Allatt v Programmed Integrated Workforce Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allatt v Programmed Integrated Workforce Limited [2023] NSWPIC 146
APPLICANT:	Mighalina Allatt
RESPONDENT:	Programmed Integrated Workforce Limited
MEMBER:	John Wynyard
DATE OF DECISION:	6 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Lump sum application regarding a consequential condition to a contralateral wrist; whether deficiencies in statement and medico-legal opinion fatal to the claim; whether clinical notes able to fill evidentiary lacuna; Held – applicant conceded statement and opinion of one expert deficient in explaining when the consequential commenced, or what its cause was; applicant relied on histories taken by various medical and health professionals within the clinical notes; matter remitted for assessment of consequential condition and injury.
DETERMINATIONS MADE:

The Commission finds:

The condition of the applicant’s left wrist is a consequential condition resulting from the injury to the right wrist of 16 July 2018.

The Commission orders:

I remit the matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases:
(a)     Date of injury:                    16 July 2018.
(b)     Matters for assessment:     left upper extremity (wrist and thumb) consequential;
right upper extremity (wrist and thumb), and   TEMSKI/scarring.
(c)Evidence:  Application to Resolve a Dispute and attached documents and Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mighalina Allatt, the applicant, brings a claim for lump sum compensation against Programmed Integrated Workforce Limited, the respondent, in respect of an accepted injury to the right upper extremity and a consequential condition to the left upper extremity, and for impairment caused by scarring under the TEMSKI scale.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant suffer a consequential condition to her left upper extremity?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard by way of video link hearing on 15 February 2023. The applicant was represented by Mr Dewashish Adhikary instructed by Ms Emma Rovey. The respondent was represented by Mr Paul Rickard of counsel instructed by Mr Michael Lee. Ms Renee Swayed appeared for the insurer but was excused when the matter proceeded to arbitration. 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made.

FINDINGS AND REASONS

This matter concerns an unusual injury to the right wrist after one day’s work in a factory.
Ms Allatt developed severe symptoms which have required surgery. Liability was accepted for this injury, but is denied for a later onset of similar symptoms in Ms Allatt’s left wrist. The condition of the left wrist is claimed as being consequential upon the right wrist injury.

Ms Allatt’s statement

Ms Allatt was born in 1959 and commenced work with the respondent according to her statement of 22 June 2022, in or around 2018. She was working 38 plus hours per week as an administration officer. She said from [9]:
“I have worked in varying roles prior to work at Programmed Integrated Workforce.
10. These roles were administrative based.”
She described the injury to her right hand from [20]:[1]
“20. On 16 July 2018, I was working in my usual role and on this occasion I was assigned to factory work, assembling kits for a heater. This involved repetitive work, putting nuts and bolts and other items into a zip lock bag. I was also required to use compressed air drills to drill holes into the vents for the heaters to be assembled.
21. On that day, I worked 7:00 in the morning until 3:30 in the afternoon. I did not have any pain initially, but around midnight, I woke up in agony with pain and swelling in my right hand, and subsequently suffered an injury to my left hand.
22. I underwent surgical intervention by way of right trapezectomy and K-wire fixation on 18 February 2019 and left trapezectomy with K-wire fixation on 4 November 2019. I was recommended further surgery by way of left wrist arthroscopy and debridement although this was denied by the insurer.”
[1] ARD page 2.
She described her disabilities at [25], which can best be summarised as causing a catastrophic impact on her life.
Her condition has caused some difficulty in diagnosis and management by her medical practitioners.

Dr Lai

Dr Min Fee Lai, hand and plastic reconstructive surgeon, gave a medico-legal opinion on
21 December 2020. He took the following history:[2]
“Ms Allatt left school before completion of Year 10. Ms Allatt started work from 1976 to 1980 in various jobs including in the factory, shop, and office. She then married, subsequently had children before returning to workforce in 1985. She worked part time in retail and waitressing till 2004 and then started working in administrative jobs. She worked with Programmed Skilled Workforce (labour hire company) in administrative position prior to being re-assigned to do process work in a factory. After her first day of work at the factory on 16 July 2018, she sustained an injury to her right hand and wrist.”
[2] ARD page 42.
Dr Lai noted:[3]
“While her right thumb was being splinted, Ms Allatt had to use her left hand to compensate for not being able to use her right hand. Not long after she also started to have similar symptoms of pain
and swelling at the base of the left thumb. However, during the early stages it was not as bad as the right side.”
[Dr Lai then described the subsequent right sided trapeziectomy on 18 February 2019]
“Meanwhile the symptoms in her left thumb continued to deteriorate and X-rays revealed that there was also a moderate to severe basal thumb arthritis on the left side…”
[3] ARD page 43.
Dr Lai described the subsequent left sided trapeziectomy of 4 November 2019. He noted that Ms Allatt reported “significant” pain relief but that “not long after” the pain returned. Dr Lai related that an MRI scan revealed that Ms Allatt had a torn TFCC (triangular fibrocartilage complex) and under the management of Dr Dowd she underwent steroid injections, which did not give any pain relief.
Dr Lai advised regarding causation:
“Ms Allatt most likely had asymptomatic bilateral basal thumb arthritis. It is my opinion that following the work incident on 16 July 2018, her right basal thumb arthritis was aggravated causing symptoms of severe pain. While the right thumb and wrist was splinted to alleviate the symptoms, Ms Allatt had to use her left hand increasingly to take on the workload that the
right hand was used to. As a result, she also aggravated her left thumb basal arthritis, left wrist pseudogout as well as tearing her left wrist TFCC.
Therefore, the nature and conditions of Ms Allatt’s employment with Programmed Integrated Workforce Limited can be said to have been the main contributing factor in causing her condition.”

Dr Tim Anderson, occupational physician

Dr Tim Anderson reported on 9 November 2021. He took the following history:[4]
“2 She gives a history of dysfunction, initially of her right hand and wrist and later, her left hand and wrist which started in mid-July 2018. At this assessment she was very grossly dysfunctional with both upper limbs. The left side was a good bit worse than the right.
3. This is a very unusual case. It looks as though Mrs Allatt probably had quite a lot of degenerative changes at the bases of both thumbs in the carpo metacarpal joints. It looks as though she sustained an aggravation of this with only one day of work, although it was very unusual work on 18/07/18. Her major treatment has been surgery to each of these joints with a trapeziectomy. Unfortunately she has subsequently developed a chronic pain condition. This was described as complex regional pain syndrome, although at this assessment she did not have the features to confirm this diagnosis. Nevertheless, both hands and wrists were very dysfunctional.”
[4] ARD page 15.
With regard to Ms Allatt’s work record, Dr Anderson said:
“8. Mrs Allatt has worked over many years in a variety of different occupations. This has included working as a teacher's aide, administration, computer work, accounting and project management. When this event occurred she had been working for a labour hire company and had done about three months of administration work. She was then sent to a factory to carry out a physical job which she had never done before. This seems to have resulted in the start of her current condition. Since then, there has been no further work and no further training for work
….
10. Around mid-July 2018, Mrs Allatt had been working in an administrative capacity. This job eventually finished and she was then tasked to go to a factory and assist with the final packaging and pre-assembly work of heaters. She described that the job was fairly fast and furious at Sealy International. The heaters were wall mounted heaters. She was only there for one day, having started at 7:00 in the morning and worked through to 3:30 in the afternoon. She was loading nuts and bolts into ziplock bags, making boxes and drilling holes using a compressed air drill.”
The history given regarding the onset of the left wrist condition was stated at [12]:
“She reported this situation and it was suggested that she should see the company doctor, Dr Allen. There was no more work. Treatment consisted of analgesics and a referral for physiotherapy. This included splinting of the right hand for about six months. The swelling tended to ease, although the wrist was extremely painful. She then started experiencing similar phenomena in her left wrist.”
Dr Anderson noted that Ms Allatt was treated by Dr Michael Dowd, specialist hand surgeon, who on 19 February 2019 performed a trapeziectomy and stabilisation using a K-wire on her right wrist. Dr Anderson noted that this slightly improved the condition of the right wrist. However, he reported that the left wrist continued to deteriorate and the same surgical procedure was conducted in November 2019, again by Dr Dowd.
After the K-wire had been removed on the left side, Ms Allatt found it extremely painful and from then on, the wrist seemed to deteriorate badly.
Dr Anderson noted that Ms Allatt’s case was reviewed by specialist rheumatologist
Dr Haesung Bak and specialist rheumatologist Dr John Croker. Dr Anderson reported that
Dr Dowd had diagnosed a pseudo-gout condition which had been confirmed by surgical biopsy. There was no improvement in Ms Allatt’s condition and Dr Dowd, suspecting a CPRS condition, referred her to specialist pain management physician, Dr Susan Cartwright.
Dr Anderson noted Dr Cartwright’s opinion that Ms Allatt had developed a severe pain reaction and she had a need for extensive pain management.
Dr Anderson found examination “extremely difficult”. Ms Allatt was wearing protective gloves and soft splints. After these had been removed Dr Anderson found movement of all fingers to be grossly restricted, with some variation. Movement of the thumbs was similarly restricted, although Dr Anderson noted that movement was more satisfactorily maintained on the right side. The cause of the gross restriction, Dr Anderson thought, was the severe pain condition of Ms Allatt’s wrists and hands.
Dr Anderson diagnosed at [22] that the applicant had degenerative changes in both wrists at the thumb carpometacarpal joint. He said:
“22. ……This condition appears to have been quite badly aggravated on only one day of physical work at a factory in mid-July 2018. Initially the right wrist was more affected than the left. Her clinical management was initially immobilisation and attempts at physiotherapy. Later she came under the care of a Hand Surgeon. A trapeziectomy was carried out on each side. Unfortunately, Mrs Allatt has subsequently developed a chronic pain condition. Although the right side was more affected initially, at this assessment the left hand and wrist is much more severely affected than the right. Although there have been some features of complex regional pain syndrome, her current condition, severe though it is, does not have sufficient features for the diagnosis of CRPS.”
As to causation Dr Anderson said at [24]:[5]
“The initial cause of Mrs Allatt's current complex condition was the occasion in mid-July 2018 when she worked at the factory. This is a very unusual case and this type of work would not normally be expected to result in a severe condition like this. Nobody else in the factory had been similarly affected. Nevertheless, it is not so much the job that she was doing in the factory but the effect that this has had on the pre-existing degenerative change of her wrists and the subsequent chronic pain condition which has developed. Although this is technically not CRPS, it is still a severe and very painful condition.”
[5] ARD page 19.
He said further:[6]
“As advised in the main report, it is not so much the job that she did but the fact that this resulted in severe deterioration of a hitherto asymptomatic degenerative state at the carpo-metacarpal joints of each wrist. After the subsequent trapeziectomy procedures, she appears to have developed a severe chronic pain condition which, so far, has been very resistant to clinical management.”
[6] ARD page 19.
Dr Anderson was asked to identify any degenerative condition and advise whether employment had been the main contributing factor in either causing or aggravating that condition. Dr Anderson said:
“4 The most accurate answer I can give to this question is that employment was the initial "trigger" which resulted in her current condition. She has subsequently developed a chronic pain condition. This has followed some of the treatment to try to manage this underlying condition.”
Dr Anderson commented,
“Mrs Allatt was a friendly, cooperative and very pleasant lady. Her husband was of a similar disposition. They are both very worried about this condition, particularly since there has been no obvious improvement over a period of years.”
As to treatment options Dr Anderson thought that her management had followed reasonable and well recognised clinical procedures. He said, “It is particularly unfortunate that she has developed this chronic pain condition. This is completely unpredictable….”

Dr Tony Antoun, injury management consultant

Dr Antoun reported on 4 June 2019 that Ms Allatt did not notice any discomfort whilst she was doing the assembly work in the factory, but that whilst that evening she was preparing dinner and making lunches for the next day, she developed pain in the right wrist and thumb. She also had noticeable swelling.
Dr Antoun noted that Ms Allatt was initially treated by a splint for six months with analgesia, that she changed general practitioners to Dr Martin after three months and that she moved from Albury to Sydney, where she saw Dr Dowd on 1 February 2019. Dr Antoun noted the trapezectomy and that Ms Allatt commenced physiotherapy on 11 February 2019. Dr Antoun said:[7]
“Ms Allatt ….claims now her left hand is sore.”
[7] Reply page 3.

Dr Robin Diebold, orthopaedic surgeon

Dr Diebold reported on 3 November 2020. He described Ms Allatt as a “factory hand” who was injured on her first shift with the Sealey factory. He took a consistent history of the onset of pain after the shift, saying Ms Allatt woke at midnight with significant swelling of the right hand and wrist. He noted the treatment history for the right wrist, including Ms Allatt’s report that the trapeziectomy afforded some significant improvement but no resolution of her symptoms.
With regard to the left wrist, he said:
“Ms Allatt reports that from the time of the initial injury she had some left wrist pain and pins and needles to the radial digits of the left hand.”
Dr Diebold observed that this history was not reflected in any documentation, and that the first formal report was on 15 August 2019, some 13 months after the accident. He reported that
Ms Allatt came to trapeziectomy on the left wrist on 4 November 2019. He noted that Dr Dowd found pseudo gout, and a steroid injection into the left metacarpal joint gave limited relief on 12 February 2020, and none when it was repeated on 5 May 2020. Dr Diebold also noted that a left wrist MRI scan dated 9 July 2020 reported a torn scapholunate ligament, triangular fibrocartilage tear and osteoarthritis of the radio-scaphoid joint and distal radial ulnar joint, with dislocation of the extensor carpi ulnaris tendon.
Dr Diebold noted that Ms Allatt was “somewhat angry” when discussing her injury. He noted that she wore a left wrist splint and held her hand rigidly by her abdomen. Dr Diebold noted overreaction when he examined her wrists, and complaints of superficial tenderness.
Dr Diebold’s diagnosis was of an initial aggravation of right thumb carpometacaral osteoarthritis and a “non-organic pain syndrome”. As to the left thumb, Dr Diebold advised:[8]
“Ms Allatt had significant osteoarthritic change to the carpometacarpal joint at the base of the left thumb. This is a common finding. Dr Dowd felt that clinically this was the likely source of her pain, leading to surgery there.
However, there is no convincing history of significant symptoms being present in the left wrist at the time of her injury on 16 July 2018. … Therefore, there is no rationale by which the workplace aggravated any degenerative process in her left first carpometacarpal joint or wrist joint.
There are no objective signs of swelling, localised tenderness or pathology in the left wrist joint. The MRI findings show a number of chronic low grade findings that are common, and are not consistent with causing the marked level of symptoms present.
There are a number of signs of non-organic pain syndrome present, including overreaction, inconsistency of signs, positive distraction tests, and diffuse superficial tenderness of the left wrist and hand. At the very least, this is the dominant cause of her left wrist pain.”
[8] Reply page 13.
Dr Diebold also advised:
“The evidence is strongly against favouring of the opposite upper limb causing significant stress on the opposing side, so favouring of the right hand is not a valid explanation of left wrist symptoms. The low grade degenerative findings on the MRI scan of left wrist are not consistent with causing the current symptoms. Even if it was thought they were, there is no rationale by which these changes are work related.”
Dr Diebold referred to an AMA publication that concluded there were no credible studies that supported the diagnosis that favouring the opposite limb caused pathology therein.
Dr Diebold considered that the right wrist injury had resolved. He noted Dr Dowd’s diagnosis of pseudo gout in the left wrist, saying that it caused acute inflammation, but was self-limiting. There were no signs of acute inflammation on examination, Dr Diebold observed.
In a further report of 13 April 2022, Dr Diebold reported to his retaining solicitors.[9] Dr Diebold noted on examination that Ms Allatt wore compression sleeves on both hands, and held them immobile by her sides. Dr Diebold said there were “strong” signs of non-organic pain syndrome which he defined as follows:
“1.     Overreaction, including moaning, with all movements of left upper limb including shoulder and elbow.
2.       Diffuse superficial tenderness to even light touch throughout the left hand and wrist.
3.       Positive distraction test. There were some movements of the left upper limb on informal observation which were significantly increased compared to formal testing, where she demonstrated very poor movement. For example, she demonstrated full painless pronation with distraction, but on formal testing of pronation, this was quite limited and painful.
4.       There was non-physiological numbness in the radial two digits of both hands.
5.       There was inconsistency with range of motion demonstrated, unmasked with repeat testing and distraction.”
[9] Reply page 16.

Dr Diebold noted a tremor of the left hand with bilateral wasting of the hands, greater on the left, amongst other observations. He found that there were no trophic changes of skin or nails and no colour or temperature change indicative of CRPS. He diagnosed a “non-organic pain syndrome”. He summed up his opinion by allowing that the right wrist functional disability and impairment was work-related but he said:
“In the left wrist the first formal report of pain was approximately thirteen months after original injury, with X-rays at that time demonstrating moderate to severe carpometacarpal arthritis. The evidence is against overuse of one upper limb causing significant stress or pathology in
the opposite upper limb... There is no plausible rationale by which overuse of the left hand to compensate for the right hand would be a significant contributing factor to aggravation of the carpometacarpal arthritis in this left hand. I cannot identify a plausible rationale by which the left hand condition is related to the one day of work duties from the 16 July 2018.”
Dr Diebold said further:
“The current symptoms and presentation are complicated greatly by non-organic pain syndrome. This is almost totally the cause of the current disability and symptoms, with no identifiable physiological cause for the marked pain and limited motion currently present. However, there are clear signs of minimal use of hands, with significant wasting bilaterally. This is evidence against any element of malingering.”

Clinical notes

The evidence at this point appeared to lack any definition as to when the left wrist/ hand symptoms actually began, or what particular actions caused their onset. Mr Adhikary addressed that lacuna by reference to various health professional reports and notes.
He referred to the clinical noes from the Albury Central Medical Clinic,[10] the Bennet Road Surgery,[11] the Doctors at Lavington[12] and Healthfocus Physiotherapy,[13] scattered amongst which were a series of reports from various medical professionals, including Michelle Van Kesterren, Ms Allatt’s physiotherapist.
[10] ARTD page 277.
[11] ARD page 52.
[12] ARD page 205.
[13] ARD page 232.

Michelle Van Kesteren

Amongst Ms Van Kesteren’s material was a report dated 14 December 2018. She said, relevantly:[14]
“Michelle continues to report left wrist pain due to having relied on the left upper limb for majority of her function….”
[14] ARD page 243.
Ms Van Kesteren’s evidence concerned the period from 24 July 2018 to 9 January 2019. She wrote two further reports after 14 December 2018, dated 7 January and 9 January 2019, in both of which she said:[15]
“Michelle did not report any neck pain or proximal upper limb pain or neurological symptoms early in the injury management period however with prolonged compensation of the contralateral upper limb, Michelle now reports some left sided neck pain which is currently manageable.”
[15] Ard pages 240 and 238 respectively.
Ms Van Kesteren’s reports (there were seven, including one from a locum on 6 August 2018) otherwise recorded complaints and management of the right wrist and thumb. There were no indications of any difficulty in the left wrist in the handwritten physiotherapy assessment notes.

Bennett Road Surgery

In the handwritten Bennett Road Surgery notes the first reference to the left wrist was on
12 July 2019. Insofar as the handwriting could be deciphered, the entry said:[16]
“still c/o signif pain – saw Dr Dowd – may consider a cortisone inject – new certify to ? [indecipherable] neck 4hrs/day 2 days/we -no lifting/ [indecipherable] ® hand
Out now also (l) hand inflammt due to overuse
Plans to move back to Tamworth….”
[16] ARD page 55.

Dr Michael Dowd, plastic, reconstructive and hand surgeon

Amongst the abovementioned clinical notes were also reports from the treating surgeon,
[17] ARD page 63.
Dr Dowd, who wrote 11 reports between 1 February 2019 and 7 January 2020. On 4 July 2019 Dr Dowd reported that Ms Allatt was still tender five months after the trapeziectomy “which is very unusual”. He was unsure as to why her pain was continuing.[17]
On 25 July 2019 he noted complaints of numbness in both hands with “significant arthritis” in Ms Allatt’s left thumb at its base.[18] On 15 August 2019 he noted that Ms Allatt was “very tender over the first CMCJ and her splint is not particularly helpful”. He therefore proposed the left trapaziectomy, capsule repair and K-wire fixation which he carried out on
4 November 2019. He stated prior, on 22 October 2019:[19]
“Mrs Allatt has quite extreme pain and tenderness left base of thumb. This Is due to her osteoarthritis at the 1st CMCJ which Is work-related.”
[18] ARD page 64.
[19] ARD page 67.

Dr Haesung Bak, consultant rheumatologist

Mr Adhikary further relied on records produced by Dr Bak, amongst which was a report dated 3 July 2020. Dr Bak took a history that Ms Allatt usually did admin work, and work as a teacher’s aid, but she worked on this one occasion as a factory. He said relevantly:[20]
“…Because of over-use of the left hand, she had a problem with her left base of the thumb….
….
This is a difficult situation. I do not think her pain symptoms can be fully explained by a pseudogout problem. She does not seem to have an episodic arthritis and her problem seems to be constant and if we cannot identify any specific organic problem, she may have to manage her focussing on pain management….”
[20] ARD page 80.

Dr Cartwright

Mr Adhikary referred to a report from Dr Suzanne Cartwright, pain medicine physician, of
14 May 2021. Relevantly, she said:[21]
“Michelle has fairly significant pain catastrophising and very low pain self-efficacy. She requires significant pain education and we will likely need psychology services in the future as well.”
[21] ARD page 50.
Dr Cartwright also said:[22]
“Meanwhile, the left wrist developed similar symptoms and she progressed to a trapeziectomy on that side. This sounds relaxed [sic], occurred in the context of overuse given the excessive splinting of the right wrist.”
[22] ARD page 51.
Mr Adhikary referred to the WorkCover certificates issued following the injury to the right hand, submitting that they were evidence that Ms Allatt’s complaints were serious so that, as I understood him, it could readily be accepted that Ms Allatt had very little, if any, use of her right wrist following the subject injury.

SUBMISSIONS

Mr Adhikary

Mr Adhikary submitted that the evidence demonstrated that Ms Allatt, who had no prior problems with her wrists, suffered what has proven to be a catastrophic injury to her right wrist, and as a consequence, an equally catastrophic condition to her left wrist arising out of her employment on 16 July 2018.
Mr Adhikary noted that the respondent had accepted liability for the injury, and as I understood him, that acceptance was based on the proposition that Ms Allatt lost all use of her right upper extremity after 16 July 2018. Mr Adhikary had referred to the evidence which supported that assumption, and the respondent has not challenged that proposition, indeed it had accepted liability.
I would accordingly be inclined to accept the applicant’s medical case that Ms Allatt had suffered the same debilitating pathology to the left wrist due to her overusing her left wrist to compensate for the loss of use of her right wrist. Dr Diebold’s opinion was not shared by the other specialists Mr Adhikary had referred to, Mr Adhikary submitted.
Mr Adhikary submitted that the evidentiary lacuna regarding the onset of the left wrist symptoms was filled by the histories taken by the various medical professionals he had referred to. He relied on Guthrie v Spence [23] in submitting that such histories were available which made up for the admitted shortfall in the evidence.
[23] [2009] NSWCA 369.
Mr Adhikary also cited Channa v Zouros[24] in submitting that corroboration was not a legal requirement in civil cases. He argued that the totality of the evidence was sufficient to make out the applicant’s case.
[24] [2011] NSWCA 199.
Mr Adhikary submitted that when proving a consequential condition the bar is not high. There is no need to establish that the employment had been a contributing factor and all that was required was that it be shown that the injury was a material factor in the onset of the consequential condition.

Mr Rickard

Mr Rickard submitted that one would ordinarily expect from the applicant direct evidence as to the nature of the overuse, its extent, its frequency, its duration, an account of its onset and the circumstances under which it arose. This was a reasonable expectation that was informed by the dicta in Kooragang Cement Pty Ltd v Bates.[25]
[25] (1994) 35 NSWLR 452.
Mr Rickard observed that there had been no evidence of that nature from the applicant and that Mr Adhikary had consequently been forced to rely on “bits and pieces of evidence”.
Mr Rickard submitted that Dr Anderson gave no real assistance. It was unclear as to when
Dr Anderson thought the left wrist symptoms began, but his reference to the six months of splinting did not contain any opinion that it was related or that the onset of the left wrist symptomatology was consequential.
Dr Anderson’s view, Mr Rickard submitted, was that it was simply the onset of degenerative process. It could be inferred that Dr Anderson was not supportive of an opinion that the left wrist condition had been consequential. Dr Anderson did not consider the temporal gap between the right thumb/wrist injury and the onset, whenever it was, of the left wrist symptoms.
He submitted that Dr Lai’s opinion could be dismissed as having no weight at all. It lacked any particularity and was no more than mere supposition.
Mr Rickard submitted that Dr Dowd could have assisted the applicant’s case but nowhere in the large number of reports lodged by Dr Dowd was there any support for the left thumb/wrist symptoms being consequential. Indeed there had to be some doubt about the question of an overuse syndrome in view of Dr Dowd’s report which showed good relief by Ms Allatt from the right trapeziectomy. If there was good relief, Mr Rickard said, there would be no need to overuse the left arm. There was no splinting after the right wrist surgery, Mr Rickard said.
Mr Rickard submitted that the applicant’s own case fell short of that necessary to establish a consequential condition, regardless of the fact that the bar was not high.
He relied on his medico-legal specialist Dr Diebold, and the history taken as to the first complaint being on 15 August 2019, some 13 months after the injury.
Mr Rickard submitted that although Mr Adhikary had to rely on “bits and pieces” of the clinical notes, he could still not answer the basic questions Mr Rickard had raised at the commencement of his address, that there was no evidence which explained the circumstances of the onset of the alleged overuse syndrome.

Mr Adhikary in reply

Mr Adhikary in reply repeated that the admitted shortfall in the evidence from the applicant was not fatal to her case in view of the dicta in Guthrie.
He repeated that there is no requirement that there be corroboration for an assertion made, importantly, again relying on Chamaa.
Mr Adhikary submitted the totality of the evidence was more than adequate to make the link between the injury and the onset of the consequential condition.
Mr Adhikary submitted that Mr Rickard’s submission that from February 2019 the splint was no longer needed was incorrect, and that notwithstanding the improvement following the surgery to the right wrist she continued to need the splint.
Mr Adhikary submitted that Dr Lai had said that the applicant was not able to use her right hand. Mr Adhikary asked rhetorically what more would be needed in the light of the totality of the evidence to establish that the left thumb/wrist symptoms were consequential?

DISCUSSION

As was submitted by Mr Rickard and conceded by Mr Adhikary, the statement by Ms Allatt was quite remarkably devoid of what might have been seen as relevant detail. One can quite understand the denial of liability by the insurer. All Ms Allatt said of her left wrist symptoms was “…I subsequently suffered an injury to my left hand”. She did not state:
·        when she suffered this ‘injury’;
·        the circumstances under which she experienced the onset of her symptoms;
·        when that onset occurred;
·        the nature and severity of her symptoms, and
·        how often they occurred.
Similarly, the history taken by Dr Anderson lacked particularity. He simply stated that Ms Allatt “started experiencing similar phenomena in her left wrist” about six months after the splinting of the right wrist. Again, none of the above detail was given.
It is small wonder, therefore, that Mr Adhikary had to rely on the “bits and pieces” of evidence he referred to. The particularity required to satisfy me that all the strands of evidence are present to form the link between the injury and the onset of the consequential condition are simply not given by the applicant or Dr Anderson.
As to when the left wrist manifested itself, Dr Diebold was correct that it had not been hitherto suggested that the left wrist condition was also injured at the time of the right wrist injury, as he recorded the history. Every other account of the onset of Ms Allatt’s left wrist condition was consistent – that it occurred “subsequently”, or “about six months” after the splinting of the right hand, or “not long after”, or after she moved to Sydney in February 2019. Dr Diebold noted that Ms Allatt was angry and it may be that she gave a perfunctory and inaccurate answer, or indeed that Dr Diebold misunderstood what she said.
Mr Rickard relied on Dr Diebold’s assumption that the first formal report of the left wrist condition occurred on 15 August 2019 – presumably a reference to Dr Dowd’s report of the same date. In fact Dr Dowd himself noted earlier on 4 July 2019 that Ms Allatt was complaining of left thumb symptoms, and the clinical notes from the Bennett Road Surgery recorded a complaint of symptoms in the left hand on 12 July 2019. Even so, the earliest date of 4 July 2019 would still have left a temporal gap of almost a year.
Clearly if Dr Diebold was correct, the first record of left wrist symptoms did not occur until 13 months after the injury. Even at 12 months any temporal connection would be attenuated to the point of disbelief. However, in fact the first mention of left wrist symptoms occurred on
14 December 2018, some five months post injury, as Ms Van Kesteren recorded left wrist pain on that date. It is significant that Ms Van Kesteren recorded that Ms Allatt “continues to report left wrist pain”, so that it may readily be inferred that the onset of the left wrist symptoms pre-dated 14 December 2018.
The next unanswered query relates to the cause of the left wrist condition. Ms Allatt herself gave no clue whatsoever - she simply said that she “subsequently suffered injury to my left hand”. Dr Anderson thought that the case was “very unusual” in that the type of work Ms Allatt was doing would not normally be expected to result in a severe right wrist condition. He observed that no one else in the factory had been similarly affected. He thought that the employment was a trigger which resulted in severe deterioration of the carpo-metacarpal joints at each wrist. However, he did not engage with how the left carpo-metacarpal joint became involved.
It is certainly clear that this is a very unusual case, and this had been recognised by the respondent in its acceptance of liability for the injury to the right wrist. The strands of evidence that Mr Adhikary relied on to establish the cause of the left wrist condition were firstly that
Dr Lai thought that Ms Allatt was having to use her left hand to compensate for the loss of use of the right hand whilst it was splinted. He advised that Ms Allatt probably had a bilateral basal thumb arthritis, the right side of which had been aggravated by the employment duties on
16 July 2018. Her consequent use of the left wrist not only aggravated the degenerative basal arthritis there, but caused a tear in the triangular fibrocartilage complex of the left thumb, as well as being affected by pseudogout.
The condition being caused by overuse was also found by Ms Van Kesteren, who in her report of 14 December 2018 (to which I have already referred) also recorded that the left wrist pain was due to “having relied on the left upper limb for majority of her function”. In her two subsequent reports of 7 and 9 January 2019 Ms Van Kesteren referred to the “prolonged compensation of the contralateral upper limb” in the context of neck pain. However her reporting of prolonged compensation applies equally to the left wrist, as it had already been noted by Ms Van Kesteren, and I infer that the left wrist pain was also continuing, as it continued and deteriorated over the next year until Ms Allatt came to her left trapeziectomy on 4 November 2019.
Thirdly, the reference in the Bennett Road Surgery of 12 July 2019, referred to above, also indicated that the cause of the left hand inflammation was “due to overuse”.
Fourthly, Dr Bak on 3 July 2020 noted that “because of overuse” Ms Allatt developed a problem with her left thumb.
Fifthly, Dr Cartwright wrote an enigmatic opinion on 14 May 2021, that Ms Allatt’s left wrist symptoms had occurred “in the context of overuse given the excessive splinting of the right wrist”. Dr Cartwright used the word “relaxed” in her opinion, which is reproduced above.
Mr Adhikary was unable to give any meaning to it, and it may just be a typographical error.
Mr Rickard submitted that Dr Dowd indicated that the right wrist trapeziectomy showed good relief, and suggested that the right wrist was accordingly not splinted after the surgery. However, even if the right wrist had not been splinted after surgery, the damage had already been done - Ms Allatt has never had any return of function. Ms Allatt was noted to be in a thumboform brace for 12 weeks as at 24 October 2018[26] and Dr Cartwright noted on
14 May 2021 that Ms Allatt had been in a splint for six months prior to her trapeziectomy on
[26] ARD page 258.
[27] ARD page 51.
11 February 2019.[27]
In any event, Mr Rickard’s submission was predicated on the assumption that Dr Dowd had noted Ms Allatt stopped using the splint. Dr Dowd noted on 21 March 2019 that Ms Allatt would “slowly wean herself off her splint over a week”.[28] However by 4 July 2019 he noted that it was “very unusual” that she should still be tender, and whether Ms Allatt did wean herself off the splint in that time is not clear. The various reports on examination all demonstrated that
[28] ARD page 61.
Ms Allatt posed difficulties. Dr Anderson remarked that examination was “very difficult” and that Ms Allatt was wearing protective gloves and soft splints on 9 November 2021. Dr Diebold, speaking of the left wrist on 28 October 2020 noted Ms Allatt was occasionally teary, and had her left wrist in a splint. On 13 April 2022 Dr Diebold noted on examination that Ms Allatt was wearing compression sleeves over both hands, and that she held them immobile by her sides. He said there had been a significant change in condition since 28 October 2020.
There is accordingly sufficient factual support from the sources I have mentioned to clarify when Ms Allatt first experienced the onset of her left wrist condition. When Ms Van Kesteren made her note on 14 December 2018 I am satisfied that Ms Allatt’s symptoms were by then significant and had been occurring for some little time prior.
As to the cause of the symptoms, the temporal connection does support a finding that it was during the months between the injury and right trapeziectomy when Ms Allatt’s right wrist was splinted that resulted in Ms Allatt overusing her left wrist, and thus triggering the very unusual condition in both wrists.
This cause would also explain the nature of the activities Ms Allatt was doing that led to the onset of her left wrist condition; namely everything she was engaged in that would usually have been performed by her right wrist. It is reasonable that a person whose dominant wrist was splinted would need to substitute as much as possible the use of the contralateral wrist in order to cope. There has not been much comment on the pathology found in the MRI scan which showed a tear in the TFC complex of the thumb, but its existence points to some activity that the thumb was not used to doing, and the explanation for that is that Ms Allatt was overusing her wrist and thumb.

The nature of Ms Allatt’s problems is an illustration of the talem qualem principle that an employer must take a worker as it finds him/her. Ms Allatt has lived an exemplary life. She is married, she has raised three daughters, and there is nothing in the evidence that would suggest that she is the kind of person who would overreact or embellish her condition. Her symptoms are genuine, as was acknowledged by Dr Diebold when he said that there were clear signs of minimal use of Ms Allatt’s hands, which showed bilateral and significant wasting. This evidence, as Dr Diebold fairly stated, was “against any element of malingering”.
I am therefore satisfied that Ms Allatt carried a unique condition in her wrists and thumbs which rendered them susceptible to significant failure when firstly her right wrist was used in a fashion it had not hitherto experienced whilst she was working that one day in the Sealey factory. The left wrist and thumb, when asked to take the workload to compensate for the failure of her right wrist, also failed. There are opinions that the source of some of these disabilities are non-organic, but even the most doubtful of the experts, Dr Diebold, acknowledged that the imaging showed moderate to severe carpometacarpal arthritis.
I am unconvinced by Dr Diebold’s opinion that overuse in the contralateral joint cannot cause symptoms in that joint. I am similarly unconvinced by the publication he referred to. Within this jurisdiction it has long been accepted that such overuse can cause symptoms. Each case however turns on its facts.
In this case, for the above reasons, the applicant has succeeded in showing that her left wrist/thumb condition results from the subject injury and is accordingly compensable as a consequential condition, notwithstanding the regrettable difficulties in proof that both
Mr Adhikary and Mr Rickard referred to.

SUMMARY

I find that the condition of the applicant’s left wrist is a consequential condition resulting from the injury to the right wrist of 16 July 2018.
I remit the matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases:
(a)     Date of injury: 16 July 2018
(b)     Matters for assessment:
(i)Left upper extremity (wrist and thumb) consequential;
(ii)Right upper extremity (wrist and thumb), and
(iii) TEMSKI/scarring.
(c)     Evidence:
(i) ARD and attached documents, and
(ii) Reply and attached documents.

[2023] NSWPIC 146

6 April 2023