McSharry v Crown Equipment Pty Ltd

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 the right ulnar nerve at the elbow.
While the respondent has continued to pay the applicant weekly compensation in respect of a secondary psychological injury, it disputes that the applicant suffered an injury to his right elbow in the course of his employment or that the surgery proposed by Dr Dowd is reasonably necessary as a result of employment injury.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims the cost of and incidental to the ulnar nerve surgery proposed by Dr Dowd. He alleges that the need for surgery relates to the nature of his employment.
By his Application to Resolve a Dispute (the Application), and the applicant describes his injury as follows:
“The applicant has suffered injury to his right wrist, right elbow and right shoulder as a result of the nature of his duties throughout the course of his employment which included heavy lifting and carrying, working in awkward positions while completing heavy work with his arms outstretched above him, heavy pushing and pulling, as detailed in his statement. The applicant developed consequential condition [sic] to his left wrist, left elbow, left shoulder and cervical as a result of overuse following the initial injury.”
It is alleged that the injury is a disease deemed to have occurred on 22 August 2018 for the purposes of ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act). This is the last day on which the applicant performed the full duties of a mechanic/technician.
As the applicant does not seek compensation in respect of any body part other than his right arm, I intend to strike out the references to the shoulders, cervical/neck and left elbow and wrist in the Application.
When the matter came on for conciliation and arbitration on 12 December 2022, Mr Tanner, of counsel, appeared for the applicant and Mr Gaitanis, of counsel, appeared for the respondent. I was informed by counsel that the parties were unable to reach agreement on the threshold issue of whether the applicant had suffered an injury to his right elbow in the course of his employment and, if so, whether the operation proposed by Dr Dowd was necessary as a result of that injury. It was common ground, however, that the surgery proposed was reasonably necessary medical treatment.
Both at the preliminary conference and during conciliation, I have used my best endeavours to bring the parties to a settlement of the dispute. I am satisfied that they had ample opportunity to consider settlement but were unable to agree on a mutually acceptable outcome.

EVIDENCE

The documents before the Commission are:
(a)    the Application and the documents attached;
(b)    the Reply and the documents attached, and
(c)    an Application to Admit Late Documents dated 14 November 2022 which contained a supplementary report of Dr Dudley O’Sullivan, a neurologist, of that date.
There was no objection to any of the material referred to above and no application by either party to adduce further evidence at the arbitration hearing.
Before attempting to resolve the issues in dispute, I compendiously set out the evidence of the applicant and of the qualified medical practitioners, Dr Assem, an occupational physician, in the applicant’s case and Dr O’Sullivan in the respondent’s case. What follows is not a comprehensive survey of that evidence. Rather, I set out the salient points so that the parties may understand the way in which the Commission resolved the dispute.

Applicant

The applicant’s evidence is contained in a signed statement of 21 September 2022. He recounts that he commenced work with the respondent in September 2010. He recounts that his work was physically arduous. In the course of his work as a mechanic and technician, he was required to carry forklift components, large batteries, motors, tool bags and a lifting jack to and from his van. At job sites, he was required to work in an awkward position inside and under the forklift. The use of a jack to lift the forklifts off the ground and the loosening and tightening of forks and screws with his right arm “required significant force and pressure”.
The applicant states that he was also required to use a manual hand press grease pump gun. He was required to repetitively press the pump to release the fluid. He continues:
“I would need to squeeze the pump over a hundred times to release enough fluid, depending on the machine. I would also need to regularly use the pump by pressing down on it. This work would cause a lot of pain and fatigue in my hands and elbows where I would need to switch between hands often once one became too sore.”
The applicant says that the removal of batteries from forklifts also involved significant effort with his hands and arms. He says that the process left him with the sensation that his arms “had been pulled and stretched longer”.
The applicant states that on 22 August 2018, he was using a screwdriver when undertaking maintenance on a forklift. He states that this required significant force. He continues:
“I felt a sharp stabbing pain which shot up through my right palm, wrist and forearm up towards my elbow and from my elbow to all five fingers. I experienced numbness and pins and needles.”
On the following day he saw his general practitioner Dr Shinwari who certified him as unfit for work. He was certified fit for light duties on 4 September 2018.
While he was initially provided with clerical duties by the respondent, he was subsequently required to perform the stripping of old forklifts. He says that he attempted to perform this work with his left hand and, approximately six months after the injury to his right arm, he also noticed intermittent pain and numbness in the left hand. Despite the assistance from labourers, his symptoms deteriorated over the next 12 months and he eventually returned to office duties.
The applicant says that he initially saw Dr Dowd on 29 January 2019 who treated him with hand therapy and the trial of a splint on his right hand and wrist. On 26 March 2019, he received a steroid injection into the right carpal tunnel. These treatments did not alleviate his symptoms. The applicant states that as his condition deteriorated he saw Dr Dowd again on 7 May 2019. He was referred for an ultrasound of the cubital fossa after which Dr Dowd recommended a trial of ulnar nerve glides to the subluxation of the applicant’s cubital fossa.
When the nerve glides failed to cause any amelioration of the applicant’s symptoms, Dr Dowd recommended that he undergo right carpal tunnel and right cubital tunnel release and tenolysis of the ulnar nerve.
The applicant says that he underwent the right carpal tunnel and cubital tunnel releases on 17 February 2020 at Westmead Hospital. However, this did not cure his symptomatology. Following the surgery, he was prescribed Lyrica and Endone to manage his pain. The applicant states that he also developed symptoms in his shoulders and cervical spine.
Although he returned to selected duties five hours a day three days per week following surgery, he was unable to maintain this regime. On 23 March 2020, he was certified as unfit for work as he experienced “excessive pain at the injured areas after 20 minutes”.
The applicant says that his mental health also deteriorated. He was referred to a psychologist. He was also referred for further ultrasounds of his left elbow. As he was experiencing pain over the right wrist, he also underwent an MRI on 6 July 2021 to investigate “a possible TFCC injury”. He continues to be certified unfit for work by Dr Shinwari.
In respect of his present symptoms, the applicant states:
“I suffer numbness in the tops of my right and left fingers and pins and needles. I experience weakness in gripping and carrying items and loss of movements of my hands, fingers and arms.”
The applicant says that he has weak arm all strength and the movements of his arms cause pain and “clicking and flicking noises” in the wrist area when moving it. He recounts that he experiences pain in his fingers, palm, wrist and forearm when using the two little fingers of his right hand. He finds it painful to put pressure on his right hand and palm.
The applicant also recounts that he has significant neck and right shoulder pain. He is unable to complete most domestic activities. He states:
“If I try to do something, it causes increased pain which lasts for a number of hours before it begins to settle down.”
Even brief use of his hands can cause pins and needles. He suffers from hand tremors when using or holding a pen or fork.

Dr Assem

Dr Assem saw the applicant at the request of his solicitors on 16 February 2022. He recorded a history that the applicant developed symptoms while exerting pressure with a screwdriver at the end of an 11-hour shift on 22 August 2018. He experienced symptoms in his right wrist radiating up to the volar aspect of his forearm and pins and needles involving his entire right hand and forearm.
Dr Assem recorded a consistent history of the applicant’s medical treatment noting that he had some improvement in the sensory symptoms in his right hand following the carpal tunnel release performed by Dr Dowd on 17 February 2020. On examination, he recorded wasting of the thenar and hypothenar eminence of both hands, more prominent on the right and a 50% reduction of grip strength on the right compared to the left. He recorded the following diagnosis:
“Mr McSharry sustained a work-related injury to his right wrist and forearm while forcibly screwing in a metal panel on a forklift. As a result, he developed symptoms consistent with median nerve compression at the carpal tunnel that was confirmed on electrophysiological studies. In addition, he has ulnar nerve compression within the cubital tunnel associated with subluxation of the ulnar nerve over the medial epicondyle, thickening of the ulnar nerve and electrophysiological studies of mild ulnar nerve neuropathy.”
Dr Assem expressed the opinion that as the applicant had none of the usual constitutional factors predisposing to carpal tunnel syndrome, it was probably causally related to the nature of his employment. He thought that he developed ulnar neuropathy secondary to subluxation of the ulnar nerve at the same time. It was also precipitated by the forced pronation of his forearm while trying to screw in the metal panels. He thought there was a:
“clear temporal relationship between the mechanism of injury described, symptoms reported, and the nature of the underlying pathology.”
In respect of the need for surgery, Dr Assem said this:
“There are several treatment options available to the treating surgeon. The right submuscular transposition is often chosen as it is a simpler procedure and more likely to result in an early return to previous activities.”

Dr Dudley O’Sullivan

Dr O’Sullivan initially saw the applicant on 31 July 2019 at the request of the respondent’s insurer. By a report of 13 August 2019, he recorded a history that is subtly different to that recorded by Dr Assem. He reported that:
“After screwing about six screws, he developed a severe stabbing pain in the palm of his right wrist which went up to the anterior wrist to the mid forearm. He was immediately aware also of a numbness which involved all fingers as well as the thumb and the anterior forearm.”
Dr O’Sullivan recorded that in early 2019 the applicant experienced a weakness in the grip of his right hand as well as complaining of persistent numbness in all fingers except the thumb. He noted that in May 2019, Dr Dowd observed weakness of the ulnar nerve supplied muscles of the hand with a positive Tinel’s sign of the right cubital fossa.
Dr O’Sullivan thought that the applicant had clear evidence of a right ulnar nerve lesion at the elbow. He continued:
“I have read the report by Dr Dowd, in which he initially thought he had a right carpal tunnel syndrome, and from the history I would have thought that was the case. However, he has subsequently developed evidence now of a right ulnar nerve lesion at the elbow, the precise reason I find difficult to explain having noted the history which was initially in his right palm.”
Dr O’Sullivan recommended that the applicant undergo further investigations. He thought it would be unusual for “such a young person to have a significant ulnar nerve lesion without actual trauma to the nerve”. He added:
“Why the nerve should be thickened and subluxate with elbow flexion is difficult to substantiate because the injury was originally to the palm of the hand; however, there is no doubt that he has the right ulnar nerve lesion and will probably require decompression, but I would like to see further nerve conduction studies as well as an MRI scan as stated.”
Dr O’Sullivan continued thus:
“I can only conclude that work has been a substantial contributing factor to his injury because he first developed symptoms with regard to his right hand while using a screwdriver. I do not think that the same condition would have developed if he had not been performing that duty. It is possible that the rotation movement of his right hand when using the screwdriver could have caused some traction with regard to the flexor carpi ulnaris muscle as it arises from the elbow, producing the injury to the ulnar nerve.”
By a further report of 26 September 2019, Dr O’Sullivan addressed concerns raised by the respondent’s insurer as to the relationship between the applicant’s injury and the development of an ulnar neuropathy. He reiterated that he thought that the use of a screwdriver repetitively caused or contributed to the development of a mild right carpal tunnel syndrome and a mild right ulnar nerve abnormality. However, he thought that in view of the fact that an MRI study of 2 September 2019 demonstrated no compression of the nerve in the cubital fossa that surgery was unnecessary.
By a further report of 18 December 2019, Dr O’Sullivan expressed the opinion that it was appropriate that the applicant undergo a carpal tunnel release in view of his persistent symptoms relating to the wrist.
By a further report of 18 June 2020, Dr O’Sullivan noted that the applicant had undergone a right cubital tunnel release and a right carpal tunnel release and that both median and ulnar nerve symptoms improved significantly in the initial post-operative period. He observed that at surgery it was established that there was compression of the ulnar nerve as it exited the cubital tunnel. On that basis, he thought that both the decompression of the right ulnar nerve and the cubital fossa was reasonably necessary.
In response to a question from the insurer as to the causal nexus between injury on
22 August 2018 and the onset and detection of symptoms from the cubital tunnel compression of the ulnar nerve, Dr O’Sullivan said this:
“In regards to the cubital tunnel syndrome I do not think it related in my view to the subject injury. In the mechanism of his injury when using a screwdriver he developed severe stabbing pain in the palm of his right hand which went up the anterior wrist into the forearm. Nerve conduction studies were done on 10 September 2018 which revealed a carpal tunnel syndrome only. I would agree that it was necessary for him to undergo the right carpal tunnel release. I also note the fact that when Dr Dowd originally saw him, he had no symptoms to indicate the presence of a right ulnar neuropathy. Therefore, it is my opinion that the 8-10 months between his carpal tunnel syndrome and the onset of his cubital fossa symptoms would not in my view, relate to his right cubital fossa syndrome. It is well-recognised in neurological literature that patients can develop evidence of a right ulnar nerve lesion at the elbow without actual any injury. The injury in this accident only was to his palm and there was no injury as far as the elbow is concerned. Therefore, I do not think that his right cubital tunnel syndrome is related to the work accident.”
Subsequently, Dr O’Sullivan states that it is well-known that a patient can have a “relatively normal conduction despite a compression of the right ulnar nerve in the cubital fossa”. Nonetheless, he reiterates that he does not think that the right ulnar nerve lesion was related to the injury on 22 August 2018.
Dr O’Sullivan saw the applicant again on 3 November 2021 and provided a report of 17 November 2021. Dr O’Sullivan recorded that the applicant had developed widespread symptoms in both arms including his shoulders and in his cervical spine. On examination, he found mild wasting and weakness of the ulnar nerve that supplied muscles of the right hand but not of the left hand. On sensory examination, he had reduced pinprick sensation in the distribution above ulnar nerves which the doctor stated was the right “5^th and ring finger extending up the wrist on both sides”. There was a positive Tinel’s sign of the right wrist and the right ulnar nerve was tender to palpation. There was a positive Tinel’s sign at the right wrist and both elbows.

Dr O’Sullivan reiterated his opinion in respect of causation. He stated that the work the applicant was performing on 22 August 2018 would have precipitated right carpal tunnel syndrome. However, it would not have produced ulnar nerve abnormalities. He stated:
“I consider that his ulnar nerve symptomatology is constitutional in origin, that is that the nerve can be subluxated across the elbow with extension.”
Dr O’Sullivan also expressed the opinion that the main barrier for precluding the applicant from returning to work was constant pain for which there was no precise explanation. However, it did not relate to the work injury. He thought that it may be appropriate for the applicant to see a pain specialist. He did not think that the further surgery proposed by
Dr Dowd was reasonably necessary as a result of the work injury.
By a further report of 14 November 2022, Dr O’Sullivan responded to an enquiry by the respondent as to the basis for his change of opinion in respect of causal nexus. He states:
“In answer to the specific question why there was a discrepancy between the reports of 13 August 2019 and 26 September 2019 and the reports later that is, in June 2020 and November 2021, as a result of reviewing all documentation, and in particular my repeating of an independent medical examination in November 2021, which indicated to me there was no relationship between his right ulnar nerve abnormality and his original hand injury.”
He expressed the opinion that the surgery proposed by Dr Dowd in respect of the applicant’s right ulnar nerve lesion was reasonably necessary but did not result from his employment. There was no evidence to indicate that:
“the mechanism of the injury to his right carpal tunnel was as a result of using the screwdriver, in any way would have induced the onset of a right ulnar nerve lesion.”

SUBMISSIONS

The submissions of counsel are recorded and I do not propose to reiterate each of their arguments in these short reasons. Mr Gaitanis submitted that the evidence, including the medical record demonstrated that symptoms of ulnar neuropathy did not commence for many months after the incident of 22 August 2018. There was no explanation in the evidence how work performed by the applicant on 22 August 2018 could produce symptoms in the region of the elbow in early 2019. He relied on the opinion of Dr O’Sullivan. He submitted that Dr Assem had an inaccurate history that the development of symptoms and that his opinion should be discounted for that reason.
Mr Tanner submitted that the orthopaedic surgeon Dr Dowd had the advantage of treating the applicant over a long period and operating on his elbow. His opinion that there was a causal nexus between the applicant’s work and his elbow symptoms should be preferred. On the other hand, Dr O’Sullivan had changed his opinion on causation during the course of the applicant’s illness and that undermined the value of his opinion.
Mr Tanner submitted that the injury on which the applicant relied was the nature of his employment generally. The manifestation of symptomatology in the applicant’s right arm on 22 August 2018 was merely an aggravation or end process of a disease. In concentrating on a specific injury on 22 August 2018, Dr O’Sullivan failed to address an important aspect of the applicant’s case. This also undermined his opinion on causation.
Mr Tanner argued that the fact that the there was no confirmation of ulnar pathology until May 2019 did not inevitably lead to a conclusion that symptoms did not exist at an earlier time. Further, the absence of elbow pain following the injury did not negative the presence of ulnar pathology.

DISCUSSION AND FINDINGS

There is no doubt, as Mr Tanner submitted, that Dr Dowd, the treating hand surgeon, is firmly of the opinion that there is a causal connection between the applicant’s work and the development of his right cubital tunnel syndrome. By a report dated 17 April 2020, he addresses a question posed by the applicant’s solicitor as to causal nexus. He states:
“The history of the patient’s injury is well documented by all the clinicians involved in his case. He was at the time a 35 year-old right hand dominant forklift technician and had a work-related accident on 20 August 2018 when he was pushing a screwdriver and had very sudden onset of pins and needles right medial three digits. It woke him at night, and he began to experience paraesthesia in the third web space. He did not improve; he had an MRI of his median nerve which was normal, and he also had nerve conduction studies which demonstrated decreased amplitude of the second and third digits consistent with his symptoms. He had a positive Tinel’s and Phalen’s signs on the right. He then had a corticosteroid injection into the right carpal tunnel which made a little bit of difference.
At some stage in March he began to develop the symptoms of right cubital tunnel syndrome with weakness in the digits and paraesthesia in the ulnar one and a half digits and he had a positive Tinel’s sign right cubital fossa. An ultrasound in May was suggestive of right cubital tunnel syndrome and I organised for him to have hand therapy with Kate Lenehan which included nerve guides.”
In a subsequent report of 9 July 2020, Dr Dowd says that he disagrees with the opinion of
Dr O’Sullivan that the applicant’s right cubital tunnel syndrome was not work-related. He states:
“It is an established mechanism of constantly supinating wrist combined with elbow flexion which results in chronic translational movement of the right ulnar nerve within the cubital tunnel. Although there was a temporal delay to the development of the cubital tunnel syndrome, I believe that it is work-related.”
Subsequently, he said this:
“It is not farfetched to suggest that the repetitive use of screwdrivers over a long period of time as well as the more acute side of his injury could produce cubital tunnel syndrome.”
By this report, he also expresses his agreement with the opinion of Dr O’Sullivan that the nerve conduction studies “do not always disprove cubital tunnel syndrome”. He noted that both the clinical signs and the MRI scan were supportive of this condition. He expressed the opinion that the symptoms of carpal tunnel syndrome had fully resolved.
As Dr Dowd recognised the contemporaneous evidence does not confirm the presence of cubital tunnel syndrome in the months following the injury. The applicant completed a claim form on 5 September 2018 by which he reported that he suffered injury whilst using a screwdriver in his right hand on 22 August 2018. He described what happened as follows:
“Screwdriver pushed into hand and felt pain shoot threw palm, middle two fingers and thumb.”
In response to a question as to which part of his body was affected by the accident/injury, the applicant wrote:
“Numbness and pins and needles feeling in palm, middle two fingers and thumb.”
Dr Shinwari, the applicant’s treating general practitioner, provided reports to his solicitor dated 23 April 2020 and 30 November 2021. By the first of these reports he reported that the applicant presented with an injury “to right hand (Median Nerve)” while using a screwdriver at work. He reported numbness over the second, third and fourth fingers. As examination of the right median nerve did not confirm an abnormally, he was advised to rest and observe the condition.
Dr Shinwari records that the applicant presented again on 4 September 2018 “with persistent symptoms of right distal median nerve compression”. A nerve study confirmed a right distal median nerve neuropathy.
The doctor reports that as the applicant was not making progress and as the pain was also affecting his forearm and right elbow a referral was written to Dr Dowd on
20 December 2018. Dr Shinwari thought that cubital fossa syndrome was “the correct diagnosis”.
By a supplementary report, Dr Shinwari noted that further treatment for the injury was complicated as the applicant had:
“developed identical problems in his left wrist and left cubital fossa, he also developed depression with suicidal thoughts.”
This evidence strongly suggests that in the months following the injury the applicant experienced symptoms in his right hand that were consistent with a compression of the median nerve. Conversely, it does not suggest compression of the ulnar nerve. This may be consistent with the history recorded by Dr O’Sullivan in July 2019 that the applicant noticed symptoms in all the fingers of his right hand in “early 2019”. Dr Dowd recorded in his report of 17 April 2020 that the applicant developed symptoms of right cubital tunnel syndrome at “some stage in March” 2020. Taken as a whole the evidence suggests that some six months elapsed between the time he last performed the full duties of a technician and the onset of symptoms of ulnar nerve compression at the elbow.
A temporal gap between injury and the onset of symptoms is not generally conducive to a finding of causal nexus. The greater the interval between the incident and the first report of symptoms, the more difficult it becomes to be confident of a causal nexus. There are several reasons for this. First, it is often difficult to understand as a matter of common sense why symptoms should arise many months after injury. Secondly, inconsistency between the clinical record and the evidence of the worker may give rise to issues of credibility. Thirdly, in many cases, there is no expert evidence which specifically addresses the issue of why symptoms should arise at a time remote from the injury.
The second and third reasons referred to above are not applicable in this case. It is not suggested that the applicant’s credit is an issue. Dr Dowd is acutely aware of the interval between the time when the applicant ceased work and the manifestation of clearcut symptoms of cubital fossa syndrome in the right upper extremity. As I have recorded above the doctor stated that he did not observe significant decreases in strength of the ulnar innervated muscles on 27 March 2019. None the less, he is of the opinion that the nature of the work performed by the applicant over a period of some seven years was the cause of the dysfunction of his ulnar nerve at the cubital fossa.
Plainly, Dr Dowd is of the opinion that the nature of the work performed by the applicant over this period involved the type of physical activity which cumulatively injured the ulnar nerve. He states that constantly supinating wrist combined with elbow flexion in the course of his work resulted in “chronic translational movement of the right ulnar nerve within the cubital tunnel”.
While the matter is certainly not free from doubt, I have concluded that I should accept the opinion of Dr Dowd on the issue of causal nexus between injury and the onset of ulnar nerve symptoms at the cubital fossa. Dr Dowd, as the treating orthopaedic surgeon, has the advantage of having seen the applicant on many occasions and operating on his right wrist and elbow. This, however, is of only minor importance in this case.
Dr O’Sullivan is a highly respected neurosurgeon. The fact that, on review of the evidence, he has altered his opinion as to causation does not in the circumstances of this case detract from the force of his opinion. He has, however, assumed an injury that is confined to the work that the applicant was performing on 22 August 2018. He states that the symptoms in the applicant’s elbow are in no way related “to the original injury of his right hand on
22 August 2018”(My italics). He does not specifically reject Dr Dowd’s theory that the nature of the work performed by the applicant over several years is a relevant causal factor in the onset of his cubital fossa syndrome.
Dr O’Sullivan comments that a patient may experience cubital fossa syndrome without trauma and I accept this evidence. However, the applicant describes consistently performing work over a long period of time which involves the very movement of the right elbow which is likely to cause cubital fossa syndrome. On balance, that also weighs in favour of an acceptance of Dr Dowd’s opinion in this case. A finding of causal nexus in a personal injury case , of course, involves consideration of both the medical and lay evidence.

I accept that the opinion of Dr Assem is of little assistance in the circumstances of the case as it is clearly predicated on an incorrect assumption as to the time at which symptoms and signs of the cubital fossa syndrome were first apparent. However, as I accept the opinion of Dr Dowd, I propose to find that the applicant’s right cubital fossa syndrome is causally related to the nature of his employment over the years. The deemed date of injury for the purposes of the 1987 Act is 23 August 2022 the first date of incapacity.
There are some aspects of the applicant’s presentation, including wide spread symptoms at many parts of his body, which suggest that surgery may not be a remedy for all of his difficulties. However, there was no dispute at the arbitration hearing that the surgery proposed by Dr Dowd to the applicant’s right elbow is a reasonable form of treatment for the condition. Accordingly, I propose to find that the sub-muscular transposition of the right ulnar nerve at the elbow proposed by Dr Dowd is reasonably necessary medical treatment in accordance with s 60 of the 1987 Act.

[2023] NSWPIC 21

18 January 2023