1. The only issue in dispute is whether the applicant suffered an injury to her right wrist in the nature of carpal tunnel syndrome, and whether the proposed surgery is necessary as a result of that injury, if found.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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 applicant and second respondent attended a hearing before me on 12 May 2025 and 11 June 2025. On each of these occasions, the applicant was represented by Mr McManamey, instructed by Ms Panju. On each occasion, the second respondent was represented by Ms Goodman, instructed by Mr Dolan.
3. At the first hearing date, the first respondent did not appear. Directions were made for the service of the first respondent with relevant pleadings and materials, together with advice of the second hearing date, copies of orders made for the lodging by the first respondent of a Reply and contact details for services which could provide them with the names of potential legal advisors.
4. The Commission had the benefit of material lodged by the other parties which clearly established service of the relevant documentation on the first respondent. I am satisfied the first respondent was made aware of the hearing date on 11 June 2025 and was appraised of the matter fully.
5. I also note the first respondent had appeared in earlier proceedings before the Commission which it ultimately resolved with the applicant. It cannot therefore be said the first respondent was unfamiliar either with the procedures of the Commission or the applicant's claim.
6. Nevertheless, the first respondent did not appear, and with the agreement of the applicant and the second respondent, the matter proceeded in their absence.

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

(a) Application to Resolve a Dispute (Application) and attachments;

(b) Reply of second respondent served under Application to Lodge Additional Documents (ALAD) dated 25 February 2025;

(c) second respondent's ALAD dated 28 May 2025 and attachments;

(d) Applicant's ALAD dated 7 May 2025 and attachments, and

(e) Applicant's ALAD dated 25 May 2025 and attachments.

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

Whether the applicant suffered a carpal tunnel injury

1. The second respondent disputes the applicant's alleged right wrist injury and alleges no carpal tunnel syndrome was caused in the fall at issue. In denying liability for the alleged injury, the respondent noted a lack of complaint on the part of the applicant for many months after the injurious event. Additionally, the respondent points to nerve conduction studies carried out in 2023 which demonstrated an absence of any carpal tunnel syndrome, notwithstanding later studies undertaken in March 2024 showing it was present.
2. As such, the respondent argues firstly, that there was no right wrist injury in the fall at issue, secondly, that if the Commission is satisfied the carpal tunnel syndrome is present, the applicant has not discharged her onus of proving it was caused by the fall and as such, the requirement for the proposed carpal tunnel release surgery has not been brought about as a result of any work-related injury.
3. Ms Goodman pointed to the applicant's first statement to the second respondent's investigator, made on 17 August 2021. She noted the applicant deposed to understanding the statement was being produced for the purposes of her worker's compensation claim, and drew the Commission's attention to the following version of the fall at issue:

"48. There were approximately 13-14 steps, laminated timber the same as the floor. They were in good condition. I was walking down the steps and I got to the last couple of steps where they curve around at the bottom. As I went to step from the third last, step onto the second last step from the bottom, I missed the step and my left foot slipped under my body, I lost my balance and fell forwards. As I did, I let go of the vacuum cleaner and put my right arm out to try and break my fall, but I landed on my right shoulder. ....

1. I continued into the downstairs bathroom to keep cleaning and I continued with the cleaning until 1:00 pm when I was to finish.
2. I was not showing any serious signs at that time, I was not bleeding or anything and it was not until I was packing up and going home that I could feel something was not right in my shoulder. That was my only job for the day.
3. I sent an SMS to Hugo telling him what had happened. He asked if I was alright and I said I was okay but a bit sore. He asked if I could do two jobs the next day knowing what had just happened to me and that I had my son to pick up from school as well and as well, that my mum has cancer. He was not taking any of that into account and I thought about it and decided to resign. I did so at 6:30 pm that night and returned his equipment to his home at Liverpool at 7:30 pm that evening."
4. Ms Goodman contrasted this version of events with that contained in a statement sworn on 10 September 2024, in which the applicant said:

"14. I finished upstairs at about 12:30 pm and I was coming downstairs to start the downstairs area.

1. Whilst walking downstairs, I was holding the vacuum cleaner in my right hand with the detachable stick in my left hand.
2. The staircase is not very wide, and I was carrying the barrel of the vacuum cleaner in front of me so that I would not touch the walls.
3. By doing so, it obscured my view of the steps as I was coming down. There were approximately 13-14 laminated steps, the same as the floor. They were in good condition.
4. As I was walking down the steps, I got to the last couple of steps where they curve around the bottom. As I went to step from the third last step onto the second step from the bottom, I missed the step and overstepped. My left foot slipped under my body, and I lost my balance and fell forwards. As I did, I let go of the vacuum cleaner and tried to break my fall. I landed heavily onto my right side."
5. In a supplementary statement dated 26 May 2025, the applicant said the following:

"3. I make this statement to clarify the injury I suffered to my right upper limb, specifically my right wrist.

1. As I mentioned in my statement dated 1 September 2021, when I fell and mis-stepped and to break my fall, I stretched out my right arm in an attempt to soften the impact when I fell.
2. At the time of the fall, I landed heavily on my right upper limb, specifically my wrist.
3. To be clear, I fell onto my right wrist and onto my right shoulder.
4. I did experience some pain in my right wrist after the fall, however, my doctor's priority was always to investigate my right shoulder symptoms. The pain in my right wrist became almost like a second priority as my right shoulder was prioritised by my doctor."
5. Ms Goodman submitted there was no explanation for the significant delay between the injurious event and the first reporting of the applicant's right wrist symptoms. However, the applicant does state her doctors were preoccupied with treating her shoulder, something which is consistent with the contemporaneous medical records and also, Mr McManamey's submission on this question. Absence of corroborating contemporaneous medical records is not necessarily fatal to an applicant's claim, however, it is axiomatic to state the applicant carries the onus of proving the injury took place.
6. In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. The Deputy President noted:

"80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker's assertion that certain events occurred and that they affected the worker in a certain way.

81. However, on its own, the absence of such a complaint to Mr Baker's general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent's representatives of bullying and harassment from as early as July 2012.

82. Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, ... and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.

83. The Arbitrator's conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.

84. Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness."

1. In any event, there is some support for the applicant's version of events, noting her first statement refers to her putting her right arm out to try and break her fall, but landing on her right shoulder. Ms Goodman submitted this statement was effectively a concession the applicant did not hurt her wrist in the fall at issue, however, I do not accept this to be the case.
2. Additionally, there is a reference in the clinical records of the applicant's general practitioner

(GP), Dr Zhou, on 16 March 2022, which reads as follows:

1. Either side of this entry are numerous visits to the applicant's GP in which the focus was plainly on her shoulder, which do not mention any issue with her right wrist. On balance, I accept Mr McManamey's submission that the shoulder was plainly the primary focus for the applicant's treating doctors.
2. However, in my view the clinical record of 16 March 2022 is important evidence. At that time, the applicant was not making any claim for benefits in relation to her right wrist or for treatment thereof. Nevertheless, she volunteered that she had suffered right wrist intermittent pain since the date of injury. That entry is a contemporaneous record of the applicant's treating GP which supports the version of events contained in her statement, namely that she injured her wrist in the relevant injurious fall.
3. Whilst care should always be taken when relying on the contents of clinical entries of treating practitioners where there is a conflict between them and the evidence of an injured person (see Mason v Demasi & Anor [2009] NSWCA 227 (31 July 2009), in this instance the relevant clinical entry directly supports the applicant's version of events regarding the onset of her wrist symptoms and their persistence since the accident at issue.
4. Further support for the applicant describing the mechanism of the fall including placing her right arm out and landing on her wrist as well as her shoulder is found in the various histories given to the doctors, both treating and medicolegal. Broadly speaking, without recapitulating those histories, they are consistent with her extending her right arm and landing on her right side and arm generally.
5. The respondent also noted the nerve conduction studies undertaken on the applicant's right wrist in late 2023 which did not exhibit signs of carpal tunnel syndrome. Later nerve conduction studies undertaken in March of 2024 did demonstrate a suggestion of carpal tunnel syndrome and are relied upon by the applicant as evidence of her alleged right wrist injury.
6. Ms Goodman made the appropriate submission that the discrepancy in the results between the two nerve conduction studies may well be explained by an intervening event, however, that submission does not take into account the applicant having complained of injury to her wrist in the fall in issue, albeit an injury which was not as serious as that suffered to her shoulder. There is also no evidence of any intervening event between either the fall at issue or the October 2023 studies and those carried out in March 2024.
7. The respondent also relied on the opinions of Dr Waller, neurologist and Dr Bentivoglio. Each of those independent medical examiners (IMEs) did not find evidence of a carpal tunnel syndrome in the respondent. For her part, Dr Waller indicated the applicant's nerve conduction studies of 8 March 2024 showed very minimal slowing of the right median sensory response relative to the radial and ulnar responses with no evidence of right ulnar neuropathy. Dr Waller was of the view the sensory symptoms described were more widespread and extended far more proximally than could be reasonably explained by either carpal tunnel or ulnar nerve compression alone, and she could not find a definite neurological diagnosis.
8. By contrast, the applicant's treating neurologist, Dr Patel, recorded a consistent history of wrist pain following the fall, and it was he who recommended the second round of nerve conduction studies. Those studies revealed the presence of carpal tunnel symptoms.
9. Much was made by the respondent of Dr Scott, treating hand surgeon, not providing a definitive opinion on the question of causation in relation to the applicant's wrist symptoms. In his report dated 6 August 2024, Dr Scott stated:

"Once again, I did not see Jessica until three years following her original injury and do not know exactly when her carpal tunnel symptoms began. If they were present immediately following the fall, then she has most likely had a traction injury to the median nerve as a result of wrist hyperextension, resulting in carpal tunnel syndrome."

1. Given the timing of his involvement with the applicant, that opinion by Dr Scott is, in my view, completely appropriate. Dr Scott does, however, indicate that if the applicant's version of events in relation to her wrist is accurate, then it can be said her carpal tunnel symptoms were caused by the work injury.
2. It should also be noted that the applicant's IME Dr Herald recorded positive Phalen's and Tinel's tests on his examination in June 2024, which he described as consistent with carpal tunnel syndrome. Dr Herald had the benefit of both the October 2023 and March 2024 nerve conduction studies.
3. In a supplementary report dated 3 September 2024, Dr Herald was asked about the benefits of the proposed carpal tunnel release, and relevantly noted:

"Currently, she has evidence of right carpal tunnel syndrome. She has had symptoms of numbness, pain and weakness in her right hand since her injury. Nerve conduction studies have been performed on 8 March 2024 by Dr Vishal Patel. These nerve conduction studies confirmed electro-physiological evidence of median neuropathy in (carpal tunnel syndrome) in her right wrist. It is of a mild degree causing her symptoms in the form of hand weakness and numbness."

1. In my view, the applicant's version of events is persuasive. She refers to extending her right arm as she fell in an attempt to break her fall. Although her first statement refers to her landing on her shoulder, she includes a reference to extending her arm as she did so. There is no question the applicant's shoulder was the predominant injury with which her doctors were concerned following the fall.
2. However, by March 2022, the applicant was not only complaining to her GP of symptoms in the right wrist but volunteered the presence of those symptoms since the fall at issue. In my view, that is a significant piece of evidence, as it comes at a time before the applicant made any claim in relation to her right wrist, and satisfies the requirements of Dr Scott's conditional opinion, namely that the applicant had right wrist symptoms in the nature of carpal tunnel syndrome since the fall at issue which have persisted.
3. On balance, taking into account the lay and medical evidence, in particular the contemporaneous notes of March 2022, I am satisfied on the balance of probabilities the applicant suffered a right wrist injury in the fall at issue in the nature of carpal tunnel syndrome.
4. Accepting as I do that these symptoms have persisted since the fall, I have no difficulty in finding the requirement for the proposed surgery has been brought about as a result of the injury at issue. Whilst this question was placed in issue by the respondent, there is no evidence suggestive of any other condition or intervening event having brought about the carpal tunnel syndrome.
5. At the hearing, no criticism on medical grounds was made of the proposal for surgery itself, and it was not suggested the carpal tunnel release per se would afford the applicant no relief.
6. Likewise, no attack was made on the proposed surgery on the basis of the broad indicia for reasonable necessity set out in the oft-cited decision of Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab).
7. Rather, the attack on the applicant concerned questions of causation and injury, and whether the requirement for surgery has come about as a result of the injury at issue.
8. Having found against the views of Dr Waller and preferred those of the applicant's treating surgeon and IME, I am satisfied on the balance of probabilities the applicant suffered right carpal tunnel injury in the fall at issue, which has persisted to the present day. I am also persuaded on the balance of probabilities that the requirement for the carpal tunnel release surgery has been brough about as a result of the fall at issue.
9. Having found in the applicant's favour on the substantive disputes raised by the respondent, it follows the proposed surgery is reasonably necessary as a result of the injury at issue, and the respondent will therefore be ordered to pay the costs of and incidental to the proposed carpal tunnel release as requested by Dr Scott on 18 June 2024.

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