McSharry v Crown Equipment Pty Ltd - [2023] NSWPIC 21

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McSharry v Crown Equipment Pty Ltd [2023] NSWPIC 21
APPLICANT:	Daniel McSharry
RESPONDENT:	Crown Equipment Pty Ltd
Member:	Paul Sweeney
DATE OF DECISION:	18 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim by worker for cost of surgery to the ulnar nerve at the elbow; employer disputed that the need for surgery resulted from employment injury; while the worker displayed clear-cut signs of median nerve compression at the wrist following the injury, he did not develop symptoms of ulnar nerve compression until several months after the cessation of the work which allegedly caused the condition; discussion of importance of temporal gap between injury and the onset of symptoms; despite the interval between cessation of work and manifestations of ulnar nerve symptoms opinion of applicants treating hand surgeon that there was a causal nexus between work and ulnar nerve compression accepted in preference to respondents qualified neurologist; Held – respondent ordered to pay the costs of and incidental to the ulnar nerve surgery.
determinations made:	1. Amend the Application to Resolve a Dispute herein by deleting reference to all body parts other than the right upper extremity. 2. As a result of the nature of his employment on and prior to 22 August 2018 the applicant suffered injury to his right ulnar nerve. 3. The deemed date of injury for the purposes of the Workers Compensation Act 1987 is 23 August 2018. 4. As a result of that injury it is reasonably necessary that the applicant undergo a sub-muscular transposition of the right ulnar nerve at the elbow as proposed by Dr Dowd. 5. Order the respondent to pay the costs of and incidental to that surgery in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Daniel McSharry (the applicant) was formerly employed by Crown Equipment Pty Ltd (the respondent) as a forklift mechanic and technician. In 2018, during the course of that work, he experienced pain in his right wrist and forearm. His treating medical practitioners concluded that he probably suffered a right median nerve neuropathy at the carpal tunnel as a result of the nature of his employment. Despite extensive conservative treatment, the applicant’s right forearm symptoms did not improve.
On 7 May 2019, Dr Michael Dowd, a hand surgeon, reported that the applicant had signs of cubital fossa syndrome at the right elbow. This was confirmed by an ultrasound of the right cubital tunnel on 10 May 2019.
On 17 February 2020, Dr Dowd performed a release of the median nerve at the right carpal tunnel and of the ulnar nerve at the right cubital tunnel at Westmead Hospital. While the applicant returned to part-time light duties and following the surgery, his symptoms persisted. He also developed increasing symptoms in his left upper limb. An ultrasound suggested that he had a lesion of the ulnar nerve at the left elbow.
On 10 August 2021, Dr Dowd recommended that the applicant undergo a right sub-muscular transposition of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 21
Decision Date: 18 January 2023

CaseChat Overview and Summary

McSharry brought a claim against Crown Equipment Pty Ltd for the cost of surgery required to treat ulnar nerve compression at the elbow, which he alleged resulted from an injury sustained during his employment. The employer disputed that the need for surgery was a consequence of the employment injury, arguing that the worker did not develop symptoms of ulnar nerve compression until several months after he had ceased the work in question. The primary legal issue before the court was whether there was a causal connection between the employment injury and the worker’s subsequent need for surgery to address ulnar nerve compression.

The court considered the temporal gap between the employment injury and the onset of ulnar nerve symptoms, as well as the differing opinions of the worker’s treating hand surgeon and the employer’s qualified neurologist. The hand surgeon maintained that there was a causal nexus between the employment injury and the ulnar nerve compression, despite the interval between the cessation of work and the manifestation of symptoms. The employer’s neurologist, on the other hand, did not accept this causal connection. The court accepted the opinion of the treating hand surgeon, finding that there was a sufficient causal link between the employment injury and the need for surgery, and ordered the employer to pay the costs of the surgery and related expenses.

Orders