Samardzic v ISS Property Services Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Samardzic v ISS Property Services Pty Limited [2021] NSWPIC 440
APPLICANT:	Rada Samardzic
RESPONDENT:	ISS Property Services Pty Limited
MEMBER:	John Isaksen
DATE OF DECISION:	29 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and an order for the respondent to meet cost of left carpal tunnel release surgery; worker claims injury to the lumbar spine, cervical spine, left upper limb (in particular the left wrist and shoulder) and left lower limb by way of a disease injury pursuant to section 4(b)(ii) of the Workers Compensation Act (1987 Act) while working as a school cleaner; reference to AV v AW and Kelly v Western Institute NSW TAFE Commission; Held – worker sustained disease injury to her lumbar spine and left carpal tunnel as provided for by section 4(b)(ii) of the 1987 Act; award for the respondent for the claims of injury to the cervical spine, left upper limb (except for the left carpal tunnel) and left lower limb; worker has had no current work capacity since 25 June 2020 and award of weekly payments of compensation made accordingly; left carpal tunnel release surgery is reasonably necessary as a result of the injury to the worker and order made pursuant to section 60 (5) and 61 (4A) of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant sustained left carpal tunnel syndrome and an injury to her lumbar spine in the course of her employment with the respondent by way of a disease injury as provided for by section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 5 December 2019. 2. Award for the respondent for the claims made by the applicant for injury to her neck, left upper limb other than to the left wrist and left carpal tunnel, and left lower limb. 3. The applicant has had no current work capacity since 25 June 2020. 4. The left carpal tunnel release surgery proposed by Associate Professor Gumley is reasonably necessary as a result of the injury sustained by the applicant on 5 December 2019.
ORDERS MADE:	1. The respondent is to pay the applicant weekly payments of compensation at the rate of $550.16 per week from 25 June 2020 to date and continuing pursuant to section 37 (1) of the Workers Compensation Act 1987. 2. Pursuant to section 60 (5) and section 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the left carpal tunnel release surgery proposed by A/Prof Gumley, and expenses reasonably incidental to that surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Rada Samardzic, claims that she sustained an injury to her lumbar spine, left shoulder, left arm, left wrist, left hand and left leg while employed with the respondent, ISS Property Services Pty Limited, as a result of repetitive and strenuous work undertaken in performing her duties as a cleaner, with a deemed date of injury of 5 December 2019.
The applicant has not worked since 5 December 2019, and was paid weekly payments of compensation until 24 June 2020.
Dispute notices were issued by the respondent on 3 June 2020 and 31 March 2021. The respondent concedes that the applicant sustained a minor injury to her lower back on 5 December 2019, from which the applicant has made a full recovery. The respondent otherwise disputes that the applicant sustained any injury to her neck, left upper limb or left leg.
The applicant makes a claim for weekly payments of compensation from 25 June 2020 on the grounds that she has no current work capacity as a result of her injuries.
The applicant also seeks an order pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of a left carpal tunnel release proposed by A/Prof Gumley. The respondent disputes this claim on the grounds that the applicant has not sustained a left carpal tunnel injury in the course of her employment with the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury to her lumbar spine, left shoulder, left arm, left wrist, left hand and/or left leg in the course of her employment with the respondent by way of a disease injury, being an aggravation, acceleration, exacerbation or deterioration of a disease, with the applicant’s employment being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease (section 4 (b)(ii) of the 1987 Act);
(b) the extent of any incapacity for work as a result of an injury sustained to the lumbar spine, left shoulder, left arm, left wrist, left hand and/or left leg (sections 32A, 33 and 37 of the 1987 Act), and

(c) whether the left carpal tunnel release proposed by A/Prof Gumley is reasonably necessary as a result of an injury sustained by the applicant in the course of her employment with the respondent (section 60 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 21 October 2021. 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 Barter appeared for the applicant, instructed by Ms Lauren Hunt. Mr Saul appeared for the respondent, instructed by Mr Thomas Murray.
The hearing was conducted by telephone in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $687.70.
The parties agreed that the applicant had already been paid weekly payments of compensation in excess of 13 weeks.

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, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant, or other witnesses who have provided statements.

The applicant’s evidence

The applicant has provided statements dated 25 May 2020 and 22 August 2021.
The applicant states that in 2010 she sustained a carpal tunnel injury to her right arm, right shoulder and neck. She states that she made a workers compensation claim and returned to work.
The applicant states that she commenced employment as a cleaner with the respondent in June 2017.
The applicant states that she did cleaning work at Casula High School and worked 30 hours per week from Monday to Friday, which comprised three hours of work in the morning and a further three hours of work in the afternoon. She states that she cleaned 19 classrooms, four staff rooms and a large kitchen which contained four rooms.
The applicant states that her main duties were to mop and vacuum the floors, wipe down tables, dust, and take out the rubbish. She states that she had to work fast to complete her duties within the designated timeframe.
The applicant states that she used a vacuum cleaner every single day. She states that the vacuum cleaner was operated from a backpack. She states that the bottom of the vacuum would dig into her back. The applicant also states that there were two particular classrooms that were bad each day and she had to pick up a lot of rubbish from the floors of those rooms before she could vacuum.
The applicant states that the floor in the kitchen areas was difficult to mop and vacuum because the surface was uneven.
The applicant states that she had to carry rubbish bags up and down stairs. She states that she had to carry heavy rubbish bags to a large bin during the afternoon shift, although sometimes a male worker would do that task for her.
The applicant states that at the beginning of 2019 the number of students at the school increased significantly but her contracted hours remained the same.
The applicant states that in late June 2019 she saw her general practitioner, Dr Tomasevic, regarding pain in her back and going down her legs. She states that tests were conducted on her circulation and her veins.
The applicant states that in June or July 2019 she complained to her manager, Karren Clark, “in relation to my lower back”, and informed Ms Clark that it was hard for her to take the rubbish out to the large bins.
The applicant states that she sustained her injury on 5 December 2019. She states that she was vacuuming the English classroom with the use of a backpack when she felt a sharp immense pain in her lower back and “became practically paralysed” for about 10 minutes. She states that she could not finish her duties and called her husband to pick her up.
The applicant states that she made her way slowly to tell her team leader, Vicki Buggy, that she was going home, but Ms Buggy saw her and asked the applicant what was wrong because the applicant was crying and in visible physical pain.
The applicant states that she saw Dr Tomasevic the following day. She states that she went to work the following Monday, being 9 December 2019, but could not finish the shift and went home. The applicant has not returned to work since then.
The applicant states:
“I submit that I did not suffer from any pre-existing pain, restrictions, or disabilities in my lower back prior to commencing with the subject employer. Specifically, it was only when there were increased students at the school and a heavier workload with no additional working hours provided, that I began developing pain within my neck, lower back, and left upper and lower extremities.”
The applicant states that she told Ms Clark when her pain started to become increasingly worse, but that she was scared to lodge an official complaint because she might lose her job.

The respondent’s lay evidence

Vicki Buggy has provided a statement dated 19 May 2020. Ms Buggy states that she is the Team Leader for the respondent at Casula High School.
Ms Buggy states that the applicant’s core duties are vacuuming, mopping, wiping tables and dusting.
Ms Buggy states that the applicant’s duties include removing rubbish from the rubbish bins to the skip bin, which is near the front gate. She states that on occasions she told the applicant not to carry several bags of rubbish to the skip bin, but still saw the applicant do this and observed that the applicant was struggling. Ms Buggy states that the kitchen rubbish bags can get heavy and that the heavy bags are to be carried by the general assistant at the school.
Ms Buggy states that there was an increase in student numbers in 2020, but there was no significant increase in 2019.
Ms Buggy states that the applicant would regularly complain that she did not have enough time to complete her duties without having to rush. She also states that the applicant was a very good worker.
Ms Buggy states that on 4 December 2019 the applicant told her that she had a bad pain in her back and that the applicant looked in pain. She states that she recalls reporting the applicant’s injury to the respondent’s call centre, but she does not know what day that was. Ms Buggy states that she did the talking because the applicant’s English is not good.
There is an unsigned statement from Karren Clark attached to the Reply. The applicant did not object to this statement being considered as part of the evidence in the dispute.
Ms Clark states that she has been employed as a Client Services Manager for the respondent since April 2019. She states that she rarely sees the applicant and that is only when she is performing inspections of the cleaning at Casula High School.
Ms Clark states that she was aware of a pre-existing right shoulder, right hand and neck injury that was sustained four years ago with a previous employer. She states that she does not recall the applicant making it known to her that the applicant had a lower back injury prior to 6 December 2019. She states that to her knowledge the applicant never made any formal complaints to her knowledge. Ms Clark states: “No red flags in relation to the claimant. She just got on her with her work”.
An Incident Report form dated 6 December 2019 describes the applicant’s claim of injury to be: “Employee was vacuuming rooms and experienced back pain”.

The medical evidence

The applicant states that she migrated to Australia from Bosnia in 2001. The following year she began to attend Dr Tomasevic for her medical treatment and Dr Tomasevic has continued to be the applicant’s general practitioner ever since. The clinical notes from
Dr Tomasevic from 2002 to July 2020 are in evidence.
Dr Tomasevic records the applicant having pains and paraesthesia in her right hand in 2005.
There is a report from Dr Rail, neurologist, dated 11 July 2005, which states that the applicant had an EMG which showed moderately severe bilateral carpal tunnel syndrome.
There is a report from A/Prof Gumley, hand and wrist surgeon, dated 15 July 2005 wherein he confirms significant carpal tunnel syndrome, particularly on the right, and recommends surgery.
Dr Tomasevic records on 25 August 2010 the applicant having pains and paraesthesia in her right hand, and also pains in her right shoulder, neck, and upper and mid back.
There is a report from Dr Habib dated 30 October 2010 wherein he records the applicant having moderate weakness in the right hand, pain going up the right arm, and the neck being mildly tender.
Dr Rail provides a further report on 9 November 2010 wherein he writes that an EMG shows severe right carpal tunnel syndrome.
Dr Tomasevic records that the applicant underwent a right carpal tunnel release performed by A/Prof Gumley on 19 July 2011.
Between 2010 and January 2018 there are multiple entries in the notes of Dr Tomasevic of the applicant having pains and paraesthesia in her right hand, pains in her right shoulder, neck, and upper and mid back.
There are entries made by Dr Tomasevic in the middle part of 2019 which relate to investigations for pain in the legs, which may have been due to the applicant experiencing problems with her veins.
There is a CT scan report of the lumbar spine dated 1 August 2019 which records that the clinical indication for obtaining the report to be neurogenic claudication. The report records mild discovertebral changes without significant canal stenosis nor nerve root compression.
A record made by Dr Tomasevic on 14 August 2019 includes lower back pain as part of the applicant’s ailments. A record made by Dr Tomasevic on 30 September 2019 includes pains and paraesthesia in the applicant’s left hand, and there is reference to a referral to
Dr Hassan for nerve conduction studies.
I could not locate a report from Dr Hassan in the ARD or Reply, but Dr Tomasevic records on 13 November 2019: “23/10/19 nerve conduction studies cts left > right Dr Hassan”.
There is an MRI scan report of the lumbar spine dated 10 November 2019 which records that the clinical indication for obtaining the report to be “complaining of back pain”. The report records minimal disc bulges and mild facet joint arthropathy in the lower two lumbar levels.
There is a report from Dr Habib, orthopaedic surgeon, which although dated 6 December 2019, refers to a consultation with the applicant on 4 December 2019, a day before the applicant claims to have experienced an increase in lower back pain.
Dr Habib records the applicant’s duties as a cleaner to be vacuuming, cleaning tables, dusting and cleaning windows for 30 hours per week. He records that the applicant took a break from work for two and half years after an injury in 2004 and underwent “right shoulder rotator cuff syndrome” surgery on 19 July 2011.
Dr Habib writes that his impression is left carpal tunnel syndrome and musculo ligamentous strain of the back with “aggravation of the asymmetric lumbar spinal changes”.
Dr Tomasevic records on 6 December 2019:
“5/12/19 4.45pm at work using vacuum cleaner and vacuum cleaner was on patient's back and whilst using vacuum cleaner noticed pain in lower back, left upper limb, left hand, left and right lower limbs, paraesthesia left and right hands, occasional paraesthesia left and right lower limbs.”
The first reference to left shoulder pain in the notes from Dr Tomasevic is on 16 January 2020. The Certificate of Capacity issued on that same day by Dr Tomasevic lists the applicant’s injuries as: “Soft tissue injuries to lower back, left upper limb, left shoulder, left hand, left & right lower Iimbs, nerve root irritation left and right upper and lower limbs”.
Dr Habib provides a further report dated 20 February 2020. There is no record made of any specific incident at the applicant’s work on 5 December 2019. He writes that the deemed date of injury for the left paraesthesia and low back pain is 5 December 2019, being the last day that the applicant worked. Dr Habib also records that symptoms in the neck and left “were not bad enough”, but that the applicant had minor neck discomfort and left shoulder pain with stiffness for a few months prior to the deemed date of injury.

Dr Habib writes:
“Carrying the heavy vacuum backpack up and down the stairs and constant maintaining of posture would be the most obvious cause for her complaints of neck and especially the low back.
Repetitive movements of the arms have resulted in bilateral shoulder complaints of pain and some movements restrictions. She had pre-existing right shoulder symptoms of pain and restricted mobility. Gripping and carrying in a repetitive fashion would be the most plausible explanation of the left median nerve compromise at the wrist and CTS.
Some of the changes seen on the imagery would be asymptomatic. long standing, but aggravation of such changes would account for her current complaints.”

Dr Habib writes in a further report dated 25 April 2020 that the applicant’s left carpal tunnel syndrome and ongoing aggravation of her low back “are clearly related to and the result of the nature and conditions of her employment as a school cleaner”.
Both Dr Habib and A/Prof Gumley recommend that the applicant have a left carpal tunnel release. In the “Request for Approval for Surgery” dated 3 June 2020, A/Prof Gumley writes the surgery is “as a result of the workplace injury/claim”. However, A/Prof Gumley has not provided a report which addresses the cause of the applicant’s left carpal tunnel syndrome.

Dr Bodel, orthopaedic surgeon, has provided a report at the request of the applicant’s solicitors dated 26 September 2020.
Dr Bodel records that the applicant had a previous injury to her right shoulder in 2010 and had a case regarding the right shoulder, right carpal tunnel syndrome and a neck injury which settled in 2015.

Dr Bodel records that the applicant commenced work with the respondent doing casual cleaning in June 2017. He records that the applicant began to develop a gradual onset of lower back pain and left hip and thigh pain, and a gradual onset of numbness and tingling in the neck and left wrist.
Dr Bodel also records that the applicant developed increasing lower back pain when she was under a lot of pressure on 5 December 2019.
Dr Bodel lists several investigations of the applicant, including the nerve conduction studies performed on 23 October 2019 and writes: “This shows the presence of the carpal tunnel syndrome with significant compression of the median nerve at the wrist on the left hand side and mild residual symptoms on the right hand side”.
Dr Bodel writes that the applicant developed a gradual onset of neck and left shoulder girdle pain, and lower back pain and left carpal tunnel syndrome as a result of the nature and conditions of her work as a school cleaner.

Dr Bodel opines:
“I am satisfied that the repetitive nature of this lady’s work as a school cleaner is the cause of the onset of the symptoms in the injured areas. She had been at the workplace for several years before the symptoms began and they came on as a result of the nature of work in general.”

Dr Bodel opines that the applicant’s employment is the main contributing factor by way of aggravation, acceleration, exacerbation or deterioration of an underlying disease in the cervical spine and left carpal tunnel syndrome.
Dr Hitchen, orthopaedic surgeon, has provided a report at the request of the respondent dated 29 April 2020.
Dr Hitchen records that the applicant had a sudden onset of pain in her lower back while vacuuming at work on 5 December 2019. He records that the applicant had a sensation of numbness in her legs and left arm. He records that the applicant denied any pre-existing problems with her back, but noted a CT scan in August 2019 and an MRI scan in November 2019. Dr Hitchen also records that there were physical signs suggestive of left carpal tunnel syndrome.

Dr Hitchen opines that it was most likely that the applicant had a minor soft tissue strain upon a background of chronic lower back pain for which she was already seeking treatment. He considers that the soft tissue strain should have resolved within a matter of a couple of days and there is now amplified pain behaviour.
Dr Hitchen opines that the left carpal tunnel syndrome is very likely a constitutional condition and notes that the applicant has symptoms despite not undertaking any physical labour. He writes that a small percentage of individuals have a vocational basis for carpal tunnel syndrome if the hand is involved in hammering or heavy gripping activities, but that the applicant did not describe any injury to the left hand on 5 December 2019.
Dr Wallace, orthopaedic surgeon, has provided a report at the request of the respondent dated 26 February 2021.
Dr Wallace records that the applicant had an injury to her neck, with pain radiating to her right shoulder and right hand, while working as a process worker in 2010. He also records the applicant undergoing a right carpal tunnel release.
Dr Wallace records that the applicant’s duties with the respondent required her to vacuum, mop, dust, wipe down tables, ledges and glass partitions, and remove rubbish to a skip bin near the front gate.
Dr Wallace records the applicant having a gradual onset of neck pain in 2019 which she did not report to the respondent. He records the applicant having an onset of pain in the left shoulder and lumbar spine while vacuuming at work on 5 December 2019. He records the applicant having an onset of paraesthesia and numbness in the left hand in July 2019 without a history of injury.
Dr Wallace diagnoses the applicant having had a musculoligamentous strain of the lumbar spine and aggravation to pre-existing symptomatic degenerative lumbar spondylosis on 5 December 2019, which has now resolved. He opines that her current residual lumbar spinal symptoms are to pre-existing symptomatic multilevel degenerative lumbar spondylosis, which was found on a CT examination in August 2019.
Dr Wallace opines that the applicant has not suffered any injury to her lumbar spine as a result of the nature and conditions of her employment as a cleaner. He opines that there is no objective medical evidence that the applicant has suffered any injury to her cervical spine, left shoulder or left wrist in the course of her duties at work.

Dr Wallace opines that her left wrist symptoms are due to idiopathic carpal tunnel syndrome which is entirely unrelated to her employment.

FINDINGS AND REASONS

Whether the applicant sustained an injury in the course of her employment with the respondent

Mr Barter for the applicant submits that the applicant’s claim for compensation is based upon her sustaining a disease injury pursuant to section 4 (b)(ii) of the 1987 Act. He submits that the applicant’s employment must be the main contributing factor to the aggravation of the applicant’s underlying condition because it is the only explanation for that aggravation, and there is no competing cause for that aggravation.

Mr Barter submits that the applicant does not seek to hide previous injuries and disabilities which she had and that, in any event, a careful review of the records of Dr Tomasevic reveals that the problems the applicant had before she commenced employment with the respondent were predominantly related to her right arm, right side of her body and neck. The problems which the applicant complains of following the work she undertook with the respondent are to her left upper limb and lower back.

Mr Saul for the respondent submits that the applicant may have had a temporary aggravation of a degenerative lower back condition on 5 December 2019, but that has now resolved. He submits that since ceasing work with the respondent, the applicant has attempted to expand her claim to other parts of her body, especially the left wrist, when no claim or report of injury to those body parts was made while the applicant was working for the respondent.
Mr Saul submits that it strains credulity that given that the applicant has had so many problems to so much of her body over some 15 years, that the work that she did for a relatively short period of time with the respondent has caused or aggravated injuries to her lower back, neck, left upper limb, and left leg.
Counsel for both parties referred me to various entries in the notes from Dr Tomasevic in support of their client’s separate positions in this dispute. I have undertaken a review of the notes from Dr Tomasevic.
I have also undertaken a review of the EML file in regard to the applicant’s previous claim. EML records the date of injury for that claim in its correspondence to be 25 June 2010.

The notes from Dr Tomasevic record that the applicant had some lower back pain in 2003, but I could not locate the next reference to lower back pain in those notes until 14 August 2019. There are certainly multiple references to pain in the upper and middle back between 2010 and 2018, but not to the lower back.
The notes from Dr Tomasevic record on 17 June 2005 that the applicant had some pains and paraesthesia in the left hand as well as the right hand. The reports of Dr Rail and
A/Prof Gumley in 2005 also record symptoms of left carpal tunnel syndrome, although
A/Prof Gumley records her symptoms on the right being of more concern.
However, the notes from Dr Tomasevic only record pains and paraesthesia in the right hand from 2010 until 2019. From 2010 the applicant begins to attend Dr Tomasevic on a regular basis for treatment for her right wrist and hand, she is referred to appropriate specialists, and then undergoes a right carpal tunnel release on 19 July 2011. A reference in the notes from Dr Tomasevic to pains and paraesthesia in the applicant’s left hand only appears again on 30 September 2019.

The medical reports from the EML file for the applicant’s previous workers compensation claim do not refer to any injury or symptoms in the applicant’s lower back or left wrist. A report from Dr Perla dated 7 April 2011 concentrates on the applicant’s right carpal tunnel syndrome, makes no mention of any problems in the lower back, and notes: “Signs for carpal tunnel on the left were negative”.
A report from Dr Derek Lee dated 20 February 2012 makes no mention of the applicant having problems with her lower back or left wrist.
The Medical Assessment Certificate from Dr Burns dated 30 April 2012 makes no reference to the applicant having symptoms in her lower back or left wrist.
There are eight reports from Dr Habib which are in evidence and which cover a period from October 2010 to December 2013, but those reports relate to treatment for right carpal tunnel syndrome, an injury to the right shoulder and an injury to the neck.
Mr Saul refers to “a plethora of consistent and ongoing complaints” by the applicant in the clinical records which are in evidence. However, from my review of that material, those complaints until mid-2019 were almost entirely centred on the applicant’s right upper limb and neck.
There were some complaints and findings of left carpal tunnel syndrome in 2005, but otherwise there are no records of any problems with the lower back or left wrist until the latter part of 2019. That leads me to conclude that there was an increase or intensifying of symptoms in the applicant’s lower back and left wrist in the latter part of 2019, which was some two years after the applicant had commenced work in a job which would have placed strain upon her lower back and left wrist.
However, it remains necessary for the applicant to establish that her employment is the main contributing factor to the aggravation of a disease which has affected some or all of the various parts of her body which she now complains of, in order for her to succeed with this claim.
Section 4(b)(ii) of the 1987 Act provides:
“In this Act:
Injury:
………….
(b) includes a disease injury, which means:
………….
(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.

The application of section 4(b)(ii) of the 1987 Act was well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
In regard to the application of the terms ‘aggravation’ and ‘exacerbation’ in the 1987 Act,
AP Roche said in Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 (Kelly) at [66]:

“an aggravation or exacerbation of a disease occurs where the experience of the disease by the applicant is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626).”
The applicant has set out the work she undertook for the respondent as a cleaner in her statements, and those duties are confirmed by Ms Buggy, who also worked at Casula High School. The applicant states that she complained to Ms Clark in June or July 2019 “in relation to my lower back”, but otherwise states that her injury to her lower back occurred on 5 December 2019.
Apart from the injury she claims to have sustained to her lower back, the applicant does not relate any particular work duties which she was undertaking with the respondent to symptoms in the other parts of her body she now complains of. The applicant merely states:
“Specifically, it was only when there were increased students at the school and a heavier workload with no additional working hours provided, that I began developing pain within my neck, lower back, and left upper and lower extremities.”

The applicant had a break during each working day, which would have given her some rest from her manual work, but I nonetheless accept that the work of vacuuming, mopping, bending over to clean, and carrying heavy rubbish bags, was capable of placing additional strain upon the applicant’s back such as to cause an aggravation of underlying degeneration in her lumbar spine. I also accept that gripping with the left hand and wrist in undertaking those same duties was capable of aggravating the applicant’s left carpal tunnel syndrome.
Mr Saul submits that it is not enough for the applicant to succeed on an argument that the employment was capable of causing her injury. He referred to what was said by President Keating in Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47 (Mannie) at [87]:
“Whether the employment was capable of causing injury is not to the point. Mr Mannie carried the onus of establishing that the employment was the main contributing factor to the aggravation. Further, whether persons engaged in work of a kind that Mr Mannie engaged in have “often been found to aggravate neck conditions” does not advance Mr Mannie’s appeal. As the Arbitrator stated (at [73]), each case must be determined on its own facts (Gunton at [62]).”
Although further evidence from the applicant of the relationship between particular work activities she undertook and the onset of symptoms in the body parts she complains of would have been very helpful, I consider that the fundamental requirements of section 4 (b)(ii) are met by the applicant’s evidence and the opinion of Dr Habib, at least in regard to the claims of injury to the lower back and left carpal tunnel syndrome.

Considerable weight has to be given to the opinions of Dr Habib because of his role as the applicant’s treating specialist. In regard to the applicant’s lower back condition, Dr Habib has had the advantage of seeing the applicant before the increase of lower back pain which she experiences on 5 December 2019. He opines that the most obvious cause for her low back complaints is carrying a heavy backpack up and down stairs and constantly maintaining her posture. I find it reasonable to conclude from the applicant’s evidence that heavy carrying would extend to taking rubbish bags to the large bins, and that maintaining posture would extend to the various cleaning duties which she undertook.
Dr Habib does not record the applicant having an increase of pain in her lower back while at work on 5 December 2019. However, neither in the applicant’s evidence, nor in the details recorded by Dr Bodel or Dr Wallace, is there any connection identified between a particular action taken by the applicant on that day, such as lifting and twisting, and the increase in lower back pain. All of that evidence simply refers to an increase of pain while vacuuming.
Dr Hitchen gets closest to identifying that a frank incident occurred on 5 December 2019 when he records that the applicant got a sudden onset of lower back “with the back and forth action of using the vacuum pole”.
Notwithstanding the increase of pain in the applicant’s lower back on 5 December 2019, the complaints of lower back pain from at least August 2019 as recorded by Dr Tomasevic, and the subsequent referral to Dr Habib for treatment of the lower back before 5 December 2019, point to an increase of symptoms in the applicant’s lower back which coincides with heavy and strenuous work which she undertook as a cleaner.
Dr Habib does not state that the applicant’s employment is the main contributing factor to the aggravation of a disease affecting the lower back. However, as DP Roche said in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
Having considered the applicant’s work activities, which are corroborated by Ms Buggy, the onset of symptoms in the lower back by at least August 2019 as recorded by Dr Tomasevic, and the opinion from Dr Habib that “the most obvious cause” of the applicant’s lower back complaints is from certain work activities she has undertaken, I am satisfied that the applicant’s employment is the main contributing factor to the aggravation of a degenerative lumbar spine.
That finding is supported by the opinion of Dr Bodel. I agree with Mr Saul that caution needs to be exercised in relying upon the report of Dr Bodel. Dr Bodel does not recite in his report any specific details of the work undertaken by the applicant as a cleaner. He concludes that he is satisfied “that the repetitive nature” of the applicant’s work as a cleaner has been the cause of the onset of symptoms, without identifying what that repetitive work is and how it has affected various parts of the applicant’s body.
However, Dr Bodel does state that he has noted the applicant’s statement (which is presumably the first statement dated 25 May 2020) and the gradual onset of her symptoms. The opinion from Dr Bodel of the cause of the applicant’s lower back symptoms is consistent with the opinion provided by Dr Habib.
I prefer the opinions of Dr Habib and Dr Bodel that the applicant’s employment is the main contributing factor to the aggravation of a degenerative lumbar spine over the opinions of
Dr Hitchen and Dr Wallace.
Dr Hitchen acknowledges that the applicant had sought medical treatment for her lower back prior to 5 December 2019 but does not consider whether the work she was doing over a period of time with the respondent was a possible cause for her lower back symptoms. He simply concludes that the applicant had a minor back strain on 5 December 2019 and that after a few days that strain should have resolved.

Dr Wallace opines that the applicant has not suffered an injury to her lumbar spine as a result of the nature and conditions of her employment, but he does not engage in any consideration as to whether the work undertaken by the applicant could have aggravated her degenerative lower back. It is accepted throughout the medical material that the applicant has a degenerative lumbar spine, but given the increase of symptoms in the applicant’s lower back in the latter part of 2019 which are recorded by Dr Tomasevic and asserted by the applicant in her own evidence, Dr Wallace does not properly address the question of whether the applicant’s employment is the main contributing factor to the aggravation of the applicant’s degenerative lumbar spine.
The evidence of the applicant, the records of Dr Tomasevic, and the reports from Dr Habib, reveal that there was an intensifying of symptoms in the applicant’s lower back from at least August 2019. I have given my reasons as to why I prefer in particular the opinion of Dr Habib, and also that of Dr Bodel. I am satisfied that the applicant’s employment is the main contributing factor to the aggravation of the applicant’s underlying degenerative lumbar disease.
I also prefer the opinion of Dr Habib on the cause of the applicant’s left carpal tunnel syndrome. Dr Habib opines that that gripping and carrying in a repetitive fashion “would be the most plausible explanation” of the left carpal tunnel syndrome. The duties which the applicant undertook of vacuuming, mopping, and dusting required gripping with the hands. The carrying of heavy rubbish bags also required gripping with the hands.
Dr Habib does not use the terminology of the workers compensation legislation of “main contributing factor”, but he does provide his opinion of the most likely cause for an increase of symptoms in the left wrist. Applying an “evaluative process”, as is referred to in both
El-Achi and AV v AW, I am satisfied that Dr Habib, in his capacity as the applicant’s treating specialist, has identified the applicant’s employment as being the main contributing factor to the aggravation of her left carpal tunnel syndrome.

Neither Dr Hitchen nor Dr Wallace have properly considered the application of section 4 (b)(ii) of the 1987 Act as it applies to the condition of the applicant’s left wrist, especially given that the applicant was complaining of left wrist symptoms while she continued to work for the respondent.
Dr Hitchen concedes that a small percentage of individuals have a vocational basis for carpal tunnel syndrome if the hand is involved in hammering or heavy gripping activities. I accepted that the applicant’s work activities of vacuuming, mopping, dusting and carrying heavy bags of garbage would have involved heavy gripping. Yet Dr Hitchen does not engage in a consideration as to whether those activities may have caused or aggravated the applicant’s left carpal tunnel syndrome because he isolates the source of the applicant’s complaints to what occurred at work on 5 December 2019.
Dr Wallace opines that the applicant’s left wrist symptoms are due to idiopathic carpal tunnel syndrome, which is entirely unrelated to her employment. He does record the work duties undertaken by the applicant but, as with her lower back complaints, Dr Wallace is not prepared to consider whether the applicant’s employment is the main contributing factor to the cause or aggravation of the applicant’s left carpal tunnel syndrome.
Mr Saul refers to deficiencies in the evidence provided by the applicant which should cause me to doubt the strength of the applicant’s case. For instance, he submits that if the applicant’s two statements are read in isolation, the impression is that the applicant starts her employment with the respondent as if nothing had ever previously happened to her.
Mr Saul also refers to the applicant’s lack of candour in the details recorded by Dr Hitchen and Dr Wallace of her past injuries and asks me to question whether the applicant is a trustworthy historian.
Mr Saul refers to there being no report of injury by the applicant to her left upper limb, including the left wrist, neck or left leg during her employment with the respondent.
That the applicant did not report any injury to her lower back or left wrist prior to an increase in symptoms in the lower back on 5 December 2019 does not mean that injuries to at least those two parts of her body were not causally related to her employment. The question of whether the applicant’s employment is the main contributing factor to the aggravation of a disease affecting the lumbar spine and left wrist involves an evaluative process in response to all of the evidence.

From my review of the evidence, I have concluded that the applicant was kept out of the workforce for some years as a result of injuries she sustained to her right upper limb and neck, with some pain extending to her upper and middle back. There is no medical evidence indicating that the applicant had any problems with her lower back or left wrist up until the latter part of 2019, except some complaints and findings of left carpal tunnel syndrome in 2005.
Because of her lack of English, the applicant has been limited since coming to Australia to menial, unskilled jobs such as cleaning. She returned to such a job in 2017, but after the passage of some two years, during which I accept she was undertaking strenuous duties which put strain on her lumber spine and left wrist, she sought treatment form her general practitioner for symptoms in her lower back and left wrist.

The deficiencies in the evidence highlighted by Mr Saul does not change my conclusion, from a review of all the evidence, that the applicant’s employment is the main contributing factor to the aggravation of a disease affecting the applicant’s lumbar spine and left carpal tunnel.
The claims made by the applicant of injury to the neck, the left arm other than the left wrist, and left leg, are problematic.
In regard to the claim for an injury to the neck, the medical material confirms that the applicant has had aching and pain in her neck since 2010.
The applicant does not provide her own evidence as to what specific work activities she undertook with the respondent caused an increase or intensifying of any neck symptoms.
There is no record in the notes of Dr Tomasevic in the months immediately preceding the applicant’s cessation of work in December 2019 of any increase of pain in the neck. There is a record of paraesthesia and numbness in both hands around this time, but the treatment provided by Dr Tomasevic is directed towards the applicant having carpal tunnel syndrome.
There is no reference to an injury to the neck in the Certificate of Capacity issued by
Dr Tomasevic on 16 January 2020. The first reference to neck pain after the applicant ceases work with the respondent in the notes of Dr Tomasevic is on 6 February 2020.
Dr Habib does not record the applicant having neck symptoms in his report dated
6 December 2019. In his report dated 20 February 2020, Dr Habib records that the applicant had minor neck discomfort for a few months prior to 5 December 2019, and that these symptoms “were not bad enough”. Dr Habib finds minor local tenderness at the C5/6-7 levels and diagnoses minor exacerbation of cervical spondylotic change.
I have accepted the opinion provided by Dr Habib as to the cause of the applicant’s low back complaints, being the carrying of a heavy vacuum up and down stairs and maintaining a constant posture, and this is the same cause which he identifies for her neck complaints. However, my acceptance of his opinion regarding the cause of the applicant’s low back complaints is based upon there also being evidence of complaints of low back pain in the records from Dr Tomasevic and the applicant’s evidence. There is no such corresponding evidence in regard to the applicant’s neck complaints.
There is no compelling evidence in the contemporaneous medical evidence which indicates that the applicant’s employment with the respondent is the main contributing factor to an increase or intensifying of symptoms in the neck.
I do not accept that minor discomfort in the neck, even if it was being experienced by the applicant in the few months prior to 5 December 2019 as recorded by Dr Habib, is sufficient to meet the onus of proof set by section 4 (b)(ii) of the 1987 Act. There will be an award for the respondent on the claim made by the applicant of an injury to the neck in the course of her employment with the respondent.
In regard to the claim for an injury to the left shoulder, I again make the observation that the applicant does not provide her own evidence as to what specific work activities she undertook with the respondent which caused the onset or intensifying of any left shoulder symptoms.
On 6 December 2019 Dr Tomasevic records the applicant having pain in the left upper limb, but not specifically in the left shoulder. The first reference to the left shoulder in the notes of Dr Tomasevic is on 16 January 2020. An injury to the left shoulder is included in the list of injuries in the Certificate of Capacity issued by Dr Tomasevic on that same day.
The widespread complaints of pain which are recorded by Dr Tomasevic after 5 December 2019, including complaints of pain in the left upper limb and pain and paraesthesia going down both legs, makes it difficult to determine what parts of her body the applicant might have injured in the course of her employment, other than to the lower back and left wrist.
Dr Tomasevic has not provided a report which might assist in this task.
Dr Habib finds tenderness and restriction of movement in the left shoulder when he examines the applicant on 20 February 2020, and he makes a diagnosis of rotator cuff tendinopathy and impingement of the left shoulder.
However, Dr Habib’s opinion on the cause of bilateral shoulder complaints is restricted to: “Repetitive movements of the arms”, without setting out what he understood were the repetitive work activities undertaken by the applicant. The findings that I have made in regard to the applicant’s lumbar spine are based on the applicant undertaking heavy and strenuous work, and the findings that I have made in regard to the applicant’s left wrist are based upon repeated forceful gripping as part of her work activities. I do not accept that the available evidence is sufficient to conclude that the applicant was undertaking repetitive work which then became the cause of the onset of symptoms in the applicant’s left shoulder.
The applicant has not claimed an injury to any other parts of her left upper limb other than the left wrist and left shoulder. The complaints of pain and paraesthesia in the left hand are consistent with symptoms emanating from the left carpal tunnel syndrome. There will therefore be an award for the respondent on the claim made by the applicant of an injury to the left upper limb, other than to the left wrist and left carpal tunnel.
Finally, in regard to the claim of an injury to the left leg, there is just no medical evidence identifying what that injury is or how the symptoms complained of by the applicant are causally related to her work.
It might be that the applicant was experiencing some symptoms going down the left leg due to the injury to her lumbar spine. Dr Habib records the applicant having pain radiating to the left buttock, he but does not identify an injury to the left leg. Dr Bodel records the applicant having a gradual onset of left hip and thigh pain, but there is no similar record made by
Dr Tomasevic in his notes.
I cannot be satisfied from the available evidence that the applicant has sustained an injury to her left leg. There will be an award for the respondent on the claim made by the applicant of an injury to the left lower limb in the course of her employment with the respondent.

The claim for weekly payments of compensation

The applicant states that she is unable to return to work because her whole body is in pain each day.
Dr Tomasevic has consistently issued Certificates of Capacity during 2020 and 2021 which certify the applicant as having no current work capacity due to the following injuries:
“Headaches, soft tissue injuries & facet joint strains to neck & lower back, soft tissue injuries to left upper limb, left shoulder, left hand, left & right lower limbs, nerve root irritation left and right upper and lower limbs, anxiety & depression.”
In his report dated 20 February 2020, Dr Habib opined that the applicant was currently unfit for unrestricted cleaning duties, but that with recommended management she could return to permanently modified light duties.

Dr Bodel found the applicant to have definite median nerve sensory impairment and weak grip strength on the left side when he examined the applicant in September 2020. He also found tenderness at the lumbosacral junction on the left side and that the applicant exhibited backache on forward flexion.
Dr Bodel opined that the applicant had no current capacity for work, but that she might be able to contemplate a lighter duty job if she had a successful carpal tunnel release.
When Dr Hitchen examined the applicant in April 2020, he considered that the applicant would be physically fit to undertake normal duties and hours, and he suspected that the applicant was “playing the sick role”.
In his report dated 26 February 2021, Dr Wallace records that the applicant had an exaggerated response to his examination and that she grimaced throughout the range of movement testing. Dr Wallace found some reduced light touch sensation in fingers of the left hand. He also recorded resisted range of movement when testing the lumbar spine.
Dr Wallace opines that the applicant has no current work incapacity as a result of any work-related conditions at her cervical spine, left upper limb or lumbar spine.

Mr Barter submits that the applicant has continued to have no current work capacity since her weekly payments were terminated on 24 June 2020, and there is no concession by the applicant that she might have some partial capacity for work.
Mr Saul submits that the applicant has the capacity to undertake sedentary work on a part time basis, which would be the equivalent of 80% of PIAWE, and therefore the applicant has no entitlement to weekly payments of compensation.
There would be added strength to that submission made by Mr Saul if the applicant’s lumbar spine condition was the only injury found to be compensable in this dispute. In that scenario, I would accept that the applicant would have some capacity to undertake a sedentary, unskilled job, such as process work, on at least a part time basis.
However, I have found that the applicant has also sustained left carpal tunnel syndrome in the course of her employment with the respondent. I accept from a review of the medical evidence that the symptoms and restrictions in the left hand and left forearm remain unresolved while the applicant awaits surgery.
I would add that I also accept from a review of the medical evidence that the applicant continues to suffer symptoms and restrictions in her lower back as a result of her work injury. Dr Bodel found objective signs of symptoms affecting the applicant’s lumbar spine and accepts that the applicant’s lumbar spine condition remains aggravated by the work injury. Dr Tomasevic has continued to issue Certificates of Capacity which certify the applicant having no current work capacity due to her lumbar spine condition. The opinion on work capacity that is provided by Dr Wallace is compromised by his opinion that the applicant suffers from no work-related condition.

Dr Lee recorded in 2012 that the applicant had worked as an economist in Bosnia before she came to Australia. Mr Barter stated in his submissions that the applicant had professional qualifications in Bosnia. However, I accept from several references in the evidence that the applicant’s English skills are not strong. For instance, Ms Buggy states that she did the talking when the applicant came to report her injury by telephone because the applicant’s English “is not good”.
I accept that notwithstanding the applicant having had experience in clerical work in Bosnia, her limited English skills have restricted her to being only suitable for unskilled jobs since coming to Australia.
The injury to the lower back restricts the applicant in her capacity to undertake work which involves lifting, bending, carrying objects, or standing for extended periods of time. The left carpal tunnel syndrome restricts the applicant’s use of her left hand. It is difficult to envisage an unskilled job which only requires the use of the right hand.
I therefore conclude from a review of the evidence that the combination of the ongoing effects of the injury to the applicant’s lower back and her left carpal tunnel syndrome means that the applicant has had no current work capacity since 25 June 2020.
I accept that the applicant has been unable to return to her pre-injury employment or any suitable employment as a result of her left carpal tunnel syndrome and lumbar spine condition since 25 June 2020.

The parties have agreed that the applicant’s PIAWE is $687.70. Eighty per cent of PIAWE amounts to $550.16 per week.
There will therefore be an award made in favour of the applicant pursuant to section 37(1) of the 1987 Act of $550.16 per week from 25 June 2020 to date and continuing.

Whether the left carpal tunnel release proposed by A/Prof Gumley is reasonably necessary

Both Dr Habib and A/Prof Gumley recommend that the applicant have a left carpal tunnel release.
Dr Bodel does not specifically opine that the proposed left carpal tunnel release is reasonably necessary, but he regards a successful procedure as allowing for the prospect of the applicant being able to contemplate a lighter duty job.
Dr Wallace does not provide an opinion as to whether the proposed left carpal tunnel release is reasonably necessary.
Dr Hitchen opines that the proposed left carpal tunnel release is not reasonably necessary, but that is based upon his opinion that the left carpal tunnel syndrome does not result from the alleged injury on 5 December 2019. He also states that the prognosis for the left hand is good should carpal tunnel syndrome be confirmed on nerve conduction studies and the applicant undergoes a carpal tunnel release.

It is apparent that Dr Hitchen did not have access to the nerve conduction studies performed by Dr Hassan in October 2019.
Two treating specialists support the need for left carpal tunnel release. I consider it also reasonable to conclude that Dr Hitchen would regard the proposed surgery as being reasonably necessary because the nerve conduction studies confirm the presence of left carpal tunnel syndrome. The preponderance of medical evidence supports a finding that left carpal tunnel release surgery is reasonably necessary.

I therefore find that the left carpal tunnel release surgery proposed by A/Prof Gumley is reasonably necessary as a result of the injury sustained by the applicant in the course of her employment with the respondent, and that the costs of, and incidental to, that surgery should be met by the respondent.

[2021] NSWPIC 440

29 October 2021