Zhang v Secretary, Ministry of Health (NSW Health Pathology)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zhang v Secretary, Ministry of Health (NSW Health Pathology) [2023] NSWPIC 526
APPLICANT:	Lingli Zhang
RESPONDENT:	Secretary, Ministry of Health (NSW Health Pathology)
MEMBER:	Lea Drake
DATE OF DECISION:	5 October 2023
CATCHWORDS:	WORKERS COMPENSATION - The applicant sought referral to a medical assessor for whole person impairment arising from an injury to both her upper extremities; injury was disputed as was the relevant body parts injured and whether maximum medical improvement had been reached; Held – The applicant has sustained an injury in the employ of the respondent to her left and right upper extremities (hand, wrist and elbow); her work with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained an injury in the employ of the respondent to her left and right upper extremities (hand, wrist and elbow) as a result of a disease, with a deemed date of injury of 1 December 2020. 2. A brief statement is attached setting out the Commission’s reasons for the determination. The Commission orders: 3. There will be an award for the applicant in relation to the injury sustained to her left and right upper extremities (hand, wrist and elbow) as a result of a disease with a deemed date of injury of 1 December 2020. 4. This application will be referred to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) Date of injury: 1 December 2020 (deemed) – Disease. (b) Body systems / parts: (i) whole person impairment (ii) Right upper extremity (hand, wrist and elbow). (iii) Left upper extremity (hand, wrist and elbow). 5. The documents to be reviewed by the Medical Assessor are: a. Application and attached documents; b. Reply and attached documents, and c. Application to Admit Late Documents dated 26 June 2023.

STATEMENT OF REASONS

BACKGROUND

Lingli Zhang (the applicant) is a laboratory technician in the employ of Secretary, Ministry of Health (NSW Health Pathology) (the respondent). She claims that, arising from her employment, she has suffered an injury to her left and right upper extremities. The identification of which part of the upper extremities is injured was in dispute and is the subject of conflicting medical opinion. The deemed date of injury is 1 December 2020. The applicant is currently working on reduced hours of 6.5 hours per day five days per week on somewhat modified duties. She has made a claim for 35% whole person impairment based on the assessment of Dr Vijay Maniam. The respondent has not accepted liability for any part of the claim despite the findings of its Independent Medical Examiner(IME) Dr Machart.

ISSUES FOR DETERMINATION

This is a claim pursuant to s 4 of the Workers Compensation Act 1987 (the Act). The issue is whether the applicant has suffered an injury as a result of the nature and conditions of employment with the respondent as a laboratory technician.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered by me in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to Application for Resolution of Dispute (Reply) and attached documents, and
(c)    Application to Admit Late Documents and attachments dated 26 June 2023.

RELEVANT LEGISLATIVE PROVISIONS

The Act

“Section 4
Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(d) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
(my emphasis)

CONSIDERATION

The respondent’s insurer issued a s 78 Notice on 6 May 2022 setting out comprehensive reasons for its denial of the applicant’s claim for compensation.
“Injury: Left and right hands
Date of injury: 1 December 2020
……
Summary of the decision:
We do not agree that your injury arose out of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the contraction of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
We do not agree that your employment was a substantial contributing factor to your injury as required by section 9A of the Workers Compensation Act 1987.
We also do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.
We are disputing that you are entitled to permanent impairment lump sum compensation for your injury with a deemed date of 1 December 2020.
We do not believe that you are eligible for permanent impairment lump sum compensation because your accepted physical injury has not resulted in more than 10% permanent impairment as required by section 66(1) of the Workers Compensation Act 1987.
Reasons for the decision:
We confirm we have received the claim for lump sum compensation made on your behalf by Fern Lawyers dated 24 January 2022. They have made a claim for 35% whole person impairment in accordance with the assessment of Dr Vijay Maniam.
In order to respond to your claim for lump sum compensation, we arranged to have you examined by Dr Frank Machart on 24 March 2022. He has provided a report dated 29 April 2022. Dr Machart obtained a history from you that identified that you had been employed at Liverpool Hospital as a biochemist commencing in May 2016. He noted you had developed pain initially in your left thumb due to holding specimen screen lids on tubes.
You also reported pain in the outer aspect of the right elbow. This was due to a change in your work duties. A steroid injection helped with your condition and treatment included physiotherapy for strengthening. It was noted that you were currently working full time interspaced duties, hands-on and administrative work. You were happy with what was being achieved but were anxious that you would lose your job with a loss of capacity.
You indicated that you could not recall any specific injury and attributed your injuries to the nature of you work with the insured.
Dr Maniam diagnosed you with bilateral external epicondylitis, chronic wrist strain, left de Quervain’s tenosynovitis, diffuse tenosynovitis in both upper limbs and suspicion of carpal tunnel compression.
Despite Dr Maniam’s assessment, an MRI of the left wrist confirmed STT and 1st CMC joint osteoarthritis. There was no evidence of Quervains tenosynovitis as reported or any other pathology to account for the complainant’s left wrist symptoms.
In Dr Machart’s report he diagnosed you with occupational ache/tendinitis extensor pollicis longus left thumb and common extensor tendon of the right elbow.
The doctor determined that your left thumb and right elbow conditions had occurred due to the nature and conditions of your employment. However, neither your left nor right-hand pathology was caused by employment.
Accordingly, we deny that you suffered an injury to your left and right hands arising out of your employment with NSW Health Pathology in accordance with section 4 of the 1987 Act.
We do not agree that your employment was the main contributing factor to your hand injuries as required by section 4(b) of the Workers Compensation Act 1987.
Dr Machart did not find that there were any pre-existing conditions for either of your hands. We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of your hand injuries as required by section 4(b) of the Workers Compensation Act 1987.
We dispute that your employment was a substantial contributing factor of any injury to the hands in accordance with section 9A of the 1987 Act.
We also deny that you are entitled to weekly benefits and medical expenses as a result of a work injury in accordance with sections 33, 59 and 60 of the 1987 Act.
With respect to whole person impairment, Dr Machart considered you had not reached maximum medical improvement. He noted you had been improving, and your symptoms were yet to resolve. He considered your ability to continue working with modified duties had resulted in an improvement of your condition. He further considered your prognosis was likely to improve. He expected your symptoms would resolve over the next 6 months.
On the basis of this evidence, we have concluded that your condition has not reached maximum medical improvement as required by paragraph 1.15 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition.
Accordingly, you have no entitlement to lump sum compensation at this time.”
(my emphasis)
The applicant provided statements dated 17 January 2023[1] and 5 June 2023[2] in response to the respondent’s s78 Notice denying liability. She stated that she was free of any condition in her left and right arms prior to her employment with the respondent. She had worked for the respondent for nine years from 2001 to 2009 when she left to pursue unrelated studies. Her duties during this period were identified as specimen handling; processing specimens on an automated analyser as well as manually; instrument operating and maintenance; quality control and troubleshooting; result validation and reporting and, reagent/QC product/chemical preparation.
[1] ARD page 3.
[2] ARD page 9.
The applicant returned to work in 2012 at Westmead Children’s Hospital in the Molecular Genetic Departments and the Biochemistry Departments as a technical officer. She did not experience any pain whilst working in those departments. She left that employment because she found it difficult to balance her work between two departments.
In 2017 she returned to work with the respondent working in the Biochemistry Department of Liverpool Hospital. Her evidence was that her injury occurred between 2017 and 2020 whilst working at the hospital. Her duties involved fine motor skills with her left and right arms/hands, particularly in the handling and processing of specimens.
In 2020 she began to develop pain and stiffness in her left thumb.
She initially noticed pain in her left arm radiating to her forearm when grabbing heavy items (chemical bottles, instrument parts) and trying to tighten down sample tubes and opening a door the cool room. Her symptoms worsened as she repeated these tasks.
In approximately December 2020 the applicant noticed the pain in her left thumb lingering throughout the day, particularly following the use of her hands. The pain was ongoing and worsened. She also noticed that she had begun to lose strength in her left wrist and her ability to use her left hand and arm was limited. The pain was radiating up to her elbow and making it difficult for her to perform tasks requiring movement of her arm.
Her general practitioner Dr Gao recommended physiotherapy, which she undertook with vigour, and modified duties to minimise left-hand wrist movement.
The applicant has periodically reduced her working hours but has refrained from taking extended periods off work because she does not wish to lose her job.
From March 2021 she has had various periods of decreased working hours on suitable duties. Her capacity was periodically increased to its current limit of 6.5 hours per day, five days per week.
In March 2021 the applicant began experiencing pain in her right arm and right forearm.
She began to develop involuntary tremors in her left and right arms. The tremors were exacerbated when she gripped heavy objects or when using force with her left or right hands or after performing certain tasks over a period of time. The tremors often happened at the end of her shifts.
She has pain radiating into both her left and right elbow and has difficulty using her hands and arms for long periods.
I have not set out the applicant’s treatment history (which includes a vast number of physiotherepy sessions and three cortisone injections), her symptoms and the particular incapacities currently suffered by the applicant which are detailed in her statements.

The medical evidence

Dr Mathew Yalizis examined on 25 May 2022 and provided a report dated 6 June 2023. Dr Yalizis diagnosed the applicant with right elbow lateral epicondylitis which was non-responsive to non-operative measures. In his opinion the applicant’s employment was the main contributing factor to the aggravation. He said:
“It is common for repetitive strain-type injuries such as lateral epicondylitis to be related to repetitive tasks at work. Her employment as a lab technician would be a potential workplace where she would be able to contract this kind of disorder. Clearly, she is repetitively lifting and using reagents as part of her job, which could potentially impact the onset of a disease like lateral epicondylitis.”[3]
He mentioned some improvement in the left arm. He suggested maximum medical improvement is likely to occur after two years.
[3] ARD page 23.
The applicant relies on the opinion of Dr Maniam which is expressed in three reports and in particular, on the report of 15 May 2023 in which he considers the reasoning and opinion of Dr Machart and compares it to his own conclusions.
Dr Machart examined the applicant for the insurer. Extracts from his File Review dated 6 July 2023 are set out below.
“There was not separate pathology of injury in each part, left wrist, left thumb, left elbow, right wrist, right thumb, right elbow. There was no specific single injury.
There is generalised both arm pain. There was no orthopaedic diagnosis other than the issues that I diagnosed, right elbow epicondylitis and left De Quervain’s tendonitis. It is important that before discussing WPI there needs to be a firm diagnosis linking the diagnosed pathology to the mechanism of injury.
…..
I did not diagnose disease of gradual process.
…..
I did not diagnose aggravation.
…..
The diagnostic features were outlined in the left thumb and right elbow, I did not see evidence of disease involving the joints that you outlined, and none were related to the DOI.
……
Do you consider that the claimant continues to suffer from the effects of the work-related injury?
To an extent yes.
…..
Your view of the claimant’s capacity for work. If the claimant has an incapacity for work, please indicate in respect of what duties and the probable duration;
The work capacity has not altered since the time of my last review. This is a question of occupational therapy, designing a workstation which is not causing the muscular occupational ache.
Please indicate whether the complaints made by the claimant in the resulting incapacity for work is a reasonable and direct result of the claimant’s injury.
The complaints that were evident to me at the time of my assessment were as a result of work injury, left thumb and right elbow.
If you consider the claimant is unfit for pre-injury duties, please indicate what work you would consider to be suitable.
She is not fit for preinjury duties unrestricted. She requires occupational therapy to assist her.”
The respondent submitted that the applicant’s injuries were confined to the left thumb and right elbow as identified by Dr Machart and were not yet stabilized. Dr Machart recommends occupational workplace changes.

Conclusion and findings

I accept the applicant’s history regarding the development of her symptoms commencing with her left thumb, moving to her left forearm and elbow and eventually developing in her right hand, forearm and elbow. The applicant has assiduously sought treatment at her own expense and has continued to work throughout an intensive treatment regime when suffering significant symptomatology and interference in her work and home life. It is a tenacious treatment history.
I do not find the report of Dr Machart persuasive. I accept the history of injury provided by the applicant and given to Dr Maniam. I am persuaded by and rely on the opinion of Dr Maniam as he considers the differing opinion of Dr Machart. I prefer the opinion of Dr Maniam to that provided by Dr Machart.
I consider the applicant has reached maximum medical improvment.
I am satisfied and find that the applicant has suffered an injury, deemed date 1 December 2020, to her left and right upper extremities in the hand, wrist and elbow and that her work with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.

SUMMARY

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

[2023] NSWPIC 526

5 October 2023