(a) Application to Resolve a Dispute and attachments;

(b) Reply and attachments, and

(c) Application to Lodge Additional documents dated 13 June 2025 filed by the applicant.

A brief statement is attached setting out the Commission's reasons for the determination.

1. In an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (Commission), Steve Bradshaw (the applicant) claims lump sum compensation. The mechanism of injury said to have occurred on 13 October 2022 is pleaded as follows (unedited):

"During his employment, the worker was in the process of extracting floorboards and stacking timber for collection when an excavator operated by a colleague approached to collect demolished materials. One of these materials was an 8-metre-long piece of hardwood that was protruding from the side of the house. As the excavator tried to lift the hardwood, it became stuck on an unknown obstruction at the end of the house. To apply more power, the excavator then swung slightly to the right before moving to the left, which caused the machine to strike the worker on his left arm, lifting him off the ground and throwing him into the air, where he landed on his left side."

1. The insurer for Newcastle Recycling Group Pty Ltd (the respondent) accepted liability and at conciliation/arbitration ultimately consented to referral to a Medical Assessor for assessment of impairment relating to the left shoulder, left elbow, left radial nerve and scarring (TEMSKI), (a position that differed to its original dispute notice wherein it denied liability for injury to the left shoulder, wrist and hand).[1]
2. The matter proceeded to arbitration as the respondent maintained the applicant has not established injury or consequential condition to the left wrist and left hand, now the sole issue in dispute.
3. Mr Necovski of counsel instructed by Ms Marcello represented the applicant. Mr Perry of counsel instructed by Mr Murray represented the respondent. Ms Wilson was the insurer representative.
4. No oral evidence was called. Documentary evidence consisted of the ARD, Reply and an Application to Lodge Additional documents filed by the applicant on 13 June 2025.

1. The statement of the applicant attached to the ARD confirms the injury as pleaded above. It is critical of the respondent's qualified doctor who incorrectly recorded the mechanism of injury, that is that he was struck by a large piece of wood that was lifted by the forklift. The statement puts straight the history in that immediately prior to impact he had lifted his left arm to protect his head, but regardless his left arm was struck by the excavator arm with such force that he was thrown in the air and landed on his left side.
2. The statement particularises the undisputed treatment history and ongoing numbness in the left hand and arm and pain in the wrist and elbow. Sleep is disturbed. Lack of strength impacts participation in most activities of daily living. Return to work has not been possible. The impact on mental health is significant. He is right hand dominant.

1. The ambulance report dated 13 October 2022[2] recorded complaints of severe pain to the left arm and numbness from elbow to wrist and into the thumb, index and middle fingers. The secondary survey by paramedics recorded altered sensation in the left index finger, middle finger, forearm, thumb with swelling of the left upper arm.
2. The emergency department notes[3] of the John Hunter Hospital confirm presentation on

13 October 2022 with a deformed humerus, numbness from the elbow down, nil movement to the thumb, index and middle finger with reduced movements to the ring and little finger as a result of a direct impact to the left upper arm. Surgical intervention was undertaken by way of exploration and decompression of the left radial nerve with an epi neural repair. A wrist drop was noted post operatively. On discharge, wrist extension was noted to be 2/5 with finger stiffness observed. A wrist splint was recommended to control the wrist drop. Ongoing hand therapy was recommended. 3. Clinical notes of the general practitioners managing the applicant report ongoing symptoms in the left upper limb. Specifically at consultation on 25 October 2022,[4] Dr Hyde recorded persisting decreased sensation to the thumb, second and third finger (radial nerve distribution) along with being unable to fully extend the wrist or thumb, unable to make a fist with decreased grip power. Similar symptoms were reported at consultations on

22 November 2022, 5 January 2023, 3 April 2023, and 14 November 2023. 4. The notes report diagnoses of impaired radial nerve motor and sensory function, median nerve and ulnar nerve dysfunction, probable adhesive capsulitis, impaired range of motion in the left elbow and wrist and scarring of the left arm.[5] 5. David Benn, hand therapist reported on 23 January 2023.[6] He recorded symptoms which he considered to be due to the radial nerve injury but postulated that the generalised symptoms and specifically the numbness in the wrist and hand may be due to median nerve compromise. Nerve conduction studies to assess both the median and radial nerves were recommended.

1. At consultation on 3 February 2023,[7] ongoing weakness in the wrist and fingers with loss of sensation was recorded. On 1 March 2023,[8] assessment demonstrated ongoing paraesthesia in the left forearm and radial side of the wrist with tingling and nerve sensations in the dorsal forearm between the wrist and shoulder. On 22 March 2023,[9] despite therapy and a lapse of five months since injury, ongoing paraesthesia in the radial aspect and weakness in wrist extension and forearm supination was noted. Motor imbalance in the forearm muscles and sensory changes were considered to be the cause of the variation in movements. On 26 April 2023[10] similar findings were recorded on assessment with electric shock symptoms noted radiating from the wrist over the radial nerve distribution.
2. Dr Benjamin East, orthopaedic surgeon reviewed the applicant following general practitioner referral on 22 August 2023 for further management of symptoms.[11] He took a consistent history of injury and noted weakness of wrist, elbow and finger extension. He opined (unedited):

"he has failed to recover from his radial nerve injury. He may well have other nerves affected from this accident and overall he has very poor function in the upper limb."

1. Dr Joshua Hunt, orthopaedic surgeon also reviewed the applicant on referral by the general practitioner, but had also assessed him on the day of the injury at the John Hunter Hospital. In his report dated 7 September 2023[12] he reported ongoing problems with decreased capacity in the entire left arm with reduced power of the wrist and fingers. He postulated a carpal tunnel syndrome and suggested a corticosteroid injection reporting that if relief was achieved, a medial nerve release was indicated, hesitating to undertake further treatment in the absence of any positive gains from the injection.
2. Dr Tim Ho, pain specialist [13]was qualified by the respondent on 1 December 2023 via telehealth. His report is relied upon by the applicant. His findings on examination revealed a significant reduction in the active range of motion to the left shoulder, elbow, wrist and fingers with scarring. He diagnosed a left radial nerve injury and soft tissue injury in the left upper extremity and opined employment was the substantial contributing factor.
3. Dr Evan Dryson, occupational physician was qualified by the applicant reporting on

5 February 2024.[14] A consistent history of injury was taken. He diagnosed (unedited)

"• Left shoulder injury is most likely adhesive capsulitis, secondary to the immobility of the shoulder following surgery to the left upper arm.

• Left elbow injury is secondary to nerve injury sustained in the course of employment.

• Left wrist injury is secondary to nerve injury sustained in the course of employment.

• Impaired power and sensation in the left arm are secondary to nerve damage sustained in the course of employment.

• Scarring is due to surgery, itself needed because of personal injury arising in the course of employment"

1. Dr Kirychenko reported on behalf of the respondent on 3 May 2025 in his capacity as an injury management consultant. The report is relied upon by the applicant.[15] He reported ongoing interference with the use of the upper limb with pain from the left shoulder to the left thumb. As regard diagnosis he considered there was possibly some radial nerve scarring in the left arm and muscle degeneration and neuropathic pain symptoms with loss of muscle power and movement. He postulated a complex regional pain syndrome (not the subject of these pleadings).

(a) the applicant has been straight forward in his presentation and is credible;

(b) the medical evidence establishes a clear link to symptoms in the left wrist and hand due to either direct injury on 13 October 2022 or resulting from the direct injury on that date, that is consequential conditions. It does not matter how the symptoms are labelled, it is evident that the applicant suffers from significant symptoms in the wrist and hand and the outcome will not change regardless if they arise out of an injury or are determined to be a consequential condition;

(c) even if the applicant developed symptoms in the wrist and hand subsequent to surgical intervention, such symptoms are consequential to the original injury as they 'result from' it;

(d) the only medical evidence which disputes injury or consequential condition is that of Dr Smith, qualified by the respondent and it is noted that he takes an incorrect history of injury;

(e) whilst the diagnosis of the conditions impacting the wrist and hand are not confirmed, there exists a condition significantly affecting strength, movement and activity and the lack of a confirmed diagnosis does not prevent a finding of a consequential condition, and

(f) that as a matter of common sense, in the absence of any other injury, the condition in the left wrist and hand result from the injury on 13 October 2022.

1. In its s 78 notice,[16] the respondent accepted liability for the radial nerve injury. It however denied liability for the left shoulder, elbow, wrist and hand maintaining its qualified specialist, Dr Smith, opined symptoms in the elbow, wrist and hand arose out of a "non anatomical distribution" therefore were not consequential to the radial nerve injury and injury had not been established to the left shoulder due to a lack of contemporaneous complaint.
2. As indicated, at conciliation, the respondent withdrew the dispute with respect to the left shoulder and elbow injury but maintained the dispute relating to the left wrist and hand.
3. In his report dated 16 August 2024,[17] Dr Smith diagnosed a crush injury to the radial nerve and the soft tissues of the left arm between the elbow and shoulder. He confirmed "minimal damage to the radial nerve" and considered symptoms of weakness and altered sensation in the hand and wrist were due an altered sensation in a non-anatomical distribution concluding there was no objective evidence of disability and a manufacturing of physical signs.
4. Also attached to the reply were clinical notes of the John Hunter Hospital, The Awabakal Community Health Centre and various reports of Dr Hunt and Dr Ho. Key reports were extracted and relied upon by the applicant in submissions. The index of the Reply refers to folios 1 to 568 however only 500 pages were attached. Nothing turns on this.

(a) it is incorrect for the applicant to pronounce that the symptoms may be due to an injury or a consequential condition. There is a need to ascertain the precise pathology and its genesis and there needs to be a clear articulation of the argument;

(b) there is no dispute the applicant has symptoms in the wrist and hand but these arise out of the radial nerve injury and can be likened to radiculopathy following a lumbar spine injury. Whilst there may be radiculopathy following a lumbar spine injury, that does not mean the lower limb has been injured but rather symptoms are part and parcel of lumbar spinal injury, and this is precisely the case here. The applicant's symptoms in the wrist and hand arise out of his radial nerve injury and are not separate injuries or conditions;

(c) the applicant has failed to establish on the balance of probabilities that he has either sustained an independent injury to the wrist and hand or a consequential condition;

(d) the applicant must demonstrate that there is a logical connection between the injury and the symptoms. I was referred to the often recited authorities of Hancock,[18] Hevi Lift,[19] Makita[20] and Edmonds[2] and specifically as they relate to the evidentiary onus. Consistent with these authorities the applicant has failed to provide evidence that is logical and probative and the applicant's evidence falls short of meeting the standards required. There must be a "fair climate" upon which a doctor can base an opinion. Whilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for a conclusion, the applicant's qualified evidence falls short of meeting the evidentiary onus;

(e) findings should be made that the applicant's qualified evidence is based on speculation or unsubstantiated assumptions thereby rendering it of little probative value;

(f) none of the medical evidence relied upon by the applicant has established a causal link or a chain of causation which passes the common sense test;

(g) there is no evidence that the radial nerve injury has caused a 'condition' in either the wrist or hand. Certainly there are symptoms, but these have not been diagnosed as a standalone condition except for some postulation that symptoms may be attributed to carpal tunnel syndrome or a wrist drop, which has not been established during the course of the claim;

(h) further the applicant's statement fails to adequately explain how the injuries or conditions in the left and wrist came to be. The evidence does not establish he suffered injuries to these areas when he was thrown by the excavator and there is a paucity of evidence to suggest the symptoms in these regions arise from a 'condition', and

(i) given the above, there should be an award for the respondent with respect to the claims for injury and/or consequential condition to the left wrist and hand.

1. The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).
2. Specifically s 4 of the 1987 Act states that injury means personal injury arising out of or in the course of employment. Further s 9A of the 1987 Act requires employment to also be the substantial contributing factor for compensation to be payable (except in cases of disease injury which is not relevant here).
3. To establish injury, the evidence must demonstrate sudden or identifiable[21] (Kennedy) pathological change[22] (Castro). The word 'injury' refers to both the event and the pathology arising from it[23] (Lyons). Further, the issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain (Kooragang).[24] The onus of establishing injury falls on the applicant 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: (Nguyen).[25] On this note, it is not necessary that I be satisfied to a degree of absolute certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged.
4. The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):

(a) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury, that is, it results from an employment injury[26] (Brennan);

(b) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[27] (Kumar);

(c) each case must be determined on its own facts;

(d) it is unnecessary for a worker alleging such a condition to establish that it is an "injury" (including "injury" based on the "disease" provisions) within the meaning of s 4 of the 1987 Act[28] (Moon);

(e) to establish a condition, there is to be a "common sense evaluation" of the causal chain, determined on the basis of the evidence, including expert opinions[29] (Kooragang);

(f) a finding of a consequential condition does not require the identification of pathology[30] (Kumar);

(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;

(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition, and

(i) the absence of treatment is not fatal to the applicant's claim of a consequential condition[31] (Baker).

1. The respondent has accepted the applicant suffered injury to the radial nerve of the left arm and due to surgical intervention has scarring. During conciliation, the dispute regarding injury/consequential condition to the left shoulder and elbow was withdrawn. As a result, I have not slavishly explored the evidence relating to these non contentious matters.
2. However, what I must determine is whether the evidence establishes the applicant has suffered injury or consequential condition to the left wrist and left hand.
3. The respondent submits symptoms in the left wrist and hand symptoms are sequelae of the radial nerve injury and not independent injuries or conditions. This submission is inconsistent with the respondent's qualified opinion, relevantly that there was "minimal damage to the radial nerve" and symptoms of weakness and altered sensation in the hand and wrist were due an altered sensation in a non anatomical distribution and further there was no objective evidence of disability but a manufacturing of physical signs. It is also inconsistent with the myriad of diagnoses offered by other specialists in this matter including soft tissue injury, median nerve root injury, potential carpal tunnel injury, potential complex regional pain syndrome or other nerves affected by the accident.
4. The respondent was critical of the qualified opinion of the applicant maintaining that there had been a failure to logically explain conclusions in relation to the claimed injury or conditions in the left wrist and hand. I agree that the evidence is not as pristine as it could be. However, I find the opinions expressed in the report are largely consistent with the contemporaneous notes recorded by the ambulance officers, emergency department, hand therapist and various orthopaedic surgeons who have been responsible for the management of the injury.
5. The respondent was critical of the lack of diagnosis or accurate identification of a 'condition' in the left wrist and hand. The bulk of the medical evidence summarised above and specifically the notes of the general practitioner suggest that the symptoms including pain and lack of range of motion arise due to soft tissue injury. The wrist drop has been ascribed to the after effects of the radial nerve surgery. There was some speculation that symptoms in the wrist and hand arose due to carpal tunnel, a diagnosis which I note was not confirmed due to the applicant's inability to undertake EMG studies.
6. Whilst I agree with the respondent that the pathology and diagnosis has not been clarified, this of itself is not fatal to the applicant's case. As indicated in the case summaries in paragraph 28 above, authorities establish failure to identify pathology is not fatal to a finding of a consequential condition (Brennan) and (Kumar), provided the evidence establishes an unbroken chain of causation from the injury to the development of the consequential condition and further any loss or condition "results from" the accepted injury, that being the radial nerve injury.
7. The facts of this case cause me to find that there is an unbroken chain of causation. Symptoms in the wrist and hand only commenced after the injury to the radial nerve and elbow. Despite radial nerve repair, they persist. There are no other factors recorded as being responsible for these symptoms. I find that the chain of causation is unbroken and that the symptoms have resulted from the injury to the radial nerve and elbow.
8. The respondent's frustration is noted as the applicant's submissions were initially unclear as to whether the conditions in the wrist and hand were to be assessed as an injury or consequential condition suggesting initially that "it did not matter" but ultimately submitting that the conditions in the hand and wrist were consequential. I noted that the insurer had assessed the conditions as being consequential, and so the frustration is somewhat misplaced.
9. As indicated above, I did not find the qualified opinion to be pristine and the lack of specificity inflamed the dispute, a valid criticism of the respondent but I have formed the view that the criticism is cushioned in an assessment and interpretation of the evidence through a narrow lens.
10. With reference to a common sense evaluation, (Kooragang) which has involved scrutiny of the chronology, medical evidence (both treating and qualified) and factual statements, I find the applicant has demonstrated on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction (Nguyen) that he has suffered a consequential condition to the left wrist and left hand resulting from injury to the left upper limb and specifically the radial nerve and elbow injury and further find these conditions are be assessed by a Medical Assessor because;

(a) I disagree with the submission of the respondent that the symptoms in the left wrist and hand are sequelae of the radial nerve injury alone, such opinion being unsupported by the bulk of the medical evidence, particularly Dr Smith who considered there was a non anatomical and manufactured cause for symptoms;

(b) the initial injury was a significant one, requiring much investigation and immediate surgery to repair the radial nerve, yet despite surgical repair, symptoms in the wrist and hand continued independently despite extensive therapy and rehabilitation;

(c) initial assessment by the ambulance officers and emergency department recorded soft tissue injury and symptoms in the entire left upper limb;

(d) clinical notes of the treating practitioner, hand therapist and orthopaedic surgeons refer to soft tissue injury along with wrist drop along with the possibility of a carpal tunnel condition or median nerve injury, independent of the radial nerve injury;

(e) the respondent's qualified opinions of Dr Kirychenko and Dr Ho likewise refer to soft tissue injury to the left wrist and hand and possible chronic pain syndrome noted by Dr Kirychenko (however not established within the confines of his injury management consultation), and

(f) symptoms in the left wrist and hand continue despite radial nerve surgery repair and have been medically verified to be independent or subsequent to the surgical repair to the radial nerve.

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

[15] ALAD filed by applicant on 13 June 2025.

[18] Hancock v East Coast Timbers Products Pty Ltd.

[19] Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271.

[20] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.

[21] see Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 and Military Rehabilitation and Compensation Commission v May [2016] HCA 19.

[22] Castro v State Transit Authority (NSW). [2000] NSWCC 12; 19NSWCCR 496.

[23] Lyons v Master Builders Association of NSW Pty Ltd.(2003) 25NSWCCR 442 at [429].

[24] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR [463].

[25] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

[26] _Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan (_NSWWCCPD 23).

[27] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.

[28] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).

[29] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).

[30] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.

[31] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker's credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).