Nguyen v Bakers Maison Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nguyen v Bakers Maison Australia Pty Ltd [2024] NSWPIC 481
APPLICANT:	Mai Thanh Nguyen
RESPONDENT:	Bakers Maison Australia Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	29 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments, medical expenses and permanent impairment for injury to the left wrist and consequential conditions affecting the cervical spine, right wrist, right elbow and right shoulder; Moon v Conmah Pty Limited and Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer referred to; whether worker had no current work capacity or a partial incapacity for work for the period claimed for weekly payments; Held – worker suffered a consequential condition affecting her right wrist, right elbow and right shoulder, but not to her cervical spine; referral for assessment of permanent impairment for those body parts and also injury to left wrist; worker had no current work capacity for the period claimed; award for weekly payments for period claimed by worker and reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant had no current work capacity from 15 October 2023 to 1 July 2024. 2. The applicant has suffered a consequential condition affecting her right wrist, right elbow and right shoulder as a result of the injury she sustained to her left wrist on 1 November 2021. 3. An award for the respondent for the claim made by the applicant that she has suffered a consequential condition affecting her cervical spine. The Commission orders: 4. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $617.20 per week from 15 October 2023 to 31 March 2024 pursuant to s 37 (1) of the Workers Compensation Act 1987 (the 1987 Act), and (b) $628.20 per week from 1 April 2024 to 1 July 2024 pursuant to s 37 (1) of the 1987 Act. 5. The respondent is to pay the applicant’s reasonably necessary medical treatment for the injury to her left wrist and the consequential condition affecting her right wrist, right elbow and right shoulder pursuant to s 60 of the 1987 Act. 6. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 1 November 2021 Body Parts: Left upper extremity (wrist) Right upper extremity (wrist, elbow, shoulder) as a consequential condition Method of Assessment: Whole Person Impairment. 7. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments; (c) Application to Admit Late Documents filed by the applicant on 21 August 2024; (d) Application to Admit Late Documents filed by the respondent on 22 August 2024, and (e) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Mai Thanh Nguyen, sustained an injury to her left wrist on 1 November 2021 while employed as a process worker for the respondent, Bakers Maison Australia Pty Ltd.
The injury was sustained by the applicant when her left wrist struck a trolley bar while she was putting baking papers onto trolley shelves.
The respondent has admitted liability for this injury, but contends that the effects of that injury to the left wrist had resolved by September 2023.
The applicant also claims that she has sustained consequential conditions affecting her right shoulder, elbow and wrist, as well as her neck, as a result of the injury to her left wrist. The respondent disputes these claims.
The applicant was paid weekly payments of compensation until 14 October 2023. The applicant claims weekly payments from 15 October 2023 until 1 July 2024 (being the expiration of the second entitlement period).
The applicant has also made a claim for whole person impairment as a result of the injury to her left wrist and the consequential conditions affecting her right shoulder, right elbow, right wrist, and cervical spine.
The applicant seeks a general order for the payment of reasonably necessary medical treatment as a result of the injury sustained on 1 November 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained consequential conditions affecting her right shoulder, right elbow, right wrist and/or cervical spine as a result of the injury to the left wrist that was sustained on 1 November 2021;
(b)    the extent of the applicant’s incapacity for work as a result of her injury (ss 32A, 33, and 37 of the Workers Compensation Act 1987 (the 1987 Act), and
(c)    whether medical expenses incurred for treatment of the left wrist, right shoulder, right elbow, right wrist and/or cervical spine are reasonably necessary as a result of the injury sustained by the applicant on 1 November 2021 (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 21 August 2024. 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.
Mr Necovski appeared for the applicant, instructed by Mr Ton. Mr Rickard appeared for the respondent, instructed by Ms Pyrgotis.
The applicant amended her claim for weekly payments of compensation to a period from 15 October 2023 to 1 July 2014, being the balance of the second entitlement period. The applicant discontinued a claim pursuant to s 38 of the 1987 Act.
The applicant’s pre-injury average weekly earnings (PIAWE) as at 15 October 2023 was agreed to be $771.50.
The respondent did not object to late documents being admitted into evidence by the applicant, being a further statement by the applicant dated 24 July 2024 and a report from Dr Yasmin Khan, occupational physician, dated 13 August 2024. A Direction was made that those documents be filed with the Personal Injury Commission (Commission) by 28 August 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 21 August 2024, and
(d)    Application to Admit Late Documents filed by the respondent on 22 August 2024.

Oral evidence

There was no application to cross examine the applicant. Or adduce oral evidence from the applicant.

FINDINGS AND REASONS

Whether the applicant has sustained a consequential condition affecting her right shoulder, right elbow, right wrist and/ cervical spine as a result of the injury to her left wrist on 1 November 2021

The applicant’s evidence

The applicant has provided statements dated 20 November 2023 and 24 July 2024.
The applicant states that she had one week off work following her injury on 1 November 2021 and returned to her full duties. She states that she tended to protect her left wrist by predominantly using her right arm.
The applicant states that her duties included unloading baked bread from a pallet and placing that bread onto a conveyor belt and then transporting the bread to a slicing machine. She states that the baked bread varied in shapes, sizes and weights of over 500 grams. The applicant states that she would pick up the bread with her right arm and would process hundreds of loaves into the slicing machine each day.
The applicant states her general practitioner, Dr Nguyen, certified on 13 December 2021 that she have four weeks off work due to severe pain in her right arm, including her right wrist and elbow.
The applicant states that she was placed on light duties for four hours per day on 1 March 2022, but that those working hours were again reduced on 7 March 2022 to three hours of work per day. She states that she had pain in her right shoulder and pain radiating up to the right side of neck.
The applicant states that she continues to have pain in both wrists. She states that the pain in the right elbow comes and goes. She states that she has pain and restriction of movement in the right shoulder.

The medical evidence

There are no Certificates of Capacity or medical certificates from Dr Nguyen in evidence except for a certificate dated 3 March 2022 which refers to pain in both wrists and right tennis elbow pain.
The applicant commenced attending Workers Doctors from 31 March 2022. The clinical notes from that first consultation record that the consultation was conducted by telehealth. Dr Lim from Workers Doctors provides a report from that first consultation wherein he writes that the applicant developed neck, right shoulder, right elbow and right wrist pain due to ‘overcompensation’. Dr Lim also writes:
“As a result of her work-related L) wrist injury, she has favoured her R) arm, which caused R) shoulder/elbow/wrist aggravation. She also hitched her shoulders and, as a result, has suffered a neck aggravation so that she could undertake alternate work.”
There are clinical notes in evidence from Workers Doctors which cover a period from 31 March 2022 to 9 January 2023. The notes consistently record the applicant having left de Quervain’s tenosynovitis, right wrist tenosynovitis, right elbow epicondylitis, right shoulder subacromial bursitis, and a cervical spine strain. The notes also record that all of the applicant’s consultations for her physical conditions were conducted by telehealth and some by video call, with the exception of a consultation with Dr Calvache-Rubio on 10 June 2022, which was a surgery consultation.
There is a report from Dr Patapanian, consultant rheumatologist, dated 2 February 2022, which contains a diagnosis of the applicant having left sided de Quervain’s tenosynovitis, dorsal tenosynovitis of the right wrist, and right radial epicondylitis. Dr Patapanian does not provide an opinion on the cause of these conditions, but he does record that the applicant’s job as a process worker requires a good deal of repetitive and forceful use of her right hand.
There is a report from Dr Kadir, orthopaedic surgeon, dated 2 May 2022 which is addressed to Dr Lim. That report includes a diagnosis of the applicant having left wrist de Quervain’s tenosynovitis, right ulnar carpal abutment, and right tennis elbow. Dr Kadir records the applicant having an injury to her left wrist and that the right upper limb pain “was thought to be due to the overuse of the right side.”
Dr Berry, general surgeon, has provided a report dated 15 September 2023 at the request of the applicant’s lawyers.
Dr Berry records details of the injury that the applicant sustained to her left wrist on 1 November 2021. He also records that the applicant was protective of her left wrist when she returned to work and used only her right arm. Dr Berry records that the applicant developed pain in the dorsum of the right wrist, the right elbow, and the right shoulder.
Dr Berry found on examination that the applicant had a restricted range of movement in her right shoulder and right wrist. He found a normal range of movement of the right elbow and a full range of movement of the cervical spine.
Dr Berry diagnoses the applicant as having de Quervain’s tenosynovitis in the left wrist, impaction intersection in the right wrist, and a rotator cuff bursitis in the right shoulder. He opines:
“There is a history of an injury to the left wrist resulting in the onset of de Quervain’s tenosynovitis and in the protection of the left wrist the claimant has developed a consequential injury to the right wrist and right shoulder.”
Dr Yasmin Khan, occupational physician, has provided a report dated 13 August 2024 at the request of the applicant’s lawyers.
Dr Khan records details of the injury that the applicant sustained to her left wrist on 1 November 2021. She also records that the applicant was compensating and increasing her right hand use for manual handling at work order to manage pain levels on the left side, and began to develop right sided wrist pain after about three weeks of doing this. Dr Khan records that the right sided symptoms travel up the applicant’s forearm to her shoulder and neck.
Dr Khan found on examination that the right shoulder range of motion was uncomfortable for the applicant and there was notable right sided rhomboid wasting and scapular asymmetry. She found range of motion of the right wrist to be uncomfortable for the applicant, and that the applicant was tender over the radial styloid and the distal radio-ulnar joint.
Dr Khan found the right elbow to have full range of extension, flexion, pronation and supination, although the right lateral epicondyle was tender on palpation. She found full range of flexion and extension of the cervical spine, but with some tenderness over some parts of the neck.
Dr Khan diagnoses the applicant as having left wrist de Quervain’s tenosynovitis, and secondary injuries of right wrist intersection syndrome, right lateral epicondylitis, right shoulder tendinopathy in bursitis, and musculoskeletal right sided neck pain. Dr Khan opines that the secondary injuries “have arisen consequentially.”
Dr Khan also records that her reviews with Dr Lim were every four weeks on Zoom or her phone, and that she has had two in-person reviews by Dr Lim.
Dr Quain, orthopaedic surgeon, has provided reports dated 21 September 2022, 20 July 2023, 3 November 2023 and 22 December 2023.
In his report dated 21 September 2022, Dr Quain finds on examination that the applicant has normal range of motion of the cervical spine and the right elbow. He records that the applicant complains of tenderness to palpation over the dorsal aspect of the right wrist, but otherwise has a normal range of motion. Dr Quain finds a decreased range of motion in the right shoulder.
Dr Quain makes similar findings on examination in his next report dated 20 July 2023. He considers that the applicant has mild, ongoing impingement signs in the right shoulder.
Similar findings on examination are again made by Dr Quain in his next report dated 3 November 2023. Dr Quain opines that the applicant has no ongoing impairment other than mild restriction of motion in the right shoulder, which he considers are signs of residual capsulitis and possible impingement.
Dr Quain writes in a further report dated 22 December 2023 that he does not believe the applicant’s right shoulder injury is a consequential injury from her left wrist injury.

Determination

The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement v Bates (1994) 35 NSWLR 452 (Kooragang). In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Kirby P then said at [463]-[464]:
“…What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
With the aid of those guidelines from Kooragang and Moon, I will address separately the four body parts which are in dispute.

Right wrist

There are two specialists who treat the applicant within six months of her left wrist injury and who both identify the applicant as having symptoms in her right wrist. However, neither of those doctors provide an opinion on the cause of those symptoms.
Dr Patapanian records that the applicant’s job as a process worker requires a good deal of repetitive and forceful use of her right hand, but he does not provide any opinion as to whether that process work is a cause of her right wrist pain, and he does not record any frank injury to the left wrist with consequent overuse of the right arm.
It is unclear whether Dr Kadir’s statement that the applicant’s right upper limb pain “was thought to be due to the overuse of the right side” is his own observation or self-reporting by the applicant.
There is a slight difference in the diagnosis and location of the conditions in the right wrist by Dr Patapanian and Dr Kadir. Dr Patapanian diagnoses the applicant as having dorsal tenosynovitis, whereas Dr Kadir diagnoses ulnar carpal abutment. Nonetheless, both doctors identify the applicant as having symptoms in her right wrist at a time when the applicant was either still working for the respondent or soon after she ceased work.
Dr Berry finds restricted range of movement in the right wrist some 16 months after the applicant sees Dr Kadir. Dr Berry assesses the applicant as having some permanent impairment of the right wrist.
The identification of symptoms in the right wrist by both Dr Patapanian and Dr Kadir at times when the applicant was still working for the respondent or soon after she had ceased work, even though neither doctor provides an opinion as to the cause of those symptoms, when added to the findings made by Dr Berry and his opinion that the applicant suffers a condition affecting her right wrist due to her protection of her left wrist, leads me to be satisfied that the applicant has suffered a consequential condition affecting her right wrist as a result of the injury to her left wrist.
I prefer the opinion of Dr Berry over that of Dr Quain. Dr Quain merely opines that he does not believe there is any evidence of an injury to the right wrist. However, he does not reconcile this opinion with his findings of some tenderness over the right wrist and complaints of pain in the right wrist by the applicant. Nor does he consider the findings made by Dr Patapanian or Dr Kadir at times when the applicant was working or soon thereafter.
There will be a finding that the applicant has suffered a consequential condition to her right wrist as a result of the injury to her left wrist, and the right wrist will be included in a referral to a Medical Assessor for the assessment of permanent impairment.

Right elbow

Both Dr Patapanian and Dr Kadir identify the applicant as having symptoms in her right elbow, although again both doctors provide no opinion on the cause of these symptoms. Both doctors diagnose the applicant as having right tennis elbow or epicondylitis.

Dr Berry records that the applicant developed pain in her right elbow when she was only using her right arm at work due to the injury to her left wrist. However, Dr Berry finds the applicant to have a normal range of movement of the right elbow, does not diagnose any consequential condition affecting the right elbow, and he makes no assessment of permanent impairment of the right elbow.
The applicant is therefore left with the findings and opinion from the doctors from Workers Doctors and Dr Yasmin Khan to succeed with this particular body part.
I find I cannot rely upon the opinion from Dr Yasmin Khan with any confidence on the issue of a consequential condition affecting the right elbow. Dr Khan records that the applicant began to develop right sided wrist pain about three weeks after she began increasing her right hand use at work due to her left wrist injury. She records that the applicant then experienced pain travelling up her forearm, but no specific details are recorded by Dr Khan of symptoms or difficulties in the elbow.
Dr Khan otherwise merely opines that the applicant’s secondary injuries “have arisen consequentially.”
In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift), McColl JA (Mason P and Beazley JA agreeing) said at [84]: “It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.”
I consider that the lack of any specific reference to the right elbow in the details recorded by Dr Khan in regard to the development of the applicant’s symptoms in the right upper limb, along with her opinion which is no more than that the secondary injuries “have arisen consequentially”, does not meet an adequate standard of explanation for the cause of the applicant’s symptoms in her right elbow.
I also have reservations regarding the material from Workers Doctors. It is apparent from a review of that material that all but one of the applicant’s consultations with that practice during the course of 2022 was conducted by telephone or video link. Dr Khan also records that the applicant’s consultations with that practice have not been conducted in person, except for two occasions.
The lack of in person consultations means that the “symptoms and restrictions” referred to in Moon, and which are fundamental to a finding as to whether a patient has a consequential condition, cannot be verified. Even the notes for the consultation with Dr Calvache-Rubio on 10 June 2022, which do not appear to be from a telehealth or video assessment, do not record details of any actual physical examination of the applicant.
Dr Lim does have the benefit of the findings made by Dr Kadir. Dr Lim’s opinion that the applicant had right elbow aggravation due to the applicant favouring her right arm is provided in a report dated 31 March 2022, which is before the applicant attends Dr Kadir. Nonetheless, the clinical notes and Certificates of Capacity from Workers Doctors after the applicant initially sees Dr Kadir consistently identify the applicant’s right elbow epicondylitis as being work related.
In the absence of the findings of symptoms in the right elbow that are made by Dr Patapanian and Dr Kadir, I would have reservations about relying solely upon the opinion of Dr Lim, but when the material from those doctors are considered as a whole, I am satisfied that the applicant has a consequential condition affecting her right elbow as a result of the injury to her left wrist.
I prefer the evidence from Dr Patapanian, Dr Kadir and Dr Lim over that of Dr Quain for one of the reasons I have given in regard to the right wrist, namely that Dr Quain does not consider the contemporaneous material from Dr Patapanian and Dr Kadir who both identified symptoms in the applicant’s right elbow at times when the applicant was working or soon thereafter.
There will be a finding that the applicant has suffered a consequential condition to her right elbow as a result of the injury to her left wrist, and the right elbow will be included in a referral to a Medical Assessor for the assessment of permanent impairment.

Right shoulder

Although Dr Lim does not verify by physical examination any restrictions or symptoms in the applicant’s right shoulder, he does record the applicant having pain in her right shoulder in his report dated 31 March 2022. There are consistent complaints of problems with the right shoulder in the clinical notes from Workers Doctors thereafter, for instance on 10 June 2022 and 29 August 2022.
Dr Berry and Dr Quain both find that the applicant has restricted range of movement of the right shoulder, although their opinions differ as to the cause or causes of this impairment.
Having already accepted the opinion of Dr Berry that the applicant has suffered symptoms in the right wrist due to her protecting her left wrist, I consider that the acceptance of this opinion on causation can be extended to the applicant’s right shoulder, especially when the applicant has made complaints of right shoulder pain to her general practitioners from the early part of 2022.
I prefer the opinion the opinion of Dr Berry over that of Dr Quain. Although Dr Quain concedes that the applicant has signs of residual capsulitis and possible impingement, he provides no opinion as to the cause or causes of this, other than to remark that she is right-handed.
Furthermore, the statement made by Dr Quain that: “I do not believe Ms Nguyen’s right shoulder injury is a consequential injury from her left wrist injury” lacks any further explanation as to why he has come to this conclusion.
I am satisfied that the applicant has a consequential condition affecting her right shoulder as a result of the injury to her left wrist. The right shoulder will be included in a referral to a Medical Assessor for the assessment of permanent impairment.

Cervical spine

Dr Berry finds on examination that the applicant has a full range of movement of the cervical spine, with no tenderness to palpation and no muscle spasm. He does not diagnose any consequential condition affecting the cervical spine, and he makes no assessment of permanent impairment of the cervical spine.
As with the right elbow, the applicant is left with the findings and opinion of the doctors from Workers Doctors and Dr Yasmin Khan to succeed with this particular body part.
I have already provided my reasons as to why I do not accept the opinions from Dr Khan on cause of the consequential conditions claimed by the applicant. Dr Khan diagnoses the applicant as having a musculoskeletal right sided neck pain but does not provide an adequate explanation as to how that pain results from the injury to her left wrist.
Dr Khan records that pain in the applicant’s right arm began to travel up to her neck, but she does not explain why this was a result of the injury to the left wrist. Her explanation that the applicant’s secondary injuries (which include her neck) “have arisen consequentially” does not meet the test set out in Hevi Lift.
I am also not satisfied by the explanation provided by Dr Lim as to the cause of the pain complained of by the applicant in the cervical spine. Dr Lim opines that the applicant “hitched her shoulders and, as a result, has suffered a neck aggravation so that she could undertake alternate work.” However, Dr Lim does not explain why the applicant “hitched her shoulders”, or why such physical actions were a response to the injury she had sustained to her left wrist, or what “alternate work” he is referring to.
I am not satisfied that the applicant has suffered a consequential condition affecting her cervical spine as a result of the injury to her left wrist. There will be an award for the respondent in regard to this particular claim made by the applicant.

The claim for weekly benefits of compensation

The applicant’s evidence

The applicant states that she was born in Vietnam and came to Australia in 1996. She states that she did various jobs as a process worker before commencing employment with the respondent on 31 October 2017.
The applicant states that she is unable to carry out repetitive activities due to pain in her left wrist, right wrist and right shoulder. She states that she has difficulty performing her normal daily activities and that she can only drive for a short time.

The medical evidence

Certificates of Capacity issued by doctors from Workers Doctors throughout 2022 and early 2023 consistently certified that the applicant has no current work capacity.
There is a one-page report in the ARD from Dr Azhar Khan, occupational physician, dated 10 January 2023 which he refers to as a supplementary report. The report is addressed to GIO, and Dr Khan refers to an assessment he undertook of the applicant on 15 December 2022, although a substantive report from Dr khan is not in the ARD or Reply.
Dr Azhar Khan opines that he does not anticipate the applicant returning to her pre-injury duties as a process worker. He opines that he does not anticipate that she will return to a role which requires her to repetitively carry out overhead movements, repetitively bend and flex, push or pull objects on repetitive basis, or carry out heavy manual handling duties. He considered at that time that the applicant had a capacity for 8 to 10 hours per week within the restrictions referred to.
Dr Azhar Khan opines that the vocational options recommended to the applicant of a receptionist, customer service or retail assistant are all appropriate for the applicant.
Dr Berry found on examination that the applicant was tender over the left wrist and his worksheet for assessment of permanent impairment identifies the applicant having restriction of movement of her left wrist. He diagnoses the applicant as having de Quervain’s tenosynovitis in the left wrist.
Dr Berry opines that the applicant’s capacity for work is only for light duties which are non-repetitive.
Dr Yasmin Khan records that the applicant worked as a part-time nail technician at a shopping centre between 2007 and 2017.
Dr Yasmin Khan found the applicant to have normal range of motion testing for the left wrist, and that the applicant’s impairment was restricted to lack of abduction of the left thumb. She nonetheless found the applicant to exhibit positive signs of de Quervain’s tenosynovitis.
Dr Yasmin Khan considers that the applicant is totally incapacitated for any process working role. She considers that the applicant has capacity for non-repetitive work with bilateral manual handling restrictions of occasionally carrying up to 10kg at waist level. Dr Khan opines:
“According to the English, education, skills and training as well as the effects of the work injuries on her function realistically Ms Nguyen is unlikely to return to the work force.”
In his report dated 21 September 2022, Dr Quain records that the applicant complained of localised pain over the radial aspect of the left wrist, and that a Finkelstein test was positive. He considers that the applicant has some ongoing symptoms and signs of de Quervain’s syndrome of the left wrist.
In his report dated 20 July 2023, Dr Quain finds on examination that the applicant has slight pain in the left wrist, but normal flexion and extension and normal grip strength. He considers that the applicant’s injury to the left wrist has not resolved completely but there were only minimal signs.
Dr Quain opines in that report that the applicant is not fit for process type work. He considers that after allowing for improvement in the applicant’s English skills, she would be fit for reception type work or other forms of work for at least 10 to 16 hours per week, and with a lifting of no more than 5kg.
In his report dated 3 November 2023, Dr Quain finds that the applicant has full range of motion of her left wrist without any palpable tenosynovitis. He concludes that the signs of tenosynovitis of the left wrist have resolved. Dr Quain also writes that “repeated process type work may be beyond Ms Nguyen’s capacity even if it is her non-dominant wrist.”

Other evidence

The respondent sent a letter to the applicant’s lawyers dated 12 April 2023 wherein it states that the respondent had formed the preliminary review that the applicant did not have the capacity to perform the inherent requirements of a process worker and that there were no reasonable adjustments that could be made to enable the applicant to perform the inherent requirements of her role. That letter foreshadowed the termination of the applicant’s employment with the respondent.
The applicant’s employment with the respondent was terminated in a letter to the applicant dated 15 November 2023. The letter stated that there were no other available roles into which the applicant would be reasonably redeployed and that the respondent could not hold the applicant’s role open indefinitely.

Determination

I have already made findings that the applicant has suffered consequential conditions affecting her right wrist, right elbow and right shoulder. I am also satisfied that the applicant continues to suffer some effects of the injury to her left wrist.
Mr Rickard submits that the opinion of Dr Quain should be preferred because he is a treating orthopaedic surgeon. Although Dr Berry has a different speciality (being a general surgeon), he also has extensive experience in the examination of patients and injured workers, and I do not consider that a difference in speciality alone allows for the opinion of Dr Quain to be preferred.
Dr Berry finds the applicant to the tender over the left wrist and a restricted range of motion of the left wrist. He diagnoses the applicant as having de Quervain’s tenosynovitis in the left wrist.
Dr Yasmin Khan also finds the applicant to exhibit positive signs of de Quervain’s tenosynovitis. While I have been critical of Dr Yasmin Khan in regard to her explanation of whether the applicant suffers certain consequential conditions, there is no reason to doubt the findings she has made on examination and her conclusion that the applicant continues to suffer left de Quervain’s tenosynovitis.
I accept from the findings and opinion made by Dr Berry and Dr Yasmin Khan that the applicant continues to suffer effects from the injury to her left wrist. Their diagnosis that the applicant had de Quervain’s tenosynovitis at the times of their respective examinations is consistent with the same diagnoses made by Dr Patapanian and Dr Kadir, and ongoing complaints which have been recorded by the applicant’s general practitioners since she sustained her injury.
Dr Quain does not dispute that the applicant had left de Quervain’s tenosynovitis, but only that the condition had resolved by the latter part of 2023. This particular issue therefore involves competing examinations. The consistent record made by several doctors that the applicant has de Quervain’s tenosynovitis leads me to accept that she continues to suffer effects from the injury to her left wrist.
The definitions of “current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Mr Necovski submits on behalf of the applicant that his client has had no current work capacity since 15 October 2023 because of her inability to return to any kind of work which involves the repetitive use of the hands and arms, her limited English skills, and her limited re-training potential.
Mr Rickard on behalf of the respondent submits that the applicant has had a capacity for non-repetitive light duties work during the period that is claimed by the applicant for weekly payments of compensation.
Mr Rickard also submits that there is material in the documents before the Commission which indicates that the applicant has good English skills, such as her ability to sign her two statements without the need of an interpreter and the observation made by Dr Quain in his report dated 3 November 2023 that the applicant actually spoke and understood English quite well.
I consider that Dr Azhar Khan provides a very good summary of the restrictions that should be placed on the applicant’s work capacity. Those restrictions are consistent with the opinions expressed by Dr Berry, Dr Yasmin Khan and Dr Quain that the applicant should not return to repetitive work.
However, the extent of those restrictions makes it difficult to identify a job or jobs that the applicant is suitable for having regard to her past work experience, lack of skills and limited English.
Both Dr Lim and Dr Yasmin Khan record that the applicant worked as a nail technician for at least 10 years before she commenced employment with the respondent. I accept that the work of a nail technician involves repetitive use of the hands, so that it would not be appropriate for the applicant to return to that type of work.
I also accept that many unskilled, manual jobs require repetitive use of the hands, as well as heavy or moderately heavy manual handling, which would not be suitable for the applicant having regard to the accepted medical evidence which I preferred.
Dr Azhar Khan considers that the jobs of receptionist, customer service, and retail assistant are appropriate for the applicant. However, these jobs are referred to by Dr Khan as “vocational options.” The material which has been provided in this dispute does not indicate that the applicant could simply commence to work in one of those jobs. Dr Khan appears to accept that those jobs might only be suitable for the applicant once she has undergone appropriate vocational training.
There is little evidence of the applicant undergoing any vocational training. Dr Quain records in his report dated 20 July 2023 that the applicant was “about to start her rehab guidance, and English language course to try and improve the basic skills.”
Although Mr Rickard refers to evidence suggesting that the applicant has good English skills, it is an entirely different consideration as to whether a person whose first language is not English and who has only ever worked in lower skilled jobs can communicate adequately when working as a receptionist, or providing customer service, or trying to sell products. The available evidence does not allow me to be at all confident that the applicant has the necessary communication skills to do any of these jobs with any degree of proficiency.

I do note that the report from Dr Azhar Khan is a supplementary report, and that his substantive report is not in evidence. It may be that his substantive report would have provided additional details of the applicant’s previous work experience and skills, which would allow for a conclusion that there are some jobs she is suited to. The reports from Dr Khan were provided at the request of the insurer of the respondent and are referred to in correspondence from the respondent regarding the applicant’s ongoing employment following her injury, but the substantive report from Dr Khan has not been included in the ARD or Reply.
In Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), DP Roche referred to whether a worker is able to return to suitable employment and said at [60]:
“…However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment.”
In Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36 (Gradan Bathrooms), DP Snell referred to what was said in Dewar (at [63]) and then said at [87]:
“The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity.”
I enquired of Mr Rickard as to whether he could identify any specific non-repetitive, light duties job which the applicant might be able to do, and he responded that there would be plenty of factories in the Sydney area which included jobs that were not competitive, including supervisory and quality control jobs. However, he was not able to specify any real jobs that might exist in those factories which the applicant might be suited for.
Having undertaken a realistic assessment of the matters referred to in the definition of ‘suitable employment’ in s 32A of the 1987 Act, I cannot identify any jobs suited to the applicant having regard to the restrictions on her ability to use her hands and arms, her past work experience in unskilled or low skilled jobs, and the limitations in her communication skills with English as her second language.
I therefore conclude that the applicant has had no current work capacity from 15 October 2023 to 1 July 2024.
The applicant’s PIAWE is agreed at $771.50 as at 15 October 2023. Eighty per cent of PIAWE amounts to $617.20. The applicant is entitled to indexation of the weekly payments payable to her pursuant to s 82A of the 1987 Act.
There will be an award of weekly payments of compensation as follows:
(a) $617.20 per week from 15 October 2023 to 31 March 2024 pursuant to s 37 (1) of the Workers Compensation Act 1987 (the 1987 Act), and
(b) $628.20 per week from 1 April 2024 to 1 July 2024 pursuant to s 37 (1) of the 1987 Act.

The claim for medical expenses

There will be an order that the respondent is to pay the applicant’s reasonably necessary medical treatment for the injury to her left wrist and the consequential condition affecting her right wrist, right elbow and right shoulder pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 481

29 August 2024