CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Chester v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 124	
		
APPLICANT:	Nikita Chester	
		
RESPONDENT:	Kristie Maree Ferris trading as Rhonda’s Hair Boutique	
		
SECOND RESPONDENT: 	Workers Compensation Nominal Insurer (iCare)	
		
Member:	Lea Drake	
		
DATE OF DECISION:	13 March 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Injury to wrist acknowledged; respondent found liable for cost of 2 surgeries and related closed periods; Held – applicant suffered an injury arising out of or in the course of her employment with the first respondent; employment with the first respondent was a substantial contributing factor to the injury suffered.
 	
determinations made:	The Commission determines:
1. 	The applicant suffered an injury to her right wrist on 1 September 2011 in the form of carpal tunnel syndrome arising out of or in the course of her employment with the first respondent. 
2. 	The applicant’s employment with the first respondent was a substantial contributing factor to the injury suffered by the applicant. 
3. 	The applicant suffered the condition of cubital tunnel syndrome consequent upon the injury to the right wrist on 1 September 2011. 
4. 	The surgery performed by Dr Meads on 20 December 2018 and 4 August 2020 was reasonably necessary as a result of injury to the right wrist on 1 September 2011.
The Commission orders: 
5. 	The second respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987 as a result of injury to the right wrist on 1 September 2011 including the costs of and incidental to surgery on 20 December 2018 and 4 August 2020. 
6. 	The second respondent is to pay the applicant $587.67 per week pursuant to s 36 of the Workers Compensation Act 1987 for the periods from 20 December 2018 to 3 January 2019, and from 10 September 2020 to 24 September 2020. 	 
7. 	The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a)	Date of injury: 1 September 2011
(b)	Body system: right upper extremity, scarring
(c)	Method of assessment: whole person impairment
(d)	Documents to be referred: Application to Resolve a Dispute, Reply and Applications to Admit Late Documents and attachments.
8.  	The first respondent is to reimburse the second respondent for the compensation paid by the second respondent pursuant to orders 5, 6 and 7 above. 	
                                                
STATEMENT OF REASONS
BACKGROUND
1.	Nikita Chester (the applicant) was employed as a hairdresser by Kristie Maree Ferris trading as Rhonda’s Hair Boutique (the first respondent). She commenced work in April 2008. She alleges that she injured her right wrist on 1 September 2011.
2.	This Application to Resolve a Dispute (ARD) has a history. A previous Certificate of Determination has been issued. That Certificate of Determination was appealed. The uninsured first respondent was subsequently served with relevant process. The ARD was relisted for conciliation and arbitration.
MATTERS IN DISPUTE
3.	Injury is not in dispute. The second respondent does not concede a diagnosis of carpal or cubital tunnel syndrome. Liability for weekly compensation payments for 2 closed periods, s 60 expenses and whole person impairment remain in dispute. 
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION 
4.	Mr Hanrahan of counsel, instructed by Mr Benjamin Loveridge of LHD Lawyers appeared for the applicant. The first respondent did not appear. Mr Grant of counsel, instructed by Ms Kait Faapito of Hall and Wilcox lawyers, appeared for the second respondent.
5.	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
6.	There was no oral evidence.
7.	There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before Personal Injury Commission (Commission). 
8.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	ARD and attached documents;
(b)	Reply to ARD (Reply) and attached documents;
(c)	Applications to Admit Late Documents lodged by Hall and Wilcox on 11 April 2022, 22 April 2022, 1 November 2023, 12 December 2023, 13 December 2023 and 1 February 2024 with attachments, and
(d)	Application to Admit Late Documents lodged by LHD Lawyers on 17 January 2024 with attachments. 
The applicant’s submissions
9.	The applicant described her injury and her subsequent disability is as follows:
“The duties of my employment were as follows:
(a) 	Rapid movement of my wrists via cutting perming colouring and shampooing hair.
(b) 	Cleaning the saloon which would involve sweeping mopping and cleaning the with sugar soap.
(c) 	Answering the phone and taking appointments.
(d) 	Eyebrow waxing.
The duties of my employment as a hairdresser would involve repetitive movement of my right hand and I relied heavily upon the use of my right hand to perform my duties.
Subject Accident
On 1 September 2011, I was in the normal court of my duties and I was cleaning the basin with my right arm,
I was using a rapid circular motion whilst holding a cloth to clean hair dye from the sink.
I felt a sharp pain in my right wrist and heard a cracking sound.
My employer was not there at time, so I let my colleague Sian Broadbeck know about the accident.
I did not get in contact with her that day so I continued to work on through my normal duties.
At the end of the day, my employer came in to collect cash payments. I informed her of the accident and I rang Dr Kim the next day to made an appointment.
Due to the subject accident, I suffered the following injuries
(a) 	Right Upper Extremity (Wrist)
(b) 	Right Upper Extremity (elbow) (consequential condition)
(c) 	Scaring
Due to the above mentioned injuries I suffered from the following continuing disabilities:
(a) 	Pain and restriction of movement of the right elbow.
(b) 	Pain and restriction of movement of the right wrist.
(c) 	Difficulty performing domestic chores
(d) 	Numbness in the right hand.
(e) 	Reduced grip strength in right hand
(f) 	Difficulty lifting objects with right hand.
(g) 	Difficulty writing and typing for prolonged periods.
(h) 	Difficulty performing rapid movements with my right hand such as using pair of scissors.”
10.	The applicant outlined her medical treatment in her statement. This included a right endoscopic carpal tunnel surgery with open cubital tunnel release performed by Dr Bryce Mead in December 2018 and, in September 2020 a radial carpal tunnel injection and revision carpal tunnel release also performed by Dr Bryce Mead.
11.	Post surgery and rehabilitation the applicant describes a significant improvement but some residual difficulty performing domestic chores. She is not currently undergoing any treatment and is not interested in doing so.
12.	There were periods when the applicant did not seek active treatment. She explains these absences as arising from difficulties with her family’s health and her subsequent responsibilities, as well as a difficult pregnancy which result in termination.
13.	The applicant has had a varied history of employment since the incident she describes in the employ of the respondent. She has been variously employed as a desk clerk and a sales assistant as well as being self-employed as a hairdresser.
14.	In May 2021 the applicant ceased working as a self-employed hairdresser and commenced employment as a disability support worker.
15.	Dr Michael McGlynn, a hand and plastic and reconstructive surgeon, provided two reports as an independent medical examiner (IME) for the applicant. In his supplementary report of 15 January 2024 he provided the following response to specific questions:
“In respect of the specific questions in your letter dated 10 January 2024:
a. 	Page two of the 22 September 2021 report states: ‘[s]he ceased doing hairdressing five years ago and now works as a disability support worker’. We note our client ceased fulltime hairdressing in about late 2012 and then performed various less provocative roles until she again worked doing hairdressing, from about August 2017. This time she consciously limited herself to 15 hours on a casual basis (self-directed) basis spread over a five - six day working week.
Does this more detailed history affect or alter your opinion concerning the reasonable necessity of our client’s surgery as ‘a result of’ (that is, contributed to in a material way by) her 2011 injury?
This more detailed history does not alter my opinion concerning the reasonable necessity of Ms Chester’s surgery as a result of her 2011 injury. In my 2021 report this opinion is on pages 5 and 6 in answer to Causation Q1.
b. 	Acknowledging the period that elapsed between the initial injury and the surgery in 2018 and the hairdressing activities described above; Is it more likely than not, on balance, that our client’s 2011 condition continued to have disabling effects?
In my opinion it is more likely than not, the 2011 condition continued to have disabling effects.
c. 	Assuming the 2011 condition had not resolved prior to the first surgery in 2018, or the second procedure performed in 2020, is it more likely than not that the symptoms experienced by our client would have caused her to use her right upper limb less and therefore experience a loss of strength in that limb?
Assuming the 2011 condition had not resolved prior to the first surgery in 2018, or the second of procedure performed in 2020, in my opinion it is more likely than not the symptoms experienced by Ms Chester would have caused her to use her right upper limb less and therefore experience a loss of strength in that limb.
d. 	Assuming the 2011 condition had not resolved prior to the surgical procedures subsequently undertaken, is it more likely than not that our client’s condition would on balance have made her more susceptible to developing other conditions as a consequence of the ongoing effects of the right upper limb injury?
Assuming the 2011 condition had not resolved prior to the surgical procedures subsequently undertaken, in my opinion is it more likely than not that Ms Chester’s condition would on balance have made her more susceptible to developing other conditions as a consequence of the ongoing effects of the right upper limb injury.
e. 	Assuming the 2011 condition had not resolved prior to 2018, is it more likely than not that this seven year hiatus in treatment, increased the reasonable necessity for the surgery then undertaken?
Assuming the 2011 condition had not resolved prior to 2018, in my opinion is it more likely than not that the seven year hiatus in treatment, increased the reasonable necessity for the surgery then undertaken.”
The second respondent’s submissions
16.	The applicant was referred to a Dr Stephen Kemp. He provided a report dated 29 August 2012 which was provided by the respondent in its Reply.
“Thanks very much for asking me to review Nikita a 21 year old right hand dominant hairdresser who has been employed in that capacity now just on seven years.
Nikita was previously well and on I September 201 1 was using a circular motion with her right hand to clean a basin. She developed sharp pain over the central carpus. That pain became 
slowly worse over the following days. She remained working in a normal capacity. The pain however deteriorated so that she sought medical attention. A depot steroid injection of the carpus resulted in no significant benefit. Nikita wears a splint on a regular basis while the wrist is under load. She is not sure if this makes much difference. During the course of her trouble she has only had a couple of weeks off and that was not followed by significant improvement in her condition. At the present time she describes a constant ache which is felt diffusely over the carpus under load. The irritability may be more prominent down the ulnar side of the carpus or include the thumb.
A full rheumatological profile has drawn no positive findings. X-ray and MRI of the wrist again are probably essentially within normal limits although there was some discussion of reactive change over the ulnar side of the lunate by the radiologist and talk of a small ganglion over the volar aspect of the radiocarpal joint.
On examination Nikita moves the wrist a little tentatively but through a full range. There is no compromise of long tendon function. The carpus itself is stable and Nikita has a good grip strength. She has fairly diffuse irritability. The scapholunate joint however is stable and there is no instability of the distal radioulnar or lunotriquetral articulations. There is only mild midcarpal laxity without a significant clunk. There was no evidence of tenosynovitis of the ECU nor of specific tenosynovitis over the radial side of the wrist. The base of the thumb was stable and pain free.
I am afraid that I am at a loss to explain Nikita's wrist pain. Her presentation however is not unique. In this age group from time to time I see young women in particular with a similar history and injury profile who eventually settle. I explained to Nikita that without a specific structural lesion, I would be loathe to recommend any active treatment and that the way forwards would be for her to avoid those activities which cause discomfort in the first instance and build slowly towards normal in the longer term. This came as a disappointment for Nikita, as you can imagine after nine months of wrist pain. In this situation sometimes a reduction in physical load on the wrist takes some weeks to have benefit. I suggested that Nikita talk around these issues with her local doctor, Kim Peters, and possibly look at reduced hours or stepping sideways into a less physically demanding role for the time being. I have left the ball in her court regarding further review.”
17.	In relation to whole person impairment Dr McGlynn produced a report which provided for an assessment of 6% in relation to the right upper extremity and 5% arising from scarring.
18.	Dr Graeme Doag, IME for the second respondent, provided an initial report dated 21 January 2022 wherein he provided the following opinion:
“Diagnosis/Causation
1. 	Please provide a diagnosis for any conditions impacting the right upper limb.
Ms Chester appears to have suffered a soft-tissue injury to the right wrist, particularly on the ulnar side. Initial medical imaging and investigations failed to reveal any abnormality other than a volar radio-scaphoid ganglion on the MRI scan of July 2012, which may have been co-incidental. She appears to have been subsequently diagnosed with mild carpal-tunnel entrapment at the wrist and more significant entrapment of the ulnar nerve within the cubital tunnel at the dominant elbow which have symptomatically responded to decompressive surgery.
2. 	For the diagnoses identified above, are any related to employment on 1 September 2011. Please provide reasoning.
There appears to have been a soft-tissue injury to the dominant wrist with on-going pain and restrictions, particularly in the dorsal aspect. Based on the documentation supplied, it is impossible for me to state definitively if the incident pre-disposed towards the nerve entrapment in the right arm. The diagnosis and surgery occurred many years after the alleged incident.
Treatment
3. 	For each surgery (2018 and 2020) please provide your opinion as to whether this surgery was reasonably necessary for an injury sustained in employment on 1 September 2011.
For the reasons previously stated, it is impossible for me to retrospectively state if the decompressive nerve surgery was necessary as a direct result of the incident of 1 September 2011. Ms Chester maintains that she was presenting with neurological symptoms at the time of the incident, however the notes from the treating General Practitioner, Rheumatologist and Hand Surgeon failed to mention these symptoms.
She did however have nerve-conduction studies performed in May 2012. This may require further clarification.
4. 	Would Ms Chester have required this surgery regardless of the incident on 1 September 2011?
Ms Chester may have required the surgery regardless of the incident on 1 September 2011, but I am unable to clarify things further due to the reasons previously stated.
Capacity for Work
5. 	For each surgery (2018 and 2020), would Ms Chester have had an incapacity for employment following the surgery? If so, what was the duration of complete incapacity and timeframe for return to pre-injury duties.
Ms Chester would have had an incapacity for employment following the nerve decompressive surgery of 2018 and 2020. She would have been fit for restricted duties 6 – 8 weeks following each procedure and hopefully, upgrading to pre-injury status at the 3 months’ mark.
Permanent Impairment
• 	Has Ms Chester reached maximum medical improvement?
Ms Chester has reached maximum medical improvement as per the definition of the AMA5 Guides.
• 	Please provide an assessment of whole person impairment for any condition arising from the incident on 1 September 2011.
The following is the Whole Person Impairment using the AMA5 and NSW SIRA Guides respectively with respect to the right wrist injury of 1 September 2011:
Using AMA 5th Edition, Pages 467 and 469 and Figures 16-28 and 16-31 respectively, Ms Chester exhibited the following active range of motion arcs at the right wrist:
• 	40 degrees of flexion to 30 degrees of extension provides an 8% Impairment of the Upper Extremity.
• 	30 degrees of ulnar deviation to 15 degrees of radial deviation provides a 1% Impairment of the Upper Extremity.
These impairments are added giving a 9% Impairment of the Upper Extremity.
In addition, using Page 474, Figure 16-37, there was 80 degrees of pronation to 50 degrees of supination, providing a 1% Impairment of the Upper Extremity.
These impairments are combined giving a 10% Impairment of the Upper Extremity, which using the Conversion Table provides a 6% Permanent Impairment of the Whole Person.
Scarring
There is no additional impairment merited for the previously described scars which are taken into consideration in the Effects of Surgery.
If the ulnar-nerve injury has been accepted as work-related, there is no additional impairment merited for sensory impairment as this has resolved. There is however detectible Grade 4 on 5 weakness of the intrinsic muscles in the right hand supplied by the ulnar nerve, which using Page 492, Table 16-15 would provide a maximum of 46% Impairment of the Upper Extremity with respect to the ulnar nerve above mid-forearm.
Using Page 484, Table 16-11, there is a Grade 4 motor weakness of 20%. 20% of 46% provides a 9% Impairment of the Upper Extremity. When this is combined with the range of motion impairment, this gives 18% Impairment of the Upper Extremity which converts to an 11% Permanent Impairment of the Whole Person.”
(my emphasis)
19.	Dr Doag later conducted a case file review and provided a further report on 31 January 2024. He reported:
“Based on the documentation supplied, there is no evidence Ms Chester’s employment on 1 September 2011 was a substantial contributing factor to the development of carpal and cubital-tunnel syndrome. As outlined in my previous reports, there was no direct blow to the elbow or wrist to result in contusion of the nerves. There was no mention of neurological symptoms from the treating General Practitioner and Orthopaedic Surgeon at the time of the initial injury.
1.2. 	Do you consider Ms Chester’s carpal tunnel and cubital tunnel syndrome to be a consequence of the injury sustained on 1 September 2011?
Unless there is direct trauma to the cubital and carpal tunnels, the cause of nerve compression in these anatomical regions remains contentious in the medical literature. The subsequent development of these symptoms in my opinion is completely unrelated to the initial injury to the right wrist on 1 September 2011.
1.3. 	Do you consider Ms Chester’s employment after 1 September 2011 to be a ‘substantial contributing factor’ to her carpal tunnel and cubital tunnel syndrome?
In the presence of ulnar and median-nerve compression at the elbow and wrist respectively, performing physical activities, including activities of daily living, can symptomatically exacerbate the underlying conditions.
1.4. 	Do you consider Ms Chester’s employment after 1 September 2011 to have caused an aggravation, acceleration, exacerbation or deterioration of her carpal tunnel and cubital tunnel syndrome?
I have answered this question above in that any physical activity, particularly working in cold environments and using vibrating machinery in the presence of nerve compression can make the nerve symptoms worse.
1.5. 	Do you consider Ms Chester’s need for surgery in 2018 and 2020 to be a result of her injury sustained on 1 September 2011? If so, please explain the relationship between the 1 September 2011 injury and the need for the surgeries.
I am unable to provide any evidence that the need for surgery in 2018 and 2020 is directly related to the incident of September 2011 for the reasons previously stated.
1.6.	 Do you consider Ms Chester’s need for surgery in 2018 and 2020 to be a result of a post 1 September 2011 aggravation, acceleration, exacerbation or deterioration of her carpal tunnel and cubital tunnel syndrome? Please provide detailed reasons for your opinion.
As outlined above, in the absence of direct trauma or a traction injury to the ulnar and median nerves, any need for surgery is unrelated to the incident of 1 September 2011. In the presence of median and ulnar-nerve compression, using the arm on a repetitive basis, as I have alluded to above at or out-with employment, has the potential to symptomatically exacerbate the neurological symptoms, particularly while working in cold environments and using vibrating machinery.”
CONSIDERATION
20.	This application has been the subject of a previous certificate of determination. I have considered the findings of the previous member and I agree with his findings and orders. The parties agreed the applicant’s pre-injury average weekly earnings at $587.67. For greater caution, I decided to reconsider the medical evidence.
21.	Dr Doag expresses doubt about the link between the applicant’s alleged injury and the condition from which she had surgery under the care of Dr Mead. In the absence of a direct blow to the elbow or wrist causing a contusion to the nerves he was unable to draw a connection. He states that in this area medical conclusions are contentious. He was also inhibited in expressing a conclusive opinion because of the time that elapsed between the injury and the first surgery 2018.
22.	I accept the applicant’s history of injury. She had an immediate onset of pain. She sought treatment as soon as reasonably possible. She has adjusted her work life to accommodate the pain she suffers. She has undergone surgery on two occasions resulting in some improvement but causing some scarring. 
23.	I prefer the opinion of Dr McGlynn regarding and the necessity for surgery arising from the applicant’s injury in the employ of the first respondent. I am satisfied that the activity described by the applicant caused the injury to the applicant’s right wrist. Whilst the event was not an actual blow to the wrist, I am persuaded that it was a direct trauma. The applicant was scrubbing a bowl in a forceful matter and immediately suffered pain and heard a crack. Following that incident she had to adjust how she held her arm to deal with her symptoms. She has suffered continuous symptomatology with increased severity of pain until she came to surgery in 2018.
24.	There are gaps in the applicant’s treatment history. Counsel for the second respondent submits that it is unbelievable that Dr McGlynn should find no aggravation to the applicant’s condition arising from her alternative employment following her injury to the date of her surgery. Counsel refers to the possibility of other events causing an onset of symptoms. I reject this submission.  It is speculation. The applicant’s history is of a sudden onset of pain and consistent symptomatology until surgery. The applicant has made adjustments. There were periods when her personal circumstances prevented active treatment. I accept her explanation and her evidence that the symptoms arising from the injury continued until the need for surgery became pressing.
25.	I am persuaded and find that the applicant’s need for surgery arose from the injury suffered in the first respondent’s employ and that the surgeries in 2018 and 2020 were reasonably necessary for the treatment of the applicant’s injury.
SUMMARY
26.	For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.