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[2001] SAWCT 137
plaintiff. The tribunal set aside the Corporation's determination accepting the claim for a closed period and determined that the worker is entitled to weekly payments of income maintenance from 22 November...
The tribunal found that the worker's carpal tunnel syndrome was caused by her work and that her symptoms and incapacity continued after the date accepted by WorkCover (25 November 1999). The tribunal set aside WorkCover's decision to accept the claim for a closed period and ordered that the worker is entitled to weekly income maintenance payments from 22 November 1999 until such payments are lawfully stopped. The tribunal did not decide whether the worker's arthritis conditions were also aggravated by work, and left the question of quantum for later agreement or hearing.
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1,642 words · generated 28/08/2026
This is a judicial determination under the Workers Rehabilitation and Compensation Act 1986 in which Deputy President Judge B.P. Gilchrist considered whether WorkCover’s acceptance of the applicant Jennifer Dunbar’s claim for carpal tunnel syndrome for a closed period (22–25 November 1999) should stand, or whether the worker remained incapacitated and entitled to ongoing weekly payments.
1 cited instrument linked from this judgment.
Key chronology (from the judgment):
The tribunal accepted the worker’s account of the onset and aggravation of symptoms by work and found that the carpal tunnel syndrome resulted from her employment and incapacitated her. Critically, the tribunal concluded that the incapacity had not ceased by 25 November 1999 and continued thereafter, including post-surgery; therefore WorkCover’s closed-period determination was set aside and the tribunal declared the worker entitled to weekly income maintenance from 22 November 1999 until lawfully discontinued (paras 22–25, 31–33).
Three strands of reasoning are decisive in the judgment.
Credible lay evidence establishing a temporal and mechanistic link (paras 21–22).
Medical evidence that supported an occupational aetiology for the carpal tunnel syndrome (paras 14–20).
Persistence of symptoms post-closed period and post-surgery (paras 24, 30–32).
The tribunal therefore concluded that the accepted compensable condition (carpal tunnel syndrome) continued to cause incapacity beyond the Corporation’s closed period and accordingly set aside the determination (paras 25, 33).
The judgment applies established principles for workers compensation claims:
Before this decision, those principles already governed the field. This judgment reinforces particular emphases:
The decision therefore consolidates the practice that the tribunal will look to the whole evidentiary picture, lay and expert, when assessing ongoing incapacity and when deciding whether to set aside or substitute a statutory determination.
Quoted passage (para 22): "I accept her association of increasing sensations of pain in her arms with her working activities. I think this is important. It leads me to conclude that whatever else may have been affecting the worker, at the time of her ceasing work she was suffering from carpal tunnel syndrome that resulted, in the relevant sense, from her employment with the employer and which incapacitated her for work."
Plain-English translation: The judge believed the worker when she said her symptoms got worse with work. That evidence, together with the medical material, was enough for the judge to conclude that her carpal tunnel syndrome was caused by her job and prevented her from working when she resigned.
Quoted passage (para 24): "In my view the answer to that question is clearly no. The worker quite clearly continued to suffer from the debilitating affects of carpal tunnel syndrome after that date."
Plain-English translation: The tribunal found it obvious that the worker’s disability did not stop on 25 November 1999; she continued to suffer disabling symptoms afterwards.
Quoted passage (para 31): "Dr Cullum gave evidence that up to a fifth of persons who undertake carpal tunnel release surgery continue to suffer symptoms."
Plain-English translation: One of the doctors said that about 20% of people who have carpal tunnel surgery still have symptoms. The tribunal accepted this to explain why the worker could still be disabled despite surgery.
Quoted passage (para 33): "Accordingly, I set aside the determination of the Corporation accepting the worker's claim for a closed period and determine in lieu thereof that the worker is entitled to weekly payments of income maintenance from 22 November 1999 unless or until such payments are lawfully discontinued in accordance with the Act."
Plain-English translation: The tribunal overturned WorkCover’s decision that the worker’s claim covered only a few days, and ordered that she should receive weekly payments from 22 November 1999 onward, until legally stopped under the Act.
This decision is directly applicable where:
In such fact patterns tribunals will examine lay testimony closely, weigh conflicting medical views, and may set aside limited closed-period determinations where ongoing incapacity is established.
The judgment itself does not canvass subsequent appellate treatment or later decisions. The text contains no references to later authorities and does not identify any appeal outcome in the record (the judgment notes appeal rights under s 86 but records no subsequent decision) (note under heading and para re appeal). From the judgment alone, one cannot reliably state how later courts have treated this particular decision. Any assessment of subsequent judicial treatment would require examination of later reported decisions and citations which are not included in the source text.
The judgment explicitly leaves several matters unresolved and these remain salient questions in the record:
Aggravation of rheumatoid arthritis and osteoarthritis (para 29): The tribunal expressly chose not to decide whether these arthritic conditions were aggravated by the worker’s employment, because the outcome could be determined on the accepted compensable carpal tunnel syndrome. That issue remains open and would be relevant if a later process sought to disentangle the relative contribution of those conditions to ongoing incapacity or to compute quantum.
Quantum of entitlements (para 34): The tribunal determined liability (ongoing entitlement to weekly payments from 22 November 1999) but adjourned consideration of how much the worker is owed. The precise period for which payments are to be calculated, any offsets, or retrospective assessment require further hearings or agreement.
The precise medical threshold for concluding cessation following surgery (paras 30–32): The tribunal applied medical evidence that a subset of patients remain symptomatic after surgery and accepted the worker fell into that group. Future disputes may require a granular assessment of what degree and frequency of residual symptoms amount to incapacity for work under the Act.
The allocation of causation where multiple pathologies coexist (paras 16–20, 29): The judgment recognises conflicting medical views about the interplay of rheumatoid arthritis and occupational factors in producing carpal tunnel syndrome. If future proceedings require apportionment of causation among coexisting conditions, further expert evidence and legal analysis will be required.
These open questions are outcomes of the tribunal’s careful fact-sensitive approach: where a decision can be made on one compensable condition, the tribunal avoided resolving broader or more contentious medical questions that were unnecessary to the disposition.
This analysis is grounded only in the text of the judgment cited above. It provides legal information, not legal advice. I can make mistakes. Before you act on or rely on this, or use any draft or interpretation for litigation, claim negotiation, or other legal purposes, get a qualified Australian lawyer to check it.
1 This is a judicial determination between Jennifer Dunbar ("the worker") and the WorkCover Corporation ("the Corporation") which concerns a determination made by the Corporation to accept the worker's claim for compensation in respect of problems with her left and right wrists for a closed period only. The worker contends that the Corporation was wrong to have limited the period. She contends that the incapacity flowing from this disability has not ceased and that she has an ongoing entitlement to weekly payments of income maintenance.
2 The worker is a woman aged 58 years who in 1998 and for many years prior to that was employed by Spotless Services Australia Ltd (`the employer") as a customer care coordinator. On 23 November 1999 she resigned her employment with the employer apparently because of an inability to carry out her work due to wrist pain. Upon resigning she made a claim for compensation seeking weekly payments of income maintenance pursuant to the Workers Rehabilitation and Compensation Act 1986 ("the Act"). Upon receipt of the claim the Corporation sought a medical report from the worker's general practitioner, Dr John LePoidevin. Dr LePoidevin in a medical report on 20 January 2000 advised that the worker was suffering from rheumatoid arthritis and that this had caused carpal tunnel syndrome in both of her wrists. He stated that any work-related aggravation to this underlying condition would have ceased within one or two days of the worker ceasing work. On the strength of that report the Corporation determined to accept the worker's claim for three days only. The determination relevantly provides as follows:-
"This letter is to let you know that as a result of right carpal tunnel syndrome, which was sustained on 22/11/1999, it has been determined that you suffered a temporary incapacity"
3 It then went on to advise the worker that she would be paid from 22 November 1999 to 25 November 1999.
4 In challenging that determination the worker asserts that she suffers from osteoarthritis and that this has been aggravated by her employment. Secondly she says that she suffers from of rheumatoid arthritis and that this too has been aggravated by her employment. In both instances she contends that the effects of the work caused aggravation have not be spent. Finally, she says that carpal tunnel syndrome that she was diagnosed with at the time of her resignation was in fact work related and that despite surgery to correct this she continues to be incapacitated as a result of that condition.
5 I had placed before me a trial book which included medical reports from Dr LePoidevin, Dr Gary Champion, consultant physician and rheumatologist, Dr Barbara True, rheumatologist, Dr David Cullum, consultant occupational physician and Mr Gregory Bain, surgeon.
6 At trial, I heard oral evidence from the worker, Dr True, Dr Cullum and Dr Champion.
7 The worker stated that she commenced employment with the employer in 1986 and that prior to that, she had not experienced any problems with her hands, wrists or arms. She described her employment duties with the employer. She said that she was required to manage and supply linen services to nursing homes and hospitals. This involved many activities including counting linen, making written records and pushing trolleys containing stacks of linen over various surfaces, up ramps and in and out of lifts. The worker described the trolleys as "very old fashioned, heavy affairs made of heavy metal" and being about three metres in length. She said that pushing and manoeuvring the trolleys required a degree of wrist strength and gripping and flexing of her wrist. She said that after manoeuvring the full trolleys of linen into position she would unload them by cutting the strings that bound the bundles of linen and by placing the linen into various receptacles such as cupboards. The linen comprised of towels, sheets, pillowcases, face washers, blankets, underblankets, throw over quilts, table clothes and serviettes. The worker said that she would handle thousands of items of linen each week.
8 The worker said that in about 1996 or 1997 she began to experience pain in her arms when working, particularly in the late afternoon. She spoke of a sensation of pins and needles in her right hand, which she said was worse at night. She said that the pain in her arms gradually got worse to the point when sometimes it was so bad she could not drive.
9 In her own mind, the worker found a definite association with increased pains in her arms with increased activity at work.
10 In July 1998 the worker was sufficiently troubled by pain in her left wrist that she sought treatment from Dr LePoidevin. Dr LePoidevin continued to see the worker in respect of similar complaints every few months or so or thereafter. He or his colleagues referred the worker for x-rays, ultra-sound and nerve conduction studies and to various specialists including a neurologist, a surgeon and a rheumatologist.
11 The worker stated that by November 1999 the pain in her wrist at the end of the working day was so great that she decided that she could no longer go on working with this level of pain. She therefore advised her supervisor that she needed to change to lighter duties. She understood this to be a realistic option to her but the employer did not agree. Having been told that no other job was available for her, the worker thought that she had no option but to resign and she did so.
12 In August 2000 Dr Bain performed a carpal tunnel release on the worker's right lower arm. The worker stated that this greatly relieved her right wrist pain, although she said that she has continued to experience the occasional twinge of pain in her right lower arm. She reported that her left wrist was still painful and she maintains that she would be unable to undertake employment that demanded repetitive movements of her hands and wrists.
13 The worker undoubtedly was suffering from carpal tunnel syndrome at the time of her resignation. She also undoubtedly suffers from the conditions of rheumatoid arthritis and osteoarthritis at the base of her thumb. There is, however, disagreement amongst the various specialists who have been involved in this matter as to the relationship between those conditions and the worker's employment with the employer.
14 Dr True thought that the worker's employment had aggravated her underlying rheumatoid arthritis and osteoarthritis, so in that sense the direct relationship between the worker's employment and carpal tunnel syndrome was not an issue for her.
15 Dr Cullum was also strongly of the view that the worker's carpal tunnel syndrome was due to her employment. As to the other conditions I understood him to agree with Dr True.
16 Dr Champion disagreed with these views. He strongly resisted the suggestion that the worker's work had aggravated her arthritic conditions. It was his opinion that using arthritic joints is therapeutic rather than causative of further disability.
17 As for the worker's carpal tunnel syndrome it was his opinion that this was caused by her rheumatoid arthritis. He explained that the two conditions "go together like hand and glove" (tr 83). It was this line of reasoning that no doubt led Dr LePoidevin to reach the conclusion that he did in his report.
18 Dr True countered by contending that there were degrees of activity and that whilst she accepted that it is desirable for those afflicted with arthritis to use their affected joints, there can be a point when the continued use of the joint can make things worse and she thought that that point had been reached here.
19 On the carpal tunnel issue, Dr Cullum accepted the syndrome's relationship with rheumatoid arthritis, but he said that it did not follow that in this case the worker's carpal tunnel syndrome had to be associated only with that condition. The temporal connection between the onset of the worker's symptoms and her work and the clear association between the repetitive movements of the type that the worker was undertaking with the employer and the development of carpal tunnel syndrome led him to conclude that this was an occupational based disorder.
20 I understood Dr Champion to agree that if the worker was not suffering from rheumatoid arthritis he would have supported an assertion that the worker was suffering from occupationally caused carpal tunnel syndrome.
21 At this point, I must say something about the worker's evidence. I found her to be an honest witness. She was not seriously challenged in cross-examination. I accept her evidence.
22 In particular, I accept her association of increasing sensations of pain in her arms with her working activities. I think this is important. It leads me to conclude that whatever else may have been affecting the worker, at the time of her ceasing work she was suffering from carpal tunnel syndrome that resulted, in the relevant sense, from her employment with the employer and which incapacitated her for work. In reaching this conclusion I have taken into account the various opinions of the medical specialists, but in the end, as is often the case in matters such as this, it is the worker's evidence that I have found to be the most important.
23 Given the terms of the determination before me, it being an accepted claim for carpal tunnel syndrome, albeit for a closed period, this probably is not an issue anyway. What is in issue, is whether the worker ceased to be incapacitated by the accepted compensable disability as at 25 November 1999.
24 In my view the answer to that question is clearly no. The worker quite clearly continued to suffer from the debilitating affects of carpal tunnel syndrome after that date.
25 Having found that the syndrome resulted from the worker's employment it must follow that the Corporation's determination cannot stand and must be set aside.
26 Mr Cole would have it, that having reached this conclusion I should substitute that determination with another determination accepting a claim for a closed period, namely, to the end of August 2000. He asks me to find that the only compensable condition that the worker was suffering from was carpal tunnel syndrome. He submits that there was cogent evidence that establishes that following the carpal tunnel release undertaken by Mr Bain in early August 2000 the worker's carpal tunnel syndrome had been successfully treated such that I ought to be satisfied that by the end of August 2000 she ceased to be incapacitated by reason of that compensable disability.
28 First, he asserts that the evidence does not establish that the surgery was so successful that it could be said that the worker ceased to be incapacitated as a result of the carpal tunnel syndrome. Secondly, he says that carpal tunnel syndrome is but one of a number of medical conditions from which the worker suffers and that as the rheumatoid arthritis and osteoarthritis from which she suffers has also been aggravated by her employment and because she continues to be debilitated by those conditions she continues to have entitlements to weekly payments under the Act.
29 I do not find it necessary to decide whether or not the worker's osteoarthritis and rheumatoid arthritis have been aggravated by her employment. What I have before me is a determination accepting the worker's claim for a closed period that in my view cannot stand. If I was satisfied on the evidence presented that the incapacity resulting from the worker's carpal tunnel syndrome had ceased at some other date it might be necessary for me to decide whether one or other of these other conditions have been aggravated by the worker's employment. If I had determined that there was no other compensable disability it might be appropriate for me to substitute that determination with another determination accepting the claim for a longer closed period.
30 But, I am not satisfied that the worker has ceased to be incapacitated by the effects of her carpal tunnel syndrome either as at the end of August 2000 or at any other date.
31 Dr Cullum gave evidence that up to a fifth of persons who undertake carpal tunnel release surgery continue to suffer symptoms. I accept that evidence. In light of the worker's evidence about continued sensations of pain despite the significant improvement in her condition as a result of the surgery, being evidence that I accept, it is plain to me that she falls within that limited category of patients whose symptoms are not completely alleviated by the surgery and I so find. I find that these sensations of pain result in an incapacity for work.
32 I am therefore not persuaded that I should substitute some other closed period determination for that which the Corporation has previously made.
33 Accordingly, I set aside the determination of the Corporation accepting the worker's claim for a closed period and determine in lieu thereof that the worker is entitled to weekly payments of income maintenance from 22 November 1999 unless or until such payments are lawfully discontinued in accordance with the Act.
34 I have not heard from the parties regarding the quantum of the worker's entitlements. I therefore adjourn further consideration of this judicial determination to enable the parties to reach agreement as to the worker's entitlements and in default of their agreement I will relist the matter.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
Dunbar
Workcover/Allianz Aust Workers Comp
The tribunal set aside the Corporation's determination accepting the claim for a closed period and determined that the worker is entitled to weekly payments of income maintenance from 22 November 1999 unless or until such payments are lawfully discontinued in accordance with the Act; quantum was adjourned for agreement or further listing (paras 33-34).