Benvenuto and Australian Postal Corporation
[2003] AATA 890
•11 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 890
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/1010
)N2003/452
GENERAL ADMINISTRATIVE DIVISION ) Re ANNA BENVENUTO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date11 September 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that:
(1) liability pursuant to section 14 of the Act continues on and from 14 February 2002;
(2) the Applicant is entitled to claim compensation pursuant to section 16, 19, and 29 of the Act, subject to the Applicant providing the necessary supporting documentation;
(3) in relation to section 24 of the Act the Applicant is assessed as having a 10 per cent whole person impairment;
(4) the matter is remitted to the Respondent for assessment and calculation of non economic loss pursuant to section 27 together with calculation of the 10 per cent whole person impairment; and
(5) costs are awarded to the Applicant pursuant to the Tribunal's Practice Direction.
........................................
Dr J D Campbell,
Member
CATCHWORDS
WORKERS COMPENSATION - pre-existing degenerative condition - accident at work - continuing symptomatology - aggravation of pre-existing condition - whether continuing symptomatology arises from the aggravation or whether symptomatology arises from the pre-existing condition - liability - permanent impairment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1998
AUTHORITIES
Purkess v Crittenden (1965) 114 CLR 164
REASONS FOR DECISION
11 September 2003 Dr J D Campbell, Member 1. In this matter Mrs Anna Benvenuto ("the Applicant") seeks a review of the following two reconsideration decisions of Australian Postal Corporation ("the Respondent"):
(a) a determination dated 21 May 2002, which affirmed an earlier decision of the Respondent, dated 15 February 2002, to cease liability to pay compensation for injury to the left thumb of the Applicant (N2002/1010); and
(b) a determination dated 23 October 2002 which varied the decision of 21 May 2002 in that liability was denied for any injury to the left thumb or left wrist from 15 February 2002, with such denial of liability encompassing sections of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) namely, 14, 16, 19, 20, 21, 24, 25 and 27 (N2003/452).
2. A hearing was held before the Tribunal on 22 August 2003 at which the Applicant was represented by Mr Gray of Counsel. The Respondent was represented by Mr Kelly of Counsel. The Applicant, Dr Deveridge and Dr Honner and Ms Jill Benvenuto presented oral evidence.
3. The following written material was placed into evidence before the Tribunal:
Exhibit No
Description
Date
T1-105 pp1-194
Documents pursuant section 37 of the Administrative Appeals Tribunal Act 1975 (N2002/1010)
T1-T17 pp1-33
Documents pursuant section 37 of the Administrative Appeals Tribunal Act 1975 (N2003/452)
A1
Applicant's Statement of Facts and Contentions
5 March 2003
A2
Statement Dr Richard Deveridge
6 September 2002
A3
Statement Ms Jill Benvenuto
13 August 2003
R1
Respondent's Statement of Facts and Contentions
17 March 2003
R2
Report Dr Richard Honner
31 January 2003
R3
Report Dr Richard Honner
18 March 2003
R4
Video of the Applicant undertaking activities
6 November 2002
ISSUES
4. The relevant issues in this matter are:
(a) whether or not the Applicant has a compensable injury on and from 15 February 2002, which involves a consideration of whether the effects of a compensable injury to the left thumb sustained in a work-related accident on 15 March 2001, ceased on or before 15 February 2002; and
(b) in the event that the effects of the compensable injury are determined to continue after 15 February 2002, what entitlement to compensation payments does the Applicant have pursuant to sections 16, 19, 24, 27 and 29 of the Act.
LEGISLATION
5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 , in particular sections 14, 16, 19, 24, 27, 29, 62.
BACKGROUND
6. The Applicant suffered an injury to her left thumb and wrist on 15 March 2001. Liability for a left thumb fracture was accepted by the Respondent on 11 April 2001 (N2002/1010 T14). Liability was ceased by the Respondent on 15 February 2002 (N2002/1010 T78). This was affirmed on reconsideration in a determination dated 21 May 2002 (N2002/1010 T99). Claim for permanent impairment to the left thumb arising from the work related injury was made on 17 October 2002 (N2003/452 T12). A further reconsideration by the Respondent was issued on 23 October 2002 denying liability pursuant to sections 14, 16, 19, 24, and 27 of the Act (N2003/452 T13).
APPLICANT'S EVIDENCE
7. The Applicant told the Tribunal that:
· She was born on 20 May 1951 and commenced work with Australia Post in 1981. In 2000, she commenced permanent part-time work at Corrimal Post Office, working three full days per week.
· Prior to 15 March 2001, she experienced no problems or difficulties with her left thumb or wrist, whether at work or at home undertaking housework and/or gardening.
· On the afternoon of 15 March 2001, while serving at the counter, she proceeded to collect a parcel from the backroom, which involved opening a heavy door, the door on opening swinging into the other room. Until the arrival of the new postmaster, the door had been left open, but, according to the Applicant, he insisted that the door be kept closed.
· Having closed the door, she secured the parcel with both hands and went towards the door to again open it before returning to the counter area. She was confronted with a person coming from the counter area suddenly pushing the door open. She dropped the parcel, put her right hand to her face and her left hand out to stop the swinging door. She was struck on the front of her thumb (left thenar area) as she moved backwards to avoid the swinging door. She retrieved the parcel and gave it to the customer.
· She spoke to the postmaster about the incident that afternoon, a Tuesday, and complained to others of feeling a tingling sensation and pain in the area of her left thumb later in the afternoon for which she took two Panadol. On Wednesday, a day that she did not work, the pain continued, as it did on the Thursday, when she returned to work.
· On Monday of the following week, and with the arrival of a new postmistress, she continued to experience soreness in the base of her left thumb, for which she took Panadol tablets.
· On 2 April 2001, she completed an incident report and visited her general practitioner, complaining of soreness at the base of her left thumb. At this stage, she was experiencing difficulty in doing things at home and was receiving help to do some things.
· The general practitioner referred her to Dr Scougall, a consultant orthopaedic surgeon who referred her for x-rays and a CT scan of the left wrist and physiotherapy, which did not seem to help.
· She remained off work until 7 August 2001, having undertaken a rehabilitation program, during which she learnt alternative mechanisms of coping. At home, she was receiving help to do ironing, cooking and dressing and was experiencing difficulty when having to apply pressure with her left thumb. Although her dominant hand was right, she was unable to hold a potato, cut up an onion, put on stockings and use a hair dryer with a comb. She had a lady help with her housework, and she was given no assistance with her computer.
· When she recommenced on 7 August 2001, she worked for four hours a day three days per week undertaking mainly counter work, with no carrying of bags and her draw taken to the counter. She experienced difficulty in counting money and tearing stamps, but gradually found mechanisms which allowed her to cope with such activities.
· By Christmas 2001, there had been no improvement in the use of her left hand and the pain remained constant.
· By February 2002, she had resumed her normal hours for three days a week, with her compensation being terminated on 15 February 2002 following a visit to Dr Maxwell.
· Consequent to the termination, her difficulties with activities have remained the same. By the end of 2002 there had been no real improvement in the pain, but she was beginning to cope with her disability in a better fashion.
· Since her cessation of compensation, she had continued to work three days a week, but had noticed on some mornings pain moving to her left shoulder and that she had taken sick leave on a few occasions.
· Every day she consumes Panadol, now Naprogesic, Vioxx and Nurofen.
· She copes with work; her husband prepares the dinner; she continues to employ a cleaner at home and continues to experience difficulties opening jars and bottles, taking a tray form the oven, cutting meat and using a hair dryer with a comb. She is able to load the washing machine, hang the washing out and push a trolley with her forearms flexed. Her husband does the major shopping and she is unable to pick up a paper cup filled with water.
8. In response to questions asked in cross-examination, the Applicant stated:
· After the accident, she went into the manager's office to tell of the event and seek to complete the necessary incident report, however, there were no forms available.
· She believed she completed the incident report some two weeks later, following the arrival of the new postmistress and before she consulted the general practitioner.
· The pain was there all the time, but it did flare up on the weekend prior to seeing the general practitioner - she was unable to remember what she did on that weekend.
· She remains on restricted duties, as she did when she returned to work on 7 August 2001. She acknowledged that, during her rehabilitation program, there was considerable improvement in her ability to cope but no change in her pain level (Rehabilitation Report of 31 July 2001 at N2002/1010 T44) and later an ability to better manage her pain level (Rehabilitation Report of 28 November 2001 at N2002/1010 T63).
· She employed someone to do her housework after she returned to work and that she did not tell Dr Maxwell that she did all her own housework, except to make the beds.
· She has no symptoms affecting the right hand, although she may have experienced some discomfort when using it too much, although she has some difficulty in remembering.
· She had pain up the left arm to the left shoulder on several occasions, commencing May 2001.
· She was off work from 19 to 25 August 2002 (when she received an injection of cortisone) and 5 September 2002.
· She has assistance to do heavy jobs at work, but is able to use her computer.
· She experiences most difficulties outside work and uses a wrist splint on a bad day, but not on social occasions.
· Her main problem is with gripping with her left hand, this activity is causing an increased level of pain. She has constant pain, which is helped by hot water and Nurofen tablets (two to six a day).
· She has no past history of a fall and/or injury to her left wrist, nor does she experience pins and needles in her left hand.
· In response to a video taken of the Applicant on 6 November 2002, the Applicant agreed that it showed her:
-carrying a hand bag in her left hand;
-placing flowers in a container with both hands;
-pushing her hair back with her left hand;
-scrunching up a plastic bag with her left hand;
-carrying a plastic bag containing a magazine with her left hand;
-carrying keys in her left hand; and
-gripping the steering wheel of the car with both hands.
· Despite acknowledging the above activities, she does not believe she is exaggerating her symptoms.
miss benvenuto
9. Miss Benvenuto, the Applicant's daughter, told the Tribunal that, before the incident in March 2001, her mother never complained, that she was an independent person, drove a manual car without difficulty and did everything herself. After the accident, she described her mother as becoming depressed because she was unable to do everything for herself. She observed that her mother became slow, that she could not do the housework, that she became antisocial, that she had trouble changing gears in the manual car and that her father took over the cooking, because she was unable to cope with either hot or heavy objects. Miss Benvenuto stated that her mother employed a cleaning and ironing lady and that she helped by blow drying her mother's hair. She also observed that her mother no longer did any sewing, mending, or big shopping, and that her mother tends to place items on her forearms as the preferred method of carriage.
MEDICAL EVIDENCE
10. An x-ray of the left scaphoid on 3 April 2001 was reported by Dr Margieson, a consultant radiologist, in the following terms (T6, N2002/1010):
"I think there probably is a hairline fracture through the waist of the scaphoid …"
11. A localised bone study was undertaken on 9 April 2001 and this was reported by Dr Arvela, a consultant nuclear physician, in the following terms (T11 N2002/1010):
"CONCLUSION: The findings are most likely those of a fracture of the left trapezium and possible associated chip fracture of the left trapezoid. Severe traumatic arthritis/synovitis could give a similar appearance but this is felt to be less likely given the intensity of activity and the early vascularity."
12. On 10 April 2001, a further plain x-ray of the left thumb was reported upon by Dr Roberts, a consultant radiologist, as follows (T12 N2002/1010):
"There are some degenerative changes in the CMC joint [of the thumb] but no fracture is identified."
13. A CT scan of the left thumb and wrist was reported on 10 April 2001 by Dr Roberts (T12 N2002/1010):
"Degenerative changes are again noted in the CMC joint of the thumb but no fracture is seen in the trapezium or the trapezoid.
Well marked degenerative changes in the pizo-triquetral joints bilaterally are noted."
14. A further plain x-ray of the left wrist and thumb was reported upon by Dr Lazarus, a consultant radiologist, on 24 April 2002 in the following terms (T103 N2002/1010):
"There are mild degenerative changes in the left 1st carpometacarpal joint with osteophytic lipping and slight joint space irregularity. Small subchondral cysts are seen in the trapezium. There are no erosions. The remainder of the thumb has normal appearance. …"
Similarly, an ultrasound of the left wrist on the same day was reported upon by Dr Lazarus as demonstrating a tubular structure, the features of which are consistent with a ganglion of the wrist (T103 N2002/1010).
dr daya - general practioner
15. A report from Dr Daya on 10 May 2001 detailed that the Applicant had an injury to her left thumb. After initial thoughts that the Applicant may have had a fracture of the scaphoid bone, she was confirmed as suffering from osteoarthritic changes and that her main symptom was pain in her left hand (T22 N2002/1010).
ms reid-philip - rehabilitation consultant
16. In an initial consultation dated 8 May 2001, Ms Reid-Philip described the Applicant's history of injury and subsequent events, including use of an orthoplast splint and a recent exacerbation of pain resulting from minimal use in the home. Ms Reid-Philip detailed the Applicant's pain symptomatology, which included, on occasions, full arm pain, which was relieved by rest together with some improvement up to a point, followed by a significant worsening in the two days prior to the consultation (T21 N2002/1010).
17. In a summery of progress report dated 4 June 2001, Ms Reid-Philip states that the Applicant reports a gradual recovery of pain levels, but states that the use of the left hand does aggravate the pain. Ms Reid-Philip also reports that the Applicant's physiotherapist and general practitioner have expressed concern regarding the ease of aggravation reported (T31 N2002/1010).
18. In a summary of progress report dated 27 June 2001, Ms Reid-Philip again states the Applicant is reporting a gradual improvement in pain levels, but she is still only using her hand in a limited way, as she reports increased pain with use (T36 N2002/1010).
19. In a summary of progress report dated 31 July 2001, Ms Reid-Philip states that the Applicant reports considerable improvements in pain levels with increased use of the left hand (T44 N2002/1010).
20. In a summary of progress report dated 29 August 2001, Ms Reid-Philip, while noting that the Applicant has returned to work for four hours a day, three days a week, and that she is managing at work, reported that the Applicant had suffered a set back with exacerbation of pain levels as a result of a home-based exercise program, and that she had reported some discomfort in her right hand following activity, which resolved with rest (T50 N2002/1010).
21. In a further summary of progress report dated 26 September 2001, Ms Reid-Philip states that the Applicant reported an improvement to her pain management as a result of a change in anti-inflammatory medication. Ms Reid-Philip stated that the Applicant reported mild levels of depression associated with the ongoing problems (T56 N2002/1010).
22. In a summary of progress report dated 31 October 2001, Ms Reid-Philip states that the Applicant continues to manage her limited duties with some aggravation of pain (T58 N2002/1010).
23. A summary of progress report on 28 November 2001 by Ms Reid-Philip indicates concern being expressed by Dr Daya as regards to the Applicant's ongoing pain levels, but also reports the Applicant stating a gradual improvement in her ability to manage pain levels, but expressing a concern at her ability to cope if her hours were upgraded prior to Christmas (T63 N2002/1010).
24. In a further report dated 18 December 2001, Ms Reid-Philip states that the Applicant has reported managing duties and pain levels at present, while still remaining on the Stage 1, Return to Work Plan (T69 N2002/1010). A further report dated 29 January 2002 finds the Applicant reporting that she is managing her duties, an upgrade to full hours impending, and a concern that her compensation payments will cease (T74 N2002/1010).
25. In a report dated 27 February 2002, Ms Reid-Philip reports that there had been an increase in the Applicant's pain levels, following some improvement after an intra articular cortisone injection in early February 2002. By the end of the month, the pain levels had subsided (T80 N2002/1010).
26. On 6 March 2003, Ms Reid-Philip completed a final report, indicating that the Applicant continues to report pain in the base of her left thumb and to the wrist. She also noted that the Applicant's claim for compensation was denied on 15 February 2002 (T81 N2002/1010).
dr scougall - consultant hand and wrist orthopaedic surgeon
27. Dr Scougall first examined the Applicant on 5 April 2001 (T8 N2002/1010) and in his report noted that the Applicant detailed that her symptoms were relatively mild initially, although she also described ongoing discomfort on the volar, radial aspect of the wrist. He noted that her pain is aggravated by thumb movements, pinch grip or if the thumb is bumped. His examination revealed the thumb carpometacarpal (CMC) joint is irritable though stable, while pinch grip is painful and pinch strength is reduced to 55 per cent (approximately) of the opposite side. Pain was aggravated by thumb movements.
28. Following report and x-ray scan, Dr Scougall diagnosed a mild osteoarthritis of the thumb CMC joint of the left hand on 10 April 2001, and suggested that the Applicant continue to use the resting splints (T13 N2002/1010). A further review on 18 May 2001 is reported by Dr Scougall (T26 N2002/1010):
"The thumb CMC joint is irritable and tender. Pain is aggravated by grasping and pinching activities."
29. In a follow up report dated 1 February 2002 (T76 N2002/1010), Dr Scougall, in noting that the Applicant continued to describe ongoing pain at the thumb base aggravated by thumb movements, lifting and grasping activities, including opening jars and bottles, reported his examination findings as:
"On examination today the carpometacarpal (CMC) joint of her left thumb is tender and irritable. There is painful crepitus and the joint is unstable."
30. In a report dated 17 April 2002 (T89 N2002/1010), Dr Scougall summarised his earlier reports and concluded that the Applicant has symptomatic osteoarthritis of the basal joint in her left thumb, with symptoms commencing after a work injury. On 24 April 2002, Dr Scougall referred the Applicant to Dr Ng, a consultant occupational physician, for assistance in assessment and return to work issues (T92 N2002/1010).
31. In a report to Dr Daya dated 19 July 2002 (T4 N2003/452), Dr Scougall clarified his opinion, while at the same time commenting on her symptomatic osteoarthritis in her left thumb carpometacarpal (CMC) joint:
"There seems to have been some misunderstanding and I wish to clarify my opinion regarding the cause of her thumb symptoms. In my opinion Mrs Benvenuto has symptomatic osteoarthritis involving the basal thumb joint. This arthritis was visible on X-rays taken soon after her work injury on 13/3/01 and these X-ray changes would have predated the described injury. According to Mrs Benvenuto's description of her symptoms, however, her thumb was asymptomatic prior to that injury.
The injury therefore aggravated a pre-existing condition and caused it to become painful."
32. In a report dated 16 August 2002 (T7 N2003/452), Dr Scougall confirmed that the basal thumb joint arthritis is painful and an ongoing condition.
dr malony - consultant orthopaedic surgeon
33. In a report dated 29 June 2001 (T37 N2002/1010), Dr Malony detailed a clinical history from the Applicant which included an absence of any previous history of left thumb problems and stated that the major medical complaint of the Applicant was one of pain at the base of the left thumb aggravated by active movements. Examination revealed an irritable joint, with no crepitus, but passive rotary movements as being painful. Dr Malony concluded that the Applicant had a post-traumatic acute strain of the basal joint of the left thumb, with minimal changes of a degenerative nature in the basal joint consistent with her age. Dr Malony accepted the Applicant's current complaints to be moderate in severity and gradually improving. Dr Malony considered it to be too early to talk in terms of permanent impairment (T38 N2002/1010).
dr conolly - associate professor of hand surgery
34. In a report dated 12 September 2001 (T54 N2002/1010), Dr Connolly detailed examination findings to include tenderness and swelling and restricted movement of the basal joint of the left thumb. Dr Connolly was of the opinion that the Applicant had an underlying degenerative change to the basal joint of the left thumb prior to the injury at work on 15 March 2001.
dr maxwell - consultant orthopaedic surgeon
35. In his report dated 16 January 2002 (T71 N2002/1010) Dr Maxwell concluded that the Applicant:
· had sustained a direct injury to the region of the thenar eminence;
· had symptoms which were not severe initially, but appears to have developed increasing pain in the first carpometacarpal joint of the left thumb, which has recently improved;
· suffers from mild degenerative changes of the first carpometacarpal joint; and
· was no longer incapacitated for work, with the present disability arising from the underlying degenerative disease, with the work-related aggravation having ceased.
36. In a further report dated 14 May 2002 (T98 N2002/1010), Dr Maxwell stated that the effects of the direct injury could be assumed to have settled over a period of six weeks to two months. Dr Maxwell also stated that it could be agreed that continuing symptomatology could mean continued aggravation, but that this was a difficult question.
dr ng - consultant physician in occupational and musculosskeletal medicine
37. In a report dated 24 April 2002 (T94 N2002/1010), Dr Ng, having detailed a clinical history and examination, gave the following opinion:
"My clinical impression on 24 April 2002 was that Mrs Benvenuto had a straining injury to the CMC joint of her left thumb as the result of the work incident on 15 March 2001 as described above. This had resulted in the early onset of osteoarthritis at the CMC joint of her left thumb. She continued to be symptomatic at the base of her left thumb / wrist and was likely to continue to do so in the future.
I believed [sic] that Mrs Benvenutos' present symptoms and functional limitations in her left hand are likely to be permanent. She is presently happy to continue on her present work duties and gradual upgrade providing that assistance can be arranged so that she would not be required to do the heavy component of her work duties.
dr deveridge - consultant orthopaedic surgeon
38. In a report dated 6 September 2002 (T9 N2003/452), Dr Deveridge detailed the Applicant's history, his clinical findings on examination and the following opinion:
"Your client has ongoing disability with pain, stiffness, weakness and loss of dexterity focused on the base of her left thumb at the wrist joint. The clinical features and diagnostic studies have demonstrated active osteoarthritis with synovitis at the first CMC joint. Whilst arthritis is a constitutional disorder, I consider that in this case it has been materially aggravated and triggered by a significant direct blow at work on 15.3.2001. On the balance of probabilities, residual disability in the left hand is attributable to work injury with Australia Post (Corrimal Post Office). She was unfit for work for the period stated. She has made a graduated return to modified duties. She should be able to continue in this capacity. However she will have to avoid any forceful, sustained or repetitive stress to the base of the left thumb. This would include heavy lifting, forceful pushing, twisting and dragging actions. She would not be able to carry out repetitive fine movements with the left hand. She would not be able to perform constant keyboard work."
39. In a further report dated 6 September (T10 N2003/452), Dr Deveridge concluded that the Applicant had a permanent impairment of 20 per cent pursuant to Table 9.4 - left upper limb function.
40. In oral evidence, Dr Deveridge stated that he based his opinion on the clinical history and continuing symptoms. He considered the underlying condition (osteoarthritis) to be a constitutional condition, which may have remained asymptomatic. He stated that he was unable to predict when symptoms from the underlying condition would have eventuated.
41. In response to questions in cross-examination, Dr Deveridge stated that he considered himself an experienced hand surgeon having been involved in acute trauma for 28 years. He did not think the left wrist ganglion was particularly significant. In relying upon the Applicant's history, he considered that the underlying degenerative arthritis was rendered symptomatic and that such symptoms have been continuous. He did not believe the Applicant to be exaggerating her symptoms, and considered that the remaining disability related to strength of grip and hence the difficulty with cutting meat. He also noted that the Applicant had returned to her full part-time employment of three days a week, there was no complaint of continuing difficulties at work and much had been done by way of rehabilitation to assist her in her work place duties.
dr honner - consltant orthopaedic surgeon, hand and upper limb
42. In a report dated 31 January 2003 (T15 N2003/452), Dr Honner detailed the clinical history of the Applicant and his examination which noted:
· "… slight bony swelling around the carpo-metacarpal joint at the base of the left thumb, stressing this joint causes severe pain and occasional mild crepitus, she is tender to palpation all around the joint, but can oppose the left thumb to all fingers …"
· "[i]n the right hand she has normal sensation with 2-point discrimination to 6mm in all digits, in the left hand she had normal sensation with 2-point discrimination to 6mm in the small, ring and index fingers most of the time but this was slightly variable, she appeared to have reduced sensation in the left long finger with 2-point discrimination to 10mm, but this was variable. In the left thumb the sensory testing showed consistent results, with the two points separated by 6mm, when I touch her with two points she calls it one, and when I touch her with one point she calls it two …"
· use of the Jamar Dynamometer indicated a significant reduction in grip strength in the left hand, although the test could not be completed because of pain around the base of the left thumb.
43. Dr Honner detailed the following opinion:
"(a) It is my opinion that the injury of 15th March 2001 caused a temporary aggravation of the symptoms due to osteoarthritic degenerative changes at the base of the left thumb.
(b) This aggravation was temporary, affecting the pre-existing arthritic condition, it is my opinion that the aggravation has now ceased, and that it would have lasted some six to eight weeks after the initial incident on 15th March 2001.
(c) There would have been a temporary incapacity for work caused by the injury of 15th March 2001, in my opinion, from past experience of treating such cases over many years, that temporary cause of incapacity for work would have ceased over six to eight weeks following the incident on 15th March 2001."
44. In a subsequent letter dated 31 January 2003 (T16 N2003/452), Dr Honner concluded that the Applicant has a ten per cent whole person impairment, none of which is attributable to the Applicant's accident and/or employment. All is attributable to pre-existing osteoarthritic degenerative changes, with the impairment being permanent.
45. In a further report dated 18 March 2003 (Exhibit R3) Dr Honner, having seen the video (Exhibit R4) concludes that there is nothing in the video which would cause him to change his written comments.
46. In oral evidence, Dr Honner considered that the pre-existing osteoarthritis of the left thumb carpometacarpal joint was aggravated by the injury of 15 March 2001, but, in his experience, such soft tissue injuries would have settled after six to eight weeks. Dr Honner considered the Applicant’s presentation to be inconsistent with his clinical findings and, in so stating, highlighted the two point discrimination testing, which produced anomalous results in the left thumb, and the normal function of the use of the left hand as demonstrated in the video. Despite the complaints not being as serious as the Applicant would wish to indicate, Dr Honner state that a ten per cent whole person impairment to Table 9.4 of the Impairment Tables remained, and such impairment was wholly related to the pre-existing osteoarthritis.
47. In response to questions in cross-examination Dr Honner, in noting that there had been no problems with left hand/left thumb prior to 15 March 2001 and that the degenerative changes demonstrated in the x-rays of early April 2001 pre-existed the injury of 15 March 2001, agreed that the incident of 15 March 2001 did trigger the symptoms. However, in the face of continuance of symptoms, it is his experience which allows him to estimate the time at which symptoms arising from the injury would have subsided and symptoms arising from the steady progress of the pre-existing arthritis would have commenced to become the cause of the Applicant's continuing symptomatology. Further, in the absence of any injury on 15 March 2001, Dr Honner estimated that it would have been approximately one year before there would have been onset of symptoms from the pre-existing arthritis.
SUBMISSIONS
applicant
48. Counsel contended that the Applicant had provided a consistent history of the incident and her symptoms over time. Further, Counsel contended that it is evident, and all the doctors agree, that the Applicant suffered from a pre-existing degenerative arthritis of the carpo-metacarpal joint of the left thumb prior to the incident of 15 March 2001. Further, all the clinical opinions nominate that the incident of 15 March 2001 initiated an ongoing symptomatology arising from the Applicant's left thumb and that this continues.
49. Counsel submitted that the ongoing symptomatology was a continuance of the injury process, the injury having created the situation in which the pre-existing osteoarthritis has been made worse. Counsel relies upon the opinions of Drs Scougall, Ng, Deveridge and in part Dr Maxwell for such a contention. At the same time, Counsel contends that Dr Honner's opinion of coincidence between the demise of symptoms from the injury and the emergence of symptoms from the pre-existing arthritis is not congruent with the facts, and is entirely reliant upon Dr Honner's past clinical experience being pertinent to this particular matter.
respondent
50. Counsel for the Respondent contended that the Applicant's history of her symptomatology was not borne out either by the video nor the inconsistencies demonstrated by Dr Honner in his clinical examination. In relation to the latter, Counsel contended that there was a degree of exaggeration in the Applicant's presentation of her clinical symptoms, as demonstrated by the two point discrimination testing and her not fully gripping during Dr Honner's clinical examination.
51. In relation to the video, Counsel submitted that the Applicant was clearly observed handling a vase with both hands, brushing her hair back with both hands, gripping the steering wheel of the car with both hands, holding keys in her left hand, screwing up a plastic bag with both hands and carrying a plastic bag with contents with her left arm. All of these activities would indicate, in Counsel's contention, that the Applicant had a greater residual capacity to use her left hand then the Applicant would wish to portray, particularly when she indicated difficulty in picking up a paper cup with her left hand during the hearing.
52. Counsel also drew attention to other symptomatology (pins and needles in the left hand, pain up the left arm and in left shoulder, and pain in right hand) of which the Applicant had complained over time. This, coupled with the Applicant's unwillingness to concede any improvement in her symptomatology to Rehabilitation Counsellor and so documented, is further evidence of the Applicant's inconsistency.
53. In further submission, Counsel contends that any symptomatology arising from the injury of 15 March 2001 had well and truly ceased by the time liability was ceased in February 2002. Any continuing symptomatology was a consequence of the pre-existing osteoarthritis. In so stating, Counsel relied upon the opinion of Drs Honner and Maxwell.
consideration and findings
54. In this matter, the Tribunal has been particular in observing and detailing the history of the incident of 15 March 2001 and the history of symptoms arising and continuing subsequent to that event, as related by the Applicant to a considerable number of treating practitioners and therapists and two consultant specialists for medical legal assessment. The Tribunal accepts and concludes that there is a consistent history of symptom presentation in so far as it related to symptoms (eg pain) that arise from the base of the left thumb. As regarding symptoms relating to pins and needles in the left hand, pain in the right hand on over use and pain in the left arm and left shoulder, the Tribunal, in noting only an occasional reporting of such symptomatology, draws no inference as to what such symptoms may signify, for to do so would be contrary to the probative weight of such material.
55. In addressing the facts in this matter, the Tribunal, in noting opinions of all the consultants, therapists and the treating general practitioner and treating hand surgeon, and all the material in evidence before it, finds the following facts:
· The Applicant was involved in an incident at work on 15 March 2001 in which she put out an extended left arm, striking the palmar aspect of her left hand against a swinging door.
· Prior to this day the Applicant had not experienced any symptoms and /or injury and/or disability in her left upper limb, … hand or thumb.
· The Applicant, at the date of the incident, had a pre-existing degenerative condition, namely osteoarthritis affecting the carpo-metacarpal joint of the left thumb, as demonstrated by radiology and a bone scan in April 2001 and confirmed by the many clinicians involved in this matter.
· The pre-existing condition of osteoarthritis had been asymptomatic prior to the incident of 15 March 2001.
· After the incident of 15 March 2001, the Applicant has complained of a varying intensity of continuing pain at the base of the left thumb and that this continues.
· Clinical examination of the Applicant's left hand and wrist have, in all instances, demonstrated a painful area at the base of the left thumb and a decreased ability to grip using the left hand.
56. The Tribunal, in examining the video exhibit, notes that the video does demonstrate the Applicant using both hands to grip the steering wheel, brush hair back on her head, screw up a plastic bag, carry keys in the left hand and handle a vase with both hands. The Tribunal, while acknowledging that such activities may not be inconsistent with the existing pathology, does comment that such activities seem incongruent with the Applicant's claim that she was unable to hold a paper cup with her left hand during the Tribunal hearing. While the Tribunal is of a mind that there may have been some overstatement by the Applicant of her inability to undertake particular activities because of her disability, the Tribunal is firmly of a view that the Applicant does suffer the symptoms of pain and has difficulty with forceful grasping that has been a constant feature of her history since the incident of 15 March 2001. This is further reinforced, in the Tribunal's view, by the reported findings at all clinical examinations of tenderness at the base of the left thumb and a weakened grasp function with the left hand.
57. The Tribunal, having examined and detailed the many specialist opinions in this matter, acknowledges that the difference between the two groups of opinion essentially surrounds the emergence of symptoms arising from the pre-existing osteoarthritis to account for the continuance of symptomatology, as opposed to the pre-existing condition being made worse by the incident of 15 March 2001, and that symptoms thereafter are a consequence of altered underlying pathology, ie the pre-existing condition has been made worse.
58. Without proceeding to great debate, the Tribunal concludes on the balance of probabilities in this matter that the Applicant's pre-existing degenerative osteoarthritis was made worse as a consequence of the incident of 15 March 2001 for the following reasons:
· The pre-existing degenerative arthritis was asymptomatic prior to the incident of 15 March 2001 and became symptomatic as a consequence of the incident of 15 March 2001, and that this constitutes an injury pursuant to section 4 of the Act.
· The subsequent clinical history of both the Applicant's complaints of pain and her inability to undertake particular activities with her left hand and clinical examination by many specialists that demonstrates a tender carpo-metacarpal joint of the left thumb have been consistent over time, with the exception of some overstatement relating to her grasping ability with her left hand, discussed earlier in this decision.
· While acknowledging the opinions and experiences of Drs Maxwell and Honner, which in essence acknowledge a temporary aggravation of the pre-existing condition for a period of six to eight weeks and a seamless emergence of similar symptomatology from the pre-existing condition, the Tribunal expresses difficulty with such an analysis in that:
§ apart from the clinical experience of the doctor, there is nothing in the material which points to such occurring; and
§ if the symptomatology which is continuing is said to arise from the pre-existing arthritic condition at a point in time (six to eight weeks after the incident), then a change in the underlying pathology must have occurred for the symptoms to appear and continue, particularly when Dr Honner considered that without the incident symptoms may have emerged in a year. In essence, an acceleration at least and at best both an acceleration and/or aggravation of the underlying condition has occurred.
· Dr Honner believes the condition to be a permanent impairment and concludes that this is solely due to the pre-existing arthritis, as does Dr Maxwell. The Tribunal expresses difficulty with this line of reasoning in that such reasoning would appear to accept an asymptomatic pre-existing condition, with no permanent impairment seamlessly moving to a symptomatic continuing condition with a permanent whole body impairment as a consequence of time and with an injury episode to the same joint having no relevance (apart from a temporary aggravation) in subsequent permanent impairment.
· The opinions of Dr Scougall, Ng and Deveridge acknowledge an asymptomatic condition becoming symptomatic as a result of an injury and that, with a continuance of symptoms over time, any temporary aggravation must be seen as a permanent aggravation, for essentially it is more likely than the seamless emergence of continuing symptoms arising from the pre-existing condition. Indeed, there is nothing other than clinical opinion pointing to such a seamless emergence, with the nominated clinicians accepting the presenting clinical history and examination as evidence of an aggravation of the pre-existing arthritic condition.
59. As a consequence of the Tribunal's findings that the incident of 15 March 2001 resulted in an aggravation to the Applicant's pre-existing osteoarthritis of the carpo-metacarpal joint of the left thumb and that symptoms arising from this aggravation are continuing, the Tribunal determines that ongoing liability pursuant to section 14 of the Act continues on and from 14 February 2002.
60. In addressing incapacity payments pursuant to section 19 of the Act, the Tribunal, being satisfied that the Applicant does experience ongoing incapacity, finds that the Applicant is entitled to claim incapacity payments for any relevant periods of incapacity prior to recommencing her three full days permanent casual employment after the injury and for any periods of incapacity arising thereafter, provided that in both circumstances there is documented medical opinion to support the period of incapacity claimed.
61. The Tribunal acknowledges the opinions of both Drs Deveridge and Honner in so far as a finding of permanent impairment in this matter, and concludes that the Applicant does have a permanent impairment of the carpo-metacarpal joint of the left thumb.
62. The Tribunal notes the two assessments and their respective reasoning. The Tribunal, mindful of its earlier concerns as to some overstatement of difficulties experienced by the Applicant as a consequence of her impairment, concludes that the appropriate rating is ten per cent pursuant to Table 9.4 of the Impairment Tables. In this regard the Tribunal prefers the opinion of Dr Honner as he had opportunity to view and comment on the video, whereas Dr Deveridge had not. Further, the Tribunal is of the opinion that the Applicant is able to use the limb for self care and for grasping and holding, albeit with some weakness, and that pain is expressed at the base of the left thumb in activities involving left thumb movements, thus causing difficulty with digital dexterity.
63. In summary the Tribunal concludes that the Applicant is successful in her appeal and, accordingly, sets aside the decision under review and in substitution therefor determines that:
(1) liability pursuant to section 14 of the Act continues on and from 14 February 2002;
(2) the Applicant is entitled to claim compensation pursuant to section 16, 19, and 29 of the Act, subject to the Applicant providing the necessary supporting documentation.;
(3) in relation to section 24 of the Act the Applicant is assessed as having a 10 per cent whole person impairment;
(4) the matter is remitted to the Respondent for assessment and calculation of non economic loss pursuant to section 27 together with calculation of the ten per cent whole person impairment; and
(5) costs are awarded to the Applicant pursuant to the Tribunal's Practice Direction.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, member
Signed: C. Gregson
AssociateDate/s of Hearing 22 August 2003
Date of Decision 11 September 2003
Counsel for the Applicant Mr L T Grey
Solicitor for the Applicant Ms N Jones
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Mr G Jones
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