Slade v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Slade v Woolworths Group Limited [2023] NSWPIC 656
APPLICANT:	Beverly Slade
RESPONDENT:	Woolworths Group Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	7 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment claim; bilateral carpal tunnel injuries admitted; bilateral elbow injuries disputed; Held – the applicant has discharged the onus of proving on balance that she suffered elbow injuries; a common sense evaluation of the evidence establishes a causal link between the applicant’s employment and her ongoing elbow issues; the respondent’s IME opinion as to the absence of pathology in the applicant’s elbows stands in contrast to the views of the applicant’s IME and two treating specialists; there is no suggestion any of the doctors who have provided reports in this matter obtained incorrect histories or that their reasoning is seriously flawed; the preponderance of the medical evidence establishes the presence of bilateral elbow pathology by way of workplace injury as a result of the nature and conditions of the applicant’s employment; matter remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	The findings and orders are as follows: 1. The applicant suffered an injury to her bilateral upper extremities (carpal tunnel syndrome and elbows) in the course of her employment with the respondent, with a deemed date of injury of 1 July 2020. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 1 July 2020 (deemed) Body systems referred: left and right upper right extremities (carpal tunnel syndrome and elbows) Method of assessment: whole person impairment 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Beverly Slade, brings proceedings seeking permanent impairment compensation in respect of alleged injuries to her upper extremities said to have been caused by the nature and conditions of her employment with Woolworths Group Ltd (the respondent).
The applicant claims bilateral carpal tunnel syndrome, and the parties agree that injury will be the subject of a referral to a Medical Assessor to determine the degree of the applicant’s whole person impairment.
The applicant also claims injuries to both elbows, and this claim is disputed by the respondent, which alleges the applicant did not suffer any injury in the nature of either a disease or aggravation to a disease to which her employment was the main contributing factor.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant suffered injury to her bilateral elbows in addition to the accepted bilateral carpal tunnel syndrome.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant was represented by Mr McManamey of counsel instructed by Ms Rodgers. The respondent was represented by Mr Jones of counsel instructed by Ms Dunn.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Bilateral elbow injuries

The applicant’s complaints surrounding bilateral elbow symptoms are consistent, however, the issue is whether those complaints have been caused by a work injury to that body system.
There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). That case makes clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).” (at [60])
The relevant test for causation[BG1] in the workers compensation context was set out by Kirby P (as his Honour then was) in the oft-cited decision of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. 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.” (at 810; emphasis added)
In her statement, the applicant sets out the nature of her workplace duties as follows:
“13. In my role, I was responsible for the following:
(a)turning on petrol pumps;
(b)monitoring sales of petrol and other items in the store;
(c)floors and toilets;
(d)carrying heavy boxes from storage to the store;
(e)restocking shelves and fridges; and
(f)general duties incidental to being a console operator.”
In carrying out these duties, the applicant stated she had to perform the following tasks:
“15. Throughout the course of my employment, I was required to lift multiple boxes when restocking shelves. This would often involve rearranging stock in the refrigerator and carrying boxes with milk and other heavy objects. The milk crates would weigh around 20 kg as there would be up to nine bottles of milk per crate. I would often have to handle cold items such as drinks, milk and yoghurt containers and would have to work with my hands in the refrigerator. I was given very little amounts of breaks [sic] and would often work shifts with no breaks at all. My manager would constantly be giving me extra work to do without accounting for how busy I was. I was living alone and did not have the confidence to say anything to my manager, as I was afraid of losing my job.”
Regarding the onset of symptoms, the applicant’s unchallenged statement evidence is as follows:
“16.   In or around 2017, I noticed that after my shifts at work, I would have numbness and tingling in my right hand. I did not think this was a significant issue, as it would often subside over time with rest. I continued to work as usual and would ignore the pain. It was not painful, but I found myself feeling weak and dropping heavy items often. I worried that I had multiple sclerosis but decided not to consult with the doctor as I thought I was being paranoid and would rather not find out.
17.    In or around 2018, I noticed that the symptoms became worse in my right hand. Resting was no longer effective at reducing the symptoms. I found myself dropping even light objects due to the numbness and tingling I was feeling in my right hand. I also found that the tingling in my right hand started to turn to soreness towards the end of a shift. On one occasion, I was opening a door and my whole right hand began throbbing. I noticed a lump on the palm of my right hand, which I thought was a callous, but decided to consult with a doctor about my concerns to be sure.
…
20.    Throughout early to mid-2019, I began to feel similar symptoms in my left hand. My left wrist was slightly weakened and was more painful than my right wrist. I began to continue experiencing numbness and tingling in my right hand during this time. I would find it difficult to fall asleep at night due to the pain in my left hand and wake up feeling exhausted. I continued consulting with Dr Rice, who referred me to have a nerve conduction study performed in both my hands.
21.    On or about 17 May 2019, I had a nerve conduction study taken to both my hands. The study revealed severe carpal tunnel syndrome in my right hand and moderate carpal tunnel syndrome in my left hand.
22.    In or around June 2019, I returned to work on light duties. I was advised to avoid lifting heavy objects and focus on less laborious tasks. I noticed some improvements but found that the pain in my left hand was increasing as I was relying on it more when my right hand gave way. I began to worry that I could not work with my hand problems.
…
24.    On or about 19 November 2019, I underwent surgery in the form of a carpal tunnel release on my right wrist under the care of Dr Rice at Dubbo Private Hospital. The surgery was successful at reducing the pain and numbness in my right hand, but I felt ongoing weakness following the surgery. I was also pleased to see that my hand became red again, after looking purple and yellow for many months. Following the surgery, I was advised to avoid heavy lifting and give my hand time to rest. I did not return to work after the surgery.
…
26.    Throughout early 2020, I continued to face pain and restrictions in my left hand due to over-relying on it to compensate for my right hand resting after the surgery. I noticed that I was holding objects differently to avoid dropping them or causing my hands more pain, which caused my elbows to begin to ache. I would wake up in the middle of the night with immense pain in my left elbow. I was unable to pick up medium to heavy objects with either hand or began to become heavily concerned about my condition. I consulted with Dr Rice who advised that I would require the same surgery to my left hand. I agreed to undergo this surgery with Dr Rice.
27.    On or about 3 March 2020, I underwent surgery in the form of carpal tunnel release on my left wrist under the care of Dr Rice at Dubbo Private Hospital. Following the surgery, I continued to face weakness in my left hand, however, some level of pain was reduced. I was advised to continue avoiding heavy lifting duties and to rest. I was also advised not to return to work during this time.
28.    Throughout mid-2020, my left elbow pain began to worsen. I would consistently wake up at night from the pain and would be extremely sensitive to the cold. My hands would always be freezing cold throughout the winter, but my entire left arm would begin to swell the second I began walking. I was living in Orange with my partner at the time, so the intensity of the winters would make my left elbow pain unbearable at times, especially in the night.
…
30.    On or about 28 September 2020, I first consulted with neurologist, Prof Simon Hawke about my ongoing pain despite the surgeries. I informed Prof Hawke that I had ongoing aching in my left hand and continued stiffness and tenderness in my hands. I also informed Prof Hawke that I had developed worsening pain in my elbows through to my hands. Prof Hawke advised that my finger weakness was unusual and that I should have a nerve conduction study, brain scan and MRI taken to my neck to see if there were any ongoing nerve issues.
…
33.    On or about 23 February 2021, I consulted with Prof Hawke about the results of the scans. Prof Hawke advised that I should undergo physiotherapy to increase the strength in my neck and elbows, along with reducing the likelihood of my hands giving way. Prof Hawke also advised that I was continuing to face mild carpal tunnel syndrome and tennis elbows in both arms due to repetitive usage. Prof Hawke also advised that I should return to work 16 hours a week on light duties.”
The applicant relied on the opinion of Dr Bodel, Independent Medical Examiner (IME). Dr Bodel took a consistent history of injury from the applicant, noting a gradual onset of numbness and tingling in the right hand and left hand, together with the development of elbow pain. At the time of his first report dated 23 November 2021, the applicant was continuing to complain of bilateral elbow and hand pain.
At the time of that report, Dr Bodel noted the applicant had a restricted range of elbow and wrist movement. Noting his examination of the applicant was via telehealth consult, Dr Bodel described her diagnosis as uncertain, suspecting the applicant had median and ulnar nerve pathology in both upper limbs, however, absent a face-to-face examination to determine whether that was the case, Dr Bodel could not be certain.
On 28 January 2022, Dr Bodel provided a further report following a face-to-face examination on the same date. At that time, the applicant still had pain in both elbows, wrists and hands, a Dupuytren’s contracture, numbness and tingling mainly in the distribution of the median nerve. Upon examination, Dr Bodel relevantly recorded the following:
“There is tenderness over the ulnar nerve behind the medial epicondyle of each elbow and there is some palpable thickening in each nerve. There is also tenderness over the volar surface of both wrists over the median nerve at the wrist and there are persisting signs of sensory loss involving both the median and the ulnar nerve in both upper limbs. The reflexes are present and equal. There is no sign of radiculopathy.”
When asked to provide a diagnosis, Dr Bodel said:
“The diagnosis of each injury is that she has bilateral median nerve compression at the wrists (carpal tunnel syndrome) and bilateral ulnar nerve pathology in each elbow in addition to the restriction of movement in the elbows.”
Dr Bodel diagnosed employment as the main contributing factor to the injuries in the applicant’s circumstances.
The respondent relied upon the report of Prof Krishnan, neurologist, who acted as IME for the respondent. In his second report dated 27 May 2022, Prof Krishnan noted Dr Bodel’s reports focused on the applicant’s level of joint movement and reports of tenderness over the ulnar nerve together with the median nerves at the wrist. Dr Krishnan noted that the most recent nerve conduction studies dated 18 March 2022 performed by Dr Blackwood reported within normal limits and found no evidence of focal peripheral nerve lesion.
Prof Krishnan continued:
“I note that Ms Slade reports symptoms but continues to maintain a stoical approach and works 20 hours per week. In terms of diagnosis, it is not possible to diagnose either ulnar neuropathy or median nerve dysfunction secondary to carpal tunnel syndrome based on objective criteria. It is noted that the elbow ultrasound does not demonstrate significant changes. Changes in ulnar nerve cross-sectional area on ultrasound are noted in most cases of clinically significant ulnar neuropathy at the elbow. This is particularly the case in patients who have had a prolonged duration of symptoms.”
I note that Prof Krishnan does not refer to the elbow ultrasounds demonstrating an absence of pathological change, but rather what he describes as an absence of “significant changes” for an applicant to establish the presence of injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), it is not necessary for there to be “significant” pathological change, rather there needs to be sudden and/or identifiable change. Dr Krishnan’s report does not rule out such change being present.
When specifically asked to provide an assessment of the applicant’s whole person impairment, Prof Krishnan replied:
“Not applicable. As I cannot confirm a diagnosis of either median nerve dysfunction associated with carpal tunnel syndrome or ulnar neuropathy based on the relatively nonspecific nature of the examination findings and the fact that both the nerve conduction studies and nerve ultrasonography are within normal limits then I am unable to provide a WPI.”
Dr Bodel noted in his report in reply that Prof Krishnan indicated he was unable to provide an assessment of whole person impairment, rather than ruling out injury itself. Moreover,
Prof Krishnan has not himself made any meaningful measurement or taken into meaningful account restrictions in range of motion suffered by the applicant on examination to determine if the underlying pathology is contributing to any impairment.
That construction of Prof Krishnan’s report is not necessarily accurate. Prof Krishnan referred to an absence of nerve dysfunction not grounding a finding in whole person impairment. He does not state there was an injury present. However, even were I to read Prof Krishnan’s opinion in relation to the bilateral elbow pathology as a statement the applicant did not injure those body parts, such opinion would stand alone against the other medical evidence in the matter.
Dr Bodel noted at the time of his face-to-face examination in January 2022, he was satisfied there were clinical signs of restricted ranges of movement. Dr Bodel continued:
“I was also satisfied clinically that although the nerve conduction studies done by Dr Emma Blackwood reported that there was no evidence of median or ulnar nerve pathology, that there was indeed clinical evidence of probable grade 4 sensory involvement in the median nerve of the right upper limb and grade 4 sensory loss of the ulnar nerve in the right upper limb, and I have given the rating accordingly.”
I also note treating neurologist Dr Hawke, in his report dated 23 February 2021 noted:
“She also has pain around the elbows and on examination, she has tenderness at the insertions of the flexor and extensor tendons consistent with epicondylitis greater on the left.”
In other words, the applicant’s treating neurologist made a finding of the presence of bilateral elbow pathology, albeit worse on the left than the right.
That finding is, to an extent, also supported by the report of Dr Lawson, treating hand surgeon, to the applicant’s general practitioner, Dr Lin, dated 9 June 2022. In that document, Dr Lawson recorded that he asked the applicant to avoid putting pressure on the point of her elbows, and to avoid prolonged flexion of the elbow.
In a more detailed report dated 1 September 2021 to the general practitioner, Dr Lawson stated:
“Her history is complicated but I suspect she may have some ulnar nerve symptoms. Her last nerve conduction studies are almost two years old, and they should be repeated, looking at the ulnar nerves. She should also have ultrasounds of both ulnar nerves. Her Dupuytren’s disease does not need to be addressed. I think that her carpal tunnel symptoms have been addressed. Her shoulder symptoms have never been looked into, and she has not put a claim in there, so I have given her a form to have a bulk-billed MRI scan at Orana, and we will look at that independently.”

Mr McManamey submitted, and I accept, that Dr Lawson’s referral for bilateral elbow ultrasound is indicative of the applicant’s consistent complaints of elbow symptomology.
I also note Dr Hawke’s report of 28 September 2020, in which he recorded the following:
“Power was reduced about the left shoulder and she mentioned that it was painful. There was also some weakness of elbow flexion and extension and finger flexion. There was also a mild weakness of right APB. Some of the weakness had ‘give way’ characteristics. The reflexes were all present both plantar responses flexor and sensation was intact. There was no impairment of finger nose testing with eyes closed. Proprioceptive capacity was normal.
There was local tenderness at the insertion of elbow extensor tendons. Her blood pressure was 130/80.
Opinion
I suspect the main issues are related to the shoulder and elbow but there does seem to be some weakness of finger flexion which is unusual.”
Further support for the presence of elbow pathology is found in the report of Pinnacle Physiotherapy dated 27 April 2021, which recorded “signs of bilateral epicondylalgia on MRI”.
Although, as Mr Jones for the respondent pointed out, the physiotherapist does not provide an opinion as to the cause of the elbow symptoms, each of Dr Hawke, Dr Bodel and Dr Lawson do.
By contrast, the opinion of Prof Krishnan stands alone. As treating specialists, Drs Hawke and Lawson are entitled to have considerable weight given to their opinions unless it can be shown that there is a readily identifiable defect in their recording of history or their reasoning process which they have adopted.
In this matter, I am of the view there is no such defect demonstrated, and I prefer the views of the applicants treating doctors together with her IME, Dr Bodel to that of Prof Krishnan. On a common sense evaluation of the evidence, taking into account the applcaitn’s unchallenged evidence regarding the nature and conditions of her employment and the onset of her symptoms, together with the preponderance of the medical evidence, I am satisfied on balance that the applicant has discharged her onus of establishing the presence of bilateral elbow injury as alleged.
I therefore find the applicant suffered injuries to her bilateral elbows as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of
1 July 2020. Accordingly, that injury together with the bilateral carpal tunnel syndrome will be remitted to the President for referral to a Medical Assessor to determine the applicant’s degree of whole person impairment.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

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[2023] NSWPIC 656

7 December 2023