Abulughud v Abdelqader
[2024] NSWPIC 715
•19 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Abulughud v Abdelqader [2024] NSWPIC 715 |
| APPLICANT: | Khawla Yousuf Abulughud |
| RESPONDENT: | Raed Abdelqader |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 19 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Lump sum claim for disputed consequential left upper extremity arising from neuropathic pain; causation; factual and medical opinion considered; Kooragang Cement Ltd v Bates applied; Held – award for applicant; matter referred for medical assessment. |
| DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act1987, the applicant sustained injury to minor sensory nerves of her left hand, and resulting neuropathic pain in her left hand, as a result of injury on 6 March 2020 in the course of her employment with the respondent. 2. The applicant sustained consequential left wrist, elbow and shoulder conditions as a result of injury on 6 March 2020. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 6 March 2020 –personal Injury (hand) and consequential (wrist, elbow, shoulder). Body systems/parts: left upper extremity (hand, wrist, elbow, shoulder). Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to admit late documents, dated 29 October 2024, and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Ms Khawla Yousuf Abulughud, was employed by the respondent, Raed Abdelqader, as a swimming instructor. On 6 March 2020, while at the swimming pool, the applicant slipped and fell and sustained a metacarpal fracture of the left hand. She underwent immobilisation with a cast for three months, and thereafter rehabilitation.
The applicant claimed lump sum compensation for injury to her left hand, including neuropathic pain, and consequential left shoulder, elbow and wrist conditions. The respondent disputed neuropathic pain and consequential conditions.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
At the conciliation/arbitration hearing of this matter on 20 November 2024, the applicant was represented by Mr Beran of counsel, instructed by Mr Ahn, solicitor, and the respondent by Ms Goodman, of counsel, instructed by Ms Woods, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents, dated 29 October 2024, and attached documents.
Oral evidence
There was no oral evidence.
Applicant’s statement
In her statement dated 8 July 2023, the applicant said that she was employed by the respondent as a swimming instructor. She said that on 6 March 2020, while walking from the pool to the change rooms, she slipped, fell and extended her left arm and fell heavily on the left side of her body. The applicant said that she felt pain in her left hand, wrist, elbow and shoulder, although she at first thought she did not have a significant injury. She said she felt pain in the same body parts that day.
The applicant said that she subsequently consulted he general practitioner (GP) Dr Osman in about March 2020, and was given treatment and referred to Dr Baba.
The applicant described her treatment, including with Ms Li, hand therapist. She also described the onset of restrictions of movement in her left arm due to pain.
Dr McGlynn
Dr McGlynn, hand, plastic and reconstructive surgeon, provided two reports dated
8 February 2024 and 25 October 2024 to the applicant's solicitors.In his report dated 8 February 2024, Dr McGlynn noted a history of injuries to her left upper limb in a fall at work. He noted treatment, and referral to Dr Baba and to a hand therapist. He noted report of a healed fracture and satisfactory alignment. He noted hand therapist report of reduced left hand grip strength and right hand hypersensitivity. He noted chronic left hand pain and referral to Dr Ramachandran and pain management.
Dr McGlynn diagnosed fracture of the left hand fourth metacarpal, neuropathic pain in the left hand and consequential left shoulder injury due to rotator cuff tendinitis and subacromial/subdeltoid bursitis.
In his subsequent report, Dr McGlynn noted that neuropathic pain is caused by nervous system injury. He was of the opinion that the applicant’s “hand pain is due to injury to minor sensory nerves in the left hand caused by the workplace incident”. He stated that the neuropathic pain in the left hand was “a primary physical injury caused by acute trauma”. He stated that this was “due to injury to minor branches of sensory nerves in the [left] hand caused by the trauma of the fall at work”.
Having considered that painful hand conditions can cause shoulder pain and restriction of movement, for reasons including reduced movement, which in some case causing frozen shoulder, or “neurological association”, Dr McGlynn was of the opinion that the left shoulder condition was consequential to the left hand injury.
Dr McGlynn was of the opinion that neuropathic pain in the left hand is a primary physical injury caused by acute trauma and was due to injury to “minor branches of sensory nerves” in the “right hand” [sic] “caused by the trauma of the fall at work”.
He was also of the opinion that “the reduced range of movement of left wrist, elbow and shoulder joints is due to chronic pain in her left upper limb which is exacerbated by movement of wrist, elbow and shoulder joints. This is due to the neuropathic pain condition”.
In his report dated 23 May 2024, Dr McGlynn stated that “neuropathic pain in the left hand is a primary physical injury caused by acute trauma. It is due to injury to minor branches of sensory nerves in the right hand caused by the trauma of the fall at work.”
He also stated that:
“Painful hand conditions can cause shoulder pain and restriction of shoulder movement. This may be due to reduced movement of the shoulder because of the painful and condition. Or it could be due to a neurological association. It is relatively common to see patients with significant hand pain develop shoulder pain restricting movement and, in some cases, causing frozen shoulder. On the balance of probabilities, the left shoulder condition is consequential on the injury to the left hand…Her left shoulder condition is a consequential secondary injury caused by chronic pain in the left hand.”
He was of the opinion that “the reduced range of movement of left wrist, elbow and shoulder joints is due to chronic pain in her left upper limb which is exacerbated by movement of wrist, elbow and shoulder joints. This is due to the neuropathic pain condition.”
Dr Ridhalgh
Dr Ridhalgh, orthopaedic surgeon, provided reports to the respondent dated 31 May 2022 and 23 May 2024.
In his report dated 31 May 2022, Dr Ridhalgh recorded a history that on 6 March 2020 the applicant slipped backwards awkwardly onto her left side and injured her hand, wrist and elbow. He noted a diagnosis of left hand fracture. He noted treatment and satisfactory bone healing. He also noted continuing symptoms in the left hand, as well as onset of right shoulder symptoms commencing several months after the fall and also problems with the left elbow with pain. He noted that the left elbow was initially painful with home physiotherapy and that the applicant felt that she did too much with the elbow.
Dr Ridhalgh noted investigations, including an ultrasound of the left shoulder and elbow of
16 February 2021 which was said to show rotator cuff tendinosis with no tears, subacromial subdeltoid bursitis and normal elbow. He noted an MRI of the left shoulder of 30 August 2021 which was said to show supraspinatus tendinosis and subacromial bursitis. He noted inconsistency with reported symptoms.He noted that there was severe weakness in the shoulder and the hand which in his view was not consistent with the pathology that was present on the imaging.
He was of the opinion that the left shoulder and elbow joints were not injured during the fall as complaint to her doctor on the day after the injury was of hand symptoms only and shoulder and elbow symptoms developed months after. He was of the view that the shoulder and elbow symptoms were unrelated to the original physical injury. He was of the view that the symptoms were exaggerated “when aligned with the underlying pathology”.
In his report of 23 May 2024, Dr Ridhalgh noted a further history that the left shoulder was now affected with pain and stiffness and burning and that this was of gradual onset and the applicant could not use shoulder at all. He noted that in respect of the left elbow this had come on two months previously and the applicant was unable to bend, straighten or use the elbow. He noted that the applicant said that her left hand was now locked and she had a claw like hand and could not extend her fingers.
Dr Ridhalgh used a healed metacarpal fracture of the left hand with severe psychiatric overlay. He was of the opinion that the relationship of ongoing symptoms and the injuries and history described were not related.
Dr Ridhalgh noted the opinion of Dr McGlynn, particularly the opinion that the applicant had subacromial bursitis and rotator cuff tendonitis, which Dr Ridhalgh thought “must be based on the report of the ultrasound from three years ago, and that Dr McGlynn did not otherwise explain how he came to this diagnosis. Dr Ridhalgh was of the view that “the value of using ultrasound for shoulder diagnosis is low” and that it was “rare to find a shoulder ultrasound which does not report subacromial bursitis and supraspinatus tendonitis”. He disagreed that employment was a substantial contributing factor as in his view there was no pathology in the left shoulder and “findings of bursitis in her shoulder on an ultrasound are almost meaningless”.
In respect of Dr McGlynn’s assessment of whole person impairment of the left upper extremity, Dr Ridhalgh was of the opinion that “any measurements are not reliable and certainly not pathological” in the presence of abnormal illness behaviour and posturing”. It was over the view that Dr McGlynn did not provide any diagnosis in relation to what was causing the problems with the joints themselves.
He criticised the opinion of Dr McGlynn for apparently basing his opinion on the ultrasound of three years previously on the basis that there is a low value in using an ultrasound in shoulder diagnosis. Dr Ridhalgh was also of the opinion that Dr McGlynn failed to recognise abnormal illness behaviour, generally with respect to presentation.
Dr Ridhalgh also discussed the left ulnar nerve, and was of the opinion that the ulnar nerve condition did not result from the left hand injury. He was of the view that the applicant's left wrist and left elbow was unrelated to the subject injury.
Dr Baba
Dr Baba was the treating orthopaedic surgeon in respect of initial treatment for the left hand metacarpal fracture. It is not controversial that Dr Baba treated the applicant only for the metacarpal fracture, and that there was no history recorded by him in relation to the applicant's left wrist, elbow or shoulder.
Dr Ramachandran
Dr Ramachandran was the applicant’s treating pain specialist. His qualifications included Director of Pain Medicine, Westmead Hospital, Senior Clinical Lecturer, Sydney University, and Examiner Faculty of Pain Medicine, Westmead and Nepean Hospitals.
In his initial pain assessment report dated 13 August 2021 to the treating general practitioner, Dr Osman, Dr Ramachandran noted a “pain oriented problem list” as follows:
“1. Chronic neuropathic pain syndrome.
a. Left hand - traumatic left fourth metacarpal fracture.
2. Secondary shoulder dysfunction - adhesive capsulitis.
3. Work-related injury.”
He noted the applicant’s “pain presentation” as:
“Mrs Khawla Abbulughud presents with a work-related injury that she sustained in March 2020. She reports she is a swimming instructor and sustained the injury whilst at work. She reports an incident where she was walking after completing her classes and slipped landing on an outstretched arm. She fell onto her left side fracturing her left fourth metacarpal bone. Subsequent to the diagnosis of a fracture she was immobilised for a period of three months. She did not have any significant pain during this period but had an onset of a pain after removal of the cast and engaged in rehabilitation.
Her range of movement is markedly decreased and pain has significantly flared up since engaging in rehabilitation. She has ongoing pain despite appropriate hand therapy and currently presents with neuropathic symptoms.”
He also noted that “due to the ongoing pain in her left hand, she tends to avoid using that upper limb and has secondary shoulder dysfunction” so that “she may as well have injured the left shoulder as she landed on that side but currently presents with a reduced range of movements in the left shoulder”.
In terms of pain management, Dr Ramachandran noted for education he had explained “in terms of who having ongoing neuropathic pain from injury to ongoing pain due to neurogenic origin” and also “the possibility of having secondary shoulder dysfunction from reduced movements in the left shoulder and also the possibility of injuring the shoulder when she fell on her left side.”
Dr Ramachandran provided subsequent treating reports in respect of further treatment and review, including review of scans and investigations.
Dr Osman
Dr Osman, treating general practitioner, provided a referral dated 17 May 2021 and a report dated 18 May 2021. He diagnosed adjustment disorder and noted there was no evidence of abnormal illness behaviour or exaggeration. He attributed left elbow and shoulder symptoms to overuse and inflammation arising from injury to the left hand. He noted persistent left hand, elbow and shoulder pain.
Ms Li
Ms Li, physiotherapist and hand therapist, provided treating reports from 12 March 2020.
In her reports, Leslie referred to the right hand, although in terms of diagnosis she noted “L 4th MC Base #”. In my view, Ms Li was referring to the applicant's left hand in her reports.
In a report dated 12 August 2020, Ms Li noted full extension and flexion of the “right ring finger”, but “she continues to lack strength in her right hand... She also continues to report hypersensitivity across dorsum of right hand, likely due to central sensitisation...” Ms Li also noted fear avoidance behaviours.
Imaging/scans
An ultrasound of the left shoulder and left elbow report dated 16 February 2021, in relation to the left shoulder commented that there was rotator cuff tendinosis, with no tears, and subacromial/subdeltoid bursitis. In relation to the left elbow, it was noted that this was a normal study with no soft tissue injury identified.
A left shoulder MRI dated 30 August 2021 reported clinical details as being “post traumatic neuropathic pain and shoulder rotator cuff injury”. The report concluded that there was supraspinatus tendinosis and subacromial/subdeltoid bursitis.
An MRI of the left wrist dated 30 August 2021 reported the “indication” was “post traumatic neuropathic pain” and commented that no significant abnormality was demonstrated.
A nerve conduction study report dated 24 August 2022 concluded that there was no evidence of any active denervation and the findings were suggestive of a left T1 radicular lesion and clinical and radiological correlation was recommended.
Clinical records
It was not controversial that the clinical records prior to 6 March 2020 did not record any prior neuropathic pain or symptoms in respect of the left hand, wrist, elbow or shoulder. I was taken to a number of entries in those records in relation to left hand, elbow and shoulder symptoms after 6 March 2020. This to my mind was generally supportive of the applicant’s complaints of ongoing symptoms in relation to her left hand, elbow and shoulder.
I was also taken to records in relation to the prescription and use of, and eventual cessation of, Lyrica medication. I am not able to reach a conclusion in this regard, other than in respect of the notes of symptoms, as to my mind this requires an expert opinion. However, I did not understand from submissions that this was a determinative matter. In any event, from the clinical records, Lyrica appears to have been prescribed for neuropathic pain from August 2020, while hand therapy was continuing. This is in my view supportive of the applicant’s claim in respect of neuropathic pain.
Reasons
There was no dispute as to injury on 6 March 2020, being a metacarpal fracture of the left hand. The dispute between the parties was whether there was a left hand neuropathic pain condition resulting from injury on 6 March 2020, and the claimed consequential conditions.
There was a suggestion in the respondent’s submissions that, as an adjustment disorder had been diagnosed in early 2021, that is for example the diagnosis by Dr Osman in May 2021, that is support for the view of Dr Ridhalgh, in respect of abnormal illness behaviour, or at least that this was a matter which was either not considered or not supportive of the view of Dr McGlynn.
I do not accept this suggestion, nor the submission that Dr Ridhalgh’s view should be accepted. Dr Osman diagnosed adjustment disorder and did not consider there was evidence of abnormal illness behaviour. Dr Ramachandran provided a succinct and relevant history, and, in my view, he accepted the applicant’s presentation without reference to abnormal illness behaviour or explanation in terms of adjustment disorder. Dr McGlynn similarly accepted the applicant’s presentation. Ms Li’s reference to fear avoidance behaviours did not amount to an account of abnormal illness behaviour, in my view. I do not prefer the opinion of Dr Ridhalgh in this regard.
In relation to the criticism of Dr McGlynn’s opinion that his opinion in relation to the left shoulder was based upon an unreliable ultrasound, I note the findings of the MRI conducted six months later in August 2021 was in similar terms, although not commented upon by
Dr McGlynn. I accept the applicant’s submissions in this regard. In my view, the opinion of
Dr McGlynn was based soundly based, having regard to all of the relevant evidence. I do not accept Dr Ridhalgh’s criticism in this regard.In relation to the nerve conduction study noted above, there was no relevant comment in the expert evidence as to an alternative view as to causation, that is in relation to the thoracic spine, and in my view this study was not sufficiently probative as to the issue before me.
As to causation, there is no dispute that the applicant fell backwards onto her outstretched left hand. There was sufficient force in the fall to result in a fracture in the left hand, as noted above. As described by Dr Ramachandran, the applicant’s hand was immobilised for three months and she noticed the onset of pain after removal of the cast and engagement with rehabilitation. Although more contemporaneous records indicate the period of the cast was closer to six weeks, in my view this was regardless a fair climate for Dr Ramachandran to express his opinion.
In my view the reports and notes of Ms Li support the applicant in relation to the onset of pain. In August 2020 Ms Li reported hand hypersensitivity. This in my view accords with the history recorded by Dr Ramachandran. This history of symptoms is also in accordance with and supports the diagnoses of Dr Ramachandran and Dr McGlynn.
To my mind, if there was any inconsistency between her statement as to immediate pain on injury to her left wrist, elbow and shoulder, which in my view is not established, this is outweighed by the matters noted above.
Dr Ramachandran’s description of the applicant’s pain condition, which to my mind amounts to a diagnosis, was in the respondent’s submission unexplained, such as to the nature and origins of neuropathic pain. In my view, his opinion does have weight and should be accepted. First, Dr Ramachandran is a qualified pain specialist, and it is not necessary for him to “offer chapter and verse” in support of every aspect of his opinion.[1] Second,
Dr McGlynn did provide an explanation in his report of 25 October 2024, which in my view is consistent with the opinion of Dr Ramachandran.[1] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89].
In my view, the explanation for the diagnosis of neuropathic pain and the pain and restrictions in the wrist, elbow and shoulder provided by Dr McGlynn in his report of
25 October 2024 is persuasive. His explanation was consistent with the clinical records, the history noted above, including that of Ms Li and Dr Ramachandran, the circumstances of injury on 6 March 2020, and the opinion of Dr Ramachandran.In relation to the applicant’s left hand, Dr McGlynn diagnosed injury to minor sensory nerves in the left hand as a result of the injury on 6 March 2020. I do not accept the respondent’s argument, based upon the view of Dr Ridhalgh, that the relevant investigations and scans did not show evidence of nerve injury in the left arm, that is to the ulnar nerve. I accept the applicant’s submission that it was the opinion of Dr McGlynn that this was injury to the minor nerves in the hand, as distinct from the ulnar nerve or nerves leading into the hand.
Dr McGlynn’s opinion of 25 October 2024 was not contradicted on the evidence before me, although I note that the respondent’s submission that it was not in a position to provide a response. I accept the opinion of Dr McGlynn.Having regard to the common sense approach to causation[2] with respect to the matters noted above, I find that as a result of the injury on 6 March 2020, the applicant sustained injury to minor sensory nerves in her left hand, resulting in neuropathic pain in her left hand. Based upon the opinion of Dr McGlynn, employment was a substantial contributing factor to that injury. This is an injury within the meaning of s 4(a) of the Workers Compensation Act1987.
[2] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
I have not accepted Dr Ridhalgh’s view as to abnormal illness behaviour, and I have not preferred his opinion as to diagnosis and causation.
In relation to the applicant’s left shoulder, the reports of Dr McGlynn give a diagnosis of tendinosis and bursitis and noted pain and restriction of shoulder movement. I have accepted his view, and I have not accepted the view of Dr Ridhalgh, in this regard. Dr McGlynn’s report of 25 October 2024 also indicates the possibility of a frozen shoulder, although he did not specifically indicate this was the case for the applicant. However, this was consistent with the diagnosis provided by Dr Ramachandran of adhesive capsulitis. Accordingly, I accept the diagnosis of Dr Ramachandran. I have not accepted the opinion of Dr Ridhalgh, based as it was upon a premise of abnormal illness behaviour.
In any event, it is not necessary for the applicant to establish injury to or pathology of the left shoulder. All that is required is for the applicant to establish that the symptoms and restrictions in her left shoulder result from the injury,[3] in this case injury to minor sensory nerves and neuropathic left hand pain. Dr Ridhalgh did not consider this test.
[3] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45].
Having regard to the common sense view of causation,[4] I accept that the applicant sustained restricted movement and pain in her left shoulder resulting from her neuropathic pain in the left hand due to injury to minor sensory nerves in the left hand. I accept the explanation provided by Dr McGlynn in terms of bursitis and tendinosis for the pain and restrictions in the applicant’s left shoulder, and the diagnosis of Dr Ramachandran of adhesive capsulitis. I find that the applicant has sustained this left shoulder condition as a consequence of the injury to her left hand, that is the minor sensory nerves in the left hand and resulting neuropathic pain.
[4] Kooragang.
The same considerations apply to the applicant’s left elbow and wrist. I accept the evidence as to pain and restrictions in movement in her elbow and wrist, as I have done for her shoulder. I accept and find that the pain and restrictions in her left elbow and wrist resulted from the injury to minor sensory nerves in her left hand, and from the resulting neuropathic left hand pain.
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