Mina v Healius Pathology Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mina v Healius Pathology Pty Ltd [2024] NSWPIC 719
APPLICANT:	Marissa Mina
RESPONDENT:	Healius Pathology Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	20 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation, weekly benefits and medical and related treatment expenses for injury to multiple body parts due to nature and conditions of employment as a data entry operator; degenerative pathology at all body parts; whether aggravation injury pursuant to section 4(b)(ii); whether causal mechanism adequately explained; Held – the applicant sustained injury to her neck, shoulders and wrists; applicant’s onus not discharged in respect of allegation of injury to her lumbar spine; matter remitted for referral to a Medical Assessor; consideration of claim for weekly compensation and medical expenses deferred until receipt of the Medical Assessment Certificate.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in respect of the allegation of injury to the lumbar spine. 2. The applicant sustained an injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 to her cervical spine, bilateral shoulders and bilateral wrists. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 19 April 2023 (deemed) Body parts: cervical spine right upper extremity (shoulder, wrist) left upper extremity (shoulder, wrist) Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include all of those admitted in the proceedings as indicated in the attached statement of reasons. 5. The matter to be listed for further preliminary conference upon receipt of the medical assessment certificate to deal with the outstanding claims for weekly compensation and incurred medical and related treatment expenses.

STATEMENT OF REASONS

BACKGROUND

Ms Marissa Mina (the applicant) commenced employment with Healius Pathology Pty Limited (the respondent) as a data entry operator in 2005.
The applicant claims that she sustained an injury to multiple body parts due to the general nature and conditions of her employment with the respondent.
On 26 March 2024, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of permanent impairment of her neck, back, both shoulders, both wrists and left knee. The claim relied on an assessment of 22% whole person impairment made by orthopaedic surgeon, Dr Jonathan Herald.
Liability for injury to each of the body parts was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 31 March 2023, 31 May 2023 and 20 June 2024.
The applicant commenced the present proceedings by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission on 12 August 2024.
The injury described in the Application to Resolve a Dispute was a “personal injury” on 15 December 2022 to the cervical spine, thoracic spine and lumbar spine, bilateral shoulders, bilateral wrists, bilateral pinky fingers and left knee.
The applicant sought lump sum compensation in accordance with Dr Herald’s assessment, weekly compensation and compensation pursuant to s 60 of the 1987 Act for incurred and future treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a preliminary conference on 10 September 2024, a direction was made amending the Application to Resolve a Dispute to clarify that the injury relied on was a disease or aggravation of a disease with the deemed date of 15 December 2022.
The parties appeared before the Personal Injury Commission (Commission) for conciliation conference and arbitration hearing on 24 October 2024.
After a lengthy conciliation conference in which offers to resolve the dispute by agreement were exchanged, the parties were unable to reach a settlement acceptable to them both. As there remained insufficient time to hear oral submissions in relation to the issues in dispute, a timetable was established for written submissions. The parties were advised of my intention to determine the dispute on the papers at the conclusion of that timetable.
The Application to Resolve a Dispute was further amended to withdraw the claim for future medical treatment expenses.
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 an acceptable settlement. 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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury pursuant to s 4(b)(ii) of the 1987 Act due to the nature and conditions of her employment with the respondent to her:
(i)cervical spine;
(ii)lumbar spine;
(iii)right shoulder
(iv)right wrist;
(v)left shoulder;
(vi)left wrist, and
(vii)left knee.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and all attachments, other than the report of Dr Peter Giblin, dated 26 April 2023, which is admitted only for the purposes of the history recorded therein pursuant to cl 44 of the Workers Compensation Regulation 2016;
(b)    Reply and all attachments;
(c)    written submissions prepared on behalf of the applicant and lodged on 18 November 2024, and
(d)    written submissions prepared of behalf of the respondent and lodged on 2 December 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 8 June 2023 and 2 August 2024.
In her first statement, the applicant said she was employed for 18 years as a data entry operator. The applicant was a casual employee but was employed full-time from 2020 onwards when her symptoms first appeared. Prior to commencing employment with the respondent, the applicant did not suffer from pain, stiffness or aches to her neck, back or shoulders.
The applicant said her role as a data entry operator required her to spend 7.5 hours per day at a workstation. The applicant would sit, look at the screen and use her hands to enter information onto computer systems using a mouse and keyboard.
The applicant sat on a standard computer chair and held her head in a position where she could see the screen and the information on the desk in front of her. The applicant remained seated for long periods and used the phone frequently, lifting it up and down and dialling. The applicant would frequently cradle the phone receiver under her neck until she received a headset in 2021.
The applicant was aware that she had pre-existing spondylosis but said she did not experience any pain due to that condition prior to her employment with the respondent. The applicant was able to work to her full capacity.
The applicant said that on 13 May 2022, she injured her left knee by banging it against a drawer, but did not claim that injury as part of the current claim.
In or around mid 2020, the applicant began experiencing pain in her wrists while typing. The applicant did not think it was serious enough to put in a formal report. The pain was on and off and steadily got worse.
In January 2022, the applicant started developing pain in her neck and both shoulders sitting at her desk. The applicant also experienced pain in her lower back.
Later in 2022, the applicant began to experience pain in her little fingers whilst typing. The applicant also experienced pain in her thoracic spine.
The applicant said she complained about her symptoms to her general practitioners at various times over the course of 2022. The applicant obtained standard medical certificates.
The applicant said she did not understand the importance of reporting her injuries. The applicant would only complain of her injuries at the time they were symptomatic. If the applicant rested and took medication, her symptoms would improve slightly to the point that they were tolerable and she could continue working.
The applicant was treating her symptoms with Nurofen, Panadeine Forte, Panadol as well as Voltaren gel. The applicant attended physiotherapy between January and May 2023 until her claim was declined.
In her supplementary statement, the applicant confirmed that she had made separate workers compensation claims for her left knee injury and a primary psychological injury.
The applicant provided further detail in relation to her injuries.
The applicant said that between 2008 and 2017 she regularly answered the phone while typing. The applicant would often place the telephone on her shoulder and ear causing her head to tilt at an angle of 15 to 20°. This led the applicant to experience pain in her shoulders and neck. Headsets were provided in 2017 but had constant issues. The applicant reverted to cradling the telephone between her shoulder and ear.
The applicant also frequently switched between looking at a computer screen and paper documents on her desk. The repetitive motion of looking up and down and caused her neck and back pain.
On 3 February 2022, the applicant’s neck pain was so bad that her general practitioner recommended she attended the emergency department. Instead, the applicant opted to use Voltaren gel, heat packs and Nurofen.
With regard to her wrists and fingers, the applicant noted that her role involved typing and data entry. These tasks cause discomfort in her hand and fingers. The applicant’s keyboard was old with small keys and required increased pressure to type letters. The frequent exertion pressing keys on the keyboard caused discomfort to the applicant’s fingers and wrists.
The applicant said that on 13 May 2022 after returning from a break and heading to her seat, her left knee sharply hit the handle of a cabinet drawer positioned under the table. This caused a lot of pain. Due to prolonged sitting at a computer and frequent standing and sitting over 20 years, the condition at the applicant’s left knee had been aggravated and potentially accelerated.
The applicant said she was initially seeing Dr Md Moinul Islam at Priority Care Medical Centre but later transferred to see Dr Henry Gao from Patrick Street Medical Centre.
The applicant had attended physiotherapy at Priority Care Medical Centre from January to May 2023. The applicant resumed physiotherapy at Energize Physiotherapy & Allied Health Centre in Blacktown from December 2023 to April 2024 under Medicare.

Claims and notifications

A Staff Incident Report Form was completed on 20 December 2022. The form noted that the applicant had called in to work on 19 December 2022 to advise that she could not attend. A certificate was sent to Human Resources indicating that the applicant was a data entry operator who had worked with a computer for 18 years. Constant posturing and arm/hand use had caused symptoms. The form noted that the applicant’s manager had been unaware of any injury and was first notified of it on 19 December 2022.
The applicant completed a State Insurance Regulatory Authority (SIRA) claim form describing an injury to her “shoulder/neck/back” due to repetitive movements, doing multiple tasks and being overworked while typing on 27 January 2023.
A “Work Related Injury / Illness Notification Form” was completed by the applicant on 14 November 2023 describing an injury to her “shoulder/back/neck/knee”.
A SIRA permanent impairment claim form was completed on 18 March 2024. The body systems affected by the injury were identified as “Cervical, Lumbar, Bilateral shoulders, Bilateral Wrists, Left Knee”. The form was forwarded to the respondent together with the report of Dr Jonathan Herald on 26 March 2024.

Factual investigation report

The respondent procured a factual investigation report from ClearScope, dated 27 August 2023. As part of the investigation, statements were obtained from Matthew James, Operations Transformation Manager and Susanna Zarka, Data Entry Assistant Manager. Ms Zarka’s statement is unsigned.
The witness evidence confirmed that the applicant’s duties were performed predominantly by sitting at a desk and typing on a computer and using the phone. The applicant had used a headset since 2018. Prior to that, the applicant and all other staff held the head of the phone with the hand to the ear or between the shoulder and ear. The applicant used a mouse and was provided with a standard office chair.
The applicant’s day would involve two hours of reading emails, replying to emails and making changes in the database. Another two hours was used to resolve conflicts involving clicking yes or no to correct errors. The other hours in the day were used to perform data entry, taking phone calls and attending meetings and discussions. The applicant did not type continuously and she was not required to type with the intensity which would be required to type a story, letter or email.

Treating evidence

Clinical records from Priority Medical Centre are attached to the Application and Reply.
On 19 August 2015, there was an entry describing back pain for three days.
On 5 November 2015, a 24-hour history of pain in the right scapula which the applicant thought might be related to bending her neck and holding the receiver of the phone on her left side, was noted.
On 30 November 2015, the applicant reported that she had been experiencing right shoulder pain for six months.
In 2016 the applicant sought treatment for ongoing lower back pain which was getting worse. Imaging of the lumbar spine was arranged.
On 24 January 2017, Dr Mohammed Rahman Shinwari noted:
“back pain – injury 2/12 ago, pain since
does not radiate
work related stress – works in pathology”.
Back pain was noted again on 3 March 2017.
On 20 December 2017, the applicant was referred for a CT scan of her lumbar spine and a left wrist X-ray. The cause of the left wrist pain appeared to be unknown. It was noted that the applicant had injured her lumbar back three months ago and had ongoing pain.
On 24 March 2021, the applicant complained of right wrist pain since Monday because of typing.
At a telehealth consultation on 3 February 2022, Dr Daniel David noted:
“having some neck pain and shoulder pain for the past 4-5 days
Also having some pain in right arm
Has been managing with panadol
Explained F2F may be required
Willing to come in tomorrow
Wants MC for today
MC arranged
PLAN
Rest
Voltaren gel topically
Heat packs TDS
Nurofen TDS PRN
Exercises as discussed
For review tomorrow F2F
Advised to monitor symptoms
Advised to seek immediate medical attention in an ED if worsening symptoms”.
On 4 February 2022, another general practitioner, Dr Karthik Rajagopal Achary recorded:
“having rigth hsoulder paina dn neck pain
noetd slightly reduced ORM
but able to do it
nil sensory deficit imp- muscular
plana- advise dnsadis rest
phsyio
iv
imaging if nto better”.
Dr Achary noted the applicant was complaining of neck and shoulder/arm pain and needing a certificate for time off work again on 2 March 2022. Dr David gave the applicant a further medical certificate due to right shoulder and neck pain on 3 March 2022, noting:
“Unable to go to work today
Having R shoulder and neck pain
Has seen GP:
Has imaging investigations arranged
Has not had imaging done
Planning to get it done soon
Wants to use annual leave
Supervisor not allowing her to use annual leave
Wants to know if she can use workers compensation
Workers compensation process explained
Advised to have imaging done as arranged by GP
Simple analgesia
Advised to monitor symptoms
Advised fo seek immediate medical attention if worsening symptoms”.
Pain after bumping her left knee was noted by Dr Juan (Jenny) He on 18 May 2022 and Dr Achary on 20 May 2022.
Pain at the applicant’s right shoulder, left knee and hip was reported on 23 May 2022.
The applicant was referred for an ultrasound of the right shoulder and wrist on 3 June 2022. The ultrasound performed on 8 June 2022 was reported to show moderate subacromial bursitis and infraspinatus calcific tendinosis. An ultrasound guided injection was recommended if clinically appropriate.
On 24 October 2022, Dr Md Moinul Islam noted a consultation as follows:
“L shoulder pain
On & off for days to weeks
Thinks it started from work
Earlier she saw a GP
Scan- Bursitis
Cert from GP was given to employer
Wants to claim WC”.
The applicant saw Dr Islam again in relation to right shoulder pain on 30 October 2022.
On 15 December 2022, Dr Islam noted:
“Neck pain / stiffness
On & off
First episode 2nd of March
Thinks because of nature of work
-Repetative movement
Works as data entry specialist
Notified employer of above
Keen to claim WC”.
Dr Islam issued an initial certificate of capacity diagnosing neck pain with radiculopathy in the context of 18 years of working with computer.
On 5 January 2023, Dr Islam recorded notes of a case conference with the insurer. It was noted that the insurer would accept the shoulder and neck claim and that the applicant wished to add the back. The applicant was noted to be giving conflicting histories in relation to the injury onset and the first day on which she had sought medical advice. The applicant was clearly confused. The applicant wanted workers compensation for her shoulder, neck and back pain.
Neck pain with radiculopathy, shoulder pain and back pain were diagnosed in a certificate of capacity issued on 6 February 2023. On July 2023, Dr Islam diagnosed injury to the neck, both shoulders, back and bilateral wrists with a date of injury of 19 April 2023.
The applicant continued to report symptoms at the relevant body parts on different occasions throughout 2023.
Dr Islam prepared a report for the applicant’s solicitors on 28 September 2023 describing radiological and clinical findings at the applicant’s cervical spine, lumbar spine, bilateral shoulders, bilateral wrists and little fingers. Asked whether the applicant’s employment was the main contributing factor to her injury, Dr Islam responded,
“Yes, neck pain, back pain, right shoulder pain and right wrist pain.”
The applicant was seen by general practitioner, Dr Yu (Henry) Gao, on 13 October 2023. Dr Gao noted that the applicant had a disputed workers compensation case and was now receiving treatment under Medicare. Dr Gao recorded:
“Work as a data entry operator 18yrs (Laverty pathology)
Repetitive strain injury
18 yrs ago, there was nil headset
she answer phone 5 days per week
rest phone on her both shoulder
this continued for many years
when company finally provided headphone they don't work properly.
patient need to resort to holding the phone on shoulder again
pain area
- Right shoulder pain
- Left shoulder stiff and pain
- c-spine pain
- lumbar back pain (prolonged sitting)
- bilat wrist pain when typing continues
- bilat hand numberness, tinnels negative”.
The applicant continued to report intermittent symptoms at the same body parts at subsequent consultations. Dr Gao issued a number of SIRA Certificates of Capacity and general medical certificates.
Dr Gao prepared a report for the applicant’s solicitors on 22 January 2024. Asked for a diagnosis of the applicant’s injuries, Dr Gao responded:
“-      Left shoulder supraspinatus tendinopathy with small intrasubstance tear, infraspinatus tendinopathy, Anterior labral tear, subacromial subdeltoid bursitis;
-       Right shoulder subacromial bursitis and infraspinatus tendinosis;
-       C-spine pain, lumbar spine pain;
-       Bilat wrist pain and hand paresthesia. (possible Carpal Tunnel Syndrome, pending more investigations).”

Dr Gao said the applicant’s employment with the respondent was the main or substantial contributing factor to the injury. Dr Gao noted that the applicant had not received proper treatment since November 2023 due to her claim being declined.
Notes from Energise Physiotherapy in early 2024 record:
“Chronic neck, BL shoulder, wrist, T/S and L/S + L knee pain. On and off pain for yrs. Used to take a day off work during flare ups. Would feel better with rest. Work can be very busy. Cannot stand for prolonged period of time. Takes a 5' break every hour (walks around). Takes med if pain is severe. I/T paraesthesia in fingers when typing.”

Dr Peter Giblin

Orthopaedic surgeon, Dr Peter Giblin prepared a medicolegal report for the applicant’s solicitors on 26 April 2023.
Dr Giblin took a history that at work on 3 February 2022, the applicant became aware of pain in both shoulders, wrists and little fingers as well as her neck and back. The applicant reported the injuries and was treated conservatively. The applicant had three months off work.
On 13 May 2022, the applicant bumped her left knee on the handle of a cabinet under the desk where she worked. This caused pain which did not resolve and so eventually the applicant reported it. The applicant was off work for one week.
The applicant was receiving treatment with physiotherapy, Panadol and Nurofen.
The applicant’s chief complaint was pain in both her shoulders, the right worse than the left. The applicant had burning pain and clicking in the left knee as well as stiffness and pain in her cervical, thoracic and lumbar spine.
On examination, Dr Giblin found evidence of positive rotator cuff impingement at each shoulder. There was reduced range of motion at the cervical spine, thoracic spine and lumbar spine. The applicant complained of focal discomfort at L5.

Dr Jonathan Herald

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr Jonathan Herald, dated 24 January 2024.
Dr Herald took a history that was broadly consistent with the applicant’s evidence.
Dr Herald performed an examination of the cervical spine, both shoulders, elbows and wrists, lumbar spine and left knee.
Dr Herald referred to various investigations of the left knee, right shoulder, right wrist, cervical spine, thoracic spine, left wrist and left shoulder.
Dr Herald made a diagnosis as follows:
“Bilateral shoulder impingement syndrome.
Soft tissue aggravation of underlying cervical spondylosis.
Soft tissue aggravation of underlying lumbar spondylosis.
Soft tissue aggravation of underlying 1st CMC joint osteoarthritis of both wrists with possible carpal tunnel syndrome.”
Dr Herald described these as degenerative conditions which had been aggravated and potentially accelerated by the work injury. The conditions were predominantly pre-existing. Employment was the main contributing factor to the diagnoses.
The applicant was said to be fit for sedentary desktop duties but limited in terms of her hours.
Dr Herald made assessments of permanent impairment at the applicant’s cervical spine, lumbar spine, bilateral shoulders, bilateral wrists and left knee.

Dr Raymond Wallace

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Raymond Wallace, dated 14 March 2023, 15 May 2023, 22 May 2023, 31 July 2023 and 30 April 2024.
In his first report, dated 14 March 2023, Dr Wallace took a history of the gradual onset of pain at the cervical spine, radiating to the right scapular spine in the lateral aspect of her right shoulder on 3 February 2022. The applicant did not report the symptoms to her employer but later saw Dr David complaining of neck and shoulder pain which she said had been present for the previous four to five days.
The applicant noted no previous history of injury at her cervical spine or right shoulder.
The applicant reported that her pain was worse with prolonged typing and relieved by hot showers or rest. The applicant noted no pain at her lumbar spine.
Dr Wallace referred to ultrasound and MRI investigations of the right shoulder and MRI investigations of the cervical and thoracic spine.
Dr Wallace diagnosed pre-existing multilevel degenerative cervical spondylosis which was not related to work.
With regard to causation, Dr Wallace stated:
“Ms Mina’s current symptoms are due to multilevel degenerative cervical spondylosis with referred pain to the right shoulder girdle.
Her cervical spinal condition is due to age-related degeneration and is constitutional in origin and unrelated to her employment.
There is no objective medical evidence that prolonged periods of typing can lead to the onset of neck pain. I refer you to the American Medical Association Guides to Evaluation of Disease, Injury and Causation page 107 where the authors conclude based on the available literature, ‘There is insufficient evidence for neck posture or prolonged work in a sedentary position or repetitive and precision work as risk factors for neck pain.’
Ms Mina is 56 years of age and was suffering from pre-existing multilevel degenerative cervical spondylosis and would have noted the onset of cervical spinal symptoms at about the same time or at the same stage of her life had she not been at work or employed by Healius Limited.
Her employment with Healius Limited is not a substantial contributing factor to any current cervical spinal condition.”
Dr Wallace did not find any work-related injury at the neck, back or right shoulder.
Dr Wallace prepared a separate report on the same date in relation to the applicant’s left knee injury. Dr Wallace diagnosed a minor soft tissue injury at the knee which would have settled within a week of the incident. The applicant’s residual left knee symptoms were said to be due to pre-existing degenerative osteoarthritis of the left knee which was constitutional in origin and unrelated to her employment.
In Dr Wallace’s report dated 15 May 2023, Dr Wallace noted that since his last review the applicant had returned to work on a part-time basis. The applicant claimed to have noted the onset of pain at her cervical spine, bilateral shoulders, bilateral wrists and lumbar spine in the course of her duties on 19 April 2023. Dr Wallace performed an examination and expressed a similar opinion to that contained in his previous report:
“Ms Mina’s current cervical spinal and upper limb symptoms are due to pre-existing multilevel degenerative cervical spondylosis which is constitutional in origin and unrelated to her employment for the reasons detailed in my previous report of 14 March 2023 under Causation on page 5.
Again, there is no objective medical evidence that prolonged periods of typing will lead to the onset of neck pain.
There is no objective medical evidence that Ms Mina suffered any work-related injury at her lumbar spine.
Her current complaints of widespread pain involving her cervical spine, upper limbs and lumbar spine cannot be explained on the basis of any work-related injury.
Her employment with Healius Limited is not a substantial contributing factor to any current cervical spinal, upper limb or lumbar spinal conditions.”
Dr Wallace said the applicant’s presentation was inconsistent with any known organic pathology that would explain her widespread symptoms.
On 22 May 2023, Dr Wallace was asked to provide a supplementary report commenting on the report of Dr Giblin as it pertained to the applicant’s left knee injury. Dr Wallace maintained his previous view that the applicant’s symptoms were due to pre-existing degenerative osteoarthritis which was constitutional in origin and unrelated to her employment.
On 31 July 2023, Dr Wallace was asked to provide an opinion as to Dr Giblin’s diagnosis of acute soft tissue injuries to the applicant’s axial skeleton and upper extremities as a result of the nature and conditions of her work. Dr Wallace commented:
“There is no objective medical evidence that prolonged periods of office-based duties including data entry and computer work would lead to any injury at her axial skeleton or upper extremities.
Ms Mina is 56 years of age and would have noted the onset of cervical spinal symptoms with referred pain to her upper limbs at about the same time and same stage of her life due to pre-existing multilevel degenerative cervical spondylosis had she not been at work or employed by Healius Limited. The nature and conditions of her work were not a substantial contributing factor to any current cervical spinal condition.
As detailed in my previous reports there is no objective medical evidence that Ms Mina has suffered any work-related injury at her lumbar spine. If Ms Mina’s axial skeleton and upper extremity symptoms were work-related one would expect that these symptoms would improve since her symptom onset in February 2022, particularly during periods where she was certified unfit for work from December 2022 to March 2023 or while she continued work at part-time light duties. This was not the case.”
Dr Wallace noted that the applicant had worked in her role as a data entry operator from 2005. If the nature and conditions of her employment were a significant contributing factor to her spinal condition she would have noted the onset of symptoms much earlier in her career.
Dr Wallace also expressed the view that employment was not the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of pre-existing disease in the relevant body parts. The applicant’s work duties were light in nature and inconsistent with being the cause of any significant traumatic pathology at the spine or upper limbs.
The applicant was re-examined by Dr Wallace on 30 April 2024. Dr Wallace noted that since his last review the applicant had continued with intermittent physiotherapy on a fortnightly basis under Medicare. She also used Panadol, Nurofen and Voltaren gel.
Dr Wallace noted the applicant’s current symptoms included:
“… a constant aching pain at the cervical spine in the region of the C5, C6 and C7 spinous processes radiating to the superior border of the trapezius muscles bilaterally and globally about her bilateral shoulders bilaterally.
The pain is worse with typing or doing tasks at a fast pace and is relieved by a hot pack.
She notes intermittent paraesthesia at her hands bilaterally. She complains of weakness at her upper limbs but no stiffness at her cervical spine.
At her bilateral wrists, she notes intermittent aching pain at the volar aspects of her wrists bilaterally, worse on the right side. The pain is worse with repetitive activity or typing and is relieved by rest. She notes no swelling or stiffness at her bilateral wrists.
At her lumbar spine, she notes a constant aching pain at the L1 to L5 spinous processes radiating to the paravertebral regions bilaterally at these levels with no radiation to her buttocks or legs.
The pain is worse with prolonged sitting and is relieved by lying down or changing her position. She notes no paraesthesia or numbness at her lower limbs. She complains of weakness at her left knee but no stiffness at her lumbar spine.
At her left knee, she notes pain at the peripatellar region which is worse on stair climbing or walking and is relieved by rest. She notes no swelling or locking at the joint. She complains of an intermittent feeling of instability at the left knee as well as reduced range of movement in flexion.”
Dr Wallace noted investigations of the left knee, left shoulder and both wrists.
Dr Wallace reiterated his previously expressed opinions that the applicant’s symptoms were due to underlying age-related degenerative change. Dr Wallace accepted that there was a work-related soft tissue injury to the left knee but it had resolved.
Dr Wallace reiterated his view that the nature and conditions of the applicant’s employment had not caused an aggravation, acceleration, exacerbation or deterioration of a disease.
Dr Wallace found no assessable whole person impairment as a result of work-related conditions at the applicant’s cervical spine, shoulders, wrists, lumbar spine or left knee.

Applicant’s submissions

The applicant relies on written submissions, dated 18 November 2024, prepared by Ms Lyn Goodman of counsel.
The applicant conceded that the injury to the left knee was sustained in a frank incident on 18 May 2022 and could not be aggravated with the injuries due to the nature and conditions of the applicant’s employment. No claim for whole person impairment was pressed in respect of the left knee.
The applicant noted that the respondent had disputed injury to the neck, back, bilateral shoulders and bilateral wrists.
The applicant submitted that the correct date of injury ought to be 19 April 2023. Although the applicant did cease work on 15 December 2022, she returned to work on 20 March 2023, working five hours per day, three days per week performing her pre-injury duties. 19 April 2023 was the date noted in the respondent’s dispute notices.
The applicant confirmed that she sought to rely on an aggravation, acceleration, exacerbation or deterioration of a disease as a result of the nature and conditions of her employment for the purposes of s 4(b)(ii) of the 1987 Act.
The applicant referred to the treating evidence and the reports of Dr Herald and Dr Wallace.
The applicant submitted that Dr Wallace had not properly considered the effect of the nature and conditions of the applicant’s employment on the body parts complained of. Dr Wallace provided no reason as to why the nature and conditions of the applicant’s employment, being data entry work on a full-time basis, performed predominantly sitting at a desk and typing on a computer, did not aggravate any underlying degenerative condition. In many cases, workers had been successful in obtaining compensation for repetitive strain type injuries.
On the balance of probabilities, the Commission would be satisfied that the applicant had suffered injury to her cervical spine, lumbar spine, bilateral shoulders and bilateral wrists as a result of the nature and conditions of her employment.
It was submitted that the matter should be remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment resulting from the injury to those body parts.
It was noted that it had been agreed that consideration of the applicant’s claim for weekly compensation and incurred medical expenses would be deferred until receipt of the Medical Assessment Certificate.

Respondent’s submissions

The respondent relies on written submissions prepared by Mr Thomas Murray, solicitor, dated 2 December 2024.
The respondent raised no objection to the applicant proceeding on the basis of an injury by way of aggravation of a disease pursuant to s 4(b)(ii) of the 1987 Act.
The respondent noted that the applicant’s claim was that prolonged sitting, typing, and using a telephone had been causative of the injuries claimed. The respondent submitted that the applicant’s duties were in fact light in nature. While the duties may have been repetitive, they did not involve significant lifting or manual handling. The respondent submitted that it was difficult to reconcile the work duties with the widespread nature of the alleged injuries.
The respondent observed that the applicant did not rely on any opinion from a treating specialist. Her claim proceeded primarily on the basis of the evidence from general practitioners and the evidence of Dr Herald. This was said to be relevant to whether the applicant had discharged her onus.
The respondent observed that the applicant was required to prove each of the injuries now claimed. The applicant’s case assumed that injury to each of the body parts resulted from the same duties. The respondent submitted that it was not sufficient to attribute widespread injuries to a broad range of employment duties, particularly where certain aspects of those duties could not have been causative of injuries to certain body parts.
The respondent submitted that the applicant’s first statement did not point to any aspect of her duties that may have been causative of injury. At most, the applicant’s evidence described a temporal connection between experiencing symptoms and being at work. The applicant attempted to rectify this deficiency in her subsequent statement, however, her evidence remained deficient in explaining the causal mechanism.
The respondent drew the Commission’s attention to a number of entries in the clinical records in which the applicant referred to back pain, neck pain, shoulder pain and wrist pain.
The respondent noted that an entry on 3 March 2022 recorded that the applicant had been denied annual leave and wanted to use workers compensation. The decision to pursue a workers compensation claim appeared to follow a decision made by the employer to refuse the applicant access to annual leave.
The respondent submitted that it was also apparent that the applicant’s general practitioner questioned the causal connection between the injuries and employment. On 5 January 2023, for example, the doctor recorded the worker was “giving conflicting history on her injury onset”.
The respondent conceded that as early as 5 November 2015 the applicant had reported use of a telephone as precipitating her neck symptoms. The notes were less supportive of the other claimed injuries.
The references to back symptoms were sporadic and no history was recorded in the notes of the condition being related to employment. The respondent submitted that an entry on 24 January 2017 suggested that the applicant had sustained a frank injury two months ago. On 20 December 2017 it was recorded that the worker injured her lumbar spine three months earlier and had ongoing pain. The applicant had not addressed these injuries to her lumbar spine in her statement evidence. The back was added to the applicant’s claim on 5 January 2023. The respondent submitted that the clinical notes were unsupportive of the alleged lower back injury.
The respondent submitted that there was also little reference to the left shoulder or left wrist until much later in the clinical material.
The respondent submitted that Dr Herald took an incorrect history of the applicant making a complaint of injuries to her neck, back and both shoulders on 2 March 2022. The lower back and left shoulder were in fact included in the claim in 2023.
Dr Herald did not record the history provided by the applicant in her statement evidence of repetitive looking up and down between the desk and the computer screen.
Dr Herald did not describe in any detail what aspects of the applicant’s employment duties had been causative of which injury.
The respondent submitted that Dr Herald’s history was patently inadequate with respect to the lower back injury other than to suggest that it occurred over a prolonged period of time typing. That opinion was a bare ipse dixit. Dr Herald provided far too simplistic an assessment by attributing the symptoms to work in the absence of non-work-related factors. The doctor himself acknowledge the presence of pre-existing degenerative conditions. It was entirely possible that the symptoms were merely the natural progression of the established pre-existing pathology.
The respondent submitted that Dr Herald had failed to engage with each alleged injury. His opinion was generic and failed to engage with the relevant question. Dr Herald globally attributed every condition about which the worker complained to her employment without specifying the precise mechanism by which each alleged injury was said to have been sustained.
Dr Herald did not engage with the pathology revealed on the radiological imaging and in what way it had been aggravated.
The respondent submitted that the doctor’s reasoning was particularly deficient with respect to the wrist injury. Dr Herald made a presumptive diagnosis of carpal tunnel syndrome in the absence of nerve conduction studies. Dr Herald did not reconcile the presumptive diagnosis of carpal tunnel syndrome with his later finding of degenerative changes affecting the wrist and carpal joint and the first carpometacarpal (CMC) joint. The doctor’s opinion did not enable a finding as to the precise injury.

The respondent also observed that Dr Wallace found the applicant had pre-existing ulnar plus variance and abutment syndrome bilaterally which was a congenital condition causing abutment between her distal ulnar and illuminated her bilateral wrists. Dr Herald did not address that pathology and the alternative cause of the applicant’s symptoms as found by Dr Wallace.
The respondent submitted that the report of Dr Herald should be afforded little weight.
The respondent relied on the opinions of Dr Wallace.
The respondent submitted that it was critical that the doctor recorded that the applicant had no pain at her lumbar spine at the time of his initial examination. No condition was initially reported with respect to the applicant’s left shoulder.
Dr Wallace dealt with the bilateral wrist symptoms in his report of 30 April 2024 and did not accept that employment was the main contributing factor to any condition at the wrists.
Dr Wallace gave the opinion that there was no known mechanism whereby a worker would suffer injury to her lumbar spine whilst working as a data entry operator. The respondent submitted that that opinion was entirely correct.
The respondent submitted that Dr Wallace would be preferred as he critically engaged with the claimed mechanism in the context of each alleged injury.
Dr Wallace had clearly opined that employment was not the main contracting factor to any aggravation, acceleration, exacerbation or deterioration of a pre-existing disease given the light nature of her work duties.
The respondent submitted that the evidence did not enable the applicant to discharge her onus of establishing an injury in the course of employment to which employment was the main contracting factor.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
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 in these proceedings relies on an injury pursuant to s 4(b)(ii) of the 1987 Act. It is not in dispute that the applicant had degenerative pathology at each of the relevant body parts. What is in dispute is whether the nature and conditions of the applicant’s employment with the respondent caused an aggravation, acceleration, exacerbation or deterioration of those conditions.
In Federal Broom Co Pty Ltd v Semlitch[1] Kitto J considered what constituted an exacerbation of a disease for the purposes of s 4(b)(ii), stating:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[1] [1964] HCA 34; 110 CLR 626 at [632].
Similarly, Windeyer J said,
“[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”
Applying Semlitch, Burke CCJ in Cant v Catholic Schools Office;[2] said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
[2] [2000] NSWCC 37.
The factual evidence as to the nature of the applicant’s employment duties is largely uncontroversial. The applicant was employed as a data entry operator for the respondent for approximately 18 years. This required her to sit at a workstation looking at a computer screen and use her hands to enter information into computers using a mouse and keyboard. The applicant said that she remained seated for long periods and for much of her employment used the phone frequently by cradling it between her ear and shoulder with her head tilted. The applicant’s evidence in this regard was largely corroborated by the respondent’s witness evidence.
There are a large number of entries in the clinical notes of the applicant’s general practitioners recording symptoms at the relevant body parts. The applicant’s general practitioners have referred her for radiological investigations at each of the body parts. Those investigations revealed what has been described by the medicolegal experts as degenerative pathology.
Although the respondent notes that the applicant does not rely on any evidence from a treating specialist, her claims are broadly supported by Dr Herald and her general practitioners.
Weighing against the applicant’s evidence is the evidence from Dr Wallace, who expressed the view that the applicant’s symptoms were all due to underlying age-related degenerative change. Dr Wallace did not accept that the nature and conditions of the applicant’s employment could account for the pathology at the relevant body parts. Nor was the applicant’s employment the main contributing factor to an aggravation, acceleration exacerbation or deterioration of the pathology found that those relevant body parts.
In weighing these competing opinions, the respondent has submitted that it is necessary to undertake an analysis of the lay and medical evidence as it relates to each of the claimed body parts. I accept that this approach is warranted.
The applicant’s evidence is strongest in relation to the cervical spine and right shoulder. In her statement evidence, the applicant has clearly identified how manner in which she performed her duties could have aggravated the condition at her neck and right shoulder. These included cradling the phone between her ear and shoulder and prolonged positioning of her head at certain angles so that she could view material on her desk and her computer screen.
As early as November 2015, the applicant reported pain in her right scapular which she thought might be related to bending her neck to hold the receiver of the phone. Symptoms do not appear to have been reported again until February 2022 when the applicant complained of neck and right shoulder and arm pain to Dr David in a telehealth consultation. A similar account was given to Dr Achary, who examined the applicant in person the following day. The applicant was referred for physiotherapy, investigations were arranged and the applicant was certified as unfit for work by her doctors. It was the symptoms in the applicant’s neck and right shoulder which originally prompted the present claim for workers compensation.
Although the histories later recorded by Dr Giblin and Dr Herald suggested that the applicant also became aware of pain in her back, left shoulder, wrists and little fingers in early 2022, this is not borne out in the treating evidence.
In mid-2022, the applicant’s right shoulder symptoms were radiologically investigated. Symptoms continued to be reported into late 2022. Eventually a formal claim was made in December 2022 in relation to a diagnosis of neck pain with radiculopathy. The certificate of capacity issued by Dr Islam on 15 December 2022 referred to the radiological investigations of the applicant’s neck and shoulder. Dr Islam identified that the symptoms were related to the applicant’s work as a data entry operator, with constant posturing and arm/hand use causing symptoms.
Although Dr Wallace has expressed the opinion that there was no objective medical evidence that prolonged periods of office duties including data entry and computer work would lead to any injury at the applicant’s cervical spine or upper limbs, he did not specifically engage with the particular tasks identified by the applicant as causative of her symptoms. In his most recent report, Dr Wallace noted that the pain at the applicant’s cervical spine and shoulders was made worse with typing or doing tasks at a fast pace.
After carefully weighing the evidence, I am satisfied on the balance of probabilities that the applicant experienced an increase or intensification of the symptoms at her cervical spine and right shoulder as a result of her work duties.
It was not until a case conference in January 2023 that the applicant indicated that she wished to add her back to the claim. Dr Islam recorded in his notes of the conference on 7 January 2023, that the applicant appeared to be giving conflicting histories in relation to the injury onset and the first date on which she had sought medical advice. The applicant appeared confused. Back pain was nonetheless added to the next certificate of capacity.
The clinical records show that the applicant complained of intermittent of back pain in August 2015 and in 2016. It is significant, however, that records in 2017 suggest that the applicant’s back symptoms were related to a back “injury”. The nature of that injury is not described in the clinical material. Nor is it addressed in the applicant’s statement evidence.
No history of back pain in 2015, 2016 and 2017 was provided to Dr Giblin or Dr Herald. As noted above, both of the applicant’s experts took a history of an onset of back symptoms in early 2022. In the lead up to the compensation claim in late 2022, there is no mention of back symptoms in the clinical records. When the applicant was first examined by Dr Wallace in March 2023, she did not mention any symptoms at her lumbar spine.
The mechanism by which the applicant’s employment duties may have aggravated her back condition remains unclear. The evidence in the applicant’s supplementary statement suggested that the mechanism of looking up and down between her computer screen and paper documents on her desk caused her back pain. The causal mechanism identified by the applicant is not, however, obvious or clear.
The back was added to the SIRA claim form completed in January 2023 which identified repetitive movements, doing multiple tasks and being overworked while typing as the cause of her symptoms. Again, it remains unclear how these activities impacted upon the pathology at the applicant’s lumbar spine.
Relevant findings on clinical examination of the lumbar spine were observed by Dr Giblin in April 2023. The applicant was noted to complain particularly of discomfort at L5.
Dr Herald expressed an opinion that there was a soft tissue aggravation of underlying lumbar spondylosis as a result of the applicant’s work duties. Dr Herald did not, however, explain what aspect of the applicant’s work duties aggravated her lumbar spondylosis.
Dr Wallace noted that the applicant reported constant aching pain at the L1 to L5 spinous process radiating to the paravertebral regions bilaterally at these levels. Dr Wallace was unable to attribute those symptoms to the nature and conditions of the applicant’s employment. Dr Wallace noted that the applicant’s duties were light in nature and inconsistent with being the cause of any significant pathology at the spine or an aggravation acceleration exacerbation of pre-existing disease at the spine.
I accept that the applicant’s treating general practitioners agreed that employment was the main contributing factor to the applicant’s back pain. There are suggestions in Dr Gao’s clinical notes that the applicant’s back pain was associated with prolonged sitting. Neither the applicant’s statement evidence or the medicolegal evidence from Dr Giblin or Dr Herald make the same connection.
The inconsistencies in the evidence regarding the onset of back symptoms, the failure to address the reports of a back injury in 2017 and the absence of a clear and reasoned explanation of the causal mechanism, leave me unsatisfied that the applicant’s employment was the main contributing factor to an aggravation, exacerbation, acceleration or deterioration of a disease process at her lumbar spine.
The left shoulder and bilateral wrists were not added to the claim until a certificate of capacity issued in July 2023. In a report for the applicant’s solicitors on 28 September 2023, Dr Islam only gave an opinion that the applicant’s employment was the main contributing factor to her right shoulder pain and right wrist pain. No such opinion was given in relation to the left shoulder and left wrist.
When the applicant first consulted Dr Gao, she reported symptoms at both shoulders and both wrists. Dr Gao expressed an opinion that the applicant’s employment was the main contributing factor to injuries to both shoulders and both wrists in his report to the applicant’s solicitors.
Symptoms at the wrists and the left shoulder had been noted intermittently in the clinical records previously. In December 2017 the applicant was noted to be experiencing left wrist pain although the cause of the pain was not identified. In March 2021, the applicant complained of right wrist pain which she attributed to typing. The applicant was referred for ultrasound investigations of the right wrist in June 2022. Left shoulder symptoms were also noted and investigated in October 2022.
The applicant gave a comparatively detailed explanation of how her work duties impacted upon her wrists in her statement evidence. The applicant described, for example, using an old keyboard which required increased pressure to type letters. The applicant said that the frequent exertion of pressing keys on the keyboard cause discomfort to her fingers, wrists and shoulders.
A connection between wrist and shoulder pain and typing was made on several occasions in the treating material.
There does appear to be to be some controversy over the nature of the pathology at the applicant’s wrists. It has been suggested by both Dr Gao and Dr Herald that the symptoms at the wrists may be related to the carpal tunnel. Without proper investigations, including nerve conduction studies, neither doctor was willing to make a firm diagnosis of carpal tunnel syndrome. Dr Herald ultimately diagnosed an aggravation of underlying 1st CMC joint osteoarthritis of both wrists.
The respondent has noted that Dr Wallace identified an alternative congenital abnormality at the applicant’s wrists which potentially explained her symptoms. Dr Wallace did, however, accept that there was also age-related change at the wrist joints.
Although Dr Wallace disagreed that the applicant’s employment could have aggravated the degenerative pathology at the wrist joints and shoulders, he has not specifically engaged with the applicant’s evidence and the treating evidence suggesting a connection between the symptoms at the applicant’s wrists and shoulders and typing.
Weighing the lay and medical evidence, I am satisfied on the balance of probabilities that the applicant’s employment duties, in particular typing, were the main contributing factor to an increase in symptoms at both of her wrists and shoulders.
In view of the findings above, there will be an award for the respondent with regard to the allegation of injury to the lumbar spine.
Having accepted that the applicant has sustained an injury pursuant to s 4(b)(ii) of the 1987 Act at the cervical spine, bilateral shoulders and bilateral wrists, the matter will be remitted to the President to be referred to a Medical Assessor for assessment of the degree of permanent impairment resulting from the injury at those body parts.
The matter will be listed for further preliminary conference upon receipt of the Medical Assessment Certificate to deal with the outstanding claims for weekly compensation and medical and related treatment expenses.

[2024] NSWPIC 719

20 December 2024