Bicanin v JMD Facility Services Pty Ltd t/as Glad Group
[2021] NSWPIC 171
•4 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bicanin v JMD Facility Services Pty Ltd t/as Glad Group [2021] NSWPIC 171 |
| APPLICANT: | Zorica Bicanin |
| RESPONDENT: | JMD Facility Services Pty Ltd t/as Glad Group |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 4 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Dispute as to whether proposed carpel tunnel release surgery and associated treatment was causally related to work-related injury on 27 November 2018; Held- award for applicant having accepted the evidence of the treating hand surgeon. |
| DETERMINATIONS MADE: | 1. That the proposed right open carpel tunnel release followed by formal hand therapy for four to six weeks as recommended by Dr Chris Scott is reasonably necessary treatment as a result of the work-related injury on 27 November 2018. 2. The respondent is to pay the costs of the proposed and associated treatment costs at the applicable workers compensation gazetted rates. |
STATEMENT OF REASONS
BACKGROUND
Zorica Bicanin, the applicant, was employed with the respondent, JMD Facility Services Pty Ltd t/as Glad Group, as a security guard when on 27 November 2018 when she was attempting to move a trolley and sustained injury. In these proceedings Ms Bicanin is seeking $1,305 compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) for a proposed right open carpel tunnel release followed by formal hand therapy for four to six weeks as recommended by Dr Chris Scott.
The respondent’s workers compensation insurer, EML, issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 1 November 2019 disputing liability for the claimed carpel tunnel surgery based on the opinion of Dr Reiter dated 16 October 2019[1]. On 28 April 2020 Ms Bicanin’s solicitors sought an internal review of this decision forwarding further medical evidence for the insurer’s consideration[2]. On 12 May 2020 the insurer issued its review notice maintaining its declinature[3].
[1] ARD p 12.
[2] ARD p 17.
[3] ARD p 18.
The respondent’s counsel confirmed at the arbitration hearing that it did not dispute that Ms Bicanin requires a right carpel tunnel release and the issue is confined to causation, whether the carpel tunnel condition is as a result of the workplace injury on 27 November 2018.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on 28 April 2021. Mr Greg Young, counsel, instructed by Ms Elyse Bonnici, solicitor, appeared for Ms Bicanin, who was present. Ms Kayt Hogan, counsel, instructed by Mr Michael Tremlow, solicitor, and Ms Stephanie Small from the insurer appeared for the respondent. The proceedings were conducted by phone due to the COVID-19 situation.
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 Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the respondent dated 8 September 2020 attaching report of Dr Reiter dated 7 September 2020;
(d) Application to Admit Late Documents filed by the respondent dated 19 October 2020 excepting the report of Dr Breit dated 21 September 2020, which was excluded by the operation of Regulation 44 of the Workers Compensation Regulation 2016;
(e) Application to Admit Late Documents filed by the respondent dated 30 November 2020 attaching various clinical notes;
(f) Medical Assessment Certificate of Medical Assessor Dr Anderson dated 11 March 2021; and
(g) Application to Admit Late Documents filed by the applicant dated 21 April 2021 attaching the report of Dr Min Fee Lai dated 8 April 2021.
Ms Bicanin’s counsel took objection to the respondent relying on reports from two specialists due to the operation of Regulation 44 of the Workers Compensation Regulation 2016. I gave oral reasons upholding the objection and the respondent elected to rely upon the report of Dr Reiter and not that of Dr Breit.
Oral evidence
There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Ms Bicanin is aged 42. She states in around 1983 she was diagnosed with Type 1 Diabetes for which she has insulin injections and medication[4]. Before her injury at work she says she does not recall having any pain or restriction on her right hand, right wrist, right shoulder, left shoulder and neck. She describes the injury on 27 November 2018 when she was moving a shopping trolley to relocate it to an inside trolley bay. She says the trolley was faulty and kept jerking when she tried to move it. She says the trolley wheels seized up as she pushed against the bars and she heard a click/pop in her right shoulder. She states after a few minutes she felt a tingling sensation which ran down her right shoulder into her hand.
[4] ARD p 1.
She says as it was busy, she kept working and when she got home from work her right shoulder was aching badly and her neck was incredibly stiff. She says the next day she informed two senior guards at work of her injury, however, she continued to work relying on her left arm due to the pain in her right shoulder.
On 6 December 2018 she states that she consulted her general practitioner Dr Maheswaran. She says she had a restricted range of movement in her right shoulder and her right wrist was extremely painful and sensitive to touch. She says when she rotated her neck, she would experience an aggravation of pain. She says she was referred to have an ultrasound of her right shoulder. She says she was placed on light duties for a month and a half. She said during her work, when she was walking around, her right arm would just dangle and it put extra pressure on her right shoulder, increasing its pain. She was recommended to wear a sling. She says she could not raise her right arm above her ribs. She was referred for an MRI scan due to ongoing neck pain.
Ms Bicanin says in December 2018 she told her doctor that she had been experiencing paraesthesia and numbness in her right hand following the work injury. She says in her statement that these symptoms would further radiate down her arm and into her hand throughout the day, periodically. She says at night the pain and numbness were especially bad, causing her to constantly wake. She says her right ring finger was extremely stiff and worse than her other fingers. The finger would get stuck repetitively and was locking into a claw like position. Her doctor referred her to Dr Christopher Scott, orthopaedic hand surgeon. Ms Bicanin says she saw Dr Scott in January 2019 and, in her statement, she describes her understanding of the tests undertaken. She says on 16 January 2019 she had a cortisone injection in her right ring finger, which was helpful in reducing her pain however, her finger still remained bent and unable to extend fully.
Around mid-January 2019 she ceased working as there were no light duties for her with the respondent. In February 2019 she commenced physiotherapy for her right shoulder as it had become frozen. She said she saw no real improvement in her symptoms. She consulted Dr Kadir and then Dr Medhat Guirgis, orthopaedic surgeon. She describes suffering debilitating pain in her right hand that ran up to her shoulder and radiated to her neck. She said this was accompanied by waves of numbness which made her apprehensive of using her right arm.
She says in March 2019 she consulted Dr Scott who recommended she undergo surgery for her bent right finger. This took place on 9 May 2019. She said her finger was then no longer stuck but she felt numbness to the tips of her fingers on her right hand. She states that six weeks after the surgery her right hand remained swollen and numb and her grip strength in her right hand was incredibly weak. She says Dr Scott told her she had carpel tunnel syndrome[5]. She says in mid-June 2019 she saw Dr Scott and he found she had hypersensitivity in her right forearm and pain would flare up throughout the day. She says Dr Scott recommended she undergo a carpel tunnel release. She says at the time she was experiencing symptoms in her left shoulder and neck, which she thought was due to overuse as she was using her left arm more due to her right arm problems.
[5] ARD p 6.
Ms Bicanin says she saw Dr Guirgis in September 2019 and she told him since her earlier surgery she had developed unbearable pain and hypersensitivity in her right forearm. But she did not continue with his treatment as the insurer declined his request to undertake nerve tests on her right limb.
She relates that on 18 April 2019 she consulted Dr Tomasevic, general practitioner, and also on 14 April 2020 she told him of her ongoing symptoms such as stiffness in her right shoulder, electric shocks in her right forearm and hand as well as pain in her left shoulder and neck and upper back. At the time of her statement dated 15 July 2020 she was seeing her general practitioner fortnightly, having weekly physiotherapy and she says she started to suffer from depression and anxiety, so she takes anti-depressants and pain killing medication. She states that she wishes to have the carpel tunnel surgery recommended by Dr Scott given hand therapy, physiotherapy and pain medication have not worked. She says she cannot even make her children’s school lunches, drive them places or iron clothes.
Medical evidence
The records of Dr Maheswaran include a consultation on 6 December 2018 in which the doctor records the trolley pushing incident and notes she has pain in the right shoulder and tingling feeling in her hand[6]. On 8 December 2018 the doctor records the presence of severe right-hand pain. On 10 December 2018 right hand weakness and tingling feeling in the 4th and 5th fingers is noted together with right shoulder and neck pain and stiffness. On 13 December 2018 Dr Maheswaran requested an MRI cervical spine scan querying the presence of cervical radiculopathy and referring to severe pain in the right hand and numbness in the fingers. A referral was issued to Dr Mark Rider[7]. On 21 December 2018 the doctor recorded more hand pain after long walking at work. The records go back to 2015 but there is no mention of right hand/arm symptoms before the trolley incident.
[6] Reply pp33-34.
[7] Reply p 33.
There are 259 pages of records available from the Liverpool Hospital Diabetes clinic but there does not appear to be mention of right arm symptoms[8].
[8] Application to Admit Late Documents dated 30 November 2020.
On 7 October 2019 Dr Scott answered the insurer’s questionnaire dated 10 September 2019[9]. He was asked if he considered the diagnosis of carpel tunnel was consistent with the original mechanism of injury of pulling the trolley? He replied “Yes. Zorica described paraesthesia of the entire arm after the injury, indicating some form of neural trauma. This makes the nerves more prone to injury elsewhere along their length (double crush phenomena)”. He says the carpel tunnel syndrome developed due to this phenomena[10].
[9] Reply p 12.
[10] Reply p 13.
On 14 October 2019 Phi Long Huynh, physiotherapist, reported on his treatment of Ms Bicanin including her carpel tunnel symptoms, which he details[11].
[11] Reply p 14.
On 16 October 2019 Dr Reiter, rheumatologist, provided a medico-legal report for the respondent. She took a history of the mechanism of injury, that when Ms Bicanin tried to push the trolley, it jerked repetitively and then she tried to drag it back to where she found it and while doing this she heard a click deep in her right shoulder. Dr Reiter records
“she had no pain in the right upper limb, but she did experience pins and needles affecting the whole of her right upper limb, which only lasted a few minutes… A few weeks after she initially experienced pins and needles affecting her whole right upper limb on 27 November 2018, she started to become aware of intermittent pins and needles, as well as numbness affecting her right hand, which over time increased in frequency and severity.[12]”
[12] Reply p 16.
Dr Reiter recorded that Ms Bicanin said it would cause her to wake, have difficulty gripping such as to do the ironing, holding the steering wheel and trying to cut her daughter’s birthday cake. She records that Ms Bicanin returned to Dr Scott who diagnosed carpel tunnel syndrome and he has advised surgery to decompress the median nerve. Dr Reiter notes that Ms Bicanin has Type 2 [sic, Type 1] insulin dependent diabetes mellitus with diabetic retinopathy and chronic renal failure, but she does not have associated peripheral neuropathy. On examination Dr Reiter found positive Tinel’s, Durkan/’s and Phalen’s signs, with patchy reduced sensation in her median nerve distribution and slight weakness of thumb abduction, which she notes is supplied by the median nerve.
Dr Reiter states that the carpel tunnel syndrome is due to her age, gender and history of insulin dependent diabetes mellitus. She states that
“The nature of the trolley jerking would not have caused her carpal tunnel syndrome. In my opinion the pins and needles that she experienced in her right upper limb that followed her trying to move the trolley that would not move particularly well, was simply
her experiencing the pins and needles due to her own constitutional, underlying carpal tunnel syndrome, as these symptoms will occur with gripping anything, which she was doing when she was gripping the handles of the trolley. She clearly stated that she did not have recurrence of her pins and needles until a couple of weeks later, with it following the expected history of the condition with increasing frequency and severity of symptoms over time, such that now she does require surgical decompression of the median nerve in the carpal tunnel.Carpal tunnel occurs with prolonged use of vibrating tools: e.g. welders, boilermakers, grinders as well as in occupations where there is repetitive tasks requiring repetitive wrist flexion I extension with forceful grip: e.g. slaughterhouse workers, meat boners.
Therefore, the incident that occurred is not consistent with the causes of carpal tunnelsyndrome from the medical literature available.[13]”
[13] Reply p 20.
Dr Guirgis in report dated 29 October 2019 says he differs to the insurer’s view that the median nerve release in the right carpel tunnel is not related to the injury at work sustained by Ms Bicanin. He says the mechanism of injury as described by her indicates there was sudden over-dorsi-flexion of her right wrist which would cause overstretching of the median nerve in its course through the carpel tunnel. He adds that as she has Type 1 diabetes since 1999 causing diabetic retinopathy, diabetic nephropathy and diabetic neuropathy, this would render her median nerve to be more vulnerable to the effects of such over- stretching[14].
[14] ARD p 24.
Dr Scott provided a report dated 26 February 2020 in which he confirmed that when he saw Ms Bicanin in January 2019, she had normal sensation to the hand but provocative tests for carpel tunnel syndrome were positive, with positive Tinel’s sign and Durkan’s sign. The doctor states she also had a strong Tinel’s sign over the ulnar nerve at the elbow, indicating distal sensitisation of both the ulnar nerve and median nerve. He noted she also tenderness over the A1 pulley of the ring finger, consistent with flexor tendinitis. Dr Scott also found she had restricted motion in her right shoulder and passive motion of the shoulder recreated the paraesthesia distally in her arm.
Dr Scott notes that he performed the right ring finger trigger release on 9 May 2019 and six weeks post-operatively Ms Bicanin developed recurrent paraesthesia in the tips of all her fingers of the right hand. He says by 12 weeks she had more or less recovered from the surgery but has ongoing swelling of the entire right hand and constant numbness in the median nerve distribution. Tinel’s and Durkan’s signs were both still positive, consistent with the clinical diagnosis of carpel tunnel syndrome. He recommended a carpel tunnel release[15].
[15] ARD p 28.
In relation to causation, Dr Scott states:
“Zorica did not have symptoms of carpal tunnel syndrome prior to her injury and she had clinical signs of both carpal syndrome and cubital tunnel syndrome at the time of my initial examination. My impression is that she had distal sensitisation of both the median and ulnar nerve as a result of her shoulder injury and that this resulted in secondary carpal tunnel syndrome.
I am not able to link the flexor tendinitis to the shoulder injury but I note that Zorica has had a left ring finger trigger release procedure in the past as well as triggering of her right thumb, which was treated with cortisone injection.”
Dr Scott adds that he believes Ms Bicanin’s carpel tunnel syndrome has been caused by damage to the median nerve as a result of a shoulder injury and that the need for surgery is therefore a direct result of the workplace injury. He notes she did not have symptoms of carpel tunnel syndrome prior to the injury. He says after the proposed surgery she would need four to six weeks of hand therapy and he anticipates she could make a return to work. Dr Scott anticipates that the surgery would give her substantial, if not complete, relief of her swelling, numbness and paraesthesia and she should have normal hand function within eight to twelve weeks of the surgery[16].
[16] ARD p 31.
Dr Min Fee Lai, a general, plastic and reconstructive surgeon has provided a medico-legal report dated 21 April 2020 for Ms Bicanin at the request of her solicitors[17]. The doctor has a history that Ms Bicanin has been a Type 1 Diabetic since she was five years old and is on insulin injections. She also has renal impairment which has caused her to have hypertension.
[17] ARD p 35.
Dr Lai notes Dr Scott’s findings and treatment. Dr Lai’s examination was carried out over video link, but he notes the signs recorded by Dr Scott were classical for carpel tunnel syndrome. Dr Lai expressed the opinion that Ms Bicanin requires a carpel tunnel release and it is a direct result of the workplace injury on 27 November 2018. Dr Lai states:
“My reason is that she has never had any symptoms of right carpal tunnel syndrome prior to the work injury. During the work injury she did hyperextend her right wrist causing extra stretch to her right median nerve which would have sensitised the nerve and in turn contributed to the carpal tunnel syndrome. As a result of her right shoulder injury, she has had limited use of her right shoulder which would have caused increased swelling in her right upper limb. This swelling in her right wrist would also have contributed to her right carpal tunnel syndrome.[18]”
[18] ARD p 41.
On 24 June 2020 Dr Tomasevic referred Ms Bicanin to Professor Murrell and noted in the referral that she had occasional paraesthesia in the first four fingers of the right hand[19].
[19] ARD p 44.
On 3 August 2020 Dr Lai provided a supplementary report[20] in which he discusses the varying opinions about the cause of Ms Bicanin’s right carpel tunnel syndrome as follows:
[20] ARD p 45.
“At the time of consultation Dr Scott confirmed the presence of a trigger right ring finger. He also demonstrated that Ms Bicanin has positive Tinel’s and Durkan’s signs which confirmed that Ms Bicanin did have a median nerve compression at the level of the carpal tunnel. This was despite the fact that Ms Bicanin did not express any symptoms of a right carpal tunnel syndrome at that stage.
Ms Bicanin consulted Dr Medhat Guirgis (Orthopaedic Surgeon) on 29 October 2019. He was of the opinion that the hyperextension of Ms Bicanin’s right wrist at the time of the injury would have caused over-stretching of the median nerve. Because of her type 1 diabetes, Dr Guirgis opined that Ms Bicanin’s right median nerve would have been more vulnerable to the effect of such over-stretching, implying that she would develop a right carpal tunnel syndrome. In my opinion these reasons are plausible.
Dr Christopher Scott also reported on Ms Bicanin’s injury on 26 February 2020. He was of the opinion that Ms Bicanin’s right shoulder injury at the time of the accident would have caused distal sensitisation of both the median and ulnar nerves and therefore made her prone to develop a right carpal tunnel syndrome. Again, it is my opinion that this reason is also plausible.
Ms Bicanin has never had any symptoms of right ring finger triggering prior to the work accident. The repetitive jerking of the trolley while she was hanging on to the handle with her right hand would have caused repetitive impact injury to her right palm and in turn has caused blunt trauma to the A1 pulley of her right ring finger. She may have been prone to developing a right trigger finger because of her past history of left triggering ring finger and thumb. However, developing a right trigger finger following the work accident would have meant that the work accident itself has triggered the development of a right ring triggered finger.
She developed the symptoms of a right carpal tunnel syndrome not long after having a right ring finger trigger release. This would have meant that the surgical trauma in her right hand would have caused swelling in the right carpal tunnel region causing her to develop the symptoms of a right carpal tunnel syndrome. It stands to reason that this sensitisation of her right median nerve as per the reasons espoused by Dr Guirgis and Dr Scott would make her more prone to developing a right carpal tunnel syndrome.
The upshot of this discussion is that Ms Bicanin never ever had symptoms of right
carpal tunnel syndrome prior to the accident. She developed right carpal tunnel
syndrome following the accident and especially after having surgery to her right ring
finger for a right trigger finger (which in my opinion was caused by the accident).
Therefore, as a result of the work accident, Ms Bicanin has developed a right carpal
tunnel syndrome. Therefore, her employment was the main contributing factor to her
developing right carpal tunnel syndrome.”
On 7 September 2020 Dr Reiter provided a supplementary report. Dr Reiter comments that according to Dr Lai Ms Bicanin had hyperextension of both wrists while holding the trolley and Dr Reiter says if this were the cause she would have bilateral symptoms. She adds that the classic hyperextension injury to the right wrist is when someone falls onto an outstretched hand, but this does not cause carpel tunnel syndrome. She adds:
“Hyperextension of the wrist would be more likely to cause an injury to the ligaments in the wrist, in particular the scapholunate ligament. Also, she states that the increased swelling in her right upper limb due to her not using her right upper limb as a result of her right shoulder injury would have caused swelling in her carpal tunnel. I would disagree, as the swelling that occurs when an upper limb is not used is due to fluid accumulating in the subcutaneous tissues and, not in the lining, the synovium of the joint or in the tendons, which would have to occur to cause compression of the median nerve in the carpal tunnel.
Dr Scott is of the opinion that Ms Bicanin's carpal tunnel syndrome has been caused by
damage to her median nerve as a result of her shoulder injury. An injury to the shoulder does not cause an injury to the wrist thereby cause carpal tunnel syndrome.Dr Guirgis is of the opinion that her upper limb symptoms are due to cervical spine injury, in particular C5/C6 nerve root irritation and, therefore she does not have right carpal tunnel syndrome. When I examined Ms Bicanin she definitely had signs and symptoms consistent with carpal tunnel syndrome.
Therefore, I still maintain my opinion stated in my report dated 16 October 2019 that her carpal tunnel syndrome is due to her age, gender and history of insulin-dependent diabetes mellitus. These well-known risk factors have not been taken into account by either Dr Lai or Dr Scott in regards to her carpal tunnel syndrome.[21]”
[21] Application to Admit Late Documents 8 September 2020.
Dr Lai provided a further supplementary report dated 8 April 2021[22]. In this report the doctor adheres to his view on causation and that hyper-extension of the wrist would have caused traction in the median nerve and resulted in swelling in the right hand. Also, he says after surgery swelling would have occurred regardless of diabetic history.
[22] Applicant’s Application to Admit Late Documents.
The Medical Assessor Dr Anderson issued an Assessment of General Medical Dispute Certificate dated 11 March 2021, which is non-binding. He was unable to detect a positive Tinel’s sign at the wrist or elbows. He found sensation to pinprick was slightly reduced in the right hand in the general distribution of the median nerve. Dr Anderson found “I am unable to establish convincing clinical evidence that the right carpal tunnel condition has anything (at all) to do with the event of 27/11/18.” He found a more plausible aetiology was that it was associated with her diabetic state. Dr Anderson categorised the mechanism of injury on 27 November 2018 as being a relatively minor jarring to her right shoulder complex. He noted she has subsequently developed a left frozen shoulder. Dr Anderson says Dr Scott does not specifically describe how the right carpel tunnel is a direct result of the workplace injury on 27 November 2018. He also says Dr Lai finds there was hyper-extension of the right wrist, but he says this is not described anywhere in the documents and was not mentioned by Ms Bicanin at his or others’ assessments.
Relevant legal principles
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[23] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[23] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd[24], whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
[24] [2015] NSWWCCPD 49, Murphy.
Ms Bicanin has the onus of proof to establish that her right carpel tunnel syndrome is as a result of the work place injury. In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[25] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[25] [2008] NSWCA 246, Nguyen.
Submissions
Ms Bicanin’s counsel submitted that there are three reasons arising from the medical evidence demonstrating a causal connection with the workplace injury and the development of right carpel tunnel syndrome.
He submits that the first is that Ms Bicanin was holding her right arm in hyperextension when manoeuvring the trolley and sustained a direct injury to the median nerve. Counsel submits that the evidence from Ms Bicanin in her statement and the medical records support that the injury on 27 November 2018 was traumatic. He argues this is demonstrated by the fact that the right shoulder was dislocated. He relies upon the evidence supporting the proposition that there was direct trauma to the median nerve in the incident.
Secondly, he submits that the trauma in the workplace incident caused injury to the right shoulder with tingling into the right hand and that Dr Scott explained that there is a phenomena called double crush syndrome, meaning injury to the nerve at one point can produce symptoms at another point in the nerve.
Thirdly, Ms Bicanin’s counsel submits that there was swelling affecting the median nerve after the surgery for the right trigger finger. It is argued that the respondent accepted liability for the right trigger finger and paid for the surgery and so the subsequent swelling has caused greater pressure on the median nerve. He argues what has already been triggered by the trauma has been made more symptomatic, that this pressure made the median nerve more symptomatic.
It was submitted that there is not a break in the chain of causation as there were symptoms initially present and then a flare up later with the swelling after the operation.
Ms Bicanin’s counsel referred to Dr Guirgis’s report, to the passage I have summarised above. It is submitted that this passage shows there was trauma to the nerve in the work incident. It is conceded that Ms Bicanin is a female of a certain age and has diabetes. It is argued that even if such a person demographically has a disproportionate incidence of carpel tunnel syndrome, that does not mean that Ms Bicanin’s carpel tunnel syndrome is not related to the trauma she suffered in the work injury. It is submitted that Dr Guirgis supports such a scenario.
Dr Scott’s opinion is also relied upon by Ms Bicanin as he found positive tests for carpel tunnel syndrome. It is argued that this is consistent with Dr Guirgis’s opinion. Ms Bicanin submits that the respondent fails to address why the carpel tunnel syndrome is only right sided. It was submitted that when Dr Scott first examined Ms Bicanin the carpel tunnel signs were present bilaterally, but the tingling was only on the right side.
It is argued that it is important that she did not have carpel tunnel symptoms prior to the traumatic event and Dr Scott finds there was secondary carpel tunnel syndrome. It is submitted that what Dr Scott means by that expression is that there was a double crush syndrome. Counsel drew attention to Dr Scott’s handwritten report to the insurer in which he said that Ms Bicanin had described paraesthesia of the entire arm after the injury, which the doctor found indicated some form of neural trauma. Dr Scott stated that this makes the nerves more prone to injury elsewhere along their length, which he called a double crush phenomena. Counsel submitted that Dr Scott was explaining why the carpel tunnel was as a result of the workplace injury. Ms Bicanin’s counsel submits that Dr Scott clearly finds there was damage to the median nerve in the workplace accident.
It was submitted that the histories about the mechanism of injury to Dr Lai and Dr Guirgis were consistent with her statement that Ms Bicanin’s right arm was in hyperextension when manoeuvring the trolley.
Ms Bicanin submits that if the Commission finds that anyone of the three factors exists, there should be a finding that the workplace incident was the main contributing factor to the development of the carpel tunnel syndrome.
Counsel also referred to Dr Lai’s report dated 8 April 2021 dealing with Medical Assessor Dr Anderson’s opinion and says Dr Lai acknowledges that there is a genetic predisposition because of her gender, age and diabetes to a carpel tunnel condition, but the trauma of the workplace incident, the double crush phenomena and the post-operative swelling have caused right carpel symptoms to come on and flare up.
In relation to Dr Reiter’s opinion, Ms Bicanin’s counsel submitted that she had a history that Ms Bicanin had tingling at the time of the injury and she has classical signs of carpel tunnel syndrome. However, he submits that Dr Reiter has erred when she says that Ms Bicanin did not have recurrence of the tingling until sometime later. Counsel submits that assuming there was constitutional problem, the doctor does not consider if there was aggravation of such a condition by the workplace injury. To show that Ms Bicanin did have ongoing tingling in her right arm, Ms Bicanin’s counsel drew attention to the clinical notes of Dr Maheswaran including a consultation on 6 December 2018 in which the doctor records the trolley pushing incident and notes she has pain in the right shoulder and tingling feeling in her hand[26]. He submits this is consistent with Dr Scott’s finding of neural trauma.
[26] Reply pp33-34.
Furthermore, he submits that on 8 December 2018 the doctor records the presence of severe right-hand pain, and on 10 December 2018 right hand weakness and tingling feeling in the 4th and 5th fingers is noted together with right shoulder and neck pain and stiffness. It was submitted that these entries show the tingling and pain did not go away as assumed by Dr Reiter. He also referred to the clinical entry for 13 December 2018 where Dr Maheswaran referred to severe pain in the right hand and numbness in the fingers and on 21 December 2018 the doctor recorded more hand pain after long walking at work.
Ms Bicanin’s counsel referred to Dr Reiter’s supplementary report. Counsel challenged Dr Reiter’s reasoning that if there was hyperextension why were the symptoms not bilateral. Counsel says the explanation is that the trauma was on the right side, consistent with the injury to the right shoulder and ring finger. In relation to Dr Reiter’s example of classical hyperextension injury in a fall, it was submitted that the doctor does not consider in the instance where there is tingling in the hand at the outset and for some time after, that there was neural damage. It is argued that Dr Reiter only considers what happens generally and she does not properly consider what happened in fact to Ms Bicanin.
It was also submitted that Dr Reiter is a rheumatologist whereas Dr Scott is the treating hand surgeon who is better acquainted with Ms Bicanin’s condition as having seen her on more than one occasion. It is also submitted that the opinion of an orthopaedic surgeon (Dr Guirgis) and plastic surgeon (Dr Lai) have more relevant qualifications together with Dr Scott than a rheumatologist to provide an opinion relating to causation.
Ms Bicanin’s counsel also submits that the Medical Assessor Dr Anderson is an occupational physician and so again the qualifications of the doctors upon which Ms Bicanin relies should be preferred. It was also submitted Dr Anderson is wrong to characterise the trauma in the workplace incident as minor given Ms Bicanin dislocated her shoulder in the incident. Furthermore, he has a wrong history about the onset of the carpel tunnel symptoms, he overlooks that there was evidence of neural damage at the time of the injury and he is wrong to find the carpel tunnel condition only came on after the surgery. It was also submitted that Dr Anderson’s criticism of Dr Scott that he has not provided an explanation is wrong for the reasons outlined above. Counsel also submitted that Dr Anderson’s assertion that he could not find evidence of hyperextension except in Dr Lai’s report is incorrect as Dr Guirgis refers to the same. So, it is argued that Dr Anderson’s opinion is based on incorrect assumptions.
Ms Bicanin’s counsel submits that she has had diabetes since age of five but only developed tingling in the right hand at the time of the workplace injury and so causation should be found in the favour of Ms Bicanin.
The respondent submits just because there was injury to the right shoulder with tingling into the hand does not mean there was carpel tunnel syndrome. Secondly, even though the respondent paid for the right finger surgery the respondent relies on Dr Scott’s opinion that the right trigger finger was not causally related to the work injury. Finally, it was submitted just because there were no carpel tunnel symptoms beforehand does not mean there is a causal connection to the injury.
The respondent submits that the three reasons offered by Ms Bicanin’s case do not support each other and in fact they are inconsistencies in her case and the Commission should not be satisfied that she has discharged her onus of proof.
In relation to Dr Guirgis’s report, it was submitted he did not at the outset take a history of trauma to the right wrist. It was also submitted when he sets out his diagnosis, he does not mention carpel tunnel syndrome, although it was acknowledged in the body of the report the carpel tunnel syndrome was discussed.
In relation to Dr Scott, it was submitted the doctor referred to the shoulder being the injury. Dr Scott does not draw a direct link between the trigger finger and the accident, and he specifically finds she has had trigger finger problems in the past and will have in the future and he says these are unrelated to the work injury. Therefore, the respondent submitted while it may have paid for the ring finger surgery, Dr Scott clearly does not find it was causally related to the injury. It was submitted that this is important as Ms Bicanin offers the swelling after the surgery as one of the causative factors.
Counsel submitted that Dr Lai takes the history that Ms Bicanin started to develop carpel tunnel syndrome after the surgery. It was argued that Dr Lai’s opinion relating to causation is vague and is relying on the fact there were no symptoms before the work injury. It is also significant that Dr Lai does not refer to Ms Bicanin having diabetes. In relation to Dr Lai’s supplementary report it is evident the doctor has misunderstood causation as he says developing right trigger finger after the work accident indicates it was caused by the incident. It is submitted that this is faulty reasoning. In the most recent report of Dr Lai the respondent submits he just states that she has carpel tunnel syndrome, but this is not the issue and the doctor does not deal adequately with causation.
The respondent relied upon the reports of Dr Reiter and it was submitted that unlike Dr Lai, Dr Reiter does deal with diabetes. It is also submitted that Dr Reiter’s opinion is that this type of injury is not consistent with carpel tunnel syndrome. Because Dr Reiter has considered the whole history including the diabetes, it was submitted her report should be preferred. Counsel did acknowledge that Dr Guirgis did consider the diabetes.
In the final report of Dr Reiter, she explains why she disagrees with Dr Scott and Dr Guirgis. The respondent says the opinion of Dr Anderson is highly persuasive. It is argued that the paraesthesia originated from the shoulder and there was not a hyperextension injury of the wrist. It was submitted that there is no clear explanation, just inconsistencies in the applicant’s case. There is no evidence of the dislocation.
In reply Ms Bicanin’s counsel said the treating doctor referred to dislocation and that Dr Anderson referred to a scan suggestive of prior dislocation. Dr Guirgis refers to post traumatic symptoms of impingement.
Determination
In this matter there is divergent medical opinion as to the cause of Ms Bicanin’s right carpel tunnel syndrome. I find weight should be placed on the opinion of Dr Scott. Firstly, he is a hand specialist and so I accept the submission that he has particular expertise in dealing with such conditions. More importantly is that he had the advantage of examining Ms Bicanin within eight weeks of the injury on 27 November 2018. He first examined her in January 2019. I find Dr Reiter for the respondent was not as well placed, as she did not examine Ms Bicanin until about nine months post injury.
A significant factor in Dr Reiter rejecting a causal connection with the evident right carpel tunnel condition and the injury was her understanding of the mechanism of injury and secondly, her reliance on what she states usually causes carpel tunnel syndrome. Dr Reiter says carpel tunnel syndrome occurs with prolonged use of vibrating tools and in occupations where repetitive tasks are performed with repetitive wrist flexion/extension with forceful grip. She states that the incident in which Ms Bicanin was involved did not have these characteristics. But this is not the case advanced by the treating surgeon, Dr Scott.
Dr Scott explains why the carpel tunnel syndrome developed. In January 2019 he found positive signs of a right carpel tunnel problem, he said on his initial examination there were positive Tinel’s and Durkan’s signs. He was of the opinion that there had been distal sensitisation of both the median and ulnar nerves as a result of the shoulder injury. As submitted by Ms Bicanin’s counsel, Dr Scott’s handwritten response to the insurer dated 7 October 2019 specifically addressed the issue of causation. He stated that Ms Bicanin had described paraesthesia of the entire arm after the injury which he said indicated some form of neural trauma. He states this makes the nerves more prone to injury elsewhere along their length, which he termed double crush phenomena. He said the carpel tunnel syndrome developed due to this phenomena. It is important to bear in mind that the median nerve runs from the shoulder to the fingers.
While Dr Reiter acknowledged Ms Bicanin’s history that she initially experienced pins and needles affecting the whole of the right upper limb, the doctor places considerable significance on her understanding that there was then a period of no symptoms and a few weeks later she started to become aware of intermittent pins and needles as well as numbness affecting her right hand.
I accept Ms Bicanin’s counsel’s submission that the clinical notes of Dr Maheswaran are significant because they have entries that on 6 December 2018 she had tingling feeling in her hand, 8 December 2018 severe right hand pain, 10 December 2018 right hand weakness and tingling feeling in the 4th and 5th fingers, 13 December 2018 severe right hand pain and numbness in the fingers and 21 December 2018 more right hand/arm symptoms were noted. I find that these records show that it is more likely than not on the balance of probabilities that there were ongoing symptoms consistent with the median nerve injury that Dr Scott found.
Dr Reiter stated that Ms Bicanin’s experience of pins and needles was due to her own constitutional, underlying carpal tunnel syndrome. The evidence is conclusive that prior to this incident Ms Bicanin did not experience any symptoms in her right upper extremity. While I accept the respondent’s submissions, that just because a worker did not have symptoms before an injury, does not mean symptoms after an injury are due to the injurious event, I find it is one of the factors to take into account.
As was submitted by Ms Bicanin’s counsel, she has had diabetes since the age of five and never in that time, until this incident, did she experience right arm symptoms. I have perused every page in the 259 pages of records from the diabetic clinic at Liverpool Hospital and there is no mention of the same. In Kooragang Kirby P (as he then was) found an event can set in train a series of events. In Ms Bicanin’s case, based on Dr Scott’s opinion, the workplace event did more than that, the trauma involved in the incident subjected her right upper limb to neural damage which has affected her median nerve and she has carpel tunnel syndrome.
I accept that this was not caused by the usual occupational tasks that Dr Reiter describes, but as I have found this is not the case advanced by Dr Scott. All Dr Reiter says about this opinion in her supplementary report is that an injury to the shoulder does not cause an injury to the wrist. She does not seem to consider the doctor’s view about double crush phenomena and the likelihood of there being neural damage. I find that Dr Reiter has not sufficiently engaged with the opinion of Dr Scott and this has caused me, together with the other factors mentioned above, to prefer the opinion of Dr Scott to that of Dr Reiter. He has examined Ms Bicanin on several occasions and gives a reasoned explanation, albeit expressed concisely.
Dr Anderson has provided an opinion, which is not binding on me. It was submitted that his qualifications are not as relevant as that of Dr Scott, which is accepted by me. But this is not the sole reason why I do not accept his opinion. He finds the incident on 27 November 2018 was relatively minor jarring and I find this conclusion has led to him dismiss the scenario advanced by Dr Scott. Dr Anderson also somewhat dismissively says that Dr Scott has not explained the causal connection. However, I have found that Dr Scott has given a considered explanation and it does not appear that Dr Anderson took into account Dr Scott’s handwritten report to the insurer. I acknowledge that Ms Bicanin’s presentation is complicated by the shoulder injury, the query by her doctors as to whether there was radiculopathy from the neck and matters such as the classical occupational causes and risk factors such as age, gender and diabetic condition.
However, Ms Bicanin, as demonstrated by her own evidence, together with that of Dr Maheswaran and Dr Scott, has established that she had symptoms at the time of the injury, and continuing, consistent with median nerve damage. She did not have these symptoms beforehand and I do not accept Dr Reiter’s thesis they came about when gripping of the trolley. I find the more likely scenario on the balance of probabilities is that the trauma of the incident caused median nerve damage which has given rise to the carpel tunnel syndrome.
The matter is also complicated because Dr Guirgis, treating orthopaedic surgeon, considers there was over stretching of the median nerve and her underlying diabetic condition would have made her more vulnerable to such a development. Also, Dr Lai implicates hyperextension of the wrist in the incident and limited use of the right shoulder could have caused increased swelling in the right upper limb which would have contributed to right carpal tunnel syndrome. Furthermore, there is the role played by swelling after the right trigger finger surgery. However, as I have noted above Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
I am satisfied on the balance of probabilities with the cause advanced by Dr Scott that in the incident of 27 November 2018 Ms Bicanin did sustain median nerve damage which has resulted in the need for the carpel tunnel surgery. I find that the work injury did materially contribute to the need for the surgery for the reasons advanced by the treating surgeon, Dr Scott, who I find has been best placed by virtue of his specialisation with these types of injuries, and because he was the first specialist to examine Ms Bicanin and thirdly, the entries in Dr Maheswaran’s records showing ongoing symptoms following the injury. Dr Lai commented that the scenario proposed by Dr Scott was plausible but also, as mentioned, advances additional explanations for the development of the carpel tunnel condition.
Having made the finding accepting Dr Scott’s opinion, it is not necessary to deal further with these other mooted causes of the injury or to consider if the ring finger surgery was injury related.
There is no issue that the type of treatment proposed is reasonably necessary. This was an appropriate concession and the evidence satisfies the factors set out in Diab v NRMA Ltd.[27]
SUMMARY
[27][2014] NSWWCCPD 72.
I find that the proposed right open carpel tunnel release followed by formal hand therapy for four to six weeks as recommended by Dr Chris Scott is reasonably necessary treatment as a result of the work-related injury on 27 November 2018.
I order that the respondent is to pay the costs of the proposed and associated treatment costs at the applicable workers compensation gazetted rates.
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