(a) this Certificate of Determination and Statement of Reasons;

(b) Application to Resolve a Dispute and attachments;

(c) Reply and attachments;

(d) respondent's Application to Lodge Additional Documents dated 29 January 2026, and

(e) applicant's Application to Lodge Additional Documents dated 30 January 2026.

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

1. On 11 September 2021, Jack Fisher (the applicant) whilst working in the course of his employment with Bega Cheese Limited (the respondent) suffered a torn right bicep tendon. There is no issue that as a result of that injury, the applicant also suffered right shoulder adhesive capsulitis, otherwise known as frozen shoulder.
2. The applicant also claims that he suffered injury to his right wrist and thumb in the injury at issue. The respondent disputes injury to those body systems.

1. The only issue for determination is whether the applicant suffered injury to his right wrist and thumb in the incident at issue.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.
2. The parties attended a hearing before me on 5 February 2026. The applicant was represented by Mr Morgan, instructed by Mr Bridge. The respondent was represented by Mr Grimes, instructed by Ms Mikaelian and Ms Hijazi.

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

(a) Application to Resolve a Dispute (the Application);

(b) Reply;

(c) respondent's Application to Lodge Additional Documents (ALAD) and attachments dated 29 January 2026, and

(d) applicant's ALAD dated 30 January 2026 and attachments.

1. There was no oral evidence called at the hearing.

Whether the applicant suffered injury to his right wrist and thumb/hand in the incident at issue.

1. The applicant has the onus of proving he has suffered injury to the contested body systems. There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). That case makes 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 in the nature of atrial fibrillation, without pathological change, did not constitute injury.
2. Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:

"In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body's functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138])." (at [60])

1. The respondent alleges the applicant has not demonstrated injury to his right wrist and thumb, noting only a frank injury is pleaded rather than a consequential condition. The dispute surrounding these body systems is best categorised as one concerning causation. That is, there is no issue the applcaint has had some physiological change to the claimed body systems. Rather, the issue is whether any injury was suffered to those body systems in the incident at issue.
2. Concerning his injury and its aftermath, the applicant gave uncontested statement evidence as to the circumstances of the injurious incident as follows:

"2. Having suffered no previous injury or problems affecting my right arm, on 11 September 2021, I was pulling a very heavy bin which would have weighed over 100 kg towards me into a way bay area. It was full of cheese, off cuts. As I pulled it towards me, I felt something 'go' in my right bicep region. I looked down and saw that my right bicep had retracted. I was aware of pain and went into shock. A workmate alerted a supervisor and I had to go off work immediately. Additionally, I was aware of pain and restriction affecting my right elbow region, hand and the thumb and wrist area. However, the main focus for me following the injury was in relation to my bicep.

1. I was taken to Bega Hospital and referred to a Canberra upper limb specialist, orthopaedic surgeon, Dr A Livingston. At the time, he was doing surgery lists every month in Bega. He then undertook surgery for repair of my bicep on 22 September 2021.
2. I remained off work and with my arm in a sling. I was given strict instructions not to straighten my arm, i.e. it was to remain bent and in a sling to allow the bicep to repair. However, as the weeks and months went by, they noticed that my right shoulder seemed to be restricted in its movement.
3. I did return to alternative duties in another room in the factory, which did not involve the same heavy lifting. However, the work did involve some light repetitive lifting. However, it was too much for me. I did this work from a date in mid-February onto mid-March 2022, at which point I was not able to continue and I have remained off work ever since.
4. I then saw Dr Livingston on 27 June 2022, who issued me with a WorkCover Certificate certifying me for it to do extremely light duties at four hours per day for three days per week. My employer was not able to offer me any such work and I have remained off work ever since.
5. I was diagnosed with 'frozen' (adhesive capsulitis).
6. Dr Livingston recommended that I undergo a procedure in the nature of a 'manipulation under anaesthetic' (MUA). However, I am very reluctant to do this for the reason the outcome is by no means certain.
7. In addition to these symptoms affecting my shoulder, I was aware of the continuing symptoms of pain and restrictions in my right elbow, right hand and thumb and wrist. In particular, I noticed that my right hand was 'cold' so that I was unable to fully straighten my fingers or my thumb

1. I note, prior to my injury, I was a very active musician. I play piano, guitar and harmonica and I sing. I do shows locally and I also go on tour. I have ceased this activity. However, I have been attempting to improve my longevity with playing instruments and I have now reached the stage where I can play music for about 40 minutes. However, this is about the most I can do. Because pain kicks in and my hand fatigues and therefore I cannot play."
2. There is no issue the applicant suffered a bicep injury or that a frozen shoulder flowed from it. The respondent alleges, however, no injury was suffered to the wrist or thumb. The respondent notes the applicant has pleaded these body systems as having been the subject of a frank injury, and not consequential conditions.
3. The applicant submits support for the presence of injuries to the disputed body system is found in the reports of treating surgeon Dr Livingston, who carried out the biceps tendon repair on 22 September 2021. On 15 November 2021, Dr Livingston reported to the applicant's general practitioner (GP), Dr Jaensch relevantly in the following terms:

"I saw Jack again today, now seven weeks following his right distal biceps repair. He reports keeping his arm immobilised in the sling for the entire duration as he has been very tentative about any movements. Jack is also complaining of pain and stiffness in the right shoulder, wrist, elbow, and hand. The stiffness is likely to be a sequelae of Jack's lack of movement."

1. Dr Livingston then regularly reported to Dr Jaensch from time to time as he reviewed the applicant, culminating in a further report on 22 August 2022, which relevantly included the following:

"I saw Jack again today, now 11 months post his right distal biceps repair and ongoing right frozen shoulder. Unfortunately, Jack has had a decline in function in the right arm and is now reporting increasing pain after minimal use. He is now having pain in the shoulder as well as predominantly in the forearm and wrist.

The biceps repair remains intact, but Jack's elbow ROM has decreased with pronation, now limited to 45 degrees. There is also significant pain when I attempt to passively increase this movement. Distally, the hand remains neurovascularly intact, is not swollen and has a normal appearance."

1. Dr Livingston opined that the applicant may have developed a component of Complex regional pain syndrome (CRPS) limiting his progress.
2. Mr Morgan submitted the applicant had consistently complained of issues in his hand, wrist and thumb since the time of the accident. In my view, Dr Livingston's initial report in which he recorded symptoms in those body systems is broadly consistent with that submission.
3. Although corroboration is not necessary in a civil case for evidence to be accepted (see Chanaa v Zarour [2011] NSWCA199 at [86]), in this matter the evidence of the applicant's treating practitioners soon after the injurious event reveals complaints of symptomology in the disputed body systems and effectively corroborates complaints on his part of problems with them. In a matter where the question of whether a frank injury to a relevant body system is disputed, such evidence is suggestive in my view of the presence of injury to those body parts.
4. There is also no issue the applicant eventually developed carpal tunnel symptoms in his right arm. The applicant's GP provided a report which included a history of:

"CMC joint pain in wrist - as per letter from Ben from [the applicant's physiotherapist] dated 22/4/2024 - osteoarthritis and carpal tunnel syndrome. Pain in the wrist has worsened since the time of the stated injury on 11/9/2021. - pain in the right shoulder - wrist and hand persist despite ongoing physiotherapy. Grip strength and power generally in arm remain reduced. - rupture of the biceps tendon on the right side and accompanying pain in the right hand and wrist, which was identified at the time is possibly related to traction on the median nerve." (My emphasis).

1. The applicant consulted rehabilitation and pain management specialist, Dr Speldewinde in early 2025. In reporting to the applicant's GP, Dr Speldewinde recorded the following history:

"The injury occurred when pulling a heavy steel bin (approximately 60 kg, but 'felt like 300 kg'), with poorly maintained wheels/casters. He experienced an immediate lancinating radiating electric shock sensation down his right forearm into his hand and thumb with a single 'tearing sensation'.

Despite subsequent repair of the distal bicipital tendon, Jack Fisher has ongoing symptoms including fatigue and soft tissue aching after 45-60 minutes of use, described as a heat/glowing sensation, which also occurs at rest and spontaneously. He reports persistent numbness in his hand, particularly on the right thumb since the injury. He has restricted shoulder movement, especially with elevation motion. He experiences pins and needles if sleeping on his right side. His pain disrupts sleep, which is relieved by melatonin 4 mg. Pain improves with hydrotherapy and weightlessness in water. He has previously been seen by a neurologist who diagnosed mild carpal tunnel syndrome by nerve conduction study, but he has been reluctant to proceed to decompression surgery as his pain includes the forearm, described as severe rather than 'mild' as he imputes from the nerve conduction findings."

1. Dr Speldewinde diagnosed the applicant with complete bicep tendon tear, having been surgically repaired, residual frozen shoulder, secondary to prolonged immobilisation, right median nerve traction neuritis with neuropathic pain and carpal tunnel syndrome features, with apprehension distinctly observed around voluntary use of the right forearm and hand.
2. The second report dated 22 May 2025, Dr Speldewinde again noted the applicant suffered with "persisting diffuse, predominantly elbow to wrist and hand, volar aspect, pain with neuropathic features, in particular painful numbness along the volar surface of the right thumb." Dr Speldewinde opined, "The applicant also suffered features suggestive of a median nerve traction, neuropraxia in the area of his bicipital tendon injury and repair."
3. The respondent attacked the history taken by Dr Speldewinde, noting it was in the complaints of electric-type pain were inconsistent with histories previously provided. I note, however, that in his first report dated 27 June 2024, the applicant's Independent Medical Examiner (IME) Associate Professor Courtenay provided the following relevant history, "He said it felt like an electric shock that shot down through his arm. It went straight up to his shoulder and also into his hand. He states his description was it was associated with some numbness and as he states it was like an electric shock to his arm."
4. Associate Professor Courtenay continued:

"Post-operatively his arm was in a sling and in that post-operative period he developed a frozen shoulder. He had a lot of stiffness and soreness in the shoulder. He already had some soreness in the rest of that arm, and he had that persisting problem with this since sensory changes in his arm as he described. He had never had these problems in the past. He also started to develop pains in his hand and again this was sharp pain that he was starting to develop. He then started to develop some contracture in the palm of his hand of the palmar fascia known as Dupuytren's. He states this was definitely not present before and started to develop after his trauma and his injuries. He cannot remember whether he specifically branched his hand in the process as his elbow was so sore and then electric-type sensation was so sore."

1. In a supplementary report dated 21 August 2025, Associate Professor Courtenay confirmed his diagnosis. Associate Professor Courtenay provided a final report in the applicant's late documents dated 30 January 2026.
2. In that report, Associate Professor Courtenay had the benefit of the clinical records of the applicant's GP and the reports of Dr Speldewinde. Associate Professor Courtenay commented:

"I agree with the comments from Dr Speldewinde, and I have commented on those above, particularly he needs to have that neurological issue [with his hand] determined in the arm. The nerves to the forearm travel very close to the distal end of the biceps and it is highly probable that they have been injured in either the original injury, the scar tissue or part of the subsequent treatment.

There was restriction in the hand and as a result of this there is some loss of function of the hand due to the overall wrenching. I suspected when I first saw him there was some ongoing neurological and that's been confirmed by Dr Speldewinde."

1. The applicant's treating physiotherapist also confirm a history of the applicant complaining of an electric shock shooting down and up his arm at the time of his injury, together with ongoing hand and thumb problems. The respondent noted there was little to no reference of hand issues in the immediate aftermath of the incident and subsequent surgery, however, with respect that is not the case. Dr Livingston, treating surgeon had noted issues with the applicant's wrist and hand as soon as November 2021.
2. For the respondent, Dr Breit, IME noted in his reports the applicant had issues with his hand and wrist, however, stated the injurious incident was not the cause. Dr Breit in his report dated 19 January 2026, agreed with Associate Professor Courtenay that the applicant's hand was an issue for him, but did not accept the injurious event quoted. Dr Breit stated the problems with the applicant's hands were neither caused by frank injury nor consequential condition. Dr Breit stated:

"The mechanism of injury does not result in an injury to the hand. He has evidence of mild carpal tunnel syndrome but no acute changes on neurophysiological studies."

1. In my view, having regard to the totality of the lay and medical evidence, the applicant suffered an injury to his right wrist and hand/ thumb in the incident at issue. Dr Breit provides the only contrary opinion in relation to causation, and I note the applicant was complaining of problems in his wrist, hand and thumb in the very short-term aftermath of the injurious event and the surgery which took place only a week later. In my view, such complaints are consistent with a frank injury having taken place, rather than there being present a consequential condition.
2. It should be noted Dr Breit does not have the benefit of the treating pain management specialist Dr Speldewinde's reports, nor the clinical records of the general practitioner which demonstrate the applicant complaining of difficulties in his lower right arm and hand shortly after the time of the injurious event. The respondent attacked the history given by the applicant, noting that he did not describe a shooting or electric shock-type sensation in his lower arm in the immediate aftermath of the event at issue, however, he did complain of pain and symptoms in his hand, wrist and thumb shortly thereafter. In my view, little turns on the precise manner in which those symptoms were recorded by treating practitioners, rather the important factor is there were consistent complaints concerning those body systems since the immediate aftermath of the injury.
3. It is also perfectly understandable that the immediate treatment concerns surrounding the applicant after the injury were with his bicep tendon, which required surgery.
4. In my view, the evidence in this matter is overwhelming. When one takes into consideration the applicant's statement evidence, the treating material including GP, physiotherapist and specialists together with the IME evidence, I am comfortably satisfied in the balance of probabilities the applicant did suffer injury to his right wrist and thumb in the incident at issue, and accordingly those body systems will be referred for medical assessment.

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