1
WORKERS COMPENSATION COMMISSION
CERTIFICATE OF DETERMINATION
This Certificate is issued pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act 1998.
Matter No: 008114/10
Applicant: Kiran Kaur
Respondent: Northern Sydney Central Coast Area Health Service (incorrectly sued as Corporate Support)
Date of Determination: 7 March 2011
The Commission determines:
1. Award for the applicant pursuant to section 40 at the rate of $237.40 per week from 28 August 2010 to date and continuing.
2. The applicant's claim for lump sum compensation to her right upper extremity (shoulder, elbow and wrist) and left upper extremity (shoulder) as a result of injury to those body parts on 23 June 2010 (the last date of employment) is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment.
3. The documents to be referred to the Approved Medical Specialist are:
(a) The Application and attached documents; (b) The Reply and attached documents, and
(c) Documents attached to the Application to Admit Late Documents lodged on 3 December 2010 and 23 December 2010.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.
Ms Eraine Grotte Senior Arbitrator
I CERTIFY THAT THIS PAGE AND THE FOLLOWING PAGES IS A TRUE AND ACCURATE CERTIFICATE OF DETERMINATION AND REASONS FOR DECISION OF MS ERAINE GROTTE,
SENIOR ARBITRATOR, WORKERS COMPENSATION COMMISSION. REGISTRAR
Trish Dotti
Senior Dispute Services Officer By delegation of the Registrar
STATEMENT OF REASONS
BACKGROUND4. Mrs Kiran Kaur began her employment as a cleaner with the respondent, Northern Sydney Central Coast Area Health, in February 2008. Her duties as a cleaner included mopping, dusting and buffing, as well as general cleaning work.
5. Mrs Kaur claims that “the nature and conditions of my employment at Macquarie Hospital came to a head on 15 October 2009” and that her repetitive work duties caused injury to her neck and the whole of her left and right arms including the wrists and shoulders.
6. On 15 October 2009 Mrs Kaur consulted Dr Danny Tang of the Blacktown General Practice. He obtained the following history from her:
“She stated that she was in the laundry wringing some clothes when she noticed pains in her right wrist as a result. She could not recall that this task was arduous, and it was similar to all the times she had performed this, however on that date, she felt the pains in her right wrist. She had informed her supervisor and continued to work despite the pain. As the pain worsened, she sought medical attention and ergo my consultation on the 15.10.09.
When she presented, she only complained of pains in her right wrist, however on close observation and questioning, I discovered that there was pasin (sic) her right shoulder, right lateral epicondyle and right medial epicondyle also.”
7. Dr Tang noted on examination that Mrs Kaur was unable to open and close her right hand without experiencing pain and that there was tenderness over the whole of the right wrist. Dr Tang proceeded to examine the rest of Mrs Kaur’s right arm because, in his opinion: “Patients with post Finkelsteins test usually have other tendinopathies which they are not usually aware of”. He discovered that she had localised tenderness over the lateral epicondyle and proximal wrist extensor muscle mass, as well as pain in her right trapezius muscle.
8. Dr Tang diagnosed the following conditions: (a) De Quervain’s tenosynovitis; (b) Right lateral epicondylitis; (c) Right medial epicondylitis;
(d) Right trapezius muscle strain; and
(e) Possible right shoulder rotator cuff tendonopathy.
9. Dr Tang considered that Mrs Kaur’s injuries were the direct result of her employment with the respondent and that, although Mrs Kaur only “recalls one incident that happened”, her problems are due to a “continual barrage of insults to her right upper limb”. He considered that, as at 17 December 2009, Mrs Kaur was:
“fit to work up to 8 hours per day and 5 days per week. Her lifting restriction is at 2 kilograms and she is to eschew excessive use of her right upper limb and she should
avoid above shoulder work. She should be given a 10 minute interlude per hour as required.”
10. In a second report dated 13 September 2010, Dr Tang stated that Mrs Kaur still had pain in her right wrist, right elbow and right shoulder, as well as lower back pain. He reported that Mrs Kaur also had pain in her left shoulder as a result of excessive use of the contralateral shoulder. He confirmed his earlier diagnoses, with the additional diagnoses of “left shoulder tendonopathy and depression”. In his opinion, the left shoulder tendonopathy was causally connected to the work-related injury to the right arm.
11. Dr Tang’s reports are supported by his clinical notes, which are attached to the Application to Resolve a Dispute. In the period 15 October 2009 to 17 December 2009, Mrs Kaur had 21 consultations with Dr Tang. He recorded that on 15 October 2009 she told him that she experienced pain in her right wrist while wringing out some clothes in the laundry. He noted pain in the right lateral epicondyle and right trapezius and right shoulder. The following day he recorded that the pain in her trapezius muscle was worse. On 20 October 2009 Dr Tang recorded that Mrs Kaur was complaining of pain in her left and right trapezius muscles, that she was dusting with her left and right hands, and that this was causing her more pain. 12. Dr Tang’s clinical notes recorded on 23 October 2009 that Mrs Kaur told him that she was
not able to cope with work because her employer was “still pushing her to work” and this was causing increased pain in her left arm and left shoulder. The clinical notes also record that Mrs Kaur was being treated variously with cortisone injections and physiotherapy, pain medication and anti-inflammatories.
13. Dr Tang initially certified Mrs Kaur fit for suitable duties, but, as her level of pain increased on 23 October, he certified her unfit for work until 2 November 2009, after which he certified her fit for suitable duties again. Mrs Kaur claims that her injuries deteriorated as from 9 August 2010, on which date Dr Tang certified her unfit for work.
14. Mrs Kaur claims that she was working on suitable duties three to four days a week from late February 2010 until June 2010. She claims that she was required to dump-dust, carrying small buckets containing 1.5 to 2 litres of water. She claims that she carried out this work mainly using her left arm. She claims that she was forced to use her left arm excessively and when that limb became sore, she had to use her right arm. She claims that due to the demanding nature of her work, she was unable to take the ten minute breaks as suggested by Dr Tang. During the period she was working on suitable duties until August 2010, she completed recurrence forms which she provided to the respondent. The dates of the recurrences were stated to be 3 May 2010, 6 May 2010 and 22 June 2010. These recurrence forms reported pain in the right shoulder and left upper limb.
15. An ultrasound of the right wrist undertaken on 6 November 2009 confirmed the diagnosis of “low-grade de Quervain’s tenosynovitis”.
16. Mrs Kaur was paid weekly compensation benefits until 20 August 2010. She claims an entitlement to continuing weekly compensation and medical and treatment expenses from that date. She also claims lump sum compensation in respect of permanent impairment for the right and left upper extremities resulting from injury to those body parts on 23 June 2010, which is a deemed date of injury, and represents the last date Mrs Kaur worked for the respondent.
17. In support of her claim, Mrs Kaur relies on the medico-legal opinion of Dr Ellis as recorded in his reports dated 12 May 2010 and 6 September 2010.
18. Dr Ellis obtained a history that on “15 October 2008” (this should be 2009) Mrs Kaur was wringing some clothes in the laundry and noticed the development of pain in the right wrist. He noted that she is right-handed. He also noted that Mrs Kaur was put on light duty work after the onset of pain in October 2009, but that the work she was carrying out was not light duty work and that “there is no light duty work as a cleaner”. Following examination, Dr Ellis confirmed the diagnoses of epicondylitis in both elbows, traumatic capsulitis at each shoulder, and musculo-ligamentous contusion and aggravation of the degenerative changes in the neck. He considered she was permanently unfit for physically-demanding work which required the forceful and repetitive use of her arms.
19. In his report dated 6 September 2010 Dr Ellis stated that “the findings of widespread tendonitis identified by the general practitioner and myself cannot be denied nor disregarded”. He added that “the development of neuropathic pain as a variant of complex regional pain syndrome type 1, as a result of minor injury is well recognised and has resulted in the development of pain management clinics in recent years specialising in the treatment of this syndrome”. Dr Ellis stated that “repetitive strain injury is believed to be a similar related condition” and that “Mrs Kaur before coming to Australia has been accustomed to working in an office and she commenced work here as a cleaner in February 2008, she is 37 years of age. Repetitive strain injury is a common clinical sequence to such a change in working physical demands.” He concluded that she remained unfit for physically-demanding work and that while she remained in such employment her tendonitis and neuropathic pain will continue and increase in severity.
20. It is noted that the applicant did not press the claim of injury to the cervical spine at the hearing. Accordingly, I have made no determination in this regard.
21. The respondent issued two Notices pursuant to Section 74 of the 1998 Act. The first one was dated 15 July 2010 and the second was dated 20 August 2010. The matters in dispute were identified as follows:
(a) The applicant did not sustain any injury to her left upper extremity or neck arising out of or in the course of her employment with the respondent;
(b) The applicant’s employment with the respondent was not a substantial contributing factor to the alleged injuries to the neck or left upper extremity; (c) The left upper extremity and neck complaints are not consequential on any
workplace injury;
(d) There is no incapacity for work due to a workplace injury;
(e) There is no permanent impairment resulting from a workplace injury; and (f) Medical and related treatment expenses are not reasonably necessary.
22. The respondent relies on medico-legal reports of Dr Brian Stephenson dated 12 November 2009 and 2 August 2010, and a medical report of Dr Cheng dated 5 January 2010.
23. Dr Stephenson examined Mrs Kaur on 12 November 2009 and provided a report dated 12 November 2009. He reported the following history:
“On 15/10/2009 she was wringing out a cleaning cloth and she got pain at the right wrist and complains also as a result of that incident of pain in both the epicondyles of
the right elbow and up to the right shoulder and the right side of the neck. She indicated the trapezium muscle border there. She said she has some similar symptoms on the left side of the neck and she pointed to the trapezium area.”
24. Dr Stephenson reported that Mrs Kaur complained of pain at the right wrist as well as the abductor pollicis longus tendon of the right thumb, both sides of the elbow being the medial and lateral epicondyles, the right shoulder and the left trapezium.
25. In Dr Stephenson’s opinion there was no “firm proven established definitive diagnosis of a significant musculoskeletal condition following the incident at work on 15/10/2009”. Despite stating that there was no definitive musculo-skeletal condition, Dr Stephenson was of the view that the injury occurred as stated in that “she wrung out a cleaning cloth”.
26. Dr Stephenson examined Mrs Kaur again on 29 July 2010 and provided a report dated 2 August 2010. He noted Dr Tang’s WorkCover Certificate dated 29 June 2010 in which Dr Tang had written: “…How Injury Occurred – Wringing some clothes and strained her right wrist.” Dr Stephenson obtained the following history from her:
“Mrs Kaur said the initial incident was to the right wrist and then she had some time off and returned to work on light duties. Pain spread up her right arm to the elbow, shoulder and neck and now it is felt at the left arm also, she said.
At work on 15/10/2009 she was in the ward mopping. It was at the Macquarie Hospital. Part of her duties was to clean the bench tops. She twisted the bench cleaning cloth and felt sharp pain at the right wrist. She did not have time off initially and initially continued working.”
27. Dr Stephenson reported that Mrs Kaur had a full range of movement in the right wrist and the right elbow, as well as a good functional range of motion in both shoulders in terms of ability to do overhead work and satisfactory range of motion otherwise. Dr Stephenson also reported that, on examination, he found no swelling but tenderness present on light palpation over the radial aspect of the right wrist, but with no obvious signs of de Quervain’s tenosynovitis. He also reported that on examination he found a complaint of pain in the side of the neck, when he applied gentle resistance to extension and flexion of the right forearm. He found no tenderness suggestive of medial and lateral epicondylitis.
28. Dr Stephenson stated that, in his opinion, Mrs Kaur did not sustain injury to her left arm or neck on 15 October 2009 or in the course of her employment with the respondent. Although he accepted that there may have been some treatment for possible de Quervain’s tenosynovitis at the right wrist, there were no remarkable findings of the condition persisting and therefore, there was no permanent impairment rating. Dr Stephenson stated that Mrs Kaur was capable of full duties as a cleaner on normal hours and that no treatment was reasonably necessary.
29. The respondent also relied on a report of Dr Cheng, Occupational Physician at Royal North Shore Hospital, dated 21 December 2009. The history of the incident on 15 October 2009 was recorded by Dr Cheng as follows:
“Ms Kaur, age 36, has worked full-time as a cleaner at Macquarie Hospital for about 2 years. She said that she worked a rotating roster 0600-1430 hours. She said that she migrated from India with her family in 2007, and in India completed a diploma in public administration and insurance. Her last job prior to Macquarie Hospital was working for an Insurance company in India…
Ms Kaur said that on 15/12/09 (sic), she developed right wrist pain when she was using her hands to wring out cleaning cloths that she used to perform her usual cleaning duties. She had performed this task previously without problems. She said she asked the RN on the ward to access a first aid kit and bandaged her wrists and then reported the incident to her supervisor. She said the incident occurred towards the end of the shift, so she completed her shift and later consulted her GP, Dr Tang, that same day….
…
Ms Kaur said that after the incident she noted right wrist pain, however, since her return to work on restricted duties and hours, she claimed that she now experienced “sharp” pain up her right arm that radiates from her wrist up through her elbow, shoulder to the right side of her neck. On occasion, she said this was associated with “pins and needles” in her right arm. In addition, Ms Kaur said that now that she performs more tasks with her left arm, she was also noticing left shoulder discomfort and occasional “pins and needles” in her left arm.”
30. Dr Cheng stated that the provisional diagnosis was “widespread right upper limb pain with signs of De Quervain’s tenosynovitis and right lateral medial epicondylitis”. He also added that “given the number of tender trigger points possibly consistent with Fibromyalgia (which is a construct not all physicians recognise)”. Dr Cheng considered the “extensive symptomatology and signs following a relatively minor incident and short work history” indicate “fear avoidance behaviour” and for this reason he considered her prognosis was guarded.
31. The respondent also relied on its return to work plans and rehabilitation plans, as well as the clinical notes of Dr Tang from 15 October 2009 to date and clinical notes from Blacktown Hospital for March 2009, 19 November 2009 and 8 March 2010.
32. The documents relied on by the respondent include a report of Dr Paul Teychenne dated 2 November 2010 addressed to Dr Tang. Dr Teychenne reported the following history:
“She had been working as a cleaner for two years when she sustained any (sic) injury to the right wrist on the 15th October 2009. She was wringing out clothes when she developed pain in the right wrist. A day later she noted persistent pain extending from the right wrist up the dorsal aspect of the right lower arm into the dorsal aspect of the right upper arm. Two weeks later after using the left arm more frequently in view of the pain in the right arm she developed pain extending from the left side of the neck across the left supraclavicular region and down the left arm to the left elbow. She had persistent pain within the right and left arm. She also, with the onset of the pain the right arm, noted persistent pain within the neck. She did not complain of any neck stiffness. She did not complain of any weakness in the left or right arm. With the onset of the pain in the right wrist she also noted paraesthesia and numbness mainly at night involving the whole of the left and right lower arm extending down to all fingers.”
33. Dr Teychenne carried out an EMG nerve conduction study within the upper limbs. He stated that the findings were consistent with a right carpal tunnel syndrome. He noted that an MRI scan of the cervical spine showed a left paracentral discovertebral complex causing mild left foraminal stenosis at C6/7, but he did not find evidence of thoracic outlet compression or cervical nerve root compression.
ISSUES FOR DETERMINATION
34. Whereas liability for injury to the right wrist is accepted as is the allegation that injury to the right wrist occurred as a result of the nature and conditions of employment as a cleaner up to 23 June 2010, the parties are in dispute as to whether:
(a) The applicant sustained injury to the rest of the right upper extremity and to the left upper extremity arising out of or in the course of her employment with the respondent and to which the applicant’s employment was a substantial contributing factor;
(b) The applicant’s left upper extremity complaints are consequential on any workplace injury.
(c) The applicant has any incapacity for work as a result of any work-related injuries. (d) The applicant is fit to perform her pre-injury duties as a cleaner.
PROCEDURE BEFORE THE COMMISSION
35. The parties attended a hearing on 24 January 2011. 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.
Oral evidence
36. The applicant gave limited oral evidence at the hearing. She told the Commission that she obtained a Bachelor of Arts Degree in India, followed by a Masters Degree in Public Administration. These degrees were obtained in the English language. Mrs Kaur agreed that her tertiary qualifications would be recognised in Australia, but she has not undertaken steps to have them so recognised. She said that she worked from the age of 23 intermittently in India carrying out office work and completing policies for customers for GAC, a general insurance company. The policies were completed in both Hindi and English. She described her computer skills as reasonable. Mrs Kaur told the Commission that she has looked for office work but has difficulty with understanding the Australian accent, when someone speaks quickly to her.
FINDINGS AND REASONS Right upper extremity
37. As stated earlier in this decision, there is no dispute that the applicant sustained an injury to her right wrist as a result of the nature and conditions of her employment up to 23 June 2010. 38. It was submitted on behalf of the respondent that although there is evidence to support the
diagnosis of de Quervain’s tenosynovitis, there is insufficient evidence to support a causal link between the applicant’s complaints in the rest of her right upper extremity and either the incident on 15 October 2009 or the nature and conditions of her employment up to 23 June 2010.
39. I do not agree with this submission. There is, in my view, ample evidence to support the contention that the symptoms in the whole of the applicant’s right upper extremity are causally related to both the incident on 15 October 2009 and more generally to the nature and conditions of her employment up to her last working day on 23 June 2010. The most persuasive evidence consists of the contemporaneous clinical notes of Dr Tang and his reports.
40. It was submitted on behalf of the respondent, relying on the opinion of Dr Stephenson, that Mrs Kaur was wringing out a cleaning cloth on 15 October 2009 and felt pain in her right wrist. It was submitted that despite this history, Dr Tang examined the whole of her right arm, looking for problems.
41. On her own evidence, the incident on 15 October 2009 was not arduous in itself, and she had been carrying out her cleaning duties, such as this one for some time, but on this occasion she felt a sharp pain in her right wrist and this prompted her to consult her doctor. Dr Tang properly examined the whole of Mrs Kaur’s right arm, explaining his rationale for doing so. 42. I accept his explanation that, in his experience, “patients with post finkelstein test usually
have other tendonopathies, which they are not usually aware of”. On examination he found tenderness and pain at the right elbow and right shoulder. She continued to work after the incident on 15 October 2009. According to the history set out in Dr Tang’s clinical notes, and the evidence before me on 20 October 2009, Mrs Kaur was complaining of pain in the left and right trapezius muscles because she was at that time carrying out her duties with both hands. Under Dr Tang’s care, Mrs Kaur was certified fit for suitable duties and, during the period from February 2010 to June 2010, she was required to carry small buckets of water. According to her evidence, she did this using her left arm and when that limb became sore she reverted to using her right arm.
43. Mrs Kaur’s descriptions of the work she was required to carry out for the respondent until 23 June 2010 were not challenged by the respondent. I note that recurrence forms, in which she reported pain in the right shoulder and left upper limb, were lodged by Mrs Kaur for 3 May 2010, 6 May 2010 and 22 June 2010. I accept her evidence.
44. Dr Tang diagnosed several conditions in Mrs Kaur’s right arm - being de Quervain’s tenosynovitis, medial and lateral epicondylitis, trapezius muscle strain and a possible right rotator cuff tendonopathy. These diagnoses were confirmed by the medico-legal opinion of Dr Ellis.
45. I prefer the opinions of Dr Tang and Dr Ellis to that of Dr Stephenson. They are based on a detailed and comprehensive knowledge of Mrs Kaur’s work duties over a significant period of time - 15 October 2009 to 23 June 2010. Dr Stephenson based his opinion on a truncated history of only one incident on 15 October 2009 involving only pain in the right wrist. 46. In my view Dr Stephenson’s view is not based on a fair assessment of Mrs Kaur’s entire
history of the progression of pain and difficulties experienced in trying to carry out her suitable work duties after the initial incident, which was reported on 15 October 2010, and which prompted her to consult Dr Tang.
47. I am satisfied that the applicant sustained injury to the whole of her right arm including her right elbow and right shoulder arising out of or in the course of her employment with the respondent.
48. I am satisfied that the work Mrs Kaur was carrying out, specifically the repeated wringing out of cleaning cloths, dusting, and carrying small buckets of water, was a substantial contributing factor to the injury to the right arm.
49. I rely in particular on the medical reports of Dr Tang, his clinical notes, the report of Dr Cheng, and the history taken by Dr Teychenne.
50. It is clear to me, on the basis of all of the evidence before me, that at the time of Mrs Kaur’s first consultation with Dr Tang on 15 October 2009 regarding the sharp stabbing pain in her right wrist, she also had pain and tenderness in the right elbow and the right shoulder. I am satisfied that Dr Tang managed her pain by placing her on suitable duties, which required her not to use her right arm as much. Although there were some restrictions and assistance given to her, such as someone else wringing out the cloths, she still had to carry out dusting and carrying light buckets of water. Her evidence, which I accept because it is unchallenged and has been consistent throughout the process, is that she began to experience pain in her left arm because she had to use it more and this led to her reverting to using her right arm, thereby exacerbating the pain in her right arm. The progression of Mrs Kaur’s symptoms of pain is well documented in Dr Tang’s clinical notes.
51. I am satisfied that the causal connection between Mrs Kaur’s work duties, even while she was on suitable duties, is ‘real and of substance’. There is no evidence before me of any other contributing factor.
52. There is no other evidence before me of any lifestyle or other activity outside the workplace which could have caused the injury to the right arm. I have considered all of the matters set out in s9A(2) of the 1987 Act and I am satisfied that Mrs Kaur’s employment up to 23 June 2010 was a substantial contributing factor to the injury to her right arm including the wrist, elbow and shoulder.
Left Upper Extremity
53. In determining whether or not Mrs Kaur sustained a personal injury to her left upper extremity (left shoulder), I must examine whether there is a causal nexus between the pathology in the right wrist/upper extremity and the pathology in her left upper extremity due to favouring the right upper extremity while carrying out work for the respondent following injury to that limb.
54. In determining the causal nexus the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (Dimovski) stated that “what is required is a commonsense evaluation of the causal chain”. As Handley JA in Dimovski stated, having regard to what Kirby P said in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Bates) at para 33:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
55. Mrs Kaur claims that she injured her left upper extremity as a result of having to use it more to carry out her work, because she was protecting the right arm.
56. It is well established that injury occurs when an incident results in a “sudden or identifiable physiological change” as stated by Gleeson CJ and Kirby J in Kennedy Cleaning v Petrovska
(2000) HCA 45 (200 CLR 286). This view of ‘injury’ was followed by Deputy President Roche in Smith v Parkes Shire Council (2010) NSWWCCPD 130.
57. The evidence shows that following the report of injury on 15 October 2009, Mrs Kaur was placed on suitable duties. Despite this, by 20 October 2009 she was complaining to Dr Tang of pain in her left arm and right trapezius muscles. I note that Dr Tang recorded that Mrs Kaur told him she was dusting with her left and right hands and that this was causing more pain. The clinical notes for 23 October 2009 also support the allegation of injury to the left arm/shoulder due to favouring. They record that Mrs Kaur told him that “work was pushing her to work and this was causing her increased pain in her left arm and left shoulder”. I also note the recurrence forms completed by Mrs Kaur on 3 May 2010, 6 May 2010 and 22 June 2010, which report pain in the right and left upper limbs.
58. The contemporaneous evidence of the clinical notes and the recurrence reports of injury forms are, in my view, compelling and persuasive and support the allegation of the experience of pain in the left upper limb while carrying out her work for the respondent or favouring her injured right arm.
59. The claim is also supported by the history recorded by Dr Cheng in his report dated 21 December 2009, where he reported that Mrs Kaur was performing more tasks with her left arm and as a result noticed left shoulder discomfort and occasional pins and needles in her left arm.
60. I am satisfied therefore that Mrs Kaur sustained an injury to her left arm/shoulder that arose out of or in the course of her employment with the respondent and to which her employment was a substantial contributing factor. I am satisfied that it was a consequential injury to the injury to the right arm.
CAPACITY
61. The evidence shows that Mrs Kaur continues to have a partial incapacity resulting from the injuries to her left and right upper limbs. Dr Tang, who has been treating Mrs Kaur, has continued to certify her unfit to work after August 2010. I note Dr Ellis considered in September 2010 that she remained unfit for physically demanding work.
62. Dr Tang certified Mrs Kaur unfit for work from 24 August 2010 to 20 September 2010. I note that in his clinical notes Dr Tang recorded that he decreased her suitable duties and certified her unfit for work. The clinical notes for the period beyond September 2010 do not indicate Dr Tang’s view of Mrs Kaur’s capacity for work but he notes that she continues to complain of pain in both upper limbs and various other body parts. In my view the persistent complaints of pain in both upper limbs and the fact that Dr Tang certified Mrs Kaur unfit for her pre-injury work and the physically-demanding suitable duties she was required to undertake, indicated that Mrs Kaur has a continuing partial incapacity resulting from injury to her right and left upper extremities. She tried to carry out suitable employment but could not continue with work, because it was physically demanding on her arms. I am satisfied that she continues to have a partial incapacity beyond 20 August 2010 but I do not consider her to be unfit for all forms of employment. She is unfit for her pre-injury employment as a cleaner.
63. Section 40 of the Workers Compensation Act 1987 (the 1987 Act) applies where a worker has a partial incapacity.
64. Applying the method recommended by the Court of Appeal in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (Mitchell), the first step requires determination of Mrs Kaur’s earnings but for injury. The parties agreed that this figure is $737.40 per week. 65. The second step requires determination of Mrs Kaur’s ability to earn in some suitable
employment in the general labour market reasonable accessible to her having regard to the nature of her incapacity, her age, skills, work experience, place of residence and her fitness for work.
66. Mrs Kaur is 38 years of age, presented well and is very well educated. She has completed seven years of higher education having obtained a Masters Degree in Public Administration in English. My observations of her while giving oral evidence were that she spoke English reasonably well. I note Mrs Kaur claimed that she sometimes experiences difficulty in understanding the Australian accent, but I do not consider this to be a significant impediment particularly, given that I observed her to have no such difficulty understanding questions posed to her while she was giving oral evidence to the Commission.
67. She worked in India for an insurance company completing forms in both Hindi and English. Mrs Kaur resides in Blacktown and the ‘labour market area reasonably accessible to her’ is quite large in my view and includes the greater metropolitan region of Sydney. I am satisfied Mrs Kaur would be able to obtain employment as a receptionist for example, where her physical restrictions could be accommodated given her level of education, her capacity in English, and her presentation. She would, in my view, be able to secure full time work, but I do consider that, given the effect of her injuries, this may be intermittent. Overall, I consider that she could earn around $500 per week in some suitable employment in the labour market reasonably accessible to her. I agree an employer may prefer a non-injured worker, although she has other attributes, such as her level of education, English language skills (written as well as oral) and her overall presentation.
68. The third step in Mitchell requires subtraction of the figure determined in the second step from that determined in the first step. The result, which represents the diminution in Mrs Kaur’s earning capacity is $237.40 per week.
69. The fourth step requires consideration of whether there are any other factors which require me to exercise my discretion to reduce the amount reached following the third step. There are, in my view, no such factors present in this case.
70. Accordingly I find that the applicant is entitled to weekly benefits compensation from 28 August 2010 to date and continuing at the rate of $237.40 per week.
71. The applicant's claim for lump sum compensation to her right upper extremity (shoulder, elbow and wrist) and left upper extremity (shoulder) as a result of injury on 23 June 2010 (the last date of employment) is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment.
72. The documents to be referred to the Approved Medical Specialist are:
(e) The Reply and attached documents, and
(f) Documents attached to the Application to Admit Late Documents lodged on 3 December 2010 and 23 December 2010.
