Submissions pages 7-9.
[12] Jackson v Goldsmith (1950) 81 CLR 446.
The situation may have been different had the wording of the earlier Certificate of Determination included admissions and agreed facts by the applicant in respect of the period 8 October 2018 to the date of the consent order. As explained by Burke J in Almario[13] in the context of a matter involving an award of the Commission such admissions can infer an estoppel by representation.[14] The respondent having acted to its determent in compromising part of the claim in situations where admissions are made can create the estoppel.
[13] Almario v Carrington Constructions Pty Ltd [1996] NSWCC 37.
[14] Almario v Carrington Constructions Pty Ltd [1996] NSWCC 37.
The contrary position would apply in respect to the claim for weekly payments for a period of incapacity occurring after the date of the prior award.
In Blair[15] Dixon J explained the difference between re judicata and issue estoppel as follows:
“The difference between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged and denied the existence of which is a matter necessarily decided by the prior judgment, decree or order”.
[15] Blair v Curran [1939] HCA 23.
In the present matter the issues the subject of the prior proceedings have not passed into judgment as the proceedings were discontinued. There is, accordingly, no res judicata estoppel created by the former proceedings.
The applicant’s statements
In her statement provided 26 February 2020[16] the applicant confirms that she worked at Woolworths for approximately 13 years from 2007 for various periods, apart from 2009 to 2011 when her daughter was born.[17]
[16] Application at page 1.
[17] Application at [34].
The applicant first experienced symptoms in her hand in about April 2013[18] and pins and needles in her hands when lifting boxes at work.[19] The applicant attended the works medical centre and then Mount Druitt Medical Centre and was referred for nerve conduction studies in April 2014.[20]
[18] Application at [35].
[19] Application at [38]-[40].
[20] Application at [46].
Injury to the applicant’s neck is recorded by Dr Lim in his report of 30 October 2018 where he records taking a history of wrist, arm and neck injuries from repetitive picking.
Dr Yudelken referred the applicant to Dr Yee, hand and wrist surgeon, who on 27 May 2014 reported a history of pain and symptoms starting in the left hand and on 10 February 2015 Dr Yee recommended a left carpal tunnel release.[21]
[21] Application at [54].
The applicant reports that she first experienced left sided neck symptoms in 2013 or early 2014 whilst working on “the sorter”. In this work she was required to take boxes from a conveyor belt and put them on pallets.[22] Some days were very busy and often thirty boxes or more would come down the conveyor each minute.[23]
[22] Application at [54]-[59].
[23] Application at [60].
On a specific day in late 2013 or early 2014 the applicant “grabbed a heavier box of drinks weighing about twelve kilograms…twisted to my right” and “felt a pulling sensation in the left side of” her neck.[24] She went to the medical centre and was referred for physiotherapy.
[24] Application at [68]-[69].
Later in 2015 Dr Lim referred the applicant for an MRI scan of her cervical spine which occurred on 22 September 2015.[25]
[25] Application at [74].
Dr Lim referred the applicant to Dr Smith for treatment of her bilateral carpal tunnel syndrome and she underwent left and right sided releases in April 2016 and December 2016 with right sided revision surgery in July 2017.[26]
[26] Application at [76]-[77].
Neck discomfort and radiating pain is described by Dr N Hartin in his report to Dr Lim following examination on 3 November 2015.[27] It was thought best for the applicant to deal first with her carpal tunnel problems and the insurer accepted liability and paid for the surgery and lost time.[28]
[27] Application at [79].
[28] Application at [80].
The applicant had earlier provided a statement of 20 February 2019.[29] In it she details the type of work involved, the effect upon her hands and her need for surgery. She makes
the point that she had to pick and pack boxes weighing between three kilograms and 25 kilograms with all sizes in between.[30][29] Reply at page 1.
[30] Reply at page 2.
The section 74 Notice
The insurer by a section 74 Notice dated 17 August 2018 advised that liability was to be disputed[31]. Essentially, that denial was on the strength of Dr Breit’s opinion that the applicant had cervical spondylosis but this was constitutional and not work-related.
[31] Reply at page 12.
Section 78 Notice
On 10 December 2020 the insurer denied liability for the applicant’s neck, elbow, cervical spine, secondary psychological injury and “double crush phenomenon”.[32] It would seem that the declinature was on the strength of a report of Dr Shatwell dated 8 May 2020, who appeared to accept the bilateral carpal tunnel syndromes as being partly work-related.
[32] Reply at page 27.
Medical reports
Medical reports are available from the following treating doctors and independent medical examiners:
Dr U Dias
Dr Dias is a consultant occupational physician who saw the applicant on 25 March 2020 as arranged by the respondent. The purpose of the assessment was to determine the applicant’s fitness for her duties.[33] After reviewing radiological reports and a job task analysis as well as interviewing the applicant Dr Dias noted the carpal tunnel problems and the development of chronic neck pain, stiffness and discomfort, with the latter commencing in late 2014 or early 2015.[34]
[33] Application at page 92.
[34] Application at page 93.
Dr Dias noted in August and October 2019 the applicant underwent two cortisone injections in her cervical spine.[35] He also noted Dr Singh’s recommendation of a two-level anterior cervical fusion at C5/6 and C6/7.[36]
[35] Application at page 93.
[36] Application at page 93.
Following examination of the applicant, Dr Dias formed the view that the applicant was totally unfit for any form of employment for the respondent and this total incapacity would likely be permanent.[37] He expressed the view that the surgery proposed by Dr Singh was a reasonable option.[38]
[37] Application at page101.
[38] Application at page 102.
Although Dr Dias does not appear to comment on the causal relationship between the applicant’s work and her cervical spine problems, he does accept the existence of those problems and the need for surgery as a result of them.
It is significant in my view that in his report of 30 March 2020[39] Dr Dias diagnosed not only bilateral carpal tunnel syndrome but also radicular symptoms from chronic neck pain, more pronounced over the past two to three years.
[39] Application at page 88.
It is of some significance that Dr Dias, having looked at the imaging studies of the applicant’s cervical spine, expresses the opinion that “the proposed surgical intervention by Dr Singh would appear to be a reasonable option”.[40]
[40] Application at page 99.
Associate Professor Shatwell
Dr Shatwell saw the applicant by video link on 24 April 2020. He obtained a history concerning the carpal tunnel problems consistent with other medical reports and noted the referral of the applicant to Dr Hartin, neurosurgeon, who saw the applicant on 3 November 2015 and noted degenerative changes in the applicant’s cervical spine.[41] Various radiological investigations were considered by Dr Shatwell including MRI scans of the cervical spine.[42] Dr Shatwell thought there was “no characteristic of the work…likely to cause her cervical spondylosis”.[43] He did not think surgery was the preferred option at the time”[44] but also thought the applicant “may have relief of symptoms with the proposed procedure”.[45]
[41] Application at page 104.
[42] Application at page 108.
[43] Application at page 113.
[44] Application at page 114.
[45] Application at page 115.
I have difficulties accepting Dr Shatwell’s opinion on causation of the cervical spine condition for the following reasons:
(a) Dr Shatwell focuses on the likely cause of cervical spondylosis but adds that work performed after the applicant’s carpal tunnel surgery was light and not likely to cause any aggravation of her underlying cervical degeneration.[46] It is, however, unclear whether Dr Shatwell had in his possession the applicant’s statement dated 27 February 2020 outlining in detail her work over the years both
before and after her period of pregnancy and her carpal tunnel procedures. Dr Shatwell’s justification for the absence of the involvement of work in terms of the applicant’s cervical spine is the light work she performed after her operations. However, the operations occurred in April 2016, December 2016 and July 2017.[47] The applicant in the meantime had worked for the respondent from about January 2008 and as set out in the applicant’s submissions there were numerous references to the applicant’s neck disabilities from 2008, in 2009, 2012, 2013, 2015 and in fact ongoing complaints of neck symptoms up to and including examination by Dr R Rowe on 18 December 2015.[48](b) The applicant gives specific evidence concerning an incident lifting a heavy box in late 2013 or early 2014 from which time her neck symptoms became consistent rather than intermittent.[49] She says that she went to the medical centre at Woolworths and there are physiotherapy records from that centre to support attendances on 29 August 2013, 5 September 2013, 24 September 2013 and 27 December 2013. Because the respondent has been unable to produce consultation notes from that medical centre (as earlier mentioned) there is no challenge to the applicant’s evidence in this regard.
(c) Dr Shatwell’s opinion does not in my view adequately pay attention to the historical matters and complaints concerning the cervical spine, just mentioned. The carpal tunnel injuries appear to be first reported in April 2014 but from the applicant’s first year of employment there were symptoms in her neck and indeed in 2008 a specific neck injury.
[46] Application at p 110.
[47] Applicant’s statement at [76]-[77].
[48] Application’s submissions at pages 13-14.
[49] Application statement at [58]-[70].
Dr Dixon, orthopaedic surgeon
Dr Dixon saw the applicant at the request of her solicitors on 19 May 2010 and provided a report dated 3 June 2020.[50] Among Dr Dixon’s diagnosis[51] were aggravation of cervical spondylosis due to the nature and conditions of the applicant’s employment with foraminial stenosis and disk lesions at C5/6, C6/7 and C3/4.
[50] Application at page 115.
[51] Application at p 123.
Dr Dixon supports the need for cervical fusion as recommended by Dr Singh.[52] He thought a chance to return to pre-injury duties was poor other than perhaps work at a service counter of a Woolworths store where no heavy lifting or repetitive tasks were involved after her surgery. Dr Dixon confirmed that the applicant’s employment was a substantial contributing factor to her impairments.[53]
[52] Application at page 124.
[53] Application at page 126.
Dr Lim, general practitioner
Dr Lim has provided a report dated 30 October 2018. He noted that on 4 April 2014 the applicant reported that at work she injured her wrist, arm and neck from repetitive “picking”.[54] He felt that the history of the applicant’s work was consistent with employment being the main contributing factor to her injury.[55] He noted that the applicant had attempted to return to work on multiple occasions but each time the condition was aggravated by repeated hand use.[56]
[54] Application at page 145.
[55] Application at page 145.
[56] Application at page 147.
Dr B Singh
Dr Singh is the applicant’s treating orthopaedic surgeon and has provided a number of reports. He noted on 6 May 2019 that the applicant had undergone releases in both hands under the care of Dr M Smith.[57] Dr Singh also noted the disc bulging at C4 to C7 as well as stenosis at C4/5. He recommended injections from C5 to C7.[58]
[57] Application at page 148.
[58] Application at page 148.
Dr Singh reviewed the applicant on 14 January 2020 and recommended an updated MRI scan and dynamic cervical spine X-rays “for surgical planning”.[59] That scan by Dr Hunt showed protrusions at C6/7 with stenosis and likely contact of the exiting left C7 nerve root.[60] That led Dr Singh to propose surgery under cover of his quotation of 4 March 2020.[61]
[59] Application at page 152.
[60] Application at page 154.
[61] Application at page 155.
As early as 14 January 2020 and after the applicant’s epidural injections of 29 October 2019, Dr Singh noted persistent neck pain with “clunking”.[62] Following a further MRI scan of 24 January 2020[63] Dr Singh noted worsening of the disc bulging and recommended cervical decompression and fusion.[64] Significantly, following the insurer’s request for information Dr Singh expressed the view[65] that he would 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…”.
[62] Application at page 148.
[63] Application at page 150.
[64] Application at page 153.
[65] Application at page 468.
I accept the very logical point made by Dr Singh that notwithstanding the carpal tunnel surgery, the applicant still experienced worsening cervical spine symptoms which were consistent with the observed pathology on the later MRI scan.
Mount Druitt Medical Centre
Dr Yudelken in his referral to Dr Yee dated 15 April 2014 records a history from the applicant of intermittent paraesthesia in both of her hands over the previous two years.[66]
[66] Application at page 168.
Sydney West Sports Medicine
A number of reports from the physiotherapist are mentioned in the applicant’s submissions which concerned attendances complaining of neck pain between August 2013 and December 2013.[67]
[67] See for example Application at page 195.
Dr Yee
Dr Yee is a hand and wrist surgeon and provided some reports to the applicant’s general practitioner regarding his treatment of her carpal tunnel syndrome.
Dr Hartin
Dr Hartin is a spine surgeon who provided an opinion concerning the applicant’s carpal tunnel releases. He noted the MRI scan of the cervical spine performed on 22 September 2015[68] and expressed the view[69] “there may be some element of C7 radiculopathy which is also contributory”.
[68] Reply at page 81.
[69] Reply at page 82.
Dr Smith
Dr Smith is a hand and upper limb surgeon. He consulted with the applicant on 14 January 2019 and provided a report to her former solicitors on 4 February 2019.[70] That report deals with the applicant’s carpal tunnel syndrome. Dr Smith, however, recorded that the applicant had issues with her C5/C6 disc which were worth reinvestigating and expressed the view that the applicant “also has probable cervical spine problems which may also have been aggravated by her work”.[71]
[70] Reply at page 83.
[71] Application at page 466.
Dr Breit
Dr Breit is an orthopaedic surgeon who reported to the self-insurer on 10 July 2018. Dr Breit notes Dr Hartin’s suggestion of C6/7 compressive lesions but says “I doubt that is the case” without providing any explanation for that reasoning.[72]
[72] Reply at page 89.
Dr Millons
Dr Millons is an orthopaedic surgeon who saw the applicant and reported on 20 November 2018. He thought the applicant at that stage might be able to handle some light office or store base work perhaps four hours per day, five days per week with restrictions.[73]
[73] Reply at page 102.
Dr Rowe
Dr Rowe is an orthopaedic surgeon who saw the applicant at the request of the self-insurer on 17 December 2015. He thought there were degenerative changes in the applicant’s neck “but clinically this is not the cause of her symptoms”.[74] Dr Rowe saw the applicant again on 4 April 2017.
[74] Reply at page 107.
The need for surgery
The need for surgery has been dealt with in detail in Diab,[75] Rose,[76] and more recently by the President in Summers.[77] The overwhelming majority of medical opinion, including the opinion of the treating neurosurgeon and Dr Dias qualified by the respondent support that the surgery was reasonably necessary. Most of the medical practitioners acknowledge that there is cervical spine pathology that must be addressed and despite the applicant undergoing conservative measures for over six years, her condition has actually deteriorated. In my view the surgery proposed by Dr Singh to the applicant’s cervical spine is reasonable medical treatment as a result of her injury in the course of her employment with the respondent.
[75] Diab v NRMA Ltd [2014] NSWWCCPD 72.
[76] Rose v Health Commission (NSW) [1986] NSWCC 2.
[77] Summers v Sydney International Container Terminals Pty Ltd [2021] NSWPICPD 35.
Capacity
Weekly compensation payments are claimed between 8 October 2017 to 7 January 2019 at $560.50 per week (section 36) and from 8 January 2019 to 6 January 2021 at $472 per week pursuant to section 37. The applicant claims several injuries as particularised by reason of the nature and conditions of her employment and various work incidents from 1 January 2008 to 4 September 2018. The injuries are alleged to be both personal injury simpliciter (section 4 (a)) and/ or disease (section 4 (b)).
The applicant’s claim for weekly payments[78] 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.
[78] Applicant’s submissions at page 4 [1](b)(i).
In terms of the period of weekly payments made, medical certificates[79] diagnose “bilateral carpal tunnel syndrome, potential neck issue, adjustment disorder, right elbow strain”. These certificates concern the period 6 December 2017 to 24 April 2018, after which “cervical spine C6/7 herniation and left elbow strain” is added to the diagnosis.
[79] Application at page 789.
Dr Lim in his report of 30 October 2019[80] received a history from the applicant of wrist, arm and neck injuries at work on 4 April 2014, secondary psychological injuries from delay in treatment and chronic pain and a right elbow injury from over-compensation. Dr Lim thought that the applicant sustained injury to her neck and wrists “from the repetitive nature of her job for 12 years”.
[80] Application at page 142.
A schedule of medical certificates summarised in the applicant’s submissions[81] confirms the applicant’s unfitness for work up to and beyond the termination of her employment on 14 August 2020.
[81] Applicant’s submissions at pages 31-32.
Having regard to the overwhelming majority of medical opinion confirming the applicant’s various injuries and in particular her cervical spine and wrist injuries consequent upon the nature and conditions of her work, I am satisfied that the applicant is entitled to an award for weekly compensation, section 60 expenses and including a declaration that the surgery proposed by Dr Singh is reasonably necessary medical treatment to the applicant’s cervical spine which results from injury in the course of her employment.
FINDINGS
The applicant is not estopped by reason of the earlier Certificate of Determination – Consent Orders dated 4 April 2019 from proceeding with the claim for compensation in this matter.
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.
The applicant’s pre-injury average weekly earnings have been agreed at $590 per week.
The applicant had no capacity for work during the period.
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 section 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 section 37 of the 1987 Act in the sum of $472 per week.
The respondent is to receive credit for payments of weekly compensation made to the applicant from 8 October 2018 to date.
Award in favour of the applicant being a general award in respect of medical expenses pursuant to section 60 of the 1987 Act.
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 costs of and incidental to that proposed surgery.
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