Tuma v Wilkhahn Wilkening and Hahne Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Tuma v Wilkhahn Wilkening and Hahne Pty Ltd [2022] NSWPIC 495
APPLICANT:	Jennifer Tuma
RESPONDENT:	Wilkhahn Wilkening and Hahne Pty Ltd
Member:	John Wynyard
DATE OF DECISION:	6 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for closed period weekly payments until applicant’s retirement age; whether incapacity caused by admitted carpal tunnel/wrist injury; whether section 38(2) of the Workers Compensation Act 1987 (1987 Act) applicable and whether applicant had no current work capacity; Held – incapacity caused by admitted left carpal tunnel syndrome symptoms; applicant certified fit for full hours on restricted duties when terminated; applicant had capacity when terminated but due to age and injury after six months had no current work capacity; sections 38 and 32A of the 1987 Act considered; award pursuant to section 38(2) of the 1987 Act in favour of applicant.
determinations made:	1. The respondent will pay the applicant weekly benefits pursuant to s 38(2) of the Workers Compensation Act 1987 Act at the rate of $503.68 from 21 January 2021 until 13 June 2022.

STATEMENT OF REASONS

BACKGROUND

Jennifer Tuma, the applicant, brings an action for the payment of weekly payments for compensation against Wilkhahn Wilkening and Hahne Pty Ltd, the respondent, with regard to an injury alleged to have occurred on a deemed date of 27 May 2019, but which was subsequently amended by consent at the conciliation and arbitration hearing to a deemed date of 27 November 2017.
Dispute notices were issued and proceedings were subsequently commenced by the filing of an Application to Resolve a Dispute (ARD) and Reply thereto.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Is the applicant’s incapacity work related?
(b) If so, does the applicant have no current work capacity, thus entitling her to the payment of weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was heard by way of a video conciliation and arbitration conference on 7 June 2022. The applicant was represented by Mr James McEnaney of counsel instructed by Mr Andrew Joy of Messrs Law Partners. The respondent was represented by Mr Tom Grimes of counsel instructed by Mr Scott Murray of Lee Legal. Also in attendance was Ms Anita Lee from the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) and attached documents, and
(c)    Reply and attached documents.

Oral evidence

No application was made in respect of oral evidence.

FINDINGS AND REASONS

At the outset of the hearing Mr Grimes indicated that the respondent relied on Dr O’Sullivan’s reports, and not that of Dr Casikar, in compliance with regulation 44.
The applicant seeks payment of weekly compensation from 10 December 2021 to 13 June 2022, when her entitlement ceases due to Ms Tuma reaching retirement age.
Ms Tuma brought an action in the Workers Compensation Commission which resulted in the following consent orders before Arbitrator (as he then was) Isaksen on 13 May 2020.
“1. Award for the respondent for claims in respect of injury or consequential conditions to the right elbow, right shoulder, left elbow, left shoulder and neck.
2. The respondent is to pay the applicant the sum of $23,790.00 for 11% permanent impairment for the injury of left and right carpal tunnel syndrome and injury to the left wrist and right wrist, sustained in the course of her employment with the respondent, with a deemed date of injury of 27 May 2019.”

EVIDENCE

The applicant made two statements dated 7 January 2020 and 1 April 2022.[1] In the first statement she said she commenced working with the respondent on 16 October 2013 as a sewing machinist on a full-time basis working 38 hours per week. She was born in 1955.
[1] ARD pp 1 and 9.
Her duties consisted amongst other things sewing and stitching leather and non-leather upholstery to various furniture items, gluing parts of upholstery, assembling arm space and backing of seats, bagging for dispatch and operating a sewing machine.
She said that in December 2016 a number of factors made it difficult. She said: [2]
“The most prominent factor is that I worked with extremely tough, thick and heavy leather. These layers of leather required heavy-duty industrial sewing machines to complete a stitching. I was often required to stitch 7 layers of leather together in one sitting.
My managers had given me much harder tasks than the other seamstresses. While others had to deal with soft and workable materials, I was only allowed to work with leather. This unfair tasking was achieved through the 'sheet', in which my colleagues and I would receive daily a/locations based on what the sheet had said.”
[2] ARD p 2.
Ms Tuma said that she was required to make four chairs a day at a minimum which she said was not a realistic goal and it pushed her to “the brink” on a daily basis. “I tried to meet that”.
She said she noted that her left arm and left shoulder were “giving in” at the end of each working day and that her left shoulder and neck were no better because she was overcompensating with her right arm.
She recorded the following treatment:
“●     8 March 2016 - consultation with Dr Tamanna Parvin, GP.
·        13 March 2016 - consultation with Dr Parvin. Referral for ultrasound.
·        2 April 2016 - ultrasound performed of left shoulder.
·        29 June 2016 -consultation with Dr Allan Laughlin, GP. Referral made to
Dr M Dowla, Consultant in Neurology.
·        21 July 2016 – nerve conduction study performed.
·        5 April 2017 – consultation with Dr Parvin complaining of left shoulder pain. WorkCover certificate issued. Injection performed.
·        27 November 2017 - Admission to Norwest Private Hospital for right carpal tunnel decompression with Dr Benjamin Norris.
·        27 February 2018 – consultation with Mr Michael Ward, hand Physiotherapist.
·        30 April 2018 - Admission to Norwest Private Hospital for left carpal tunnel decompression with Dr Norris.
·        25 September 2028 – ultrasound and steroid injection performed in right trigger finger.
·        12 November 2018 – consultation with Mr Ward referring to left arm pain.
·        15 November 2018 – nerve conduction studies to both hands.
·        26 November 2018 - further hand therapy with Mr Ward for left arm and elbow symptoms.
·        7 January 2019 – further hand therapy with Mr Ward relating to left arm weakness.
·        20 February 2019 – CT scan of cervical spine.
·        7 March 2019 – MRI scan of the cervical spine.
·        20 March 2019 – consultation with Dr Nicholas Smith, Hand and Wrist Surgeon.”
After the surgical release on the right side on 27 November 2017, Ms Tuma said that she was back at work performing her normal hours, but avoided lifting chairs. She gave evidence about her interaction with Mr Ward on 27 February 2018 which was somewhat confusing regarding the lifting of chairs, and she gave no detail of the restrictions she was under at that stage. I assume she was restricted from sewing, as it seems (again there is no direct evidence) that she was right hand dominant.
Following the surgical release to the left side on 30 April 2018, Ms Tuma said:[3]
“This procedure was not even half as effective as the procedure I had undertaken to my right hand. Following surgery, my left hand continued to be painful. To my horror, I began experiencing new symptoms since my left carpal tunnel decompression in the forms of swelling in my left arm, colour changes, sporadic 'heat' sensations, loss of fine motor skills and pains that would shoot from my left hand behind my shoulders into the base of my neck. These new symptoms are extremely challenging to deal with on a day to day basis and have compounded my existing injuries.”
[3] ARD p 6.
As to her return to duties after that procedure, Ms Tuma said:[4]
“Additionally, my return to work progress following the above surgery was not well supported by my employer. I do not believe that my employer has any respect for protocol or even the wellbeing of its employees as I was placed right back into heavy duty sewing as soon as I returned to work. My lifting and other restrictive capacities were not adhered to. I believe this failure to provide a safe work environment for me exacerbated my injury.”
[4] ARD p 6.

Supplementary statement 1 April 2022

A further statement as noted was made on 1 April 2022[5]. At [7] Ms Tuma claimed that she sustained injuries to both wrists, her left arm, both shoulders and neck which “deemed to have occurred on 7 September 2017”.
[5] ARD p 10.
Ms Tuma said that “although my left and right injuries were the most obvious and present injuries….” by late June 2019 her condition was worsening, and she had continued to experience symptoms of carpal tunnel syndrome in both of her hands.
She also described at [8] that the left hand pain radiated into her left elbow, shoulder and neck with accompanying numbness and a few pins and needles in the left hand and left arm.
She complained also of difficulty in the shoulders and neck. She consulted Dr Laughlin and she underwent steroid injections into her left shoulder and hand. Whilst the left shoulder injection was of some assistance the left thumb injection afforded her no relief.
On 26 June 2019 she continued to engage in hand therapy for her left hand, seeing physiotherapist Chen Li to whom she had been referred by Dr Nicholas Smith. She explained that her thumb had been sore and the pain would continue through the night, after lifting items at work.

Around late June 2019 Ms Tuma said she continued to wear a splint for her left hand at work, as she was experiencing constant left thumb pain without it. She also saw a spine surgeon Dr Brian Hsu in late June 2019 and was recommended a cortisone injection in the left thumb but that treatment was declined by the insurer.
On 9 July 2019 an ultrasound was taken of her left median nerve which showed significant thickening of the nerve within her left hand indicating ongoing carpal tunnel syndrome.
On 15 July 2019 Ms Tuma said she explained to Dr Smith that she was continuing to experience the burning prickling pain in her left hand despite her surgery. She saw a pain specialist Dr Allan Nazha on 14 October 2019 who also proposed the cortisone injection as proposed by Dr Hsu.
Other evidence showed that Ms Tuma’s hours were reduced from five to two days per week in November/December 2019, and that her employment was terminated on 21 April 2020 due to the covid pandemic. Ms Tuma made no mention of these events.
She said that throughout 2020 she was struggling to manage the ongoing pain and restrictions in her left thumb, hand, elbow, shoulder and neck, at [17]. She said no further hand therapy had been approved by the insurer and her pain levels were regularly flaring up.
On 17 January 2021 she saw Dr Laughlin complaining that she had a flare up of her left carpal tunnel symptoms. In February 2021 she consulted with a neurologist Dr Shareef Dowla where nerve conduction studies demonstrated the presence of carpal tunnel syndrome in both of her hands.
She said in April 2021 her employer terminated her employment, as restricted duties were no longer available. She has subsequently undergone physiotherapy for her left wrist with Mr Hyun Jun (Daniel) Kang physiotherapist. She said that she told him any repetitive movements aggravated her left wrist pain.
She said that currently (as at 1 April 2022) she continued to experience constant pins and needles and numbing sensation throughout her left thumb, index finger, ring finger.
She said:[6]
“My left arm now feels robotic, and I tend to hit myself in the face due to numbness and pins and needles sensation throughout my left arm. I struggle to engage in everyday activities which involves the use of both of my hands.”
[6] ARD p 13.
With regards to the claim, she said:[7]
“This is a claim for weekly payments from 10 December 2021 to 30 June 2022, which is the date I reach retirement age (In fact it was agreed that the correct date is 13 June 2022).”
[7] ARD p 14.
Ms Tuma noted the s 78 notice issued on 20 October 2021 and took issue with the allegation her injuries had resolved. She said at [28], “Both of my arms, hands and shoulder are very limited in function particularly on my left side, and I am unable to return to restricted duties.”
She said that from 2 September 2019 to date and continuing she had been certified as unable to return to pre-injury duties. She said[8]:
“29. From 2 September 2019, and to date and continuing, I have been certified as unable to return to pre-injury duties. This is evident in the medical report of General Practitioner, Dr Allan Laughlin, dated 27 August 2019, as Dr Laughlin confirms that I am unable to lift, carry, push or pull over 4kg using both hands. As the duties of my employment require me to do repetitive lifting of heavy leathers, I strongly believe that a return to work will exacerbate my injuries. Furthermore, Dr Laughlin believes that due to the deterioration of my pain and restrictions, I will struggle to find suitable employment for the remainder of my working life.”
[8] ARD p 15 at [29].
Ms Tuma also stated at [31]-[32]:
“My ongoing inability to work is evident in the medical IME report, dated 1 March 2022, of General Surgeon, Dr Min Fee Lai…
…I similarly believe that I am unfit to work my pre-injury duties. This is because I am unable to carry, assemble and bag heavy furniture items as this aggravates the pain throughout both of my wrists, left arm, both shoulders and my neck. Additionally, when I was required to work light duties for my employer, I severely struggled due to ongoing numbness, pain and stiffness and would need to regularly rest and take breaks after tasks.”

MEDICAL EVIDENCE

Dr Allan Laughlin

Dr Laughlin was the applicant’s general practitioner, and issued a report dated 19 April 2022. He had been Ms Tuma’s general practitioner (GP) for many years. He advised that Ms Tuma had been sewing heavy material and said that she was treated for carpal tunnel syndrome. Treatment had not alleviated her symptoms and suitable duties could not be found, so that she was unable to work. He said:[9]
“…I do not agree with the suggestion of the degenerative causation. I am unsure of the findings to support that causation and even so this does not rule out the carpal tunnel as causative.
It would be impossible to find that all of her symptoms are degenerative and in fact this is a common attribution from IMCs but it is not possible to determine that only one component is the sole cause. The injury was six years ago and was clearly causal and that is not under dispute.
She remains unfit to work as noted and SD have not been found as both hands are involved and she has been unfit since 2021 as you have noted and she is unlikely to change.”
(As written).
[9] ARD p 65.

Dr Benjamin Norris

Dr Norris gave three reports dated 27 June 2018, 28 November 2018 and 8 March 2019.[10]
[10] ARD pp 176, 172 and 162 respectively.
As has been seen, Dr Norris carried out the carpal tunnel releases on the applicant’s wrists – the right wrist on 27 November 2017, and the left wrist on 30 April 2018. On 27 June 2018 reported to the insurer that following the surgery eight weeks earlier, Ms Tuma’s original symptomatology had completely resolved, although she was experiencing pillar pain as a result of the scarring. He noted that Ms Tuma had not been using the pain relief he recommended and commented that it was not necessary “to keep having weeks off due to some scar discomfort.” He thought Ms Tuma should return to full activity. He said:
“It is unusual to not have returned to full activity at eight weeks following a straightforward carpel (sic) tunnel release.”
On 28 November 2018 Dr Norris reported to the insurer. He had seen the nerve conduction studies of 15 November 2018 which confirmed the presence of bilateral mild-moderate neuropathies at the wrist, right slightly worse than the left. He noted that the applicant was complaining of pain across the dorsum of the left hand, with symptoms felt in the left arm, elbow and into the armpit. Dr Norris found her complaints to be “unusual”, “variable and not particularly consistent.” He said:[11]
“I note however that she continues to work using her sewing machine using both hands. She remains asymptomatic in the previously treated right hand.
….
The symptoms are confusing, inconsistent, and I am not sure that further surgery is going to be of benefit in this patient.
…..
If the symptoms worsen and there is nerve conduction study evidence of ongoing median nerve compression or persistent median nerve compression then it is highly likely that there is permanent damage to the median nerve with a slowing of conduction…”
[11] ARD p 172.
On 20 February 2019 Dr Norris wrote to the insurer again, and said that the symptomatology was “very confusing.” Whilst Ms Tuma said she was on light duties, Dr Norris found on further questioning that Ms Tuma was still performing repetitive and heavy duties, albeit not by this time on the sewing machine. He said:[12]
“She was very clear that the original symptomatology that resulted in her carpal tunnel releases had resolved and felt that the symptomatology was now different from the original presentation.”
[12] ARD p 164.
Dr Norris sought approval to have Ms Tuma referred for a second opinion to Dr Smith, and explained that it was “highly possible” that Ms Tuma had sustained permanent damage to the median nerve, as she had significant symptoms for two years prior to intervention. Dr Norris also said there was a “distant possibility” that the release surgery had not in fact completely released at all.
Dr Norris observed that “I find it hard to pin the patient down to a particular thought train.”
On 8 March 2019 Dr Norris wrote to Dr Nicholas Smith at Norwest Private Hospital. Dr Norris recited in detail Ms Tuma’s treatment history under his care. He noted the history of bilateral carpel tunnel syndrome and the apparent resolution of her symptoms following the bilateral release procedures (as he recorded in his earlier report).
Dr Norris however noted that in mid September 2018 there developed persistent pain in Ms Tuma’s left thumb, with possible triggering and well-localised tenderness over the volar aspect of the thumb MCP joint. He noted also that following the administration of a steroid injection Ms Tuma then experienced persistent pain and dysfunction of the left hand side with minimally troublesome symptoms on the right hand side. The tenderness at the injection point reduced, but she reported persistent pain in the hand as well as “now” into the arm itself. Headaches were also reported, and Ms Tuma was “dropping things,” with some near misses on the sewing machine. There were some workplace issues that were distressing her.
Dr Norris thought that there had been a progression of symptoms, with quite diffuse pain throughout the left arm as well as some swelling, which was vaguely pinpointed over the distal dorsal forearm. Dr Norris thought there was some functional component, and noted that Ms Tuma made repeated references to workplace issues.
Dr Norris also said:
“I did say to Jennifer today that it is highly possible that given that she had had significant symptoms prior to any surgery for about two years there may be permanent damage to the median nerve at the wrist on both sides. I am not entirely convinced this explains the vague symptomatology.
I also discussed with her the distant possibility that [indistinct photocopying] releases that I have done have not in fact released at all. Again I [indistinct] as unusual given that the patient feels that the original symptomatology has resolved.”

Dr Norris sought Dr Smith’s input into the management of Ms Tuma’s case.

Dr Nicholas Smith

Dr Smith responded to Dr Norris on 20 March 2019. Dr Smith took a consistent history of the carpal tunnel releases performed by Dr Norris, and noted Ms Tuma’s improvement on the right side, but her continued problems with her left arm in the region of the carpal tunnel, but also with left shoulder pain. Dr Smith noted a number of post operative nerve conduction studies “which demonstrate persistent abnormalities however it is normal for normalisation of neurophysiological examinations to take up to 18 months following successful decompression of a significant compressive neuropathy.”[13]
[13] ARD p 186.
On 10 April 2019 Dr Smith wrote to Dr Norris, having reviewed Ms Tuma. Dr Smith said:[14]
“I reviewed Jennifer today, who has had bilateral carpal tunnel releases and has ongoing left thumb and arm pain. The cause of this is clearly left thumb CMC joint osteoarthritis, she will commence hand therapy for
this. I suspect she also has cervical spine pathology leading to the forearm pain, and I have referred her to Brian Hsu to evaluate this further.
I have fairly low index of suspicion for recurrent compression of the left median nerve, though I have referred her for ultrasound evaluation by John Read just to be certain on this.”

[14] ARD p 188.

On 15 July 2019 Dr Smith reported again to Dr Norris, saying:[15]
“I reviewed Jennifer today, who had ongoing dysesthesia and pain following her left open carpal tunnel release. Since I last saw her she feels that her sensory symptoms have settled significantly. She still has pain around the left thumb CMC joint, which she describes as significant. She has also seen Brian Hsu, who has organised for her to have a guided corticosteroid injection. She also has left thumb and little finger clicking, which would relate to stenosing tenovaginitis.
She had an ultrasound of the median nerve, which was not definitive, though there was significant thickening of the median nerve under the distal part of the transverse carpal ligament.
Given the improvement of the sensory symptoms, I think it is largely that she had a significant preoperative neuropathy, which has taken a time to settle.
I would like to see her after she has had a corticosteroid injection, she will continue hand therapy in the meantime. I have asked her to make an appointment for 2 months' time.”
[15] ARD p 189.

Dr Dowla

Dr Dowla reported to Dr Laughlin on 6 April 2022[16]. Dr Dowla recorded that there had been bilateral carpal tunnel decompression in 2017/2018 following which Ms Tuma had been improving and thereafter taking Lyrica.
[16] ARD p 68.
He noted:
“…she is now able to use her hand but continues to suffer tingling, numbness, stiffness and occasionally dropping objects from left hand. She remains unfit for work since 22 April 2021.”

Mr Michael Ward

Reference was also made to the involvement of Mr Michael Ward, Ms Tuma’s hand specialist. Reports were within the clinical notes produced by Dr Norris, and I was referred to two of the eight reports which covered the period 27 February 2018 to 26 November 2018.
On 26 June 2018 Mr Ward said that Ms Tuma had full range of motion in the wrist and digits.[17] On 6 August 2018 Mr Ward reported again a full range of motion in the wrists and a complete resolution of her parasthesia and numbness, although he noted her complaints of persisting pillar and scar pain, and that there was “a bit of a flare-up in pain over the weekend. Mr Ward expressed the hope that this would settle quickly.”[18]
[17] ARD p 208.
[18] ARD p 209.
The remainder of his reports demonstrated that his hope was not fulfilled, and on 26 November 2018 he noted repeat nerve studies had been done, that there was quite diffuse pain throughout the left arm with some swelling with isolated pain and tenderness over the distal- dorsal forearm. Mr Tuma was still under the care of Dr Norris.

Imaging

On 15 November 2018 Dr Victor Fung, consultant neurologist and neurophysiologist reported on nerve conduction studies performed with Ms Tuma. He concluded:[19]
“There is evidence of bilateral mild~moderate median neuropathies at the wrist, right slightly worse than left, consistent with carpal tunnel syndrome.”
[19] ARD p 73.
A CT scan of Ms Tuma’s cervical spine dated 21 February 2019 demonstrated widespread degenerative changes with potential nerve root impingement.[20] An MRI scan was suggested.
[20] ARD p 74.
An MRI scan dated 7 March 2019 demonstrated that foraminal narrowing at C4/5 and C5/6 amongst the degenerative changes seen, were potentially impinging.[21]
[21] ARD p 75.
An MRI scan of Ms Tuma’s left wrist on 5 April 2019 demonstrated:[22]
“Central TFC tear. Degenerative change at the first CMG and STT joints and de Quervain's tendinopathy.
No scapholunate ligament injury.”
[22] ARD p 76. These initials mean a tear of the triangular fibrocartilage complex; degenerative change at the junction of the articulation between the first metacarpal of the thumb and the trapezium carpal bone, and de Quervain’s tendinopathy.
An ultrasound of the left median nerve on 9 July 2019 showed:[23]
“1. Left median nerve shows an abnormal appearance at carpal tunnel level, but it is unclear to what extent this may reflect on-going entrapment/irritation versus slow-to-resolve pre-operative change (comparison with prior imaging may be useful). Background features of potential relevance include mild chronic flexor sheatt1 thickening and carpal tunnel intrusion by 1st lumbrical muscle.
2. Incidental observations Include (i) small Dupuytren's nodule at palm, and (ii) stenosing flexor tendinopathy involving all fingers of left hand.”

[23] ARD p 79.

Dr O’Sullivan

The respondent retained Dr Dudley O’Sullivan, neurologist, as its medico-legal expert. Dr O’Sullivan supplied three reports dated 15 August 2019, 3 September 2019 and 28 June 2021.[24]
[24] Reply pp 77, 84 and 87.
On 15 August 2019 Dr O’Sullivan took a consistent history and gave the following diagnosis:[25]
“The diagnosis, therefore, is beyond doubt, that is of bilateral carpal tunnel syndrome, surgically treated on the right with an excellent result and in fact Ms Tuma feels that the right hand is now asymptomatic.
The left hand still causes pain but has improved.”
[25] Reply p 81.
Dr O’Sullivan did not find any abnormality over the left thumb, index and middle fingers and over the radial side of the ring finger, in contradistinction to the examination findings by Dr Lai.
In his report of 3 September 2019, Dr O’Sullivan, in answer to a question said:[26]
“I do not consider that according to my examination and findings that there has been complete resolution of the previously accepted bilateral carpal tunnel syndrome. In my report dated 15 August 2019 on page 2, the second last paragraph, Ms Tuma underwent further nerve conduction studies by Dr Victor Fung, Neurologist and Neurophysiologist at Westmead Hospital on 15 November 2018.
These studies confirmed mild to moderate bilateral median nerve neuropathies at the wrist, left greater than right. Therefore, there has not been complete resolution of her previously accepted bilateral carpal tunnel syndrome.
….
Therefore, on the balance of probabilities, I believe that her ongoing pain and symptoms relate to the carpal tunnel syndrome but would also be aggravated by the degenerative changes that are present in her recent Xray/ ultrasound scan report.”
[26] Reply p 84.
In his report of 28 June 2021, Dr O’Sullivan took a consistent history of the onset of the applicant’s condition and her treatment to that point.
Dr O’Sullivan noted that Dr Norris did not think further surgery was indicated, and that Ms Tuma was placed on light duties, being a lifting restriction of 4kg, and no sewing. Dr O’Sullivan then reported:[27]
“…She continued to work with restrictions that is, no sewing and restricted
lifting although the latter did not eventuate. At that stage she was working 5 days a week.
Then in November/December 2019 she was reduced to working 2 days a week because there was not enough work for her to work 5 days a week. She realised at that stage that it was difficult for her to live on the reduced income that happened as a result of her reduced workload.
Then in March 2020 that is, when covid happened, there was significant discussion with regards to the number of employees and her position was terminated on 21 April 2020….”
[27] Reply p 89.
Dr O’Sullivan examined both upper limbs, and found them to be neurologically normal, including the wrists and intrinsic muscles of both hands.
Dr O’Sullivan also noted the 5 April 2019 MRI scan of the left wrist, saying that it:
“…. showed a central TFC tear and degenerative changes in the 1st CMC and STT joint and De Quervain's tendinopathy. Clinically she obviously has degenerative changes in her left wrist as described.”
Dr O’Sullivan was asked whether Ms Tuma’s ongoing incapacity was “directly resultant from the bilateral carpal tunnel injury on 07/09/2017.” Dr O’Sullivan relied in the negative. He said:
“Her carpal tunnel has been surgically decompressed with good result in the right hand but still some symptoms in relation to the left hand although she does have degenerative arthritis in the left hand as noted.”
In answer to a similar question, Dr O’Sullivan advised:[28]
“She does have symptoms on my assessment and examination related to the carpal tunnel syndrome affecting the left hand but these have virtually completely resolved in my opinion because she has no signs of a carpal tunnel syndrome in both hands on clinical assessment and has negative Tlnel's at both wrists. Her current symptoms In regard to her left hand relate in my view to the osteoarthritis in the left hand and her upper arm and shoulder symptoms relate to degenerative changes.”
[28] Reply p 92.
Dr O’Sullivan thought that Ms Tuma could not return to her pre-injury duties, but was able to do full time suitable duties. Computer work was suggested, but Dr O’Sullivan noted that Ms Tuma was due to retire in any event.

Dr Lai

Dr Min Fee Lai, general surgeon, was retained as the applicant’s medic-legal expert. He provided three reports dated 23 April 2019, 25 February 2020 and 1 March 2022.[29]
[29] ARD pp 27, 41 and 55 respectively.
In his report of 23 April 2019 Dr Lai took a consistent history. He noted that the right carpal tunnel symptoms had completely resolved in the hand. On examination of the left upper extremity he found, inter alia:[30]
·weaker pinch grip on the left side
·thumb adduction weaker on the left side
·touch sensation altered over left thumb index middle and radial side of the ring finger. 2 point discrimination (medium nerve distribution)
·tinel’s sign at wrist positive
·Phalen and reverse phalen negative
·Thumb metacarpophalangeal joint region tender to palpation.
[30] ARD p 31.
Dr Lai’s opinion was that the applicant had sustained:[31]
“Bilateral carpal tunnel compression, of median nerves with residual symptoms of numbness and paraesthesia in left hand and weakness of the thenar muscles. Left medial epicondylitis and left shoulder impingement as consequential injuries with pain and restriction of movements in left shoulder. Mild impingement of right shoulder. It is likely that these disabilities are long term.”
[31] ARD p 33.
In his report of 25 February 2020 Dr Lai noted that since October 2019 Ms Tuma had been working two days per week, whereas at the time of his report of 23 April 2019 she had been working full time on restricted duties. Dr Lai recorded that Ms Tuma thought her symptoms had improved due to her now working less hours instead of full time. Nonetheless she was complaining of continuing symptoms in her left upper extremity.
In his report of 1 March 2022, which was conducted by telehealth, Dr Lai diagnosed relevantly bilateral carpal tunnel syndrome with residual symptoms of numbness and paraesthesia in the left hand and weakness in the left thenar muscles following decompression. In answer to a question concerning Ms Tuma’s capacity for work, Dr Lai said:[32]
“Your client is not fit for work.”

[32] ARD p 59.

The following question and answer then appeared:
“We note the insurer opines that our clients work related injuries sustained on 7 September 2017, has resolved and that her current incapacity is a result from degenerative changes in her wrists. Do you disagree with their opinion? If yes, can you please clearly explain why you believe Ms Tuma’s work related injuries have not resolved.
I disagree with the insurer’s opinion. My reason is that Ms Tuma clearly continues to have symptoms of residual pain, numbness and weakness of her left hand grip despite the left carpal tunnel decompression. This disability is due to the permanent damage in her left median nerve as a result of her left carpal tunnel syndrome. It is not due to degenerative changes in her wrist as degenerative changes in the wrist, typically does not cause paraesthesia or numbness in the hand….”
As to causation, Dr Lai said:[33]
“…As detailed in my previous reports, the nature and conditions of her work with repetitive movements of her hands, sustained heavy gripping of objects; as well as repetitive movements of her elbows and shoulders have led to her physical injuries. Therefore it remains my opinion that her physical injuries are a result of her workplace injury.”

SUBMISSIONS

[33] ARD p 60.

Mr McEnaney

Mr McEnaney submitted that the dispute concerned a narrow issue. The respondent relied on Dr O’Sullivan’s opinion that the carpal tunnel condition had resolved. If I were satisfied that the condition had not resolved, then prima facie the applicant would succeed. The nub of her case was that her employment opportunities were limited by her background as a seamstress all her working life. Moreover, there was no evidence from the employer by way of vocational assessments and the like that would suggest what suitable duties she could do, the absence of which gave rise to a Jones v Dunkel inference in the light of there having been a vocational consultant involved in this case for some time.
Mr McEnaney referred to the applicant’s statements and submitted that as no application for cross-examination was made, Ms Tuma’s evidence was credible. The injury was accepted, and lump sums had been paid in any event, so the only issue was incapacity flowing from the injury to the hands and wrists as a result of the carpal tunnel syndrome.
The real question was whether Ms Tuma was still suffering from these symptoms in
mid-2021 when she was seen by Dr O’Sullivan, and from December 2021 when the dispute arose as a result of the declinature of liability.
Mr McEnaney referred to the applicant’s evidence as to the continued symptomatology she continues to experience. There was no reason not to accept that evidence as being honest and truthful.
Mr McEnaney then referred to the report of Dr Laughlin in April 2022, who confirmed that Ms Tuma had no current work capacity. Similarly Dr Dowla was of the same view at around the same time.
I was referred to the medico-legal evidence. Dr Lai took an accurate history of the applicant’s employment history as a seamstress, and his most recent opinion was supportive of problems in the left wrist. Mr McEnaney relied on the examination and contrasted it with the findings of Dr O’Sullivan – particularly with regard to the presence or absence of Tinel’s or Phalen’s signs. He submitted that Dr Lai’s findings most closely matched the symptoms described by the applicant.
Dr Lai confirmed that the applicant was not fit for work. He distinguished Dr O’Sullivan’s opinion that the cause was degenerative by referring to the complaints of numbness and paraesthesia, which were not caused by degeneration.
Mr McEnaney referred to the certificates which confirmed that the applicant had no current work capacity.
Mr McEnaney submitted that the respondent’s case should be rejected. Firstly he referred to the reference within the Mr Ward’s clinical notes to Ms Boult Eren, vocational rehabilitation consultant, with an email address at “ipar.com.au.” Mr McEnaney referred to the following page and the entry that Ms Tuma had an appointment at IPAR to look at future job options.
Dr O’Sullivan could only be accepted, Mr McEnaney said, if his opinion displaced all the applicant’s evidence. The record of Ms Tuma’s struggle with her condition, which had not been directly challenged, was a major impediment in that regard, he argued. Dr O’Sullivan was the outlier in the medical field.

Mr Grimes

Mr Grimes agreed the pre-injury average weekly earnings (PIAWE) was $629.60. Mr Grimes stressed that the injury claimed was the carpal tunnel syndrome, and the other injuries mentioned in the medical evidence were estopped by the consent Certificate of Determination (COD) of Arbitrator Isaksen. The applicant’s assertion that she was incapacitated by the non-compensable injuries was accordingly of no relevance.
Mr Grimes submitted that there was now no involvement of the right carpal tunnel syndrome, from which the applicant had recovered, and he referred to the evidence in that regard. He understood the applicant to be right-handed, and it followed therefore that the dominant hand had recovered.
With regard to the left hand, Mr Grimes referred to the relevant evidence, particularly that which in late 2018 suggested that the left sided release had completely resolved her symptoms. However he quite properly conceded that the nerve conduction studies in November 2018 demonstrated nerve compression in the left hand, and he referred to Dr Norris’s opinion that this was confusing and inconsistent.
Mr Grimes referred to Dr Norris’s opinion in 2019 that the applicant’s symptoms were different from her original presentation, and Mr Grimes noted the MRI of April 2019 which identified the pathology referred to above. Mr Grimes submitted that the pathology shown was completely different to the carpal tunnel syndrome.
Mr Grimes referred to Dr Smith’s view on 10 April 2019 that the cause was clearly left thumb osteoarthritis, and thus, Mr Grimes submitted, equally clearly no longer the carpal tunnel syndrome.
Mr Grimes returned to Dr Norris’ opinion of 8 March 2019, saying that the noting of persistent left thumb problems demonstrated that the disabling pathology was no longer the carpal tunnel syndrome, Dr Norris saying that the original symptomatology had completely resolved.
Some discussion ensued at this point and Mr Grimes said the respondent’s position was that although there may have been an incapacity, it was not the one she pleaded as being caused by the carpal tunnel syndrome.
He made the following points:
·        The estopped injuries mentioned in the evidence were to be disregarded.
·        The medical evidence established that the right carpal tunnel had resolved.
·        The medical evidence established that the left carpal tunnel had resolved.
·        The medical evidence established that there were alternative causes of the incapacity in the left hand, but they had not been pleaded.
·        These causes were the onset of de Quervain’s syndrome and the aggravation of degenerative changes.
·        In any event the applicant could not establish that she had no current work capacity.
With regard to the capacity issue, Mr Grimes submitted that Ms Tuma had demonstrated her capacity by working for one and a half years on full time suitable duties following her left carpal tunnel surgery of 30 April 2018. Dr O’Sullivan recorded the history that she was reduced to two days per week in November /December 2019, and that with the onset of the pandemic, her position was terminated on 21 April 2020. Mr Grimes submitted that no explanation had been made either by the applicant herself or her medical practitioners as to why she was then certified as having no current work capacity.
Mr Grimes contrasted the certificate issued by Dr Laughlin for the period 18 April 2020 to 18 May 2020, which certified that Ms Tuma had capacity to work unrestricted hours with a 4kg lifting restriction and with no sewing, to that issued for the period 14 May 2020 to 14 August 2020 which certified Ms Tuma with no current work capacity.[34]
[34] ARD pp 106 and 109 respectively.

Mr Grimes further submitted that in order to qualify for weekly payments – notwithstanding that her entitlement was to end on 13 June 2022 – she had to satisfy the terms of s 38, which in turn meant that she had to be found to be without any current work capacity.
Mr Grimes referred to Dr O’Sullivan’s examination of 28 June 2021, which found no abnormality, and he relied on Dr O’Sullivan’s opinion.

Mr McEnaney in reply

With regard to the potential resolution of the carpal tunnel condition, Mr McEnaney submitted that there was support for the proposition that it was still symptomatic. He referred to Dr Dowla who had prescribed Lyrica, which he would not do for a mere degenerative condition. Mr McEnaney also relied on Dr Lai’s final opinion that a degenerative condition does not produce paraesthesia or numbness.
Mr McEnaney referred to Dr Norris’ advice of 8 March 2019 that Dr Norris advised Ms Tuma that there might be permanent damage to the median nerve. Thus three years later Dr Norris was still unsure of the diagnosis. The respondent had already accepted liability under s 66 for the carpal tunnel injury and the respondent had to tread carefully in saying that there was no such injury a year earlier, which it was estopped from doing by the consent COD of 13 May 2020. Accordingly, it accepted there was a carpal tunnel syndrome and that it was causing permanent impairment.
With regard to the question of capacity to earn, Mr McEnaney submitted that the onus was on the respondent to explain why the applicant had been downgraded. The respondent was calling on the Commission to make credit findings about the applicant suggesting that she was downgraded for a particular reason, not otherwise stated. The certificates spoke for themselves, Mr McEnaney argued, and Drs Laughlin, Dowla and Lai agreed she had been unfit for some time, certainly prior to the dispute. Mr McEnaney suggested that the respondent ought to have sought particulars in that respect and, having not done so, now wanted to turn the issue into an “indirect credit question,” which should not be permitted.
The respondent had not put on any evidence about the circumstances of the downgrade and to rely on Dr O’Sullivan’s history was a “very long bow to draw,” Mr McEnaney argued. The inference the respondent wished to be drawn – that the downgrading was for operational reasons and not because of any alteration in Ms Tuma’s capacity – could not be established on Dr O’Sullivan’s evidence. The respondent had not described the duties and its submission was an evidential sleight of hand.
Mr McEnaney referred to Dr O’Sullivan’s advice of 28 June 2021 that the applicant could not return to work as a seamstress, but was capable of doing alternative work such as computer work. This was fanciful, I understood Mr McEnaney to submit.

DISCUSSION

Section 38 of the 1987 Act provides relevantly:
“(1)    A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if-
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
(3A) …
(4)     …”
The claim is brought pursuant to s 38 of the 1987 Act, as the payment schedule indicated that the entitlement period pursuant to s 37 expired on 2 December 2021, this claim commencing on 10 December 2021. It can be seen that Ms Tuma cannot qualify for weekly payments by virtue of s 38(2) unless she is found to have no current work capacity. The dispute notice referred to s 38(3) as being her only option, but it can be seen that she would be so entitled pursuant to s 38(2) if she could establish that she had no current work capacity.
Section 32A of the 1987 Act provides:
"‘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.”
Before considering this aspect of the case it is necessary to consider whether Mr Grime’s submissions may be accepted regarding the cause of Ms Tuma’s present condition.

Causation

There is no doubt that the applicant suffered from a bilateral carpal tunnel syndrome, as she underwent surgical release of both wrists – the first to the right on 27 November 2017, and the second to the left on 20 April 2018. The medical evidence confirmed that there had been a complete resolution of the right carpal tunnel problem, and Ms Tuma did not contend otherwise.
I have reproduced Ms Tuma’s comments that, following the left wrist surgery, she continued to experience pain, and that the procedure “was not even half as effective as the procedure I had undertaken to my right hand.” Ms Tuma described symptoms of left arm swelling, loss of fine motor skills and pains shooting up from her left hand behind her shoulders and into the base of her neck.
She made many further claims regarding the poor outcome of the surgery, and Mr Grimes correctly observed that the terms of the COD dated 13 May 2020 estopped her from claiming that she had suffered any injury to her right elbow, right shoulder, left elbow, left shoulder or neck. He acknowledged that the respondent had admitted liability in the lump sum claim for the left and right carpal tunnel syndrome.
In fact, whilst liability was admitted for injury to the left and right carpal tunnel syndrome, the terms of the consent order went a little further when it stated:
“…and injury to the left wrist and right wrist, sustained in the course of her employment with the respondent, with a deemed date of injury of 27 May 2019.”
That date of injury was the same as was pleaded in the ARD in the present case, but no objection was made to the amendment to 27 November 2017, the date of the first carpal tunnel release, being the first date of incapacity. Be that as it may, Mr Grime’s submission that the medical evidence did not support a finding that Ms Tuma’s incapacity was caused by her carpal tunnel condition requires some analysis.
In his first report of 27 June 2018, Dr Norris was not sympathetic to Ms Tuma’s complaints that she was continuing to experience pain. At that stage Dr Norris thought the left carpal release surgery had “completely resolved her symptoms,” and he put her continued complaints down to pillar pain from the scarring. His comments that she should return to full activity and that it was “unusual” that she was still off work after a “straightforward” release demonstrated a hesitancy to accept her complaints.
In his next report of 28 November 2018 however, Dr Norris, whilst describing Ms Tuma’s symptoms as confusing, unusual and inconsistent, was not so dismissive of them. He noted that nerve conduction studies earlier that month had confirmed the presence of bilateral mild to moderate neuropathies consistent with carpal tunnel syndrome. He also noted that Ms Tuma was continuing to use her sewing machine using both hands. His comment that if the symptoms continued and there was evidence of ongoing median nerve compression, then “it was highly likely” that Ms Tuma had sustained permanent damage to the median nerve.
I observe that Dr Norris indeed had such evidence before him when he made that statement, and thus proposed a possible diagnosis that implicated the left carpal tunnel syndrome. I also observe that Ms Tuma’s evidence that her employers did not give her the light duties she had been certified for was also corroborated by Dr Norris. (I note in passing that no evidence was lodged by the employer to challenge Ms Tuma’s evidence in that regard).
On 20 February 2019 Dr Norris again reported to the insurer, repeating that he remained confused by the symptomatology, which Ms Tuma described by then as involving the entire left upper limb. She was no longer using the sewing machine but described her duties as repetitive and heavy. It could not be said that Dr Norris was convinced by Ms Tuma’s complaints – particularly as Ms Tuma was “very clear” that the original symptomatology had resolved, and that her symptomatology was different. Nonetheless Dr Norris sought approval to refer Ms Tuma to Dr Smith. He explained that there were other possibilities which might explain the symptoms.
Approval was given, and Dr Norris’ referral to Dr Smith of 8 March 2019 gave a thorough history of Ms Tuma’s condition under his care. He recorded the development of persisting pain in the left thumb in mid-September 2018, with persistent pain in the left hand which was causing her to drop things. Again, some hesitation in Dr Norris’ acceptance of Ms Tuma’s complaints can be seen in his reference to “some functional component” and her “repeated references to work issues.” Dr Norris described the differential diagnoses that concerned him:
“● It was ‘highly possible’ that there had been permanent damage caused to the median nerve on both sides.
· There was a ‘distant possibility’ that the carpal tunnel releases had not in fact completely released at all.”
On 10 April 2019, Dr Smith advised that the cause of Ms Tuma’s symptoms were “clearly” left thumb CMC joint osteoarthritis, although there was “a fairly low index of suspicion” for recurrent compression to the left median nerve. Dr Smith was nonetheless moved to refer Ms Tuma for an ultrasound, and when he reported again on 15 July 2019 he advised that the ultrasound (presumably that of 9 July 2019) showed “significant thickening of the median nerve under the distal part of the transverse carpal tunnel ligament.”
Dr Smith’s diagnosis was then of a significant preoperative neuropathy. He thought it was taking some time to settle, and whilst he wished to see her again, no further evidence was lodged from Dr Smith.
On 23 April 2019, Dr Lai advised that the applicant was suffering from the residual symptoms of numbness and paraesthesia in the left hand with weakness of the thenar muscles.
As indicated, the respondent chose to rely on the reports of Dr O’Sullivan. On 28 June 2021 his opinion was that whilst the carpal tunnel decompression had a good result on the right side, the applicant still suffered symptoms in the left hand, along with degenerative arthritis. He advised that the left carpal tunnel syndrome symptoms had “virtually completely resolved.” Accordingly, he found that the symptoms complained of on 28 January 2021 were due to her osteoarthritis.
However in his earlier report of 15 August 2019 Dr O’Sullivan said that “beyond doubt” the diagnosis was of, relevantly, left carpal tunnel syndrome which still was causing pain. On 3 September 2019 Dr O’Sullivan confirmed his diagnosis - citing the nerve conduction tests of 15 November 2018 as the reason.
In his report of 1 March 2022 Dr Lai was asked about Dr O’Sullivan’s opinion of 28 June 2021, and distinguished it on account of the symptoms he recorded of residual pain numbness and weakness, which had been caused by permanent damage to her left median nerve.
Accordingly, the differential diagnoses were:
“●     Permanent damage to the left median nerve.
·        Unsuccessful carpal tunnel release.
·        Osteoarthritis in the left hand/thumb.”
Mr Grimes submitted that Dr Smith’s opinion of 10 April 2019 - that the cause of Ms Tuma’s ongoing left thumb and arm pain was “clearly” the left thumb CMC joint osteoarthritis - should be preferred. However, that submission overlooked Dr Smith’s “low index of suspicion” for the involvement of the median nerve which he nonetheless had further investigated by the ultrasound of 9 July 2019.
The ultrasound findings caused Dr Smith to acknowledge on 15 July 2019 that there was a significant thickening of the left median nerve, which indicated a significant pre-operative neuropathy which had taken a time to settle. He did not advise that it had in fact settled and is thus consistent with the opinion of Dr Lai and indeed Dr O’Sullivan’s earlier opinions that the left carpal tunnel was the cause of Ms Tuma’s pain. Moreover, whilst Dr Smith again referred to the applicant’s complaints of pain in her left thumb CMC joint, he did not re-iterate his opinion that the left thumb CMC joint osteoarthritis was the cause of her symptoms.
I note that Dr Norris thought that permanent damage to the median nerve had been “highly possible,” and that opinion was shared by Dr Lai.
I do not read Dr O’Sullivan’s advice as contradicting this involvement. Dr O’Sullivan thought on 15 August 2019 that, “beyond doubt” the left hand symptoms had been caused by the carpal tunnel syndrome. On 3 September 2019 he confirmed his opinion that Ms Tuma’s ongoing pain and symptoms related to the carpal tunnel syndrome, and added that they were aggravated by her degenerative changes seen on imaging. On 28 January 2021 Dr O’Sullivan confirmed that Ms Tuma was still suffering symptoms related to the left carpal tunnel syndrome. I had some difficulty understanding how symptoms could both be present and “virtually completely resolved” at the same time. Dr O’Sullivan did not say they were irrelevant and it is unlikely that he would have mentioned them if he thought they were.
The point of distinction between Dr O’Sullivan and Dr Lai was that Dr O’Sullivan’s examination on 28 January 2021 did not reveal any signs of left median nerve involvement, whereas Dr Lai’s examinations on both 23 April 2019 and 1 March 2022 did, by virtue amongst other things of the presence of paraesthesia and numbness. Dr Lai’s examination on that latter date was affected by the fact it was a telehealth examination, but I accept that a symptom of paraesthesia and numbness is subjective in any event, and that the physical examination of 23 April 2019, whilst the applicant was still working, establishes that the median nerve at that time was compromised. It was not suggested that the signs of median nerve involvement are necessarily continuous in any event, and it may be that Ms Tuma was not experiencing symptoms on 28 January 2021, some nine months after she ceased work, when examined by Dr O’Sullivan.
Thus I do not accept the submissions of the respondent that Ms Tuma’s condition is not related to her left carpal tunnel syndrome. It must be remembered, as Mr McEnaney submitted, that the respondent has already admitted liability for the carpal tunnel condition. It required a precise defence indeed to establish that the admitted injury to the same area of the left upper limb, whilst causing permanent impairment, did not cause any incapacity, and in this endeavour, despite the best efforts of Mr Grimes, the respondent has failed.
I accept the evidence of the applicant, notwithstanding that it tended to be argumentative and perhaps at times involve some advocacy. I note Dr Norris’ comment that he found it difficult to pin the patient down to a particular thought train. I note further that in his first report Dr Norris did not attribute to Ms Tuma a history that her left sided symptoms had completely resolved, and it may be that he made that assumption in trying to pin her thought train down.
Nonetheless there is no doubt that she was performing heavy sewing work since 2013. I accept that sewing and stitching of leather was arduous work and that it caused her bilateral carpal tunnel syndrome, from which she still suffers on the left side. I think it probable that she has suffered permanent damage to her left median nerve as suspected by Dr Norris, as when Dr Lai last saw her on 25 February 2022 her symptoms still persisted. It is accordingly unlikely that Dr Smith’s expectation that her condition would settle was realistic.
I am thus satisfied that the admitted injury to the left carpal tunnel was implicated in and has materially contributed to the incapacity from which Ms Tuma now suffers.

Ability to earn

There is no doubt that Ms Tuma had an ability to earn when she ceased work on 21 April 2020. She had been working full time on notional light duties up to October 2019 according to Dr Lai, and continued working on two days per week until her employment was terminated.
Mr McEnaney submitted that the respondent bore an onus to explain why Ms Tuma had been downgraded in the face of the certification provided by Dr Laughlin. He submitted that the evidence of Dr Dowla and Dr Lai also certified that Ms Tuma had no current work capacity, and accordingly the history taken by Dr O’Sullivan could not be accepted, as it constituted an evidentiary sleight of hand which sought to convert this issue into an indirect attack on Ms Tuma’s credit.
The respondent bears no onus of proof. It is for the applicant to prove on the balance of probabilities the elements of her case. Prima facie, she has established that she had no current work capacity from 14 May 2020 by virtue of the certificate issued by Dr Laughlin, and the later opinions just referred to.
However, the probative weight of that evidence has been affected by the overlapping prior certificate of Dr Laughlin, which certified the applicant fit for unrestricted hours with some restrictions as to sewing and lifting up to 18 May 2020. Dr Laughlin’s report did not assist the applicant in that regard as his report of 19 April 2022 stated that Ms Tuma had been unfit “since 2021” and made no attempt to explain therefore why he certified her as unfit since 14 May 2020.
Similarly, the history attributed to the applicant by Dr O’Sullivan has also affected the probative value of the evidence as to capacity. The reason for her downgrade from five days to two days per week Dr O’Sullivan recorded as being for operational reasons, there being not enough work for her to be employed for five days per week. Similarly, the reason for the termination of her employment was the advent of the pandemic.
These matters, whilst not affecting the onus of proof, did place on the applicant an evidentiary burden, as the prima facie effect of her evidence was squarely challenged on both grounds. The applicant gave no evidence in her statements regarding these matters, and I therefore am not persuaded that she became possessed of no current work capacity within a month of ceasing work in the face of the history taken by Dr O’Sullivan, and its inherent probability.

Whether Ms Tuma later developed no current work capacity is however another matter. She suffered injury to her left carpal tunnel and wrist under circumstances of extremely arduous work as a leather seamstress. It is not apparent that the restricted duties given to her were appropriate and I accept that she was struggling to perform them. Dr O’Sullivan’s comment that it was difficult for the applicant to live on her reduced income when her hours were reduced indicates that she was doing her best to perform her limited duties to maintain her financial independence. Once those duties were withdrawn there was some agreement amongst the medical experts that she became unable to work in any capacity.
Dr Dowla in his report of 6 April 2022 thought the applicant had been unfit since 22 April 2021. Dr Lai thought she was not fit for work on 1 March 2022, but did not indicate when such incapacity had commenced. Dr O’Sullivan thought the applicant might be able to do computer work but was retiring in any event. Dr Laughlin thought Ms Tuma had been unfit since “2021.”
The test for whether a person has any capacity to do suitable duties is that set out in s 32A, which I have reproduced at the start of this discussion. Ms Tuma is now 66 years old, and as indicated her entitlement to weekly compensation expired on 22 June 2022. Her experience in the workplace has been limited to that of a seamstress, which is the limitation of her skill set. Mr McEnaney’s submissions that the applicant has been given rehabilitation must be accepted. She was under the care of Mr Ward who was reporting to a vocational rehabilitation consultant, but no evidence from that source was tendered. I therefore assume that it would not have assisted the respondent.
I accordingly infer that after a period of not working, Ms Tuma’s age would have made it improbable that she could have returned to any work. I agree that Dr O’Sullivan’s suggestion of computer work was fanciful, given there was no suggestion that Ms Tuma had any such skill. Doing the best I can with this evidence I find that after a period of eight months or so of inactivity a combination of Ms Tuma’s left carpal tunnel injury and her age made her incapable of further work. I find therefore that she had no current work capacity from 21 January 2021.
I note that s 38(2) requires that an insurer is to assess the question of no current work capacity. I was not addressed as to this requirement, and assume that there is agreement that these findings will guide the insurer.
The respondent will pay the applicant weekly benefits pursuant to s 38(2) of the 1987 Act at the rate of $503.68, being 80% of the agreed PIAWE, from 21 January 2021 until 13 June 2022.

[2022] NSWPIC 495

6 September 2022