Turner v Employers Mutual Management Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Turner v Employers Mutual Management Pty Limited [2021] NSWPIC 508
APPLICANT:	Teresa Turner
RESPONDENT:	Employers Mutual Management Pty Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	08 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits compensation; accepted injuries to the left shoulder, left elbow and left knee; whether the applicant suffered frank injuries to her left wrist, left hand and cervical spine and a consequential condition to her right wrist and right hand; the value of contemporaneous evidence; absence of contemporaneous complaints of left wrist, left hand, right wrist, right hand and cervical spine; the weight given to expert reports; Onassis and Calogeropoulos v Vergottis, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates; Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles and Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held - award for the respondent in respect of the applicant’s claimed injury to the left wrist and left hand on 10 July 2019; award for the respondent in respect of the applicant’s claimed consequential condition to the right wrist and right hand; award for the respondent in respect of the applicant’s claimed injury to the cervical spine on 10 July 2019; in respect of the accepted injuries to the applicant’s left shoulder, left elbow and left knee, the applicant was fit to return to her pre-injury employment as a claims assessor; award for the respondent in respect of the applicant’s claimed entitlement to weekly benefits compensation under section 37 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. The applicant did not suffer injuries to the left wrist and left hand arising out of or in the course of her employment with the respondent on 10 July 2019 within the meaning of sections 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant did not suffer a consequential condition to the right wrist and right hand as a result of the accepted injury to the left shoulder and left elbow in the course of her employment with the respondent on 10 July 2019. 3. The applicant did not suffer an injury to the cervical spine arising out of or in the course of her employment with the respondent on 10 July 2019 within the meaning of sections 4(a) and 9A of the Workers Compensation Act 1987. 4. In respect of the accepted injuries to the applicant’s left shoulder, left elbow and left knee, the applicant was fit to return to her pre-injury employment as a claims assessor.
ORDERS MADE:	5. Award for the respondent in respect of the applicant’s claimed injury to the left wrist and left hand on 10 July 2019. 6. Award for the respondent in respect of the applicant’s claimed consequential condition to the right wrist and right hand. 7. Award for the respondent in respect of the applicant’s claimed injury to the cervical spine on 10 July 2019. 8. Award for the respondent in respect of the applicant’s claimed entitlement to weekly benefits compensation under section 37 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ms Teresa Turner, is a 55-year-old woman who was employed by the respondent Employers Mutual Management Pty Limited (EMM) as a claims advisor.
On 10 July 2019, at EMM’s premises, Ms Turner alleges that, whilst walking into the bathroom, she slipped and fell suffering injuries to her left shoulder, left elbow, left knee, left wrist and neck. Further, Ms Turner alleges that she suffered a consequential condition to her right wrist (a carpal tunnel condition) as a result of the accepted injuries to the left shoulder and left elbow and the disputed injuries to the left wrist and cervical spine on 10 July 2019.
On 18 July 2019, Insurance and Care NSW (iCare), on behalf of the Workers Compensation Nominal Insurer, accepted liability in respect of the injuries to Ms Turner’s left shoulder, left elbow and left knee and advised her that she was entitled to receive workers compensation benefits under the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] Application to Resolve a Dispute at pages 5-9
On 17 December 2019, Ms Turner’s contract of employment with EMM came to an end.
On 3 April 2020, iCare issued a Dispute Notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying an ongoing entitlement to weekly benefits compensation within the meaning of section 33 of the 1987 Act.[2]
[2] Reply at pages 4-8
On 4 May 2020, Ms Turner commenced employment with Suncorp Staff Pty Limited (GIO) as a claims advisor on a one-year contract and her employment ceased on 3 May 2021.[3]
[3] Reply at page 117
On 25 May 2021, iCare issued a Dispute Notice under section 78 of the 1998 Act denying an ongoing entitlement to weekly benefits compensation within the meaning of section 33 of the 1987 Act from 25 May 2021.[4]
[4] Reply at pages 9-12
On 18 June 2021, iCare issued a Dispute Notice under section 78 of the 1998 Act denying liability for injury to the left wrist and the right wrist under section 60 of the 1987 Act.[5]
[5] Reply at pages 13-16
On 6 July 2021, iCare issued a Dispute Notice under section 78 of the 1998 Act denying an ongoing entitlement to weekly benefits compensation or medical and related treatment within the meaning of sections 33 and 60 of the 1987 Act from 7 July 2021.[6]
[6] Reply at pages 17-21
On 31 August 2021, iCare issued a Dispute Notice under section 78 of the 1998 Act denying liability for injury to the left wrist, right wrist and cervical spine and any entitlement to weekly benefits compensation or medical and related treatment within the meaning of sections 4, 9A, 33 and 60 of the 1987 Act.[7]
[7] Reply at pages 22-26
Ms Turner, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 8 September 2021 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming weekly compensation from 25 May 2021 and ongoing under section 37 of the 1987 Act and medical and related expenses under section 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:

(a) whether Ms Turner suffered an injury to her cervical spine and left wrist on 10 July 2019 within the meaning of sections 4(a) and 9A of the 1987 Act;
(b) whether Ms Turner suffered a consequential condition to her right wrist (a carpal tunnel condition) as a result of the accepted injuries to the left shoulder and left elbow and the disputed injuries to the left wrist and cervical spine on 10 July 2019, and
(c) whether Ms Turner is entitled to weekly payments of compensation for total or partial incapacity within the meaning of section 33 of the 1987 Act arising from her accepted injuries to the left shoulder, left elbow and left knee and the disputed injuries to the left wrist and cervical spine and right wrist on 10 July 2019 from 25 May 2021 and ongoing; whether she had a current work capacity to work in suitable employment within the meaning of section 32A of the 1987 Act during the period claimed; and the extent and quantification of her entitlement to weekly payments of compensation within the meaning of section 37 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the Dispute Notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by telephone on 3 November 2021. Mr Bill Carney of counsel appeared for Ms Turner, instructed by Ms Reichelle Jackson, solicitor and Mr Paul Barnes of counsel appeared for the respondent, instructed by Mr Doyle Myles, solicitor.
During the conciliation phase the parties agreed as follows:
(a)    Ms Turner’s left shoulder, left elbow and left knee injuries were not in dispute;
(b)    Ms Turner’s pre-injury average weekly earnings were agreed at $1,064.25;
(c)    Ms Turner makes no claim for medical or related treatment expenses under section 60 of the 1987 Act, and
(d) Ms Turner’s claim for weekly benefits compensation is for the period 25 May 2021 and ongoing under section 37 of the 1987 Act.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and that they were 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 dated 8 September 2021 and attached documents;
(b)    Reply dated 29 September 2021 and attached documents;
(c)    Ms Turner’s Application to Admit Late Documents (AALD) dated 23 September 2021 and attached documents, and
(d)    Ms Turner’s AALD dated 25 October 2021 and attached documents.

Oral Evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Teresa Turner’s evidence

In evidence, there is a statement by Ms Turner dated 7 September 2021.[8] I will now refer to the relevant parts of that statement.
[8] ARD at pages 1-4
Ms Turner stated that she worked for EMM as a claims assessor. On 10 July 2019, she walked into the bathroom at her place of work and slipped over and fell with her outstretched arm in front of her. She struck her left arm against the wall and struck her left knee on the floor. As a result of the fall, she injured her left knee, left shoulder and dislocated her left elbow. An ambulance was called and the paramedic reduced her elbow dislocation and her arm was placed in a sling. A compression bandage was placed on her left knee.
Ms Turner stated that she was conveyed to Calvary Mater Hospital by ambulance, where she was treated in the emergency department. She was examined by medical staff and was provided with pain relieving medication. She underwent x-rays of her left shoulder, left elbow and left knee and was informed that they did not reveal any significant abnormalities or fractures. She was discharged home after a few hours and advised to follow-up with her general practitioner for further treatment.
Ms Turner stated that following the accident, she attended regular appointments with her treating general practitioner and underwent physiotherapy at Morisset Physiotherapy. She took pain relieving medication as required. She returned to work with EMM on suitable duties.
Ms Turner stated that on 16 October 2019, she consulted Dr Anthony Burneikis, Orthopaedic Surgeon, who diagnosed a possible left rotator cuff strain. She advised Dr Burneikis that she wanted to avoid surgery. She was referred for an ultrasound guided cortisone injection into her left shoulder.
Ms Turner stated that on 9 December 2019, she consulted Dr Burneikis, who reviewed MRI scans of her left knee and referred her for an ultrasound guided injection and weight-bearing x-ray of the left knee.
Ms Turner stated that in about December 2019, her contract with EMM ceased. In about January 2020, she began the application process to commence employment with GIO. The commencement of her employment with GIO was delayed due to COVID-19 and she received weekly payments from EMM’s insurer until she commenced her employment with GIO.
Ms Turner stated that on 23 April 2020, she consulted Dr Burneikis complaining of ongoing pain in her left shoulder and left knee. The pain in her left shoulder would sometimes radiate down her arm. She was having trouble dressing and working on a keyboard. Dr Burneikis recommended that she undergo an x-ray and MRI scan of her left shoulder and return for review.
Ms Turner stated that she experienced difficulty in obtaining treatment and attending her treating doctors and physiotherapists for face-to-face consultations because of the COVID-19 lockdowns.
Ms Turner stated that on 4 May 2020, she commenced employment with GIO on a 12 month contract working as a full-time claims manager. Her duties at GIO were very similar to the work she was performing at EMM, namely, predominantly working on a computer with a lot of typing. She found that the continual typing during her working day aggravated the symptoms in her left wrist and sometimes, the pain in her left wrist would be unbearable by the end of the working day. She regularly took over-the-counter pain relieving medication so that she could get through her working day. The pain in her left wrist gradually increased over the course of the year.
Ms Turner stated that, as a result of the injury to her left arm on 10 July 2019, she would use her right arm more than her left to perform tasks in order to avoid aggravating the pain in her left shoulder and left arm. At work, she performed typing, lifting, carrying and general paperwork with her right hand only. In about early 2021, she began to experience a burning sensation and pain in her right arm and right hand that came and went together with numbness and paraesthesia in her right thumb and right index and middle fingers. The pain was made worse when performing her work duties.
Ms Turner stated that her contract with GIO ended on 3 May 2021. She decided not to renew the contract because of the ongoing pain in her left shoulder, left arm, wrists and hands. That pain and her left knee pain were becoming unbearable and making it difficult to perform her work duties and her general day-to-day activities. GIO advised her that there would be a contract available for her to return to work when she felt she was ready to do so and could perform her duties without restriction. In evidence, there is a Certificate of Service issued by GIO dated 13 May 2021 that confirmed Ms Turner’s employment as a claims advisor commenced on 4 May 2020 and ended on 3 May 2021.[9]
[9] Reply at page 117
Ms Turner stated that she currently experiences ongoing pain in her left shoulder that radiates to the left side of her neck and down her left arm. She has a limited range of movement in her left shoulder and finds it difficult to use her left arm above shoulder height. She tends to use her right-hand more to perform tasks, which has caused pain and restriction of movement in her right wrist together with numbness and paraesthesia in her fingers. Her treating doctors have advised that she may have developed carpal tunnel syndrome in her wrists.
Ms Turner stated that she currently experiences intermittent pain and discomfort in her left elbow, which is exacerbated with repetitive movement. She has a restricted range of movement in her left elbow. She experiences discomfort and pain in her left hand and left wrist together with paraesthesia in her thumb, index and middle fingers. At times, she experiences difficulties holding and carrying items in her left hand. She has lost a lot of strength in her left hand.
Ms Turner stated that she currently experiences pain in her left knee. The left knee will often give way causing her to fall. The left knee feels unstable. The knee becomes swollen and the swelling extends down to her left ankle. She has a limited standing and walking tolerance and can only walk about 100 metres before she needs to sit down and rest. She experiences difficulty walking on rough or uneven ground and walking up and down stairs or slopes. She is unable to lift, squat, bend or kneel due to the pain in her left knee and has difficulty with pushing and pulling activities.
Ms Turner stated that she currently experiences difficulty sleeping and falling asleep at night because of the pain, especially in her left shoulder and left arm. She awakes several times during the night because of the pain and the need to change positions. Sometimes, she needs to get up and walk around before going back to bed in order to alleviate the symptoms. She avoids taking large amounts of pain relieving medications and applies hot and cold packs in an attempt to relieve the symptoms in her left shoulder and left elbow.
Ms Turner stated that she currently experiences difficulty performing simple tasks, such as, dressing and undressing and putting on and removing shoes, socks and pants. She struggles with cooking and cleaning activities. She has a housekeeper who attends on a regular basis and provides her with assistance in respect of the heavier domestic chores and the hanging out of washing. She relies on her daughter to perform the weekly grocery shopping.
Ms Turner stated that she had been certified unfit for work as a result of the injuries to her left shoulder, left arm, wrists and left knee.

The treating medical evidence

On 10 July 2019, Ms Turner presented at the Calvary Mater Hospital Newcastle following her fall at work earlier that day. In evidence, there is a discharge referral from the Calvary Mater Hospital Newcastle dated 10 July 2019.[10] I will now refer to the relevant parts of that document.
[10] ARD at pages 34-35
The discharge referral recorded that Ms Turner had sustained a mechanical fall that afternoon at work when she tripped and fell onto an outstretched hand (hyper-flexed on the wall) and onto her left knee. She complained of left shoulder, left elbow and left knee pain. Ms Turner denied a loss of consciousness or striking her head. X-rays of the left shoulder, left elbow and left knee identified no acute fractures. No complaints of pain in the cervical spine, left wrist or right upper limb were recorded in the discharge referral.
The discharge referral recorded a primary diagnosis of soft tissue injuries to the left upper and lower limbs. Compression bandages were applied to Ms Turner’s left knee and left elbow. Ms Turner was discharged home with four 5 mg Endone tablets and was advised to follow-up with her general practitioner.
On 15 July 2019, Ms Turner consulted Dr Philip Lock, General Practitioner, of Waratah Medical Services at Morisset.[11] Dr Lock recorded a history that Ms Turner fell at work and that her outstretched left arm hit a wall and that she then fell down onto her left knee. On examination, he observed limited abduction of the left shoulder; a free range of motion in the left elbow; and a free range of motion in the left knee. Dr Lock suspected soft tissue injuries.
[11] ARD at page 71
On 27 August 2019, Ms Turner consulted Dr Lock complaining of a flare-up of pain in her left shoulder without any obvious cause.[12] On examination, Dr Lock observed a range of motion limited by pain. He referred Ms Turner for an x-ray and ultrasound of her left shoulder.
[12] ARD at page 72
On 3 September 2019, Ms Turner underwent an x-ray and ultrasound of her left shoulder by Dr Gary Geier, Radiologist.[13] The x-ray disclosed minor degenerative changes in the acromioclavicular joint; a normal glenohumeral joint space; and evidence of rotator cuff calcification towards the supraspinatus insertion. The ultrasound demonstrated a rotator cuff disruption and subdeltoid bursitis.
[13] ARD at page 44
On 12 September 2019, Ms Turner consulted Dr Lock.[14] The left shoulder x-ray and ultrasound were discussed. Dr Lock referred Ms Turner to Dr Anthony Burneikis, Orthopaedic Surgeon.[15]
[14] ARD at page 73
[15] ARD at pages 45-47
On 16 October 2019, Ms Turner consulted Dr Burneikis and provided him with a history that she slipped in a disabled bathroom in July 2019 and fell heavily against the wall with the left arm hyperextended above her head and then impacted her left knee hard on the floor.[16] The consultation focused on Ms Turner’s left shoulder. Dr Burneikis suspected that Ms Turner had a rotator cuff strain or partial injury with an intra laminar tear with calcific tendinitis related to healing. He noted that Ms Turner was keen to avoid surgery. He recommended that she take simple paracetamol to assist with baseline discomfort. As she did not have a large full thickness tear, he felt it reasonable to attempt to treat the bursitis and address the calcific tendinitis by ultrasound-guided injection of steroid to the subacromial bursa.
[16] ARD at page 48

On 23 October 2019, Ms Turner consulted Dr Lock complaining of persistent left knee instability.[17] Dr Lock referred her for a left knee MRI scan.
[17] ARD at page 73
On 31 October 2019, Ms Turner underwent an ultrasound-guided injection into the left subacromial bursa by Dr Geier.[18]
[18] ARD at page 41
On 8 November 2019, Ms Turner underwent an MRI scan of her left knee by Dr Nick Masoudi, Radiologist at Hunter Radiology.[19] The MRI scan demonstrated a small knee joint effusion; a sprain of the MCL; a low-grade insertional tear of the distal quadriceps tendon; intact cruciate ligaments and menisci; and no fracture or bony contusion.
[19] ARD at page 39
On 9 December 2019, Ms Turner consulted Dr Burneikis, who reviewed the left knee MRI scan report but was unable to access the actual images.[20] Dr Burneikis suspected patellofemoral chondromalacia that may have been made worse by the fall directly onto the patella. He observed that there was no gross bone on bone arthritis in the knee; no damage to the menisci; no damage to the cruciate ligaments; and no significant collateral tear enough to cause instability. He opined that the knee should settle with time or analgesia. He referred Ms Turner for an ultrasound-guided injection of steroid and plain imaging of the left knee of weight-bearing views to assess baseline for any degree of arthropathy. Dr Burneikis recommended that Ms Turner continue with simple analgesia, try the steroid injection and physiotherapy.
[20] ARD at page 52
On 16 December 2019, Ms Turner consulted Dr Lock, who referred her to Ms Kimble Wood, Physiotherapist.[21]
[21] ARD at page 74 and 94-98
On 20 December 2019, Ms Turner underwent a left knee x-ray performed by Dr Geier.[22] The x-ray disclosed evidence of a very small amount of fluid in the suprapatellar bursa; minimal spiking of the medial tibial spine; the patella was enlocated and joint space widening was evident at the medial aspects in association with lateral subluxation of the patella in the skyline view; and there were no loose bodies.
[22] ARD at page 43
On 10 January 2020, Ms Turner underwent an ultrasound-guided injection into the left knee joint by Dr Geier.[23]
[23] ARD at page 42
On 16 January 2020, Ms Turner consulted Dr Lock, who referred her back to Dr Burneikis for management and opinion.[24]
[24] ARD at page 74
On 3 February 2020, Ms Turner consulted Dr Burneikis, who reviewed the x-rays of her left knee.[25] Dr Burneikis opined that the x-ray findings were consistent with the MRI scan findings. Ms Turner reported some relief from the ultrasound-guided injection into the left knee, albeit short lived.
[25] ARD at page 55
On 15 April 2020, Ms Turner consulted Dr Lock complaining that her left knee and left shoulder were still causing her trouble and that she had been unable to consult the physiotherapist, Ms Wood, due to COVID-19 restrictions.[26] Dr Lock referred her back to Dr Burneikis for management and opinion.
[26] ARD at page 76
On 23 April 2020, Ms Turner consulted Dr Burneikis and reported that the steroid injection into her left shoulder that had given her quite significant relief had worn off in the last month or so.[27] Ms Turner complained of lateral left shoulder pain that radiated down the arm. She still maintained full movement and reasonable power but was disappointed by the pain because it affected her getting dressed or working at a keyboard. Dr Burneikis thought it worthwhile to obtain an updated plain x-ray and MRI scan to exclude a major tear. In respect of the left knee, Ms Turner found that physiotherapy was helping and she was awaiting a knee brace. Most of the time, her left knee was not in pain but it could swell at times. When she did have issues, she felt a catching sensation or impending giving way, in various positions. The left knee was the lesser of her problems.
[27] ARD at page 58
On 13 May 2020, Ms Turner consulted Dr Lock by telephone and advised him that she had commenced “original duties at a different company”.[28]
[28] ARD at page 76
On 30 September 2020, Ms Turner consulted Dr Lock complaining that her left knee was swelling and causing discomfort.[29] Dr Lock referred her back to Dr Burneikis.
[29] ARD at page 78
On 29 October 2020, Ms Turner underwent an x-ray and MRI scan of her left shoulder at Alto Imaging.[30]The MRI scan demonstrated supraspinatus tendinosis with a linear intrasubstance tear at the insertion; infraspinatus tendinosis with a focal bursal surface tear at the anterior insertion and subtle intrasubstance tear at the posterior infraspinatus insertion; and a suggestion of an undisplaced anterior inferior labral tear.
[30] ARD at page 40
On 30 December 2020, Ms Turner consulted Dr Gary Van Wyk, General Practitioner, of Waratah Medical Services at Morisset.[31] She reported ongoing pain in her left leg and swelling in her left knee as well as pain in her left hand and left elbow when at work. As Dr Burneikis was no longer available, Dr Van Wyk referred her to Dr Darren Paterson, Orthopaedic and Trauma Surgeon.
[31] ARD at page 80
On 15 February 2021, Ms Turner underwent an MRI scan of her left knee and left ankle by Dr Lawrence Josie, Radiologist.[32] The clinical history in respect of the left ankle referred to pain and swelling. The findings in respect of the left ankle were extensive subcutaneous oedema/fluid present without internal derangement. The clinical history in respect of the left knee referred to patellofemoral injury with ongoing pain. The findings in respect of the left knee were chondral fissuring at the patella.
[32] ARD at pages 37-38
On 17 February 2021, Ms Turner consulted Dr Paterson complaining of ongoing symptoms in her left knee, left shoulder, left elbow extending into the left wrist.[33] Dr Paterson observed that the recent MRI imaging of her left knee demonstrated marked chondral loss in the retropatella surface most likely as a consequence of the work-related injury. On clinical examination, he observed a small effusion of her left knee and a full range of motion with marked patellofemoral crepitus and irritability. He noted that the intra-articular cortisone injection to the left knee provided limited relief together with ongoing physiotherapy. Dr Paterson suggested that Ms Turner consider hyaluronic acid, radiofrequency ablation and patellofemoral replacement. As she had a marked left calf swelling, he referred her for a Doppler ultrasound to exclude a DVT. In respect of the left upper limb, he recommended that she consult Dr David Bradshaw, Orthopaedic Surgeon.
[33] ARD at page 36
On 18 February 2021, Ms Turner underwent a Doppler ultrasound of her left lower limb by Dr Mauro Moreira, Sonographer.[34] The Doppler ultrasound disclosed no evidence of DVT in the left lower limb.
[34] Reply page 66
On 29 April 2021, Ms Turner consulted Dr Van Wyk complaining that the pain in her left arm was worse and she felt that she could not use it.[35] She reported that she was unable to work. Dr Van Wyk prescribed a trial of Lyrica capsules 25 mg, one to be taken in the morning and one in the afternoon.
[35] ARD at page 80
On 21 June 2021, Ms Turner consulted Dr Van Wyk complaining of pain in her right wrist and right hand and suggesting to the doctor that it was due to repetitive work.[36] Dr Van Wyk queried whether it was a separate WorkCover claim. He referred her to Dr Andre Loiselle, Consultant Neurologist for a nerve conduction study.[37]
[36] ARD at page 81
[37] ARD at pages 87-88
On 21 July 2021, Ms Turner underwent nerve conduction studies that Dr Loiselle interpreted as normal bilateral median and ulnar nerve conduction studies.[38]
[38] ARD at page 89
On 23 July 2021, Ms Turner consulted Dr Van Wyk, who considered that her left arm issues may be related to the C7 region.[39] He referred her for a CT scan of the cervical spine.
[39] ARD at page 81-82
On 4 August 2021, Ms Turner underwent a CT scan of her cervical spine by Dr Geier.[40]
[40] Ms Turner's AALD dated 23 September 2021 at page 2
On 9 August 2021, Ms Turner consulted Dr Van Wyk and discussed the results of the cervical CT scan.[41] He opined that the CT scan was inconclusive and referred her to Dr Bradshaw for an opinion and management.[42] There were no reports by Dr Bradshaw in evidence.
[41] ARD at page 82
[42] ARD at page 92-93
On 9 September 2021, Mr Alexander Holmes of Total Motion Physiotherapy reported on the treatment provided to Ms Turner’s left upper limb and left knee. He reported that the practice had not treated Ms Turner’s wrists.

The forensic medical evidence

Dr Zbigniew Poplawski

On 16 August 2021, Ms Turner consulted Dr Zbigniew Poplawski, Orthopaedic Surgeon, at the request of her lawyers. Due to the COVID-19 restrictions in place at the time, the consultation took place audio-visually. In evidence, there is a report by Dr Poplawski dated 24 August 2021.[43] I will now refer to the relevant parts of that report.
[43] ARD at pages 24-33
Dr Poplawski took a history from Ms Turner that, on 15 July 2019 (being the incorrect date), she slipped in a disabled bathroom at work and fell with her left arm outstretched in front of her, sustaining a hyperextension injury to the left wrist, left shoulder and a dislocation of the left elbow. She landed on her left knee. Thereafter, he reported a history of treatment since the accident that was consistent with the evidence.
Dr Poplawski also took a history from Ms Turner that, sometime following the accident, she changed jobs and took up employment as a self-contractor with GIO (incorrectly referred to as GIL throughout the report) as a claims manager. The work of a claims manager with GIO involved a considerable amount of typing compared to that required in her role as a claims assessor with EMM. Due to her inability to use her left arm, Ms Turner was obliged to carry out typing activities, general paperwork and lifting with the right hand only, which resulted in the overuse and consequential precipitation of symptoms in her right arm in the form of paraesthesia and pain in the thumb, index and middle fingers. She struggled on with her work activities until the end of the contract with GIO and ceased work. Once the problems in her left arm, left knee and right hand are resolved, there will be a contract with GIO available to her.
Dr Poplawski reported that Ms Turner’s current symptoms included left shoulder pain radiating to the left side of the neck, associated with marked limitation of range of motion and inability to work above shoulder level; intermittent discomfort/pain in the left elbow, dependent on the level of activity with some limitation of range of motion; left hand and left wrist intermittent discomfort/pain with development of paraesthesia in the thumb, index and middle fingers with typing on the computer; and pain in the left knee (incorrectly referred to as the right knee in his report) with episodes of giving way.
On audio-visual examination of the head and neck, Dr Poplawski observed a full range of neck movement in all directions with marked discomfort on the left-hand side at the back of the neck.
On audio-visual examination of the upper limbs, Dr Poplawski recorded the range of motion in the shoulders and observed that there was pain at the extremes of all ranges of motion in the left shoulder. Range of motion in the elbows was – flexion on the left of 110° and on the right 140°; extension on the left of 5° and on the right 0°. Range of motion in the wrists was – extension on the left of 30° and on the right 40°; flexion on the left of 40° and on the right 50°; radial deviation on the left of 5° and on the right 10°; ulnar deviation on the left of 20° and on the right 20°. There was a full range of movement in the digits of both hands.
On audio-visual examination of the knees, Dr Poplawski observed flexion on the left of 90° and on the right 150°; extension on the left of 5° and on the right 0°.
Dr Poplawski reviewed the medical imaging provided to him, namely, the left shoulder x-ray dated 3 September 2019, the left knee x-ray dated 20 December 2019 and the left shoulder MRI scan dated 29 October 2020.
In his summary, Dr Poplawski concluded that Ms Turner had sustained injuries to her left shoulder and dislocated her left elbow in the fall at work on 15 July 2019. He opined that she had been left with problems of reduced range of motion, pain in the left shoulder and some reduction of range of motion in the left elbow. He then stated that Ms Turner subsequently developed problems in the right-hand in terms of recurrent paraesthesia, numbness in the thumb, index and middle fingers, suggesting the possibility of right carpal tunnel syndrome. He also stated that there was a possibility that she may have developed left carpal tunnel syndrome.
Dr Poplawski diagnosed Ms Turner as having suffered a rotator cuff disruption in the left shoulder; a dislocation in the left elbow with post reduction reduced range of motion; consequential recurring right carpal tunnel syndrome; and possible recurring left carpal tunnel syndrome.
Dr Poplawski opined that there was a direct relationship between the injuries Ms Turner sustained and the fall on 15 July 2019. In response to a question from Ms Turner’s lawyers on the issue of causation, Dr Poplawski opined that she sustained direct injuries to her left shoulder, left elbow and possibly left wrist as a result of the fall on 15 July 2019 and subsequently, developed a consequential right carpal tunnel syndrome.
In respect of the issue of work capacity, Dr Poplawski opined that Ms Turner was not fit to resume her regular pre-injury duties. He further opined that she should be capable of managing sedentary duties, in the course of which, she is able to change her position from sitting to standing from time to time as dictated by the onset of symptoms in her areas of injury, starting at two to three hours per day. However, Dr Poplawski did not believe that such duties would be a realistic possibility if employed on a contract basis. Ms Turner’s restrictions would include the prolonged use of computer typing, activities at or above shoulder level, use of the left arm for lifting activities, prolonged standing and walking. He opined that Ms Turner would not be able to compete for employment on the open labour market.

Dr Joshua Hunt

On 24 May 2021, Ms Turner consulted Dr Joshua Hunt, Consultant Orthopaedic Surgeon, at the request of iCare. In evidence, there is a report by Dr Hunt dated 7 June 2021.[44] I will now refer to the relevant parts of that report.
[44] Reply at pages 27-37
Dr Hunt took a history from Ms Turner that she was employed by EMM as a case manager, being a role that was predominantly administrative, with data entry and telephone reception work. In July 2019, Ms Turner was in a bathroom at work and tripped and fell. The left hand was raised as she fell down and she landed directly on her left kneecap and her left elbow. Thereafter, he reported a history of treatment since the accident that was consistent with the evidence.
Dr Hunt recorded that Ms Turner reported sometimes experiencing discomfort and pain in her left shoulder. Physiotherapy to the left shoulder had ceased. Overall, her pain had improved and she could do the majority of office-based activities. However, she reported difficulty with performing overhead activities, such as pegging heavier sheets out on the clothesline. She experienced difficulty pulling and pushing. The pain was generally acceptable and she was able to function in most activities.
As to Ms Turner’s current status, Dr Hunt reported that she complained of pins and needles in her right hand and in her left hand that commenced in August 2019. Ms Turner noticed that the pain worsened when she was typing and that when she stopped typing, there was an improvement in her symptoms. The symptoms woke her at night. The sensation of pins and needles caused her to experience difficulty driving. Ms Turner reported that the sensation of pins and needles in her left hand extended from the left elbow down into the left ring and little fingers. In her right hand, the sensation of pins and needles was located in the right, middle and index fingers and the right thumb. Ms Turner closely associated the symptoms described above with the heavier activity of typing in the course of her work. Ms Turner also complained of pain in the base of her right thumb that caused her difficulty opening jars and with heavier lifting due to the pain. Ms Turner reported that her current major problem was the sensation of pins and needles into her hand on both sides and that if those symptoms were resolved, she could return to her pre-injury duties in an office-based activity. She reported to Dr Hunt that her left knee and left shoulder were manageable from a work perspective.
On examination of Ms Turner’s right arm, Dr Hunt observed that the first carpometacarpal (CMC) in the right thumb was positive to grind test and was palpably tender. The right wrist was Tinel’s and Phalen’s test positive. She had grade 4/5 power at the abductor pollicis brevis (APB) of the right thumb. The right ulnar nerve was preserved. The right elbow was Tinel’s test negative.
On examination of Ms Turner’s left arm, Dr Hunt observed that the left elbow and left ulnar nerve were strongly Tinel’s test positive. The median nerve was non-irritable and there was a maintained sensation in the left ulnar nerve distribution. However, there was a 4/5 first dorsal intraosseous weakness. There was no CMC pain in the left thumb and it appeared normal.
On examination of Ms Turner’s shoulders, Dr Hunt observed that the left shoulder had forward flexion to 100°, abduction to 90°, internal rotation to the buttock and external rotation to about 30°. The left shoulder was Hawkins test positive. There was slight biceps irritation. In respect of the right shoulder, Ms Turner had a full range of motion with forward flexion of 180°, abduction of 140°, internal rotation to the level of the lumbar spine and external rotation to 40°.
On examination of Ms Turner’s left knee, Dr Hunt observed a range of motion of 10° of extension with fixed flexion deformity to 100° of flexion. There were crepitations behind the left patella. There was significant pain on left patella grind.
In respect of Ms Turner’s left shoulder, Dr Hunt diagnosed supraspinatus tendinosis with an intrasubstance tear and an infraspinatus tendinosis that was supported by her decreased range of motion with pain on testing of the muscles of the left rotator cuff. The condition was consistent with the description of injury and consistent with the MRI scan dated 29 October 2020.
In respect of Ms Turner’s left knee, Dr Hunt diagnosed patellofemoral osteoarthritis. There was a positive grind test with crepitations and there was a history of landing directly onto the patella, which was consistent with the diagnosis. Further, MRI scans demonstrated osteoarthritic findings.
In respect of Ms Turner’s right arm and right hand, Dr Hunt diagnosed a right carpal tunnel syndrome. Such diagnosis was supported by the history of pins and needles waking her at night, exacerbation caused by her typing and the described symptoms when driving. Further, the right wrist was Tinel’s and Phalen’s test positive. Dr Hunt noted that Ms Turner awaited confirmation of the diagnosis by way of a nerve conduction study. Dr Hunt diagnosed a right first CMC osteoarthritis but opined that it was not work-related.
In respect of Ms Turner’s left arm and left hand, Dr Hunt diagnosed a left cubital tunnel syndrome. The exacerbation of her symptoms of pins and needles into the ring and little fingers whilst typing was consistent with such diagnosis. Further, her grade 4/5 power of the first dorsal intraosseous was also consistent with the diagnosis. Dr Hunt noted that Ms Turner awaited confirmation of the diagnosis by way of a nerve conduction study. Dr Hunt noted that during his history taking there was no discussion in respect of Ms Turner’s left elbow.
As to causation in respect of Ms Turner’s left shoulder and left knee injuries, Dr Hunt opined that they were directly attributable to the compensable work injury on 10 July 2019. He also opined that the history provided in respect of the mechanism of injury was consistent with Ms Turner’s pathology.

As to causation in respect of Ms Turner’s right carpal tunnel syndrome and left cubital tunnel syndrome, Dr Hunt opined that they were a secondary result of the injury on 10 July 2019 and therefore, a work-related injury. He observed that this was particularly so on the left cubital tunnel side, where Ms Turner held her left shoulder and left elbow in an altered position whilst typing.
Dr Hunt observed that there were no aspects of his clinical examination of Ms Turner that was suggestive of any signs of voluntary exaggeration, conscious guarding or inconsistencies.
Dr Hunt opined that the injuries to Ms Turner’s left shoulder and left knee had not resolved and were ongoing. He opined that Ms Turner will have chronic problems with her left patellofemoral joint and it will be lifelong. He opined that she will most likely experience ongoing discomfort and a limited range of motion in her left shoulder in the long-term.
In terms of Ms Turner’s fitness for work, Dr Hunt opined that she was almost fit to return to her pre-injury duties, especially working from her office at home. He opined that Ms Turner’s major limitations were the sensation of pins and needles in her right hand and left hand. Once those issues were sorted, she could return to her pre-injury duties. Dr Hunt concluded that Ms Turner’s restrictions included any manual work and overhead work but noted that, as she was office based, there were no restrictions on her return to full duties. He noted that Ms Turner awaited a nerve conduction study and he recommended a review by an upper limb surgeon.
Dr Hunt opined that Ms Turner’s current capacity to perform a pre-injury role was limited by the pins and needles she experienced when typing and that limited her output. He believed that surgery would be the best outcome for her to return to pre-injury duties. He noted that Ms Turner was extremely keen to return to her pre-injury role. He opined that once the pins and needles sensation in her fingers was resolved, she would be able to return to full duties.
Dr Hunt opined that, as a secondary condition, the treatment for a right carpal tunnel and left cubital tunnel release would benefit Ms Turner greatly. He believed that the nerve conduction studies would come back positive and that the most appropriate treatment would be the releases referred to above. He opined that the result of such surgery was quite predictable and that Ms Turner would be returning to work about three weeks post-surgery.
As to Ms Turner’s prognosis, Dr Hunt opined that, in respect of her left knee, it was guarded. He opined that osteoarthritis tended to be a progressive condition and that, at some point in the future, Ms Turner may require surgery to relieve the pain in the form of a micro fracture technique or a total knee replacement. In respect of her left shoulder, she noted that he had not improved significantly in two years and as such, her prognosis was guarded. Dr Hunt opined that the carpal tunnel syndrome and cubital tunnel syndrome symptoms had an excellent prognosis with surgical release.
On 28 June 2021, iCare requested a supplementary report from Dr Hunt and posed a series of questions for his response. In evidence, there is a supplementary report from Dr Hunt dated 30 June 2021.[45] I will now refer to the relevant parts of that report.
[45] Reply at pages 38-40
Dr Hunt opined that the carpal tunnel symptoms in Ms Turner’s right wrist would have developed regardless of the workplace fall on 19 July 2019. There was no causal relationship of the symptoms in the right wrist with the fall.
Dr Hunt opined that the left ulnar nerve symptoms were not causally related to the workplace fall on 19 July 2019.
Dr Hunt opined that it was apparent that the nature of Ms Turner’s employment involving typing was causally related to the symptoms from which she suffered and that those symptoms were exacerbated by the heavy typing load she had been performing and resolved when that activity ceased. He concluded that it was reasonable on the history taken that her neurological symptoms related to her typing.
Dr Hunt opined that Ms Turner’s capacity for employment in respect of the accepted injuries to the left shoulder, left elbow and left knee was very good. He noted that she would struggle for any manual overhead work but was able to perform office-based activities without restrictions and could return to her full duties. He added that her accepted injuries were not causing her incapacity in respect of office-based activities.
Dr Hunt noted that Ms Turner was keen to return to work and that her major limitations were because of the neurological symptoms she suffered whilst typing.
iCare requested a further supplementary report from Dr Hunt and posed a series of further questions for his response in respect of the claimed injury to the cervical spine and the nature of Ms Turner’s duties. In evidence, there is a report by Dr Hunt dated 31 August 2021.[46] I will now refer to the relevant parts of that report.
[46] Reply at pages 41-42
Dr Hunt did not believe that the C6/7 nerve root distribution was the cause of the neuralgic symptoms in Ms Turner’s little and ring fingers. He opined that, if it were the cause of her pain, her middle finger would be more symptomatic. She was strongly Tinel’s test positive at the elbow, which suggested local compression. She also demonstrated signs of grade 4/5 interosseous power, which was consistent with ulnar nerve sensation. The symptoms that she described in the left were consistent with ulnar nerve compression.
Dr Hunt did not believe that the C6/7 foraminal narrowing was the cause of Ms Turner’s pain.
Dr Hunt opined that Ms Turner’s work duties were the main contributing factor to her current presentation. This was supported by her description of the pins and needles sensation being exacerbated by her typing and its improvement when she ceased typing.
Dr Hunt maintained that, “with this new information”[47], he still believed that Ms Turner would benefit from a cubital tunnel release at her left elbow and a carpal tunnel release on the right. Thereafter, he expected that her sensation of pins and needles would settle down. He opined that it would take Ms Turner about three to four weeks to fully recover from the right carpal tunnel release but that she would be back to activities with her left upper limb after 10 days. He expected that she would require two weeks off work. There would be two or three courses of physiotherapy.
[47] Reply at page 42
I am unclear as to what Dr Hunt meant when he referred to “new information”. It is not identified with any particularity within the body of his supplementary report.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

FINDINGS AND REASONS

Did Ms Turner suffer frank injuries to her cervical spine and left wrist and a consequential condition to her right wrist?

The legislation and legal principles

In the ARD Ms Turner pleaded the disputed injuries to her cervical spine and left wrist on 10 July 2019 as personal injuries within the meaning of sections 4(a) and 9A of the 1987 Act.
Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment.
The onus of establishing injury falls on Ms Turner and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[48] (Ireland) and Nguyen v Cosmopolitan Homes[49] (Nguyen).
[48] Department of Education and Training v Ireland [2008] NSWWCCPD 134
[49] Nguyen v Cosmopolitan Homes [2008] NSWCA 246
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[50] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[51] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[50] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
[51] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136]
In order to establish that a “personal injury” has been suffered within the meaning of section 4(a) of the 1987 Act, Ms Turner must establish, on the balance of probabilities, that there has been a definite or distinct “physiological change” or “physiological disturbance” in her left shoulder for the worse which, if not sudden, is at least, identifiable: Kennedy Cleaning Services Pty Ltd v Petkoska[52] (Kennedy) and Military Rehabilitation and Compensation Commission v May[53] (May). The word “injury” refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd[54] (Lyons). While pain may be indicative of such physiological change, it is not itself a “personal injury”.
[52] Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45
[53] Military Rehabilitation and Compensation Commission v May [2016] HCA 19
[54] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 496
Castro v State Transit Authority[55] (Castro) provides a useful review of the authorities and makes it 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.
[55] Castro v State Transit Authority [2000] NSWCC 12; (2000) 19 NSWCCR 496
In the ARD Ms Turner pleaded the disputed injury to her right wrist as a consequential condition, being a right carpal tunnel condition, as a result of the accepted injuries to the left shoulder and left elbow and the disputed injuries to the left wrist and cervical spine on 10 July 2019.
In respect of a claim to consequential condition, it is unnecessary for me to determine whether Ms Turner’s right wrist symptoms are in themselves ‘injuries’ pursuant to section 4 of the 1987 Act: Moon v Conmah Pty Ltd (Moon),[56] Kumar v Royal Comfort Bedding Pty Ltd[57] (Kumar) and Bouchmouni v Bakos Matta t/as Western Red Services[58].
[56] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50]
[57] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61])
[58] Bouchmouni v Bakos Matta t/as Western Red Services [2013] NSWWCCPD 4
Further, section 9A of the 1987 Act does not apply to a condition that has resulted from an injury: Tiritabua v Bartter Enterprises Pty Ltd[59].
[59] Tiritabua v Bartter Enterprises Pty Ltd [2008] NSWWCCPD 145 at [47]
The onus of establishing a consequential condition as a result of an injury falls on Ms Turner and the standard of proof is, once again, on the balance of probabilities.
I am required to conduct a common sense evaluation of the causal chain to determine whether the right wrist symptoms complained of by Ms Turner have resulted from the injuries to her left shoulder and left elbow on 10 July 2019: Kooragang Cement Pty Ltd v Bates[60] (Kooragang). This requires a careful analysis of the evidence and a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[61] (Kirunda). The causal relationship must be established on the balance of probabilities from evidence in an acceptable form: Munce v Thomson Cool Rooms Pty Ltd[62] (Munce).
[60] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
[61] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136]
[62] Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39 at [101]

EMM’s submissions

I will now refer to EMM’s principal submissions in relation to this issue.
The ARD pleaded frank injuries to the left wrist and the cervical spine. There was a paucity of evidence in respect of the alleged frank injuries to the left wrist and the cervical spine.
The question that arises is, what caused Ms Turner to cease work? Was it the fact that her contract with GIO had ended or was it because the pain she was experiencing in her left arm, left wrist and right wrist were unbearable?
Ms Turner’s consultation with Dr Poplawski was conducted by video conferencing. The problem with Dr Poplawski’s report was that he was unable to conduct a proper examination in respect of the range of movements in Ms Turner’s limbs and in particular, in respect of her complaints of wrist, hand and neck symptoms. For this reason, Dr Poplawski’s report ought to be given much less weight than the report of Dr Hunt. Ms Turner provided Dr Poplawski with a history that, following the injury on 10 July 2019, she changed jobs and took up employment with GIO as a claims manager. She told him that her duties with GIO involved a considerable amount of typing compared to that which was required as a claims assessor with EMM. Such history ought to be given significant weight.
On examination by video conferencing, Dr Poplawski observed a full range of neck movement in all directions with marked discomfort on the left-hand side at the back of the neck. Such observation would accord with the left shoulder pain radiating into the neck area. The radiological investigations available to the doctor at that time related to the left shoulder and the left knee only. Dr Poplawski’s examination took place prior to the nerve conduction studies undergone by Ms Turner.
Dr Poplawski referred to the possibility of a recurring left carpal tunnel syndrome and the possibility of a consequential recurring right carpal tunnel syndrome. His diagnoses were vague in the extreme and unhelpful. He provided his opinion in the absence of radiological investigations and nerve conduction studies in respect of Ms Turner’s wrists. Dr Poplawski provided no opinion as to how he reached his conclusion of a possible consequential recurring right carpal tunnel syndrome. In opining that Ms Turner’s employment was the main contributing factor to her injuries, he did not explain whether it was her employment with EMM or GIO. Dr Poplawski’s expert opinion fell short of the requirements established in authorities such as Makita (Australia) Pty Ltd v Sprowles[63] (Makita) and Hancock v East Coast Timbers Products Pty Ltd[64] (Hancock).
[63] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
[64] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43
Dr Poplawski’s report was vague, unhelpful and contradictory in parts. It should be given little to no weight by the Commission.
The first complaint of pain in the left hand in Ms Turner’s Waratah Medical Services clinical records appeared in the entry on 30 December 2020. At that time, Ms Turner had been working for GIO for some eight months.
The first complaint of pain in the right hand and right wrist in Ms Turner’s Waratah Medical Services clinical records appeared in the entry on 21 June 2021. Dr Van Wyk noted that Ms Turner related her symptoms to repetitive work and queried whether it was a separate WorkCover claim. Ms Turner had ceased working for GIO about five weeks earlier.
The first reference to Ms Turner’s cervical spine appeared in her Waratah Medical Services clinical records in the entry on 9 August 2021, where the reason for contact was identified as cervical radiculopathy. There was no reference to an impact injury to the neck. The only conclusion that can be drawn is that Ms Turner’s left shoulder injury has had some impact by way of radiation of pain to her neck.
On 21 July 2021, Dr Loiselle concluded that Ms Turner’s bilateral median and ulnar nerve conduction studies were normal. There was no informative analytical diagnosis by any doctor of a true carpal tunnel syndrome other than, perhaps, that of Dr Hunt, who raised the possibility of a right carpal tunnel syndrome and left cubital tunnel syndrome after having performed the Phalen’s and Tinel’s tests.
In the Total Motion Physiotherapy report dated 9 September 2021, the treating physiotherapist reported that the practice had not treated either of Ms Turner’s wrists.
Ms Turner’s consultation with Dr Hunt at the request of EMM was conducted in person on 24 May 2021. The fact that it was conducted in person was important to take into consideration. Ms Turner complained to Dr Hunt of pins and needles in her hands, which she described as starting in August 2019. Such history was inconsistent with the information contained in the Waratah Medical Services clinical records. She complained of worsening symptoms when typing and an improvement in symptoms when she stopped typing. This was consistent with her history to Dr Poplawski that her employment with GIO as a claims manager involved a lot more typing compared to that which was required as a claims assessor with EMM.
Ms Turner did not complain to Dr Hunt about an injury to the cervical spine or of symptoms in the cervical spine.
On 7 June 2021, Dr Hunt diagnosed a secondary right carpal tunnel syndrome and left cubital tunnel syndrome. However, he did not have the benefit of Dr Loiselle’s normal nerve conduction studies at the time he prepared his report. Ms Turner did not provide him with the details of her employment from May 2020 with GIO which, in accordance with her own statement, caused the problems in her wrists.
On 30 June 2021, Dr Hunt opined that Ms Turner’s right wrist carpal tunnel symptoms would have developed regardless of the workplace fall and that the injury did not have a causal relationship with the fall and neither did the neurological symptoms in the left hand. The left ulnar nerve symptoms were not causally related to the fall. He opined that the nature of her employment involving typing was causally related to her symptoms and those symptoms were exacerbated by her heavy typing load. Therefore, her neurological problems were related to the typing. Again, the doctor was dealing with Ms Turner’s lack of detail in respect of her employment with GIO.
On 31 August 2021, Dr Hunt opined that, in respect of Ms Turner’s neck pain, the C6/7 foraminal narrowing demonstrated on the medical imaging was not the cause of her neuralgic pain. Symptoms were into her little and ring fingers, which was not the C6/7 nerve root distribution and if it were the cause of her pain, her middle finger would be more symptomatic. Dr Hunt opined that Ms Turner’s typing duties were the main contributing factor to her current presentation. However, the chronology needs to be taken into account and it is clear that the causative typing duties were those performed whilst she was working with GIO. Dr Hunt was provided with little information regarding the chronological evolution of the pain to Ms Turner’s wrists during the period of her employment with GIO.
There was no evidence of any injury to Ms Turner’s cervical spine on 10 July 2019. There was no evidence of any injury to Ms Turner’s left wrist on 10 July 2019. There was no evidence to support a consequential condition to Ms Turner’s right wrist, other than that of Dr Hunt who was lacking the information regarding her period of employment with GIO and the severity of her pain whilst doing a lot of typing whilst in that employment. There was nothing in the evidence that supported a consequential condition of the right wrist or even a consequential condition of the left wrist. Dr Poplawski diagnosed the conditions only as a possibility.

EMM sought the following orders:
(a)    an award for EMM in respect of the claimed injury to the left upper extremity (left wrist/left hand);
(b)    an award for EMM in respect of the claimed injury to the right upper extremity (right wrist/right hand);
(c)    an award for EMM in respect of the claimed injury to the cervical spine, and
(d) an award for EMM for the claimed entitlement to weekly benefits compensation under section 37 of the 1987 Act.

Ms Turner’s submissions

I will now refer to Ms Turner’s principal submissions in relation to this issue.
Dr Burneikis focused on the treatment and management of Ms Turner’s accepted left shoulder and left knee injuries. However, on 23 April 2020, shortly prior to the commencement of her employment with GIO, Dr Burneikis noted that Ms Turner reported left lateral shoulder pain that could radiate down the left arm affecting her ability to dress or work at a keyboard. This was a significant piece of evidence that, shortly prior to the commencement of her employment with GIO, she was having trouble with work on a keyboard.
Ms Turner’s evidence was that her continual typing in her work with GIO aggravated the symptoms in her left wrist and that the pain in her left wrist gradually increased over the course of 2020. It was an aggravation of her pre-existing symptoms. Further, she relied on her right arm more than her left arm to perform tasks to avoid aggravating the pain in her left shoulder and left arm. In about early 2021, she began to experience an intermittent burning sensation and pain in her right arm and right hand together with numbness and paraesthesia in her thumb, index and middle fingers, which was made worse by her typing and other work duties. There was an over-reliance on her right arm. GIO cannot be inculpated in such circumstances. If she had not sustained an injury to her left shoulder and left arm, she would not have experienced the symptoms she was complaining of in her right hand and right wrist.
Ms Turner’s evidence was that at the end of her contract with GIO on 3 May 2021, she decided not to renew it because the pain in her left arm, left wrist, right wrist, both hands and left knee were becoming unbearable and making it difficult to perform her work duties and daily activities.
Dr Poplawski took a history from Ms Turner that was consistent with her evidentiary statement. He opined that Ms Turner sustained direct injuries to her left shoulder, left elbow and possibly left wrist as a result of the fall in the course of her employment with EMM and that she subsequently developed a consequential right carpal tunnel syndrome.
Ms Turner’s Waratah Medical Services clinical records on 15 April 2020, being just shortly prior to the commencement of her contract with GIO, recorded her complaints that her left knee and left shoulder were still causing her trouble.
The first complaint of right wrist pain was recorded in Ms Turner’s Waratah Medical Services clinical records on 21 June 2021.
In his report dated 7 June 2021, Dr Hunt took a history from Ms Turner that she described the commencement of a sensation of pins and needles in both hands in August 2019, being well before she started work with GIO. On the left, the pins and needles sensation extended from the elbow down into the ring and little fingers. On the right, it was associated with the middle and index fingers and the thumb. The symptoms became worse when typing and improved when she stopped typing. She closely associated the symptoms with the heavier activity of typing in the process of her work. That history is important because it lays the foundation for Dr Hunt’s opinion that Ms Turner’s ulnar nerve at the left elbow required release.
Dr Hunt opined that Ms Turner’s left shoulder tendinosis and left patellofemoral joint osteoarthritis were directly attributable to the compensable work injury on 10 July 2019, the pathology of which was consistent with the mechanism of injury provided. The right carpal tunnel and left cubital tunnel conditions were a secondary result of the injuries particularly on the left cubital tunnel side, where she held her left shoulder and left elbow in an altered position whilst typing. He believed that the injuries she sustained in the course of employment had not resolved.
It was curious that, in a supplementary report dated 30 June 2021, Dr Hunt qualified the opinions he expressed in his report of some three weeks earlier by stating that the carpal tunnel symptoms in the right wrist would have developed regardless of the workplace fall and had no causal relationship with the fall; and neither did the neurological symptoms in the left hand. It was difficult to see how he came to such a conclusion. There was no apparent reasoning to come to such a conclusion. Dr Hunt then went on to attempt to tie Ms Turner’s neurological symptoms to the typing.
In a further supplementary report dated 31 August 2021, Dr Hunt opined that the cause of Ms Turner’s neuralgic pain was not the C6/7 distribution. There was no evidence to contradict that opinion.
Ms Turner sustained a serious injury to her left elbow. She dislocated it. Injury to the left elbow was not disputed. The left cubital tunnel syndrome, like the right carpal tunnel syndrome, was a secondary condition that resulted from the left elbow injury. These conditions were initially supported by Dr Hunt. Whilst Dr Poplawski’s report was not as complete as one would like from a forensic medical specialist, he provided support for Ms Turner’s case.
In respect of the last submission, I note that Ms Turner did not plead the left cubital tunnel syndrome as a secondary condition that resulted from the frank left elbow injury on 10 July 2019.

EMM’s submissions in reply

I will now refer to EMM’s submissions in reply.
Ms Turner attacked the report of Dr Hunt. One crucial piece of evidence was missing. Dr Hunt was never told that Ms Turner commenced employment with GIO in May 2020 and that she was involved in much more typing whilst employed by GIO, which caused her significant problems in both wrists. So much so that, in her own evidence, she left her employment with GIO and would not return until she had improved.
Ms Turner made no submissions in respect of the claimed injury to the cervical spine. Ms Turner submitted that the nerve conduction studies did not show anything. They did not show anything because the nerve conduction studies were normal.
There was no value in Dr Poplawski’s report. Cases such as Moon, Kumar and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[65] (Brennan) all dealt with consequential conditions/loss. Brennan also dealt with expert evidence. Dr Poplawski’s report does not even come close to following the principles set out in Brennan, Makita and Hancock in respect of expert evidence. He vacillates from one point to another. Dr Poplawski’s argument and assessment cannot be accepted. His report cannot be accepted as a cogent expert’s report in this jurisdiction.
[65] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23

Ms Turner’s further submissions

The only evidence in relation to Ms Turner’s cervical pain came in the report of Dr Poplawski and in her general practitioner’s clinical records. Dr Poplawski recorded her symptoms as left shoulder pain radiating to the left side of the neck. The general practitioner’s clinical records recorded some cervical spine pain after she had ceased work with GIO.
In respect of the criticism of Dr Poplawski’s report, his expert opinion can rely on his long years of experience and he is entitled to make certain assumptions.

EMM’s further submissions in reply

Dr Poplawski’s opinions amount to a mere ipse dixit. When providing his diagnosis and opinion, he referred to possibilities.
Ms Turner’s evidentiary statement referred to experiencing ongoing pain in her left shoulder which radiated to the left side of her neck and down her left arm. There was no clinical or radiological evidence of a condition to the cervical spine.

Consideration and findings

I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.
Whilst I have no reason to doubt Ms Turner’s credibility, I have concerns about the reliability of some of her evidence when compared with some of the contemporaneous documentary evidence. I will refer to those concerns during the course of my consideration.
The value of contemporaneous evidence has been repeatedly endorsed by the courts. However, I acknowledge that the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v. Motor Accidents Authority of NSW[66]and Bugat v Fox.[67] While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before a Member can feel actual persuasion about the existence of a fact in issue: Department of Aging, Disability and Home Care v Findlay[68].
[66] Owen v. Motor Accidents Authority of NSW [2012] NSWSC 650 at [52]
[67] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34]
[68] Department of Aging, Disability and Home Care v Findlay
In Onassis and Calogeropoulos v Vergottis[69], Lord Pearce said of documentary evidence:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[69] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431
The discharge referral from the Calvary Mater Hospital Newcastle dated 10 July 2019 recorded that Ms Turner had sustained a mechanical fall that afternoon at work when she tripped and fell onto an outstretched hand (hyper-flexed on the wall) and onto her left knee. The discharge referral noted that Ms Turner complained of left shoulder, left elbow and left knee pain and that she denied a loss of consciousness or striking her head. No complaints of pain in the cervical spine, left wrist, left hand or right upper limb were recorded in the discharge referral.
Ms Turner’s evidentiary statement, prepared some two years and two months after her fall at EMM, did not identify a point in time that she first felt symptoms in her left wrist or left hand. The first reference in her evidentiary statement to her left wrist was when she stated that she found that the continual typing during her working day with GIO aggravated the symptoms in her left wrist and sometimes, the pain in her left wrist would be unbearable by the end of the working day. However, there was nothing in Ms Turner’s evidentiary statement detailing the symptoms that she alleged had been aggravated by the continual typing.
Dr Hunt reported that Ms Turner complained of pins and needles in her right hand and in her left hand that had commenced in August 2019. In August 2019, Ms Turner was still employed by EMM. Dr Poplawski did not record when the onset of pins and needles in both hands commenced. In her evidentiary statement, Ms Turner did not state that the sensation of pins and needles in both hands commenced in August 2019.
On 16 October 2019, Ms Turner consulted Dr Burneikis and provided him with a history that she slipped in a disabled bathroom in July 2019 and fell heavily against the wall with the left arm hyperextended above her head and then impacted her left knee hard on the floor. No complaint of left wrist, left hand or cervical spine symptoms were made to Dr Burneikis in that consultation or in her consultations with him on 9 December 2019 or 3 February 2020. However, in her consultation of 23 April 2020, Dr Burneikis reported that Ms Turner complained of lateral left shoulder pain that radiated down the arm. However, there were no complaints of pins and needles or pain in the left hand recorded by Dr Burneikis at that time.
The first complaint of pain in the left hand in Ms Turner’s Waratah Medical Services clinical records appeared in the entry on 30 December 2020. At that time, Ms Turner had been working for GIO for almost eight months. On 17 February 2021, Dr Paterson took a history that included injury to the left shoulder and elbow with ongoing symptoms extending down into her wrist.
The first complaint of pain in the right wrist and right hand in the treating medical evidence was in Ms Turner’s Waratah Medical Services clinical records entry on 21 June 2021, some seven weeks after her employment with GIO had ended. Dr Van Wyk queried whether those symptoms were related to a separate WorkCover claim and recommended medical imaging and a nerve conduction study. When Dr Loiselle’s bilateral median and ulnar nerve conduction studies came back normal on 21 July 2021, Dr Van Wyk suspected cervical radiculopathy and referred Ms Turner for a CT scan of the cervical spine. Dr Van Wyk opined that the CT scan was inconclusive and on 9 August 2021, referred Ms Turner to Dr Bradshaw for management and opinion. There was no report from Dr Bradshaw in evidence.
Histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[70]; and applied in King v Collins[71] and Mastronardi v State of New South Wales[72]. Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[73]
[70] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
[71] King v Collins [2007] NSWCA 122
[72] Mastronardi v State of New South Wales [2009] NSWCA 270
[73] Mason v Demasi [2009] NSWCA 227
The caution referred to above was confirmed by Roche DP in Winter v NSW Police Force[74] as follows:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122 at [34-36]).”[75]
[74] Winter v NSW Police Force [2010] NSWCCPD 12
[75] Winter v NSW Police Force [2010] NSWCCPD at [183]
I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard and considered all the evidence.
I find it difficult to accept the reliability of Ms Turner’s history to Dr Hunt that she first noticed a sensation of pins and needles in her hands in August 2019 in the absence of the record of any complaints to her general practitioners or Dr Burneikis until the recorded complaints of symptoms referred to in the clincal records and reports above. She did not refer to it in her evidentiary statement, which post-dated her consultations with Dr Hunt and Dr Poplawski.
None of the treating medical specialists whose reports are in evidence have provided a definitive diagnosis for Ms Turner’s left wrist and left hand symptoms or her right wrist and right hand symptoms.
Turning to the forensic medical evidence relied on by the parties, the principles in relation to the acceptance of expert opinions in the Commission are well known. The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight.
Further, it is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd[76] (Paric); Makita; South Western Sydney Area Health Service v Edmonds[77] (Edmonds); and Hancock; that there must be a “fair climate” on which a doctor can base an opinion. Exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two.
[76] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[77] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
The relevant principles from Makita and onward are a guide to the weight to be given to experts’ reports. Makita set out that the requirement for the admissibility of an expert opinion is that it must be established on the facts on which the opinion is based from a proper foundation for the opinion. The opinion of an expert requires demonstration of the examination of the scientific or other intellectual basis of the conclusions reached. The expert’s evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience and in which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. The reasoning must be exposed demonstrating a particular specialised knowledge.
In NSW Police Force v Hahn, [78] DP King SC observed that the line of authority commencing with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[79] makes it clear that Heydon J in Makita should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely, on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Whilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere “ipse dixit” (an assertion without proof) is required.
[78] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60]
[79] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
In summary, although the rules of evidence do not apply in the Commission, for the evidence to be accepted, it should be logical and probative, relevant to the fact in issue, and not based on speculation or unsubstantiated assumptions. The basis of an expert’s opinion must be explained. It is a question of weight, and not admissibility of the medical expert’s opinion that does not conform with that standard.
Ms Turner relied on the expert opinion of Dr Poplawski. Ms Turner’s consultation with Dr Poplawski was conducted audio-visually. I found Dr Poplawski’s report disjointed and difficult to follow.
Under the heading “Personal History”, Dr Poplawski referred to Ms Turner reporting that she had changed jobs and taken up employment as a GIO claims manager, sometime following her injury with EMM but did not state when. He reported that her duties with GIO involved a considerable amount of typing compared to her duties with EMM and that, because of her inability to use her left arm, she was obliged to carry out the typing activities and general paperwork with her right hand only, resulting in its overuse. The overuse precipitated symptoms in the form of paraesthesia and pain in the thumb, index and middle fingers. It was somewhat unusual that he did not include the matters referred to above under the next heading in his report, “History of Current Problem”, whereunder he referred to left shoulder pain radiating to the left side of the neck; intermittent discomfort/pain in the left elbow; left hand and wrist intermittent discomfort/pain with a development of paraesthesia in the thumb, index and middle fingers with typing; and pain in the left knee with episodes of giving way.

Dr Poplawski diagnosed Ms Turner as having suffered a rotator cuff disruption in the left shoulder; a dislocation in the left elbow with post reduction reduced range of motion; consequential recurring right carpal tunnel syndrome; and possible recurring left carpal tunnel syndrome. He did not provide any diagnosis in respect of the cervical spine. However, on audio-visual examination, he did observe a full range of neck movement in all directions with marked discomfort on the left-hand side at the back of Ms Turner’s neck. On the face of Dr Poplawski’s report, he did not audio-visually examine Ms Turner’s left knee. He did not provide a diagnosis in respect of the left knee.
As to causation, Dr Poplawski opined that Ms Turner sustained direct injuries to her left shoulder, elbow and possibly left wrist as a result of the fall and subsequently developed a consequential right carpal tunnel syndrome. He made no reference to the possible recurring left carpal tunnel syndrome he referred to in his diagnosis. However, in response to a question in respect of the body parts impaired as a result of the injury, he referred to the left shoulder, left elbow, left wrist and right wrist. He made no reference to the cervical spine.
Ms Turner’s bilateral median and ulnar nerve conduction studies conducted by Dr Loiselle came back normal on 21 July 2021. Ms Turner consulted Dr Poplawski on 16 August 2021, almost four weeks after the nerve conduction studies were performed. It is unclear whether Dr Poplawski was provided with a copy of Ms Turner’s bilateral median and ulnar nerve conduction studies report and if he was, he did not refer to it in his report.
I found Dr Poplawski’s evidence unconvincing. At times, it was difficult to follow its logic. Further, its probative value fell short of what one would expect for the reasons stated above.
Dr Poplawski opined that Ms Turner suffered a possible left wrist injury on 10 July 2019 without adequately exposing his reasoning. It also fell short of being a convincing definitive diagnosis.
Dr Poplawski diagnosed Ms Turner as having suffered a possible recurring left carpal tunnel syndrome on 10 July 2019 without adequately exposing his reasoning. It also fell short of being a convincing definitive diagnosis.
Dr Poplawski opined that Ms Turner subsequently developed problems in her right hand in terms of recurrent paraesthesia, numbness in the thumb, index and middle fingers suggesting the possibility of a right carpal tunnel syndrome that was consequential to her work-related injuries on 10 July 2019 without adequately exposing his reasoning. It also fell short of being a convincing definitive diagnosis.
For the reasons stated above, I give little weight to Dr Poplawski’s evidence.
On 24 May 2021, Ms Turner consulted Dr Hunt at the request of iCare. It was an in-person consultation.
Dr Hunt’s principal report and first supplementary report predated Ms Turner’s bilateral median and ulnar nerve conduction studies. Dr Hunt’s second supplementary report post-dated the nerve conduction studies by almost five weeks. It is unclear whether Dr Hunt was provided with a copy of Ms Turner’s bilateral median and ulnar nerve conduction studies report prior to producing his second supplementary report and if he was, he did not refer to it in his report.
In his report dated 7 June 2021, Dr Hunt diagnosed supraspinatus tendinosis with an intrasubstance tear and an infraspinatus tendinosis. In respect of Ms Turner’s left knee, Dr Hunt diagnosed patellofemoral osteoarthritis. In respect of Ms Turner’s right arm and right hand, Dr Hunt diagnosed a right carpal tunnel syndrome. In respect of Ms Turner’s left arm and left hand, Dr Hunt diagnosed a left cubital tunnel syndrome. The exacerbation of her symptoms of pins and needles into the ring and little fingers whilst typing was consistent with such diagnosis.
As to causation in respect of Ms Turner’s left shoulder and left knee injuries, Dr Hunt opined that they were directly attributable to the compensable work injury on 10 July 2019. As to causation in respect of Ms Turner’s right carpal tunnel syndrome and left cubital tunnel syndrome, Dr Hunt opined that they were a secondary result of the injury on 10 July 2019.
In Dr Hunt’s first supplementary report dated 30 June 2021, he opined that the carpal tunnel symptoms in Ms Turner’s right wrist would have developed regardless of the workplace fall on 10 July 2019. There was no causal relationship of the symptoms in the right wrist with the fall. He further opined that the left ulnar nerve symptoms were not causally related to the workplace fall on 10 July 2019. The reasoning behind Dr Hunt’s opinions was that it was apparent that the nature of Ms Turner’s employment involving typing was causally related to the symptoms from which she suffered and that those symptoms were exacerbated by the heavy typing load she had been performing and resolved when that activity ceased. He concluded that it was reasonable on the history taken that her neurological symptoms related to her typing. It was unclear whether, by this stage, Dr Hunt was made aware of Ms Turner’s employment with GIO and in particular, her heavy typing load whilst employed there.
In Dr Hunt’s second supplementary report dated 31 October 2021, he stated that he did not believe that the C6/7 nerve root distribution was the cause of the neuralgic symptoms in Ms Turner’s left little and ring fingers. He opined that, if it were the cause of her pain, her middle finger would be more symptomatic. She was strongly Tinel’s test positive at the elbow, which suggested local compression. He opined that the symptoms that she described in the left were consistent with ulnar nerve compression.
Dr Hunt’s opinions must be considered in the light of the history he recorded. In this regard, Dr Hunt took a history from Ms Turner that she was employed by EMM as a case manager, being a role that was predominantly administrative, with data entry and telephone reception work. In July 2019, Ms Turner was in a bathroom at work and tripped and fell. The left hand was raised as she fell down and she landed directly on her left kneecap and her left elbow. Dr Hunt did not record a history that Ms Turner left her employment with EMM and was employed by GIO as a claims advisor between 4 May 2020 and 3 May 2021 where, on Ms Turner’s evidence, she worked predominantly on a computer with a lot of typing and as she reported to Dr Poplawski, more typing than when she was with EMM. In my view, this was a crucial piece of missing evidence. There must be a “fair climate” on which Dr Hunt can base his opinion: Paric; Makita; Edmonds; and Hancock. There was no such “fair climate” in this case in view of the missing crucial piece of history. Accordingly, I give limited weight to Dr Hunt’s evidence.
I am not satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Ms Turner has established that there was a definite or distinct physiological change or disturbance in her cervical spine and left wrist arising out of or in the course of her employment with EMM on 10 July 2019. Accordingly, I find that Ms Turner did not sustain a personal injury to her cervical spine and left wrist arising out of or in the course of her employment with EMM within the meaning of section 4(a) of the 1987 Act.
Having regard to the whole of the evidence, applying a common sense test and for the reasons referred to above, I am not satisfied that Ms Turner has discharged the onus of proving on the balance of probabilities that there is a sufficient causal chain connecting the condition of her right hand and right wrist to the accepted injury to the left shoulder and left elbow on 10 July 2019 and I find accordingly.

Is Ms Turner entitled to weekly benefits compensation?

The legislation and legal principles

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the Act to the injured worker shall include weekly payments during the period of incapacity.
I have found in favour of EMM in respect of the claimed injuries to the cervical spine, left wrist, left hand, right wrist and right hand. Ms Turner’s left shoulder, left elbow and left knee injuries were not in dispute.
An assessment of Ms Turner’s capacity in respect of the undisputed injuries involves a consideration of whether she is able to return to her pre-injury duties or has no current work capacity or a current work capacity as defined in section 32A of the 1987 Act.
Section 32A of the 1987 Act defines the relevant terms as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
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.”
Section 43 of the 1987 Act in existence prior to the 2012 amending Act and the authorities suggested that regard was to be had to “the realities of the labour market in which the employee was working or might reasonably be expected to work”.[80]
[80] Arnott's Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171
Since the 2012 amending Act, it is clear that “total incapacity” differs from “no current work capacity”. “No current work capacity” requires a consideration of the worker’s capacity to undertake not only his or her pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Roche DP in Mid North Coast Local Health District v De Boer[81]and in Wollongong Nursing Home Pty Ltd v Dewar[82] (Dewar).
[81] Mid North Coast Local Health District v De Boer [2013] NSWWCCPD 41
[82] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55
In Dewar, Roche DP stated:
“… employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is ‘suited’ for suitable employment.[83]
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ … However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”[84]
[83] Dewar at [56]
[84] Dewar at [57]-[60]

EMM’s submissions

I will now refer to EMM’s principal submissions in relation to this issue.
Dr Poplawski’s report was vague, unhelpful and contradictory in parts. It should be given little to no weight by the Commission. He opined that she was fit for sedentary duties with restrictions. His opinion that Ms Turner was not fit to return to her pre-injury duties was inconsistent with the medical evidence and the certificates of capacity in evidence.
On 7 June 2021, Dr Hunt opined that Ms Turner was almost fit to return to her pre-injury duties, especially working in her office at home. He further opined that her major limitations were the pins and needles in her hands and that once those issues were sorted, she could return to her pre-injury duties.
In the Work Focus Australia report dated 16 January 2020, Ms Turner’s grip strength was good, which was consistent with there being not much or any damage at all. The report identified job matches for Ms Turner as being that of a customer service officer, welfare coordinator, administration assistant or claims advisor.
On 19 February 2020, Dr Lock responded to a Work Focus Australia questionnaire wherein he agreed that the job matches referred to in its report dated 16 January 2020 were suitable options for Ms Turner to pursue.
On 24 March 2020, Dr Thomas Rosenthal, Specialist Occupational Physician, opined that Ms Turner was fully fit for her pre-injury duties despite the contents of the certificates of capacity issued by her general practitioner.
The certificates of capacity in evidence between 27 August 2019 and 15 April 2020 certified Ms Turner as having capacity to work for 7.5 hours per day, five days per week. The certificates of capacity between 13 May 2020 (being about one week after she commenced employment with GIO) and 30 December 2020 certified her fit for pre-injury duties. The next certificate of capacity dated 29 April 2021, certified Ms Turner as having no current work capacity for any employment. There was no reference to wrist pain in the certificates to that point.
There is nothing in the evidence that supports Ms Turner’s claim for any entitlement to weekly benefits.

Ms Turner’s submissions

I will now refer to Ms Turner’s principal submissions in relation to this issue.
On 24 March 2020, Dr Rosenthal opined that Ms Turner was fully fit for her pre-injury duties despite the contents of the certificates of capacity issued by Dr Lock. However, after that opinion was expressed, there were the onset of her consequential injuries and an increase in the levels of pain.
Dr Hunt opined that Ms Turner was almost fit to return to her pre-injury duties at the time she consulted him on 24 May 2021.
Both Dr Rosenthal and Dr Hunt supported Ms Turner’s evidence that she had not recovered completely from her injuries before she commenced her employment with GIO.
Dr Poplawski opined that Ms Turner could return to work on sedentary duties starting at two to three hours per day. Three hours work per day would result in an earning capacity of $407. On the totality of the evidence, it is clear that Ms Turner is not totally incapacitated for work but she does have a significant incapacity for work which would sound in an award of weekly compensation benefits in the range of $400 to $447. Dr Hunt is of no assistance in this regard.

Consideration and findings

I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.
Firstly, I must consider whether Ms Turner was fit to return to her pre-injury employment. Ms Turner’s counsel conceded that she had a current work capacity. If she did have a current work capacity, I must assess whether Ms Turner was able to return to suitable employment as defined in section 32A of the 1987 Act since 25 May 2021 in respect of the injuries to her left shoulder, left elbow and left knee. This requires a consideration of the nature of the incapacity and the details provided in medical information, the worker’s age, education, skills and work experience, any return to work plan and any occupational rehabilitation services that have been provided, irrespective of whether the work is available to her or of a type or nature that is generally available in the employment market.
Ms Turner’s evidence was that she currently experiences ongoing pain in her left shoulder that radiates to the left side of her neck and down her left arm. She has a limited range of movement in her left shoulder and finds it difficult to use her left arm above shoulder height. She currently experiences intermittent pain and discomfort in her left elbow, which is exacerbated with repetitive movement. She has a restricted range of movement in her left elbow. She currently experiences pain in her left knee. The left knee will often give way causing her to fall. The left knee feels unstable. The knee becomes swollen and the swelling extends down to her left ankle. She has a limited standing and walking tolerance and can only walk about 100 metres before she needs to sit down and rest. She experiences difficulty walking on rough or uneven ground and walking up and down stairs or slopes. She is unable to lift, squat, bend or kneel due to the pain in her left knee and has difficulty with pushing and pulling activities.
The certificates of capacity in evidence between 27 August 2019 and 15 April 2020[85] certified Ms Turner as having capacity to work for 7.5 hours per day, five days per week. The certificates of capacity between 13 May 2020 (being about one week after she commenced employment with GIO) and 30 December 2020[86] certified her fit for pre-injury duties. The certificates of capacity between 29 April 2021 and 27 July 2021[87], certified Ms Turner as having no current work capacity for any employment. In view of the concession made by counsel for Ms Turner above, I give no weight to those certificates of capacity between 29 April 2021 and 27 July 2021.
[85] Reply at pages 72-88
[86] Reply at pages 89-107
[87] Reply at pages 108-118
In evidence, there is a Work Focus Australia Physical Work Performance Evaluation report dated 16 January 2020 by Ms Megan Taylor. Ms Taylor identified Ms Turner’s underlying limitations as reported pain in the left shoulder; reported pain in the left knee; inability to safely perform the squat movement; difficulty ascending and descending from floor level to ground-based tasks; decreased active range of motion in the left shoulder, with painful arc; generalised deconditioning; onset of vertigo symptoms with repetitive trunk rotation in standing tasks; and increased oedema in the left leg/left knee.
Ms Taylor identified job matches for Ms Turner as being that of a customer service officer, welfare coordinator, administration assistant or claims advisor.
Ms Taylor concluded that Ms Turner was physically capable of performing work at the light level on a full-time basis in her pre-injury vocation as a claims advisor with a new employer. Ms Taylor’s recommended task limitations were to avoid squatting; avoid overhead reaching; avoid uneven ground; lifting/carrying up to 10 kg at torso level; no lifting from ground level; and unilateral lift/carry up to 5 kg with the left upper limb.
On 19 February 2020, Dr Lock responded to a Work Focus Australia questionnaire[88] wherein he agreed that the job matches referred to in its report dated 16 January 2020 were suitable options for Ms Turner to pursue. I note that Dr Lock did not nominate the hours of work he approved in respect of the job matches. However, in certificates of capacity issued between 13 May 2020 and 30 December 2020,[89] he and Dr Van Wyk certified Ms Turner fit for pre-injury duties.
[88] Reply at pages 55-57
[89] Reply at pages 89-107

In evidence, there is a report by Dr Rosenthal dated 24 March 2020 based on paperwork provided to him.[90] Dr Rosenthal noted the functional assessment that had taken place in January 2020 (the Work Focus Australia Physical Work Performance Evaluation). He also noted that Ms Turner was terminated from her employment with EMM on 17 December 2019 for reasons unrelated to her injury. He noted that Ms Turner had been performing pre-injury duties for four months prior to being terminated. Dr Rosenthal reviewed the documents provided to him and noted their contents.
[90] Reply at pages 58-61
Dr Rosenthal opined that Ms Turner appeared fully fit for her pre-injury job. Her ongoing restrictions did prevent her from seeking other work on the open labour market. Without an examination or being able to speak to Dr Lock, he expressed the view that it was impossible to know whether her restrictions were permanent or whether Dr Lock expected recovery from all her injuries. However, I again note that Dr Lock certified Ms Turner fit for pre-injury duties on 13 May 2020.
On 7 June 2021, Dr Hunt opined that Ms Turner was almost fit to return to her pre-injury duties, especially working from her office at home. He opined that Ms Turner’s major limitations were the sensation of pins and needles in her right hand and left hand. Once those issues were sorted, she could return to her pre-injury duties. Dr Hunt concluded that Ms Turner’s restrictions included any manual work and overhead work but noted that, as she was office based, there were no restrictions on her return to full duties.
Dr Poplawski opined that Ms Turner was not fit to resume her regular pre-injury duties. He further opined that she should be capable of managing sedentary duties, in the course of which, she is able to change her position from sitting to standing from time to time as dictated by the onset of symptoms in her areas of injury, starting at two to three hours per day. However, Dr Poplawski did not believe that such duties would be a realistic possibility if employed on a contract basis. Ms Turner’s restrictions would include the prolonged use of computer typing, activities at or above shoulder level, use of the left arm for lifting activities, prolonged standing and walking. He opined that Ms Turner would not be able to compete for employment on the open labour market. I give little weight to Dr Poplawski’s opinion for the reasons I have previously stated.
Ms Turner is 55 years of age. Ms Turner informed Dr Poplawski that she left high school at the age of 14.5 years and subsequently worked as a caterer and cook. She then ran her own business for a period of about five years. At the age of 30 years, she undertook further education and since then, worked as a claims assessor for EMM. The evidence is that Ms Turner’s ceased employment with EMM on 17 December 2019 and commenced employment with GIO as a claims advisor on 4 May 2020, with her contract ending on 3 May 2021. She has had significant experience as a claims assessor and a claims advisor.
I am satisfied that, but for the symptoms in both wrists and both hands, which I have found were not related to Ms Turner’s employment with EMM, Ms Turner would have been fit to return to her pre-injury employment as a claims assessor and that the task limitations recommended by Ms Taylor would not have prevented her from doing so.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2021] NSWPIC 508

08 December 2021