Meyers v Ampol Retail Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Meyers v Ampol Retail Pty Ltd [2023] NSWPIC 680
APPLICANT:	Melanie Meyers
RESPONDENT:	Ampol Retail Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	19 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for costs of right trigger finger surgical decompression; applicant claimed to have sustained “disease injury” pursuant to section 4(b)(i) as a result of employment as a barista; respondent disputed that the applicant had sustained injury; respondent did not dispute that the proposed medical treatment was reasonably necessary; consideration of AV v AW; applicant sustained “disease injury” pursuant to section 4(b)(i); Held – award for applicant pursuant to section 60 for the costs of proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987, being the costs of right trigger finger surgical decompression.

STATEMENT OF REASONS

BACKGROUND

The applicant, Melanie Meyers (Ms Meyers) was employed by the respondent, Ampol Retail Pty Ltd (Ampol), as a barista.
Ms Meyers claims to have sustained a “disease injury” to her right thumb, deemed to have happened on 1 March 2021.
It has been recommended that the applicant undergo surgery in the form of right trigger finger surgical decompression.
On 19 May 2022, the respondent’s insurer, Insurance and Care NSW (iCare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), for carpal tunnel syndrome (CTS). The notice, however, also referred to right thumb trigger finger.
The notice stated that iCare disputed liability for the applicant’s claim for ongoing incapacity due to CTS; and her claimed right thumb trigger finger.
By letter dated 4 August 2023, the applicant’s solicitors requested on her behalf a review of iCare’s decision.
On 18 August 2023, iCare/EML issued the applicant with a notice pursuant to s 287A of the 1998 Act, maintaining the decision dated 19 May 2022.
The applicant lodged an Application to Resolve a Dispute (the Application) on
31 August 2023.
The applicant claimed to have sustained a disease injury, deemed to have happened on
1 March 2021.
The applicant claimed that her employment at the particular store was extremely demanding. She was required to temper the coffee, which involved forceful pressure on the machine, using the palm of her right hand, and she used her left hand to hold the milk jug.
Over time, the applicant began to experience pain and swelling at the base of her right thumb, as well as pain in the palm of her right hand. She was diagnosed with CTS and underwent right open carpal tunnel decompression.
It had been recommended that the applicant undergo a right thumb trigger finger release, as she had developed those symptoms as a consequence of her CTS and surgery.
The applicant claimed the sum of $1,269, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) being the costs of right trigger finger surgical decompression.
The respondent lodged its Reply on 22 September 2023.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remain in dispute:
(a)    whether the applicant has sustained injury to her right thumb, arising out of or in the course of her employment with the respondent;
(b)    whether employment was a substantial contributing factor to injury (as the matter proceeded it became apparent that this was not relevant), and
(c)    whether the proposed medical treatment is reasonably necessary as a result of injury. The respondent did not dispute that the treatment was reasonably necessary but did dispute that the necessity for the treatment resulted from the claimed injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for conciliation/arbitration hearing, by the Teams platform, on
21 November 2023. Mr Ty Hickey of counsel, instructed by Ms Almaet, appeared for the applicant, who attended by phone. Mr Stiles of counsel, instructed by Ms Middleton, appeared for the respondent. Ms Chung of EML also attended.
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) Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Melanie Meyers

Ms Meyers’ statement is dated 31 August 2023.
She commenced employment as a customer service assistant with Ampol at Luddenham home store in around February 2018. She would need to constantly pick and move boxes of beer.
She was later transferred to the Edmondson Park store as a lead barista. She would work at a fast pace, completing countless coffee orders. She was required to temper the coffee, which involved forceful pressure on the machine, using her right hand. Over time she began to experience pain and swelling at the base of her right thumb, and pain, which felt like pins and needles, in the palm of her right hand.
A safety visit was completed by Mr Terry Fong. She mentioned her symptoms and he recommended that she attend Injury Assist to report to them. She was not looking to have her symptoms investigated as a workplace injury, but reported them to Injury Assist, as directed.
She underwent X-ray of her right index finger on 18 September 2019, and her radiologist recommended that she undergo ultrasound.
She consulted her general practitioner (GP), Dr Peter Clarke, on 20 September 2019, and he provided a referral for ultrasound of her right hand.
She underwent the ultrasound on 3 October 2019. It did not reveal significant pathology. She returned to Dr Clarke on 15 October 2019, as she was having trouble with her right index finger, and he provided her with a referral for MRI.
She underwent MRI of her right index finger on 6 November 2019.
She returned to Dr Clarke on 15 May 2021. She explained she had ongoing symptoms with her right hand, and she had been busy at work, which had increased her pain. Dr Clarke referred her for ultrasound of the median and ulnar nerves.
She underwent the ultrasound on 31 May 2021.
On 16 June 2021, she underwent a cortisone injection to her right wrist. This provided only temporary relief, and she therefore returned to Dr Clarke on 21 June 2021. He advised that she needed nerve conduction studies.
In around early August 2021, she was transferred to the role of team leader at the Boost area of the store. Given the symptoms in her right hand and wrist, she relied primarily on her left side. Her duties included making drinks, which involved scooping ice cream and other ingredients, spooning it into the mixers, shaking them to get the ingredients out of the jug, lifting, and pouring the mixers into the cups.
She underwent nerve conduction studies on 20 August 2021. They revealed moderately severe CTS on the right.
She consulted Dr Clarke on 30 August 2021. She had pain in her left shoulder as she had been favouring [sic] that arm because of her right wrist injury. Dr Clarke provided her with a local anaesthetic injection and a prescription for Prodeine tablets.
On 7 September 2021, Dr Clarke referred her to orthopaedic surgeon Dr Sherif Rizkallah for her ongoing right wrist symptoms.
She first consulted Dr Rizkallah on 15 September 2021. He recommended that she undergo right open carpal tunnel decompression.
She underwent right open carpal tunnel release on 22 October 2021 at Minchinbury Hospital. Her symptoms improved after recovering from surgery, and she was eventually certified fit for suitable duties.
She returned to work, where she continued to be certified fit to work only with her left hand. During the Christmas 2021 period, there was less staff, due to a combination of them taking leave or being unable to work due to COVID-19. Her manager was also on leave. Ampol did not have any staff to replace them. She therefore needed to work additional hours.
As she continued to work, the pain, swelling, and tenderness increased, as well as a pins and needles feeling.
She took around three weeks leave from 17 January 2022, as her “back gave way”. She used her sick leave and annual leave. She never reported her leave or condition as being work related. She returned to work full time with no restrictions for any back condition.
She returned to Dr Rizkallah on 9 March 2022. He recommended she undergo surgical decompression of the right trigger finger.
Her employer told her to speak with the company doctor, Dr Semini Wickramatunga, whom she saw by telehealth on 11 March 2022. She recommended that she splint the thumb and see her family GP.
She consulted Dr Clarke on 15 March 2022. She advised him that she had increased symptoms with her trigger finger. He referred her for ultrasound of her right thumb, which she underwent on 17 March 2022.
On 6 April 2022, Dr Rizkallah submitted a report to iCare, noting that the problems in her right hand were a consequence of work injuries that involved excessive manual use. As a result, she had developed CTS and triggering in her right thumb. He opined that her work duties were the only contributing factor to her problems and the need for surgery.
ICare arranged for her to undergo medical examination with Dr [sic: Associate Professor] Paul Miniter on 8 April 2022. He opined that her carpal tunnel was not work-related, and since she had not recovered, she had developed an FPL (flexor pollicis longus) triggering effect, which was also not work-related.
On 19 May 2022, she received correspondence from iCare declining liability for her injury. Her weekly payments and medical expenses ceased, and she could not proceed with her surgery.
She was promoted to full time assistant manager until her employment was terminated in June 2022.
She gained employment with IGA as a customer service assistant. This required the repetitive lifting of boxes, which aggravated her right thumb pain, so she ceased work on
1 November 2022.
After she ceased work, she noticed the pain involving her right thumb reduced. She still had triggering in the early morning, as well as weakness.
She was reviewed by Dr Mohammed Assem on 12 December 2022.
She commenced employment with Michael Hill on 13 December 2022. She felt it was easier to manage her condition in a way she could not at Ampol.
She continued to have pain in her right hand, especially her right thumb. The pain radiated from her thumb to her wrist. This caused constant pain and she could not complete a lot of her daily duties with her right hand, due to the right thumb triggering.
She required pain medication regularly to help manage her symptoms.
She could not visit her doctors, as she could not afford their fees.
She had weakness in her hand and at her thumb, and any movement caused a triggering reaction that could only be released with manual force.
She relied on her children to complete the heavier household chores. She could not complete the lawns and outdoor maintenance since the vibration ran through her hands and caused significant pain. She had trouble gripping and holding things with the thumb and finger on her right hand, making it hard to do any housework.

Medical evidence

Penrith Medical Centre

The records are extensive, although many entries contain no detail, and it is not my intention to refer to every entry.
On 15 May 2021, Dr Clarke recorded that the reason for the applicant’s visit was “URTI (upper respiratory tract infection)/? Carpal tunnel r (right)”. There was a description of her respiratory symptoms, but not of any symptoms in or examination of her right hand.
Dr Clarke referred the applicant for “Ultrasound scan – median nerve R (assumed to mean radial), Right, Ultrasound scan – ulnar nerve R (? Carpal tunnel ? radial nerve entrapment).”
On 16 June 2021, Dr Clarke recorded that the applicant was seen for review of path[ology] and back pain. She had been on Voltaren Oxycontin. She needed a certificate for work. She was moderately distressed.
Dr Clarke injected the applicant’s right sacroiliac joint area. He discussed with her the use of opiates, “based on the ct report 2020 seems inappropriate”. The applicant agreed to trial the cessation of opiates and “will see how the injection pans out.”
They also discussed an injection for the applicant’s wrist. She was to consider and advise. “Long cons[ultation]”.
The reasons for the visit were lower back pain, carpal tunnel, and injection “R SI”. The applicant was given a medical certificate from 16 June 2021.
On 21 January 2021, Dr Clarke recorded “WC see referral”. He discussed with the applicant “issues US report”. The applicant would need “nerve studies/op[eration].” A WorkCover/CTP certificate was issued.
On or about 29 June 2021 (the response is undated but appears to have been faxed to EML on that date), Dr Clarke responded to a questionnaire sent by EML.
Dr Clarke diagnosed CTS of the right wrist. The applicant had had no investigations and he relied on the history only for a provisional diagnosis. The applicant had indicated that repetitive use of a coffee machine caused her symptoms. “On present evidence would support cause and effect.”
Dr Clarke could not explain the delay in seeking medical attention. He noted that the applicant had been seeing another GP in the practice (Dr Borg (?)) for unrelated injuries (workers compensation).
Dr Clarke opined that the applicant required nerve conduction studies to confirm the diagnosis. The definitive treatment was surgical intervention. If surgery was indicated, there was a good prognosis post-surgery.
The applicant’s condition was, to Dr Clarke’s knowledge, not an aggravation of a non-work-related condition.
On 30 June 2021, Dr Clarke recorded that the insurer required a report. He would complete the report and request nerve studies/referral.
On 23 July 2021, Dr Clarke recorded that the applicant needed a referral for nerve studies.
On 3 August 2021, Dr Clarke recorded that the nerve study was approved. The applicant was to contact Dr (Hyunmin) Park.
On 6 August 2021, Dr Clarke recorded that the applicant had not booked the nerve study as she was “scared to attend”. He advised her to make the booking because there would be a delay.
On 30 August 2021, Dr Clarke recorded “new WC L shoulder”. The date was recorded as
25 August. The applicant was repetitively lifting at work. She had been “favouring R due to carpal tunnel”. Dr Clarke injected her shoulder with a local anaesthetic, with no change.
On 15 March 2022, Dr Clarke recorded that the applicant had seen Dr Rizkallah, “apparently has trigger finger thumb. She believes it is WC. Ampol says no.” He suggested they get an ultrasound, and “then deal with the facts/options.”
On 18 March 2022, Dr Clarke recorded that the results of the ultrasound were noted and discussed. The “pros and cons” of injection were discussed. The applicant was “not keen because she believes is WC”. He had advised her he would “sort out” and was to see her after the injection.
On 23 March 2022, the applicant had called to see if Dr Clarke could send her a workers compensation certificate from Friday. He had a “WC telecon Natalie”. (It is apparent from other evidence that this was Ms Natalie Lister, EML case manager). There was “some confusion about the thumb”. He was advised to “put on previous claim until sorted. Ms Meyers cancelled the injection!!”.
The applicant did not know what restrictions were given to her by Ampol. “Lots of bosses involved!!” Dr Clarke would “sort out”.
On 25 March 2022, Dr Clarke recorded that the applicant had made an urgent call to contact him. “Apparently employer going to send her home” if she had no certificate. The certificate had been sent but he could “not do much about the insurer responding. This business is simply off the rails.”
On 27 April 2022, Dr Clarke recorded that the applicant apparently needed a referral to
Dr Rizkallah. The “right thumb is an issue. Still admin problem.” The applicant had had an IME (independent medical examination). The referral was provided, and Dr Clarke was to see the applicant after she had seen Dr Rizkallah.
Dr Clarke had contacted Dr Rizkallah and “they have written to insurer reference thmb (thumb)/work realtes” [sic: related].
On 18 May 2022, Dr Clarke recorded that there was apparently still no decision on the thumb. The applicant was very angry with the delay. “What can I say?” They discussed issuing Valium for her stress, “judicious use”.
On 23 May 2022, Dr Clarke recorded that the applicant requested time off work. Workers compensation for the thumb had been declined. The applicant was “pissed off and was allegedly told by insurer that I said she had no problems.” It had apparently ignored
Dr Rizkallah’s letter.
Dr Clarke noted: “What can I say? Need to get correspondence and see if can appeal. I do not feel this is related to a wc claim at present.”
On 17 June 2022, Dr Clarke recorded that the applicant was seen for review of workers compensation. The (insurer’s) IME report “pretty brutal of Rizkallah opinion”. The applicant was not happy. She had been to a solicitor. Her case was being closed. She needed a certificate. “Is suspect not going to be paid.”
Dr Clarke recorded that “also been advised not to return to work until documentation on back injury. We have request[ed] who will pay for report. No response to previous request. I will speak to Ampol.”
On 20 June 2022, Dr Clarke recorded that the applicant needed a certificate to go back to work. Ampol expected her to pay. “No $”. A certificate was given.
On 18 July 2022, Dr Clarke recorded that the applicant needed an updated workers compensation certificate. She had a new job. Her solicitor was “on the case reference her dismissal.”
On 31 July 2022, Dr Clarke reported to the applicant’s solicitors. This report appears to have been prepared to assist the applicant in dealing with the termination of her employment by the respondent.
The “present circumstances arose from a series of events following a reported injury in the workplace”.
The applicant had presented with symptoms that were subsequently diagnosed as CTS of the right wrist, which was accepted as work-related.
The applicant was referred to Dr Rizkallah, and a recommendation for surgery was accepted and approved by Ampol. Surgery proceeded and was reported by Dr Rizkallah as successful.
The applicant continued to have residual symptoms post-operatively and was reviewed by
Dr Rizkallah. She believed an aspect of the original assessment by Dr Rizkallah was overlooked, namely some additional injury to some bones of the right wrist.
Dr Clarke understood there was a review by Dr Rizkallah, but the applicant remained dissatisfied with the outcome. She returned to work on reduced duties, which were supported by her employer.
“At some subsequent time”, there was reference to “some comment” about the applicant complaining of back pain. Dr Clarke was unclear as to the circumstances. “Suffice to say the issue became a point of friction” between the applicant and Ampol, with allegations of Ampol “trying to force her out or words to that effect.”
There was correspondence from Ampol requesting an assessment and report on the alleged back condition. Dr Clarke advised Ampol there would be a cost for such report. There was no response, and Ampol subsequently contacted Ms Meyers with the same request, stating that she would be responsible for any expense incurred.

The applicant was in no position to meet the costs, and Dr Clarke provided a certificate at no cost, stating that she was apparently fit to return to work, unrestricted by any alleged back injury.
The applicant then presented in a distressed, emotional state, stating her employment had been terminated with effect from 22 June 2022, for an alleged breach of Ampol policy regarding mismanagement of some aspect of her financial responsibilities. Dr Clarke understood that her solicitors had the details of this incident.
Dr Clarke had had a lengthy professional association with the applicant and was aware of her social circumstances and chronic financial pressures. He had at no time considered her to be anything other than hardworking and honest, trying to make ends meet. She had financial commitments and the termination of her employment “was indeed an extraordinary assault on her mental health”.
Dr Clarke had “no hesitation in supporting the premise” that the applicant was in a disturbed state of mind, “resulting from the protracted ongoing administrative issues in relation to her persisting right wrist symptoms and the apparent recalcitrance of Ampol to deal with this matter in a judicious manner when the alleged breach of policy occurred.”

Dr Sherif M Rizkallah – orthopaedic surgeon

Dr Rizkallah reported to iCare first on 15 September 2021.
Dr Rizkallah opined that the applicant presented with classical right CTS. This was related to her job, which involved significant manual tasks. Her nerve conduction studies confirmed CTS.
The applicant had elected to proceed with right open carpal tunnel decompression.
Dr Rizkallah sought approval for the surgery.
Dr Rizkallah performed the surgery on 22 October 2021.
On 28 October 2021, Dr Rizkallah reported that there was no peripheral neurovascular deficit, and the applicant described some improvement in her nocturnal numbness.
On 4 November 2021, Dr Rizkallah reported that the applicant was extremely pleased with the results of her surgery and described excellent resolution of her nocturnal numbness. He had discussed appropriate ongoing exercises and the necessary precautions and would see her again if she had any further concerns.
On 11 March 2022, Dr Rizkallah reported that the applicant had returned. She was very pleased with the results of her right carpal tunnel surgery but was aware of a trigger right thumb with pain and dysfunction.
Examination demonstrated a painful nodule over the MCPJ (metacarpophalangeal joint) of the right thumb in relation to the FHL (flexor hallucis longus) tendon. The lump was painful and there was obvious catching during the range of motion.
Dr Rizkallah had discussed with the applicant the natural history of her condition, and available options. She had elected to proceed with surgical decompression of the right trigger finger, and Dr Rizkallah sought approval for the surgery.
On 6 April 2022, Dr Rizkallah reported to iCare, in response to its request for a report.
Dr Rizkallah opined that the applicant had problems in relation to her right hand as a consequence of her work duties, which involved excessive manual use of her hand. As a result, she had developed CTS and trigger right thumb, both of which had been reported to him during her previous visits.
Dr Rizkallah reported that the two conditions were extremely closely related, and it was obvious that, following attention to the carpal tunnel problems, the trigger thumb was becoming more apparent.
Dr Rizkallah opined that the applicant’s work duties were the only contributing factor to her problems and the necessity for surgery.
Dr Rizkallah reported to the applicant’s solicitors on 23 August 2023.
Dr Rizkallah noted having examined the applicant five times between 15 September 2021 and 9 March 2022.
During the initial consultation, the applicant presented with classical symptoms of right CTS. They were “clearly related to her job, which involved significant manual tasks”.
Dr Rizkallah referred to his findings on examination on 9 March 2022.
The applicant’s diagnosis on the first instance was CTS and on the last consultation, trigger right thumb.
Dr Rizkallah opined that Ms Meyers developed the right trigger finger during the course of her employment with Ampol. It was directly related to the manual tasks she performed as an integral part of her job. The requirement for decompression of the right trigger thumb was necessary as a result of the workplace injury.

Dr Semini Wickramatunga – general practitioner

Dr Wickramatunga was the GP to whom the respondent referred the applicant.
On 11 March 2022, Dr Wickramatunga issued the applicant with a COC. She certified that the applicant had a trigger finger (right thumb), with the stated date of injury of
11 March 2022.
Dr Wickramatunga certified that the injury was consistent with the applicant’s stated cause. It was related to work due to “repetitive use and strain.” A pre-existing factor that may have been relevant was CTS.
The management plan was that the applicant was “due for surgery.” She was certified as having capacity for work, with restrictions.

Associate Professor Paul Miniter – orthopaedic surgeon

A/Prof Miniter was qualified by the respondent and reported first on 28 April 2022.
A/Prof Miniter recorded that the applicant began to develop symptoms of numbness in her right hand, probably in April 2021. There was no obvious precipitating factor, but she said that in her job she was required to make significant amounts of coffee and was also involved in the Boost juice section.
Since the applicant had had carpal tunnel release in October 2021 she had been moved to a somewhat less busy branch.
The applicant had had nerve conduction studies in 2021, demonstrating moderate CTS on the right, and no clear evidence of neural conduction abnormality on the left. This was confirmed by ultrasound.
The applicant had a recommendation for surgery by Dr Rizkallah. The matter was accepted as work-related, “even though there is clear evidence in the literature to suggest that it was otherwise.” The applicant had not really recovered very well. She felt her right thumb triggered into position. When she reflected upon the matter, she said it was probably like this before the surgery.
It had been recommended that the applicant have an injection into the flexor sheath of the right thumb, but that had not been undertaken. She was not allowed to lift, push, or pull more than 2kg.
A/Prof Miniter recorded that Phalen’s test and Tinel’s sign were negative. The applicant’s thenar branch appeared to be intact, but there was substantial wasting of the thenar eminence and marked reduction in power of the abductor pollicis brevis. There was evidence of reduction in the first web space, consistent with degenerative change affecting the CMC (carpometacarpal) joint of the thumb.
A/Prof Miniter opined that, while the applicant felt the nature and conditions of her work had led to CTS, it was not a work-related problem. It was very common in a woman of her age group, and usually responded very well to surgery.
By that time, the applicant should be back to her normal duties. As far as A/Prof Miniter could determine, the only factor preventing this, apart from some minor scar sensitivity, was that she had an FPL triggering effect. This, “of course”, was not related to the workplace. It could only be hoped that it responded well to the injection therapy that had been suggested.
A/Prof Miniter opined that the applicant’s diagnosis was that she had not had an injury. She simply had constitutional CTS that had been relieved by the open decompression. Her role with Ampol was not the substantial contributing factor to either her thumb issues or the CTS.
In A/Prof Miniter’s opinion, the triggering of the applicant’s right thumb was likely to have been present for quite some time, and if she believed it had occurred since March 2021, her history could well be believed. It was not due to repetitive movements at work. It was, once again, a very common constitutional condition.
A/Prof Miniter opined that the applicant’s thumb condition was not secondary to CTS. He noted that the CTS had been accepted, “but I trust that I have made it clear that this is not a work-related phenomenon.” The additional injury was not a separate or new injury, but an incidental finding.
A/Prof Miniter opined that the applicant’s employment was not the main contributing factor to her complaints of right thumb pain. The reported mechanism of injury was not consistent with any type of injury. She simply had constitutional pathology.
A/Prof Miniter found no features of abnormal illness behaviour but stated that the applicant’s restrictions were unreasonable and unnecessary. There was no indication of malingering or intentional effort to exaggerate or downplay her symptoms.
A/Prof Miniter strongly advised that the injection be given as soon as possible. It could be done the next day under Medicare, under ultrasound control. No other treatment was necessary unless the injection was less than beneficial. If it had to be repeated, “then so be it”, but if there was not resolution of the matter, surgical release was appropriate.
A/Prof Miniter suspected the injection would be ineffective, and surgery would likely be needed, “not the responsibility of the insurer.” The applicant was likely to require a release of the flexor sheath of the thumb.
A/Prof Miniter stated:
“Allow me to be clear: if you do decide to accept responsibility for this, recovery should be to normal duties between two and four weeks after surgery. To repeat, it is not the responsibility of the workers compensation insurer.”
The applicant’s prognosis was guarded. A/Prof Miniter was concerned that the matter had been ongoing for so long, as recovery from carpal tunnel release should be extremely rapid and should have allowed Ms Meyers to return to work within six weeks at most. She should have been back to her normal duties six weeks after surgery.
A/Prof Miniter provided a supplementary report dated 13 May 2022.
A/Prof Miniter opined that Dr Rizkallah “would do well to acquaint himself with the medical literature.” It clearly identified that the workplace was not causative of issues such as CTS and triggering of the digits. Triggering can be related to impaired glucose tolerance and could also occur simply as a consequence of constitutional presentation.
A/Prof Miniter stated: “Allow me to address directly the report from Dr Rizkallah on 6 April 2022”. He referred to Dr Rizkallah’s opinion that the applicant had developed CTS and trigger right thumb as a consequence of her work; and the two conditions are closely related, with the trigger thumb becoming more apparent after attention to the carpal tunnel.
If Dr Rizkallah’s “version” was correct, “one has to wonder” why the applicant had not developed these issues at a previous time, noting she had been in this job for over 10 years. The comment that her work duties was the only contributing factor to her problems was “either an accidental misrepresentation of the matter, or a degree of confabulation. One simply cannot justify such a comment.”
A/Prof Miniter opined that if there were “issues such as this” and it was due to the workplace, it would have been apparent at the time of the carpal tunnel surgery and assessment for that procedure. If the nature of the applicant’s work was the cause of the problem, it should have been apparent to Dr Rizkallah before the surgery, in which case he should have performed both procedures at the same time.
A/Prof Miniter “stood by” his comments and “saw no reason to resile” from his opinion.

Dr Mohammed Assem – rehabilitation specialist

Dr Assem was qualified by the applicant and reported on 12 December 2022.
Dr Assem recorded a history that the applicant commenced work for the respondent as a customer service assistant in about February 2018. She was later transferred to Edmondson Park as a lead barista. She worked at a fast pace, completing countless coffee orders.
The applicant was required to regularly temper the coffee, which involved forceful pressure on the machine, using the palm of her right hand. Over time, she began to experience pain and swelling at the base of her right thumb, as well as pain in the palm of her right hand. This was accompanied by pins and needles in the median nerve distribution.
Dr Assem noted the applicant’s investigations and treatment, including open carpal tunnel release. Post-operatively, her symptoms improved, and she was certified fit for suitable duties.
Mr Fong, the safety manager, visited the site and recommended an automatic tempering machine. The respondent redeployed the applicant to work within the Boost area. This involved repetitive scooping of yoghurts. Within a few weeks, she began to notice persistent pain, weakness, and stiffness of her thumb. There was constant triggering of the thumb that she had to manually correct.
Dr Assem noted Dr Rizkallah’s findings on examination, and the ultrasound on
17 March 2022 that showed hypoechoic thickening of the A1 pulley of the fascia tendon sheath associated with mild FPL tenosynovitis. Dr Rizkallah had recommended surgical decompression of the right trigger finger.
Dr Assem referred to Dr Rizkallah’s report to iCare dated 6 April 2022. He noted that the claim was denied following assessment by A/Prof Miniter.
The applicant had ceased working at IGA, where she subsequently found employment, on 1 November 2022, as she was having difficulty coping. After ceasing work, she noted that her right thumb symptoms had improved. There was still triggering early in the morning, and weakness. She was required to manually release the triggering. She took simple analgesia when needed.
Dr Assem found tenderness at the base of the applicant’s thumb and wasting of the thenar eminence. There was marked weakness of movement of the thumb and constant triggering that could only be released with manual force. There was a palpable nodule at the A1 pulley of the FPL tendon of the right thumb and mild sensory loss to light touch.
Dr Assem noted the applicant’s investigations.
Dr Assem summarised that the applicant presented with a gradual onset of pain and weakness of her right thumb and palm. As she continued working, the pain, swelling, tenderness, and pins and needles increased in intensity. She was diagnosed with CTS and had open carpal tunnel release with good result.
Although the applicant’s sensory symptoms improved, there was marked weakness of her thumb, wasting, and constant triggering. Dr Rizkallah had recommended surgical decompression that was declined by the insurer.
Dr Assem diagnosed residual motor and sensory loss in the median nerve distribution after surgical decompression for right CTS. The applicant also had constant triggering involving her right thumb.
Dr Assem opined that, without appropriate treatment, the applicant’s prognosis was guarded. She would continue to have ongoing symptoms and limitations in the foreseeable future that would interfere with her usual activities.
Dr Assem was asked whether he considered that the applicant’s employment was the main contributing factor to the development of her right trigger thumb.
Dr Assem responded that CTS is multifactorial. The occupation risk factors are tasks that involve excessive force combined with repetition and posture. Given that the applicant’s duties involved repetitive forceful pressure on the palm of her hand, there was flattening of the median nerve at the carpal tunnel and electrophysiological evidence of moderately severe median nerve compression that was consistent with symptoms reported. Her employment was most likely a substantial contributing factor to her condition and subsequent incapacity.
In addition, the applicant was complaining of pain, weakness, and stiffness involving her thumb. The symptoms became more apparent after surgery for CTS. She now had constant triggering of her left [sic] thumb, which was caused by inflammation and subsequent narrowing of the A1 pulley, causing pain, clicking, catching, and loss of motion.
Dr Assem opined that as the inflammation occurred following cumulative trauma before surgery and swelling after the surgery to CTS, the applicant’s condition was most likely related to her employment. The surgical procedure for releasing the trigger thumb was relatively simple and would resolve her symptoms.

Dr Assem opined that the applicant required either a cortisone injection that may provide short term relief, with a high risk of recurrence, or surgical decompression. Without surgery, she would continue to have pain, stiffness, and weakness that would interfere with her usual activities.
The proposed surgery was relatively simple, with a low chance of adverse reactions. It would most likely result in the complete resolution of the applicant’s symptoms and therefore be cost effective, as it would allow her to resume her usual vocational and avocational activities.
Alternatively, a percutaneous trigger finger release could be performed as an office procedure with the use of transdermal anaesthesia using eutectic mixture of lidocaine and prilocaine. It was reasonably necessary in this matter as a consequence of the work injury.

SUBMISSIONS

The submissions have been recorded. I will therefore refer to them only briefly.

Applicant

The applicant submitted that she had sustained a “s 4(b)(i) or 4(b)(ii)” (of the 1987 Act) injury, relying primarily on s 4(b)(i). There was a dispute that related to whether the injury was due to employment or constitutional. There was no dispute that the surgery was reasonably necessary.
The applicant submitted that the respondent relied on the opinion of A/Prof Miniter that it was not possible to have CTS as a result of a workplace injury, and it was always constitutional.
The applicant referred to the GPs’ clinical notes. She noted that the entry on 15 May 2021 was brief, but submitted no inference could be drawn from that, referring to the authority of, among other decisions, Mason v Demasi.[1]
[1] [2009] NSWCA 227.
The applicant submitted that the respondent paid for the carpal tunnel surgery, and an inference should be drawn from that.
The applicant referred to her evidence about her duties. She submitted there was no evidence from Mr Fong to traverse her evidence about his safety visit. He replaced the tamper in the machine.
The applicant referred to and relied on Dr Rizkallah’s evidence. She submitted that the certificate of capacity (COC) issued by Dr Wickramatunga on 11 March 2022 confirmed her condition.
The applicant referred to the evidence of A/Prof Miniter and Dr Assem. She submitted that it was not on a doctor to draw the legal conclusion that employment was the main contributing factor to the injury. That was a matter for me to determine – AV v AW.[2]
[2] [2020] NSWWCCPD 9 (AV).
The applicant submitted that A/Prof Miniter opined there was no obvious precipitating factor for her symptoms. She said that her duties were the precipitating factor. His conclusion that she probably had the right thumb condition before the CTS was consistent with her history.
The applicant submitted that A/Prof Miniter referred to “the literature”, but we do not know what it is. He proceeded on the basis that we should all know CTS is not related to employment. There is no explanation as to why her condition was constitutional, or why employment was not a substantial contributing factor.
The applicant submitted that A/Prof Miniter gave no explanation as to why CTS can only ever be a constitutional condition. That “flies in the face” of what is known to the Commission, and the evidence of her treating doctors and Dr Assem. It was incumbent on A/Prof Miniter to provide the evidence on which his opinion was based and how the literature was relevant. It was not for the applicant to respond to an argument that was not articulated.
The applicant submitted there was a history of her work, contemporaneous reporting; clearly defined CTS; the surgery was paid for by the respondent; and the trigger finger was unmasked, leading to the conclusion that work was the cause of the condition.

The applicant referred to the decisions in Rail Services Australia v Dimovski & Anor;[3] Hunter New England Local Health District v Iles;[4] and State Transit Authority of New South Wales v El-Achi.[5]
[3] [2004] NSWCA 267.
[4] [2013] NSWWCCPD 58.
[5] [2015] NSWWCCPD 71 (El-Achi).
The applicant submitted that she had clearly demonstrated the condition from which she was suffering; employment was the main contributing factor; the necessity for the surgery resulted from the injury; and the surgery was reasonably necessary. The evidence pointed only one way and there could only be a finding of a workplace injury.
In reply to the respondent, the applicant referred to Dr Assem’s evidence and the decision in Guthrie v Spence.[6] She submitted that the fact that Dr Assem did not use the language of the legislation is not determinative. Dr Assem said her condition was due to work. The only reference was to work. There was no other cause.
[6] [2009] NSWCA 369.
The applicant submitted that there was no reference in the clinical notes to complaints about her right thumb before the injury. The applicant complained to Dr Rizkallah about her thumb. The fact that this was not in the clinical notes was “neither here nor there”. The two conditions were extremely closely related. It was not surprising that the condition of her thumb did not become apparent until after the surgery.

Respondent

The respondent submitted that the applicant had indicated the case was run as a “disease” case, so we were looking at “main contributing factor”.
The respondent relied on the evidence of A/Prof Miniter. The applicant’s condition was constitutional, and was an incidental finding, rather than being secondary to CTS.
The respondent submitted that by the end of 2021, Dr Rizkallah was reporting that the applicant’s condition had resolved, and she had had a pleasing result. There was no mention of any problems, including problems with her right thumb.
The respondent submitted that a COC was issued on 11 January 2022 that certified the applicant fit for pre-injury duties. There was no reference to right thumb symptoms or restrictions until March 2022. A COC dated 11 March 2022 contained the first reference to the right thumb, with the date of injury recorded as 11 March 2022.
The respondent referred to Dr Rizkallah’s report dated 11 March 2022, in which he reported that the applicant was very pleased with the result of her surgery but was now aware of a trigger right thumb.
The respondent referred to the entry in the clinical records on 23 March 2022 that the applicant had cancelled the injection. It submitted that there was no explanation for this, and she had provided none in her statement.
The respondent referred to A/Prof Miniter’s evidence. He had recorded that the applicant had not yet had an injection, which was consistent with the clinical records. He opined that she should have an injection as soon as possible, under Medicare, and if the condition did not resolve after a repeat injection, she should undergo surgery.
The respondent accepted that it could not take A/Prof Miniter’s reference to the “medical literature” anywhere, as it was not before me, but submitted he had confirmed his earlier opinion. There were other causes for triggering of digits.
The respondent submitted that the onus was on the applicant to establish that employment was the main contributing factor to her right thumb condition. Dr Assem was asked if employment was the main contributing factor, and he opined that it was most likely a substantial contributing factor. That was as high as he put it, despite being asked specifically.
The respondent also referred to AV, submitting that the test for main contributing factor was more stringent than the test under s 9A of the 1987 Act. There is only one main contributing factor.
The respondent submitted that I needed to consider the evidence as a whole, and not simply the medical evidence. The applicant’s medical evidence did not deal specifically with “main contributing factor”, especially in relation to the right thumb.
The respondent submitted that I did not need to “agonise” about A/Prof Miniter’s reports, as the applicant’s own medico-legal evidence did “not get there”.

SUMMARY
Injury

Section 4 of the 1987 Act provides:

“Definition of ‘injury’

(cf former s 6 (1))
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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

The applicant relies primarily on s 4(b)(i) of the 1987 Act, submitting that she has sustained a “disease injury”. She bears the onus of establishing on the balance of probabilities that her employment was the main contributing factor to her contracting the disease.
In AV, Deputy President Snell discussed the previous authorities, including Flanagan v NSW Police Force;[7] El-Achie; Mannie v Bauer Media Pty Ltd;[8] and Lilyvale Hotel Pty Limited v Bradley.[9]
[7] [2017] NSWWCCPD 33.
[8] [2016] NSWWCCPD 47.
[9] [2016] NSWWCCPD 62.
Snell DP summarised the discussion as follows:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (At [77]-[78].)
I am satisfied, having considered the evidence of the applicant, her treating doctors, and
Dr Assem, that the applicant has sustained injury arising out of or in the course of her employment, pursuant to s 4(b)(i) of the 1987 Act.
A/Prof Minister started from the proposition that CTS was never a work-related condition, referring to “the literature”, without providing any detail of the literature to which he referred, and concluding that the applicant’s trigger thumb was also not work related.
The respondent, correctly in my view, accepted that the applicant sustained CTS as a result of her employment. She has given uncontested evidence of the nature of her work, and indeed there is some support for her evidence in Mr Fong having told her to report the injury, and, according to Dr Assem, recommending an automatic machine. There is no evidence from Mr Fong to refute that evidence.
There is ample medical evidence, to which I have referred above, that supports that the applicant’s CTS and trigger finger were work related.
As the applicant submitted, there was a history of her work; contemporaneous reporting; clearly defined CTS; the surgery was paid for by the respondent; and the trigger finger was unmasked, leading to the conclusion that work was the cause of the condition.
There is no evidence that the applicant reported any symptoms in her right thumb before the injury.
Dr Rizkallah has provided, in my view, plausible and convincing support for the conclusion that the applicant sustained both CTS and trigger finger, caused by the nature of the work she performed for the respondent. He has opined that the conditions are closely related.
Dr Rizkallah’s opinion is supported by those of Dr Assem and Dr Wickramatunga, to whom the applicant was referred by the respondent.
I do not accept that the applicant has not established that employment was the main contributing factor to the injury. As Snell DP held in AV, it is necessary that I consider the whole of the evidence. The fact that none of the doctors used the phrase “main contributing factor” is not determinative.
Dr Rizkallah, whose evidence I accept, opined that the applicant’s work duties were the only contributing factor to her problems and the necessity for surgery. (My emphasis). That is a higher standard than “main contributing factor”.
Dr Wickramatunga referred to CTS, which has been accepted as work-related, as a possible relevant pre-existing factor, but has not otherwise suggested any other factor.
Dr Assem accepted that CTS is multifactorial but opined that the applicant’s trigger thumb condition was most likely related to her employment. He did not identify any other potential cause.
A/Prof Miniter, as I have noted, did not accept that CTS may ever be work-related. He opined that triggering may be related to impaired glucose tolerance and occur simply as a consequence of constitutional presentation.
There is no evidence that the applicant had impaired glucose tolerance. I do not accept that her condition is constitutional, as I accept her evidence and the medical evidence to which I have referred above. In my view, A/Prof Miniter has become somewhat of an advocate of his position with respect to the aetiology of CTS.
As the applicant relied on a “disease injury”, it is unnecessary that I consider the application of s 9A of the 1987 Act, which, in any event, as was held in AV, is less stringent than “main contributing factor”.

Reasonable necessity of medical treatment

Section 60 of the 1987 Act provides:

“Compensation for cost of medical or hospital treatment and rehabilitation etc

(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
…”

The respondent did not submit that the proposed surgery was not reasonably necessary medical treatment.
Having determined that the applicant has sustained injury arising out of or in the course of employment, it follows that I am satisfied that the proposed surgery is reasonably necessary as a result of the injury.
Had it been necessary for me to determine whether the proposed surgery is appropriate treatment, I would have been satisfied that it was, applying the principles discussed by Roche DP in Diab v NRMA Ltd.[10]
[10] [2014] NSWWCCPD 72 (Diab).
Dr Rizkallah recommended the surgery, having discussed the options with the applicant.
Dr Assem supported the surgery, although he suggested a possible alternative.
A/Prof Miniter opined that the applicant should have up to two injections, while at the same time opining that they were likely to be ineffective and it was likely she would require surgery.
Dr Assem has addressed the criteria of Diab. He said the proposed surgery was relatively simple, with a low chance of adverse reactions. It would most likely result in the complete resolution of the applicant’s symptoms and would therefore be cost effective.
I therefore determine that the proposed surgery, being right trigger finger surgical decompression, is reasonably necessary as a result of injury deemed to have happened on
1 March 2021.
The order is as set out in the Certificate of Determination.

[2023] NSWPIC 680

19 December 2023